I understand the concept of the dividing date as per CL 63.1 which states “For a compensation event that arises from the Project Manager or the Supervisor giving an instruction or notification, issuing a certificate or changing an earlier decision, the dividing date is the date of that communication.
For other compensation events, the dividing date is the date of the notification of the compensation event.”
Can someone kindly help with the following scenario:
New drawings are issued to the Subcontractor which entails additional work on 13th February
In the issuance of the new drawings, the Contractor never “instructed” and never gave a CE notification
In the absence of the above, Subcontractor raises CEN under 60.1.1 on 18th February with “costs to follow”. Costs then follow on 19th February but in that period of time, Subcontractor has proceeded with the work anyway to get ahead on schedule and to secure a slot with a sub sub contractor. The Subcontractor takes the email with new DWGS on the 13th February as an instruction because he knows that the Contractor wouldn’t follow up with a formal instruction or a CEN and must secure his own entitlement via the CE process within the 8 week time bar.
In doing this, is the dividing date the 13th February (when the Contractor should have raised the instruction and CEN) or is it the 18th February when the Subcontractor raised the CEN?
Is it correct to take the view that the Contractor “should” have issued the CEN and Instruction on 13th February and the estimate should always be a forecast of costs using agreed rates from the Ssoc?
Really would appreciate if someone could help me with this.
@leroyS it does not sound like a very co-operative relationship.
That aside, I believe your concern is if the costs between 13 and 18 February, which you incurred in good faith to expedite the work, would be assessed on a forecast or on an actual basis.
The problem you will face, and it is quite common in these contracts, is that it will be extremely difficult for the actual costs/time spent (if disclosed by the time of the quotation) to be ignored. The reason being that your forecast, if different from the actual, will be considered incorrect or unreasonable etc.
Notwithstanding the above, I agree with your view that the dividing date should be the 13th.
You’re right, it’s certainly not cooperative. We even have to act on TEAMS meetings minutes to reference in our CE’s because the Contractor won’t issue instructions. Presumably setting us up to miss the time bars.
Thank you for your opinion and confirmation, I thought it was the 13th too. Are there any scenarios you can think of where you would resort to actual cost based on your interpretation of the dividing date in CL 63.1?
If the dividing date is 13 February (date of implied instruction) then your quotation should be on a forecast basis. The “actual costs/actual time spent” issue will only come into play if and when you end up disclosing records to the Contractor. It does not have to be this way though.
Is there any possible way for the Contractor to argue that the instruction isn’t “implied” for the 13th February? We’ve had numerous instances of the Contractor on one of our jobs say “we didn’t instruct this” when we submit a CE for a change under 60.1.1 treating the email with new DWG’s as an instruction. The reality is we have to treat it as an instruction, because waiting for a nice neat instruction in a contractual format will never come and we’d lose all our entitlement.
What’s even more peculiar to me is i’ve seen comments on here that think this state of affairs is unusual, whereas for me, it’s the usual state of projects. It’s very much a “we won’t instruct or notify, and gamble that the sub misses it and loses his entitlement”.
If the approach is as you describe it, they will probably try. The question will then be whether the said email changed the WI or not, because if it did, how did that happen other than by cl. 60.1(1)?
Unfortunately, that behaviour is quite common and usually results in dispute resolution.
We can demonstrate quite clearly that the email is an instruction to vary the works, given the email has new drawings on it and we have listed contract drawings. Therefore the email is a change under 60.1.1 which we then notify a CE for.
The only other issue here is to consider the contract compliance matters relating to communications, including; has it been sent via the required communication system (if one is specified), does the person sending the email have authority (appointed or delegated), has the communication been served as required by the contract (stated in contract data).
That’s a very valid point. In reality, the Contract Administrator is not sending the comms direct. The project agent and/or design team members email the changes and we then state the name of the person on the CE notifications.
If we were to channel the comms to the contract manager, they just wouldn’t send the correspondence because they probably know it’ll require raising an instruction template and/or a CEN.
A very convoluted process that we just manage internally in weekly meetings.