We have recently completed a project under the NEC 3 option C, the Contractor has introduced a new Surveyor who is revisiting CE’s that we assumed had been accepted and is reducing our target cost wherever he can find errors.
Using the same principles are we allowed to resubmit an alternative quotation where we know we have made errors and the quotation didn’t cover all of the works carried out.
It is not allowed to change, which includes decrease, accepted quotations - see NEC3 clauses 65.1 and 65.2.
However, you say “we ASSUME had been accepted and …”.
If you can give us the basis for you "assume"ing , we can give a more precise answer.
That is why it is important to make sure that compensation events become implemented as they cant be revisited once they have been. If they don’t respond to your quote or make their assessment within the contractual timescales you can notify their non-response, and two weeks later it would be deemed accepted. Therefore there is no reason not to have an event implemented.
As to whether you can submit a revised quote if they have not responded or done their own assessment - there is no reason why you can’t. Whether they take any notice is another thing - but they should as they should assess themselves if they think you have assessed it incorrectly. That would be if it is too low as well as if it as too high. Therefore if you have submitted a quote proving the first one was too low, they couldn’t (shouldn’t) ignore it and therefore assess it in accordance with the contract.
Hi Jon, we had assumed accepted as no comments were made, the contract was a target cost which we were increasing on our monthly application, the contractor was certifying 100% against our actual cost and not commenting on any of the CE’s on the accompanying schedule nor the target cost. It is only since they have introduced a new surveyor that they have made comments against our CE’s.
There is no contract provision for the ‘silent’ acceptance of compensation events.
However, if they do enough actions to indicate that they consider it accepted, then there would be a legal argument for acceptance by conduct (estoppel). The argument though would be over what is ‘enough’, so:
- you can either dig out all actions that indicate acceptance and then have an argument over that; or
- say that if they want to revisit compensation events which the new QS believe have been over-priced, you will want to re-visit all compensation events that you believe have been under-priced; or
- notify immediately all the outstanding quotations, giving the new QS 2 weeks to make assessments; or
- have a grown up conversation with the new QS and the PM, which would include agreeing to operate the contract as written going forward.
Hi Jon, It has been sometime since I raised the question, can you confirm if a CE in principle and quotation is deemed accepted if the Contractor has certified payment against the CE on his payment notice. In some instances on the Certificate breakdown he has put agreed next to the CE but is now choosing to re-visit them.
Just because you appear to have been paid in an application against a CE does not mean that they can not correct it the next period if it is not yet formally implemented. This catches lots of Contractors out.
Until a CE is implemented (i.e. in writing confirming agreed change to Prices and/or Completion Date), the Contractor can not assume it is agreed.