NEC ECC: Validity of clause 62.6 when both C and PM in breach

ECC Option A - no amendments to CE clauses with Z

  1. C raises CE
  2. PM accepts CE within one week and requests quotation
  3. C submits quote within 3 weeks
  4. PM replies within 2 weeks requesting revised quote and provides reasons why quote was incorrect
  5. C fails to submit revised quote within 3 weeks. No agreement to take longer.
  6. C submits revised quote 6 weeks after being requested to do so.
  7. PM does not reply within 2 weeks
  8. C notifies PM of failure to do so.
  9. PM replies after 2 weeks and 1 day to state reasons why PMA is required as C continues not to value event correctly.
  10. C replies stating that PM 1 day late therefore revised quote deemed accepted.
    Can the C rely on 62.6 to invoke acceptance through the default, when on the same event the C was in breach of the stipulated timescales?

There is not a definitive answer here, just a most likely one. However, firstly I assume that in point 9. you mean the PM does not reply within 2 weeks and 1 day of the reminder notification, not the original. Tell me if that is wrong and I will re-edit the response.

Here’s my view :

When we look at the number of breaches, the PM has potentially committed two - not assessing a compensation event due to the first bullet point of 64.1 & then being late in replying despite a reminder. The Contractor has one : taking 6 weeks instead of the allowed 3 weeks to submit the quotation.

However, while the original breach was by the Contractor (in taking 6 weeks), the contract has express provisions for dealing with this (the PM assesses), which the PM fails to do. Indeed they do a ‘wrong’ action in 9. by stating that a PMA is required because the CE is wrongly assessed, not that because he or she should be making an assessment. That makes 3 !

So given a 3:1 breach / wrong action ratio and the contract deals with the Contractor’s omission in taking longer than the 3 weeks, but the PM failed to follow the contract, I would plump for the Contractor.