NEC ECC: Deemed acceptance of CE Quotation outside of time period

We are a Project Manager under an NEC3 ECC Option B contract and the Contractor has submitted several CE quotations but these have not been formally accepted within the 2 week period as per cl. 62.3.

The Contractor did not provide any notification of this failure to respond as per cl. 62.6.

Without any further correspondence on the CE, the Contractors quotation was then accepted some 10 weeks later.

Now 6 months after the CE quotation “acceptance”, the Contractor has now submitted a revised quotation (substantially increased) and claiming that the initial quotation was not contractually accepted and the Contractor is not now bound by any previous quotation submitted.

As PM, we have stated that the quotation once implemented is not revised cl. 65.2.
Having considered the late acceptance as the end of this process, is the Contractor correct to now seek to revisit all CE’s which were not replied to within the correct timeframes.

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You need to ask them what clause in the contract do they think means that a quote assessed and implemented late now means it can be revisited? They wont be able to find one.

Their only remedy if the PM is late in assessing is for the Contractor to notify (in writing) of the lack of response which if ignored for another two weeks would lead to a deemed acceptance. They did not (seemingly) do this, so it just means it would never just be deemed accepted. It sounds as though the PM has gone on to assess and implement by confirming in writing their assessment, all be it later than the contract stated.

The Contractor can go to adjudication if they think the assessment is contractually wrong - but the fact it was assessed late itself makes no difference.

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To extend this question: If the PM has failed to accept the quotation, and the Contractor chooses NOT to notify under 62.6, then does it follow that the quotation is no longer enforceable but could be used by the PM as a basis for their assessment, which, if no longer acceptable to the Contractor (perhaps as a result of cost inflation due to the passage of time) can then be challenged (albeit through dispute resolution) for an alternative change to the prices and programme?

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