NEC ECC: Assessment of Compensation Event - Defined Costs – ‘outside time allowed’

Hello All

The situation at hand is as follows and relates to Option C and hope you can assist;

The PM instructed the Contractor to submit a quotation for additional work. The Contractor was late in submitting the CE circa over 8 weeks late. During this period of delay, the Contractor commenced Works and incurred cost through their sub-consultant.

The quote has now been submitted by the Contractor and assessed by the PM at a much lower value. The Contractor is now claiming that he has incurred costs and based his assessment on Defined costs rather than forecast cost.
Q1. Does the Contractor have any grounds to base his quote on defined costs after submitting the quote 5 weeks outside the ‘time allowed’?
Q2. Can the PM firmly close the argument by assessing the quote in accordance with clause 64.1 (1)
“64.1 The Project Manager assesses a compensation event
if the Contractor has not submitted a quotation and details of his assessment within the time allowed”
Q3. Are there any other clauses/solutions that will bring relief to the PM?

It doesn’t really matter what the Contractor claiming - it is about what the contract says. The fact they took so long to do the quote does not change the wording of 63.1 that states that the quotation should be based upon forecast defined cost from the point at which the instruction to change the Works Information was given.

So the answer to your questions are:

  1. no they don’t have grounds to base it on actual cost, although they can if they want but the PM will then make their own assessment as to what would have been a reasonable cost of that event
  2. they can close the argument by stating that they will make their own assessment for a reason stated in clause 64.1 (second bullet point) but also state they will ASSESS it in accordance with 63.1 (which is covered in answer 1 above).
  3. I think these answers above should give the PM the relief they need, but other than that outside of the contract I could suggest yoga, pilates or may be just something alcoholic…