NEC ECC: Changes to the Works Information following acceptance of a quotation for a proposed change

For the following scenario on a NEC3 ECC : -

  1. The Project Manager issues an instruction for the Contractor to provide a quotation for a change to the Works Information proposed by the Employer/ Project Manager.

  2. The Contractor provides a quotation, but there are some differences between the proposed change and what the Contractor offers.

  3. The Project Manager notifies his acceptance of the quotation, and thus implementation of a compensation event, but no reference is made to which change is to be implemented.

What is the change to the Works Information; the Project Manager’s proposed change or the Contractor’s offer in his quotation?

The difficulty with this situation is that what is written in the proposed CE / actually instructed CE should determine the scope of the change. Although a quotation is required to include details of the assessment, the PM’s acceptance obligations are silent on what the PM should do to review a submitted quotation. It may be that, provided the total value is less than a certain amount, it will be accepted without the PM spending much time looking through the details.

The CE procedure doesn’t allow for a ‘battle of the forms’ type approach and a quotation is the Contractor’s assessment of what the PM has indicated in their notification. Consequently I would suggest that the change to the Works Informatiion is the PM’s ‘proposed change’.

People may say that the PM is not acting in a spirit of mutual trust and cooperation but their primary responsibility is to act as stated in the contract. What, ideally, should have occured is that the Contractor discussed with the PM alternative ways of dealing with the CE (note clause 62.1 doesn’t say who should instigate these discussions). Alternatively the Contractor may submit a quotation themselves, for other methods of dealing with the CE, without such a discussion. Note that in both these instances a quotation which relates to the instructed CE must still also be submitted.

This should not actually happen. When the PM implements a compensation event they should confirm what it is implemented at in terms of confirming the final change to Prices and/or any change to Completion Date.

It also exposes a slight weakness in NEC3 where it was unclear how a clause 61.2 proposed compensation event becomes implemented. This has been refined now in NEC4 with a whole new section 65 which clarifies how long the quote should be produced within, and the fact the PM has to state the date on which the instruction will be given by.

I suggest in your case here talk to each other. Get them to confirm what they are implementing it at, and then decide if you wish to take the matter further - which ultimately will be adjudication.