NEC ECC: Can time bar principles be applied to accepted CE's?

The Contractor has notified a CE in May’17 and the PM has accepted the CE on the basis that it represented a change to the Works Information (not arising from the Project Manager or the Supervisor giving an instruction, issuing a certificate, changing an earlier decision or correcting an assumption). The Contractor has now submitted their quotation some 4 months later (requests for extension in submitting the quotation was accepted by the PM based on the complexity of the CE and the likely delay to the programme had the PM insisted that a quotation be provided within the standard 3 week period) and have based their assessment on information known to the Contractor back in Dec’16. As the PM has only now become aware that this CE should have been notified earlier than May’17 (within 8 weeks of the Dec’16 date) can he apply the time bar provisions in the contract to assess the impact on the Prices, the Completion Date or a Key Date? In other words can the time bar principles / clauses be applied to accepted CE’s?

Interesting one !

Under NEC4, I would say the Contractor the time bar principle definitely cannot be applied retrospectively as an extra bullet point has been added to clause 61.4, which basically means that if the PM instructs the C to proceed to a producing a quotation, the time bar has passed.

Under NEC3, there is not this provision, but equally there is no express provision saying that it can be applied retrospectively.

However, clause 61.3 effectively says that if the Contractor took more than 8 weeks from becoming aware to notify, then the Prices, Completion Date and any Key Dates are not changed. So it could be argued that, while the PM has instructed the quotation, the quotation should be for zero change.

I presume that the CE actually ‘occurred’ in Dec 16, which is why the matter is being assessed from that date. I suppose one particular issue to determine is the date that the Contractor became aware (or should have been aware) that the matter is a compensation event. Without knowing specific details it would be difficult to comment, but from your question it sounds as though it is not a straightforward issue.

From a procedural point of view, you can’t time bar as a notification has already been made, with the matter accepted by the PM. As Jon says, however, the matter could still constitute a CE but the Prices, Completion Date and Key Dates are not changed.