Due to discord as a result of “employment equity” provisions in force, the contractor has been prevented by sectors of the local business community from commencing the works on site at all.
We can accept that the situation falls under clause 60(1) 19.
The delay has been over a year.
The PM has not replied to notifications of CE’s, - hence no assumptions.
In principal, is the contractor obliged to issue fresh Notifications every 8 weeks while the prevention continues, or does the initial Notification avoid time-barring?
This situation should never have arisen so now a difficult situation to resolve amicably.
A Project Manager should respond to a notified CE within one week. The fact at this stage you don’t know how long it will go on for or how to assess it is irrelevant. It is about whether or not it is a CE. If the PM had not responded within a week, the Contractor could (should) have notified them in writing of their lack of response, which triggers a deemed acceptance if they do not respond within two weeks. That then allows you to submit a quotation. I get that in the absence of any PM assumptions this would be difficult to price, but you could have suggested some for them to confirm back in writing or priced the risk for more of a worst case scenario which should have then led to discussions.
I would have to see the detail to see regards the time-barring but assuming this is the same issue ongoing I do not think the time bar would apply. Goodness knows though why both Parties have allowed this to escalate for a year with out resolution and a common understanding of liability. Time for a meeting I suggest to see a proposal as to how to agree this. You need them to agree it is(was) a CE and how it should be assessed, and if need be I suggest in bite size chunks where you agree the progressive delay over certain periods. Trouble is looking back it will inevitably be with some degree of subjectivity which is why it is best to assess delay as you go where that will not creep in so much.
I have no idea what your programme will have been showing each period over the past year - with planned Completion moving out to the right I assume with Completion Date not moving? That should have been enough to get everyone around the table.