NEC ECC: Deemed acceptance under NEC3

A Subcontractor has been instructed to accelerate to a revised Completion Date by their Contractor. The Subcontractor has responded to this instruction via a CE and a quote (impact programme with associated costs). The Subcontractor incorporated this acceleration in their following revised programme. This revised programme was accepted by the Contractor under 31.3, however the Contractor has not responded to the original impact programme which was submitted via a CE in response to the instruction to accelerate. The Subcontractor then provided the Contractor another quote in line with their accepted revised programme against the original instruction. 2 weeks after notification of the original quotation, under Clause 61.4 the Subcontractor raised a notification to remind the Contractor they were yet to provide their assessment of this CE. A following 3 weeks after this notification, the Subcontractor again notified the Contractor they were yet to respond to any of the quotations submitted for the acceleration.

Since it has been more than 3 weeks from when the Contractor has responded to the Subcontractors reminder notification (raised under 61.4) can it be argued that the original quotation submitted via a CE by the Subcontractor is now deemed accepted under Clause 62.6 or was this quotation superseded by the subsequent revised programme and quote?

Assuming there are no Z clause amendments then the completely wrong process has been followed here.

Acceleration is a stand alone process, that does not go through the CE quotation/assessment/implementation process. If the Contractor instructs a quotation for acceleration then the Subcontractor submits a quotation and the Contractor either accepts or “rejects” the quotation. If they reject, nothing happens - Completion Date doesn’t move and nor does the total of the Prices. If the quotation IS accepted, then Completion Date moves forward , they are paid the money but their liability to Delay Damages are now at the earlier date. The quote needs to be agreed before the Subcontractor puts into place the acceleration measures (and if they have that would be at their risk).

As you describe the wrong process has been followed so you need to channel it all back into the correct process I suggest. I don’t think the deemed acceptances are relevant here as they should not have followed that route.

To add to Glenn’s response, there is a problem in the first line of the question.

The Contractor cannot instruct the Subcontractor to accelerate, Clause 36 only allows the Contractor to instruct the Subcontractor to provide a quotation for acceleration.

Following on from this, if the Contractor is not happy with the quotation, there is no provision for the Contractor to make its own assessment of the cost - as Glenn says, the Contractor either accepts the Subcontractor’s quotation or nothing happens.

The reason for this is that there is a legal principle that, having entered into contract to complete the works by a certain date, that date can only be brought forward by AGREEMENT.