ECC Option A - no amendments to CE clauses with Z
SCENARIO
- C raises CE
- PM accepts CE within one week and requests quotation
- C submits quote within 3 weeks
- PM replies within 2 weeks requesting revised quote and provides reasons why quote was incorrect
- C fails to submit revised quote within 3 weeks. No agreement to take longer.
- C submits revised quote 6 weeks after being requested to do so.
- PM does not reply within 2 weeks
- C notifies PM of failure to do so.
- PM replies after 2 weeks and 1 day to state reasons why PMA is required as C continues not to value event correctly.
- C replies stating that PM 1 day late therefore revised quote deemed accepted.
QUERY
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.