Under clause 62.6, if the project manager does not reply to a notification within 2 weeks… the contractor’s notification is treated as accepted. What constitutes a reply? It sounds as though this clause is to prevent silence from the PM, so if a communication from the PM comes within the period for reply and requests more time to respond then surely the contractors notification cannot be deemed to be accepted?
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The intent of clause 62.6 is that the reply is response to whether or not they agree with the quotation. There is no where in the contract that at this point allows the Project Manager to ask for a longer period to assess. They can not reply with “I need longer” to but them infinite time. The whole idea of change under the ECC contract is that the Parties keep the process moving.
The response to the Contractor’s quote should be that they either accept it or they don’t. If they don’t accept it they have to state why, and then state whether they want the Contractor to re-quote or confirm that the PM will be making his/her own assessment.
There are only three deemed acceptances in the whole of the contract and they are all to do with compensation events. If the PM fails to respond to the notification of a CE, the quotation, or they fail to assess themselves it may trigger a notification to that effect from the contractor. Fail to respond in each of the three cases with a definitive answer then it would be deemed accepted after two weeks of the reminder notification.
For I think the first time ever I don’t agree with Glenn here, from a purely legal perspective. I do however, whole heartedly agree with the pragmatism od what he suggests.
In my view, legally, because of the draconian effect of a failure to meet the requirements (ie a deemed acceptance) the process must be followed precisely. Therefore, when the contract says the PM must reply then that is what he must do. It does not say he must accept or reject or take some other contractual action, it just says “reply”. I do not think that a court would quickly add to “reply” the words “in a contractual compliant way such that the other mechanisms of the can continue” or, put another way to recast say 61.4 so that instead of “failure by the PM to reply” it says “failure by the PM to notify his decision” in exactly the same way it does earlier in this clause. There will be a presumption that different wording was used for a reason and that reason is, I suggest, to deliberately broaden what will meet the criteria.
So while I would really like Glenn to be right because it makes a lot of pragmatic and commercial sense, it is not what the contract actually says and I don’t think how it would be interpreted.