It is interesting to note that under clause 13.3 the obligation to reply within a set period is given for all Parties however under clause 60.1 the only place where a consequence of not replying is (6) and that is only a CE if it is the PM or supervisor who doesn’t reply. There seems to be no recourse for the Employer should the Contractor not reply. I am aware that the PM can make his own assessment of a CE should the Contractor fail in his obligations, for example under clause 64, however what about an instance whereby a Contractor has been requested to respond to an issue over a possible dispute? Example as follows:
The Contractor has issued a CE which the Employer has time barred. A meeting of the Senior Representatives has been convened (Z clauses amend the standard NEC 3 options on disputes) and the next step is for either Party to raise this as a dispute. The Employer would not raise this as he does not believe there is a relevant CE nor does he believe he has incorrectly time barred the submission. Therefore it falls to the Contractor to put this into dispute. The Employer has stated that it is not the CE issue that is in dispute, it is the time barring of it. The Contractor has been requested to advise if he wishes to pursue this or not and has been requested to do this within the Period for Reply as a general communication under the CEMAR management package being used. The reality of this is that it is in his interest not to formalise this because he believes he may be able to negotiate even though there is no clause for that - it has happened before on other contracts with this Employer.
Therefore what recourse do we have to ensure a reply is provided and if one isn’t forthcoming?