Clause 61.3 is clear on when a CE should be notified. This doesn’t stop some Parties from not complying and should either side believe they haven’t complied then a dispute can be raised. In that case the Adjudicator will decide upon not the event itself but the compliance with the notification rule and that subsequent decision will presumably dictate whether the event itself will be eventually judged. So non-compliance with clause 61.3 could be seen as a breach.
What would happen in the case of the Project Manager being accused of a breach of clause 65.2? Presumably the Adjudicator has an easy job since either the PM revised a CE assessment or he didn’t, however what if the following scenario occurred:
The Contractor issues a series of CE’s over a period of time which quite clearly are related to one of the Employer’s risks. After let’s say a year and say 12nr incidents, the Completion date and Target price have moved a considerable amount because the last hour of those affected days have been delayed due to the Employer’s risk event occurring. It then comes to light that the Contractor’s personnel have been leaving the job an hour early virtually every day within the last year and continue to do so even though the event that prevented them working no longer occurs. Further there has been no improvement in productivity which makes the PM think there was no real delay on those 12 days in the first place. The risk event that occurred 12nr times is an event that is extremely difficult to evaluate in real time and one must revert to a theoretical calculation based on norms to arrive at a reasonable estimate of lost time and it was the only way we could agree this with the Contractor. The PM is also considering disallowing cost of those one hour periods where the scope was not being delivered when the risk had not occurred citing the 7th bullet of clause 11.2(25).
Now I know this may seem very unlikely for many reasons however it is a real world example and involves remote working, trust, collaboration and working patterns.