NEC ECC: Does the period for reply apply to the Contractor as well

NEC3 and NEC4 Contracts Contract Data
#1

Does the period for reply stated in the CD part 1 apply equally to both the PM and the Contractor. I know that specific timescales for response/action for both PM and Contractor are detailed throughout the core clauses - but beyond those, if the PM were to raise a communication with the Contractor (e.g. their interpretation of a contractual process), and the Contractor wishes to state his view (disagreeing with the PM!), are they (the Contractor) required to do so within the period for reply?

I know that cl 60.1(6) deals with the PM/Supervisor not responding within the period for reply, but must the Contractor respond in a timely way (even though there’s no prescriptive sanction)?

1 Like
#2

Yes, see clause 13.3. The Contractor Data should stated 2 periods, one for the PM and 1 for the Contractor.

Whilst no prescriptive sanction, the Contractor would not be acting as stated in this contract and in a spirit of mutual trust and co-operation (clause 10.1) if he did not comply. Its worth noting that cl 13.3 only relates to replies that are required by the contract.

#3

Are you suggesting that the contract has separate periods for reply for each?

#4

Sorry Dave but you are incorrect with your statement here - I think you are thinking about the ECS where there the default is that there is a separate period for reply for Contractor and Subcontractor. Sometimes an Employer might change the standard CD1 wording too allow different response times for either party, or to allow different communications to have different response times. NEC4 now requires all periods of reply to be in Contract Data rather than also being in Works Information under NEC3.

In the ECC there is as a standard default one period for reply which applies to both Parties. This is to ensure that any communication is replied to within the contract and not left open ended. It is intended to cover any other contractual communications that does not have a standard response time already built in.

As you say there is not always much of a remedy depending on what communication is being ignored particularly if it is the Contractor not responding, but the PM has the option to raise an early warning/issue instructions accordingly.

I thin this is more about working within the spirit of the contract which I do agree with Dave about

#5

thanks Glenn, yes I was.

#6

On a broad view on the period for reply, and the way I understand it is that:

If the response is not given on time and it effects the planned Completion then if it is the PM at fault then it will subject to a CE for time and prolongation costs. if it is the Contractor at fault the only remedy I am aware of in the NEC ECC is optional clause X7 ‘Delay Damages’ which the Contractor would be liable for.

If there is an effect that is anything other than one on the planned Completion, for example, the requirement to extend a hire period of Equipment. This would be dependant on the main option used. For example if it is an option A/B and the contractor is at fault they bare all the extra costs, whereas, under an Option C/D the Employer would pay the extra costs but it would effect the Contractors share. Unfortunately, as I understand it, under an Option E the Employer bares all the impact regardless of who is at fault.

#7

you are right in broad terms but both parties should be working together to prevent any delay and extra cost