NEC ECC: Clause 62.6 Notice Issued and PM Failed to Reply within 2 weeks

NEC3 and NEC4 Contracts Compensation Events
1

We (the Contractor) are working on an NEC3 Option C Contract. The Employer caused delays to the Project by not allowing access to and use of a part of the Site. We issued a CE Notification advising the resultant delay is a compensation event pursuant to clause 60.1 (2).

The Project Manager accepted the CE and instructed us to submit a quotation which we did. After submitting our quotation which included all required details of programme and changes to the Prices, the Project Manager advised he would be assessing the CE himself as he considered we (the Contractor) had not assessed the CE correctly.

Prior to the PM assessing and implementing the CE a meeting was held and the PM verbally requested a further quotation from us which was to take into consideration his views which he gave in the meeting. This is not in writing so was not a formal instruction under the contract pursuant to clause 13.

We are using an NEC3 software tool which wont let the Contractor add any further quotations for the event as the PM has advised he is making his own assessment. We therefore issued the further verbally requested quotation through the NEC3 software tool as a general communication and referred to the verbal request for a quotation given in the meeting.

The PM did not assess the event at all so after several months of chasing via email and other communications we issued a notice pursuant to clause 62.6 and referenced the last quotation which was issued as a general communication rather than the initial quotation within the CE in the software.

The Project Manager ignored the clause 62.6 notice so after the 2 week reply period we wrote again advising the quotation issued as a general communication is now treated as having been accepted by the Project Manager pursuant to clause 65.1 bullet point 3.

The Project Manager replied advising our quotation was unsolicited as he had already advised he was making his own assessment within the NEC3 software tool prior to the meeting where he verbally requested the further quotation.

The Project Manager then went on to implement his assessment of the CE within the NEC3 software tool which we do not agree with.

Question 1 - Contractually, was our quotation submitted as a general communication unsolicited?
Question 2 - Was our clause 62.6 notice valid and is the CE treated as accepted as per our last quotation issued? or
Question 3 - should we have issued the notice under clause 64.4 and referenced the original quotation which would have been the wrong quotation?

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Q1 - technically clause 13.1 requires all communications to be in a form that can be read, copied and recorded, the PMs request was not as as such should not have been complied with. However the PMs claim that your further quotation was unsolicited is false, even though you don’t have written evidence, have you got witnesses that will vouch for you? If so then the PM is in breach of clause 10.1. A lie is a lie is a lie, if this is what’s happened I’d be tempted to report this to the Employer. Otherwise next time, don’t trust the PM (as you have evidence that justifies this position) and advise that you will comply with the “request” (which should be an instruction) when it has been put into writing.

Q2 & 3 - your clause 62.6 notice was unfortunately technically incorrect and should have been a clause 64.4 notice which gives the PM a further 2 weeks to reply, after which the original quotation would have been treated as accepted. The PM has capitalised on your error to his advantage. Your only recourse now is to be able to demonstrate the PM’s assessment is wrong and adjudicate on the matter which, unless there is tens of thousands of pounds at stake, won’t be worth your while.