Over the past 10 months of working on a contract we have had 45 CEs. Somehow on 2 or 3 items have not been carried forward to the summary & a couple of times the percentages have disappeared from the cell, resulting in a few mathematical errors. I have attempted to get the PM to accept that these should be corrected, but all they have said is that once it is signed off - ‘tough luck’.
I am tempted to believe that these were seen, and quickly agreed owing to this fact. They are not large and would not break the bank, but as the principle of the CE is agreed, I am thinking that it is incumbent upon the PM to ensure that what they sign off reflects the truth, meaning that they should correct any errors, or allow the errors to be corrected, either by adding an amount equal to the error in a forthcoming CE.
I attended a day’s seminar on the NEC and the leader for the day stated that they should be corrected, which is good, but I wondered if there is anything I can direct the PM to rather than present a case of hearsay!
Good question.
Both the Project Manager and the Contractor should be acting as stated in the contract AND in a spirit of mutual trust and co-operation (clause 10.1).
The clear intention of the contract is that a quotation is fixed once implemented (you refer to signed off) unless it was based on Project Manager’s assumptions. The recourse under the contract being adjudication.
If the PM has implemented the compensation event by simply accepting your quotation then you would have to consider what the dispute actually is and what question(s) you would pose. Is it that the PM should have instructed a revised quotation under 62.3 because the quotation was not assessed correctly.
If it was a genuine error on both sides then a joint discussion with the Employer may lead to a better solution with any agreement being recorded in accordance with 12.3.
There is a view, backed by comments from a judge, that the PM is an ‘impartial administrator’ of the contract “in matters of certification (of payments) and assessment” of CEs.
Consequently, if the PM spotted these errors when evaluating the CE, he or she should have corrected them either by pointing them out to you and instructing a re-quote or making the assessment him/her self. Contractually, I suppose, the PM did not assess your quotation in accordance with the contract.
But, as Dave says below, he just accepted it. Consequently, if you were to take this to a adjudication, you would have to think carefully about the dispute you are referring.