NEC ECC - Clause 64.1 PM Assessing Compensation Events as he will not accept the Contractor's Clause 32 Programmes?

We (the Contractor) are submitting clause 32 programmes as required to the Project Manager every 4 weeks for acceptance. The Project Manager has stopped accepting our programmes stating;

  • it does not show the information which this contract requires,
  • it does not represent the Contractor’s plans realistically.

We believe our programme is robust and also meets the requirements of the contract and are doing everything to meet with the PM to find out exactly why he wont accept our programmes. However, the PM will not meet with us to discuss so we continue to update our programme as required and submit it each month for it not to be accepted.

The Project Manager is changing the Works Information by issuing revised drawings and not raising a compensation event. When we notify the CE under clause 60.1 (1) the Project Manager is accepting the CE but is not requesting a quotation and is advising he will assess the CE himself under 64.1. This means we cannot submit a quotation for any CE’s that we raise.

Our problem is that the Project Manager’s assessments are incorrect as he doesn’t have the information he requires. Also, where he has none of the information available to him (i.e. costs for disconnections, connections and transfers of statutory authority works) he is simply not assessing the event at all.

As we have not been in a position to provide a quotation for the events he is not assessing we cannot issue notices under either Clause 62.6 or 64.4 as we cannot reference a quotation rendering these clauses useless to us.

Question 1 - If the Project Manager has not accepted our latest programme, does he have to assess each CE himself contractually, or can he still ask the Contractor for a quotation? The Project Manager is reading clause 64.1 as though it is something he must do despite the bulk of the compensation events not having any change to Planned Completion.

Question 2 - We are using NEC3 online software which wont allow us to submit quotations as the PM has not requested them. Can we submit our quotations as a general communication so that we can rely on clause 64.4 if he doesn’t assess the CE timeously or at all?

We fully understand our issues are due to the lack of the PM accepting our programmes but he simply will not meet with us to advise us what he believes is wrong with our submissions despite us Instructing him to attend a Risk Reduction meeting pursuant to clause 16.2

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I have assumed that the PM is not giving an instruction (Project Manager’s Instruction) when he/she is issuing the change in Works Information and you are raising notifications under 61.3 and the PM is responding under 61.4 accepting the CE but not requesting a quotation.

Clause 61.4 is clear in that if the PM accepts the matter is a CE he/she is required to instruct a quotation. The response under 61.4 is irrelevant as to whether the latest submitted programme as been accepted or not. The answer to Q1 is, the PM is required to instruct a quotation.

The last bullet point of clause 64.1 refers to the PM assessing the CE if at the time of the quotation being submitted the PM has not accepted the latest programme (for a reason stated in the contract). The PM must therefore wait for the quotation to be submitted or if late refer to the first bullet point of 64.1. However if he/she has not requested a quotation then you can’t be late.

The PM therefore cannot prevent you submitting a quotation and arguably would need to consider the quote in making his/her assessment.

I suggest that you should submit your assessment (as a quotation) as you suggest however you will not be able to invoke 64.4 because technically the PM has not requested a quotation and therefore your submission can’t be regarded as one.

If the PM is not engaging with you over programmes I suspect he/she will not do so over quotations!!

Question 1: the Project Manager is correct in what he is doing given that there is no accepted programme. There is no ‘may’ in clause 64.1, so it is mandatory that the PM assesses the compensation event.

Question 2: You can submit what would be your quotations to the Project Manager as a general communication or by email, but it is not a “quotation” in accordance with the contract. However, the PM, as an “impartial administrator” (I will come back to this) will now have more knowledge and insight into the effects of the compensation event and therefore should take that into account when assessing the compensation event.

However, one could argue - a little idealistically - that if you are submitting a programme as per the contract, he or she would already know one half of the equation in terms of assessing the compensation event i.e. what you were planning to do before the CE, from which the change in resources could be baselined.

You might also wish, in an early warning to the Project Manager (copied into the Employer):

  • e instruct the PM to attend a meeting to discuss the issues and that failure to attend is arguably a breach;
  • remind the PM of the case Costain limited v Tarmac Holding Limited which gives some legal weight to the ‘mutual trust and co-operation’ provision.
  • remind the PM that he is required to be an “impartial administrator in matters of assessment” of CEs “and certification” of payment "and other residual matters (Costain vs Bechtel)
  • and that as an agent of the Employer, an Employer’s breach is a compensation event under 60.1 (18).

Hopefully, the Employer will then tell the PM to stop being an arse and, at the very least, constructively explain his non-acceptance of the programme which 13.3 and 10.1 imply he or she should do.