NEC3 ECC: PMs obligation to provide information by the required programme date overwritten by Contracts Data where 3 working weeks is allowed to respond to a query

The Contractor was required to carry out testing on two items out of 130. The particular items were to be specified by the Project Manager’s engineer. This information was not supplied by the required date as shown on prgramme. The Contractor requested through an EW and email correspondence which items would require testing - the fact that if this information wasn’t supplied by the programme date this would have a cost and time implication. The required info was not provided in terms of the programme and a 60.1(3) was submitted. This nCE was rejected on the grounds that the contract data stated the PM had 3 working weeks to respond to such a query and did not assess in terms of programme requirements regarding this information. I deem this to still be a valid CE under 60.1(3) due to the programme impact irrespective of the response time in the Contract data as it still has a time and cost impact. The relevant drawing merely states “All locations to be specified by the engineer”

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I am not sure if I understand the in and outs of the question, but it seems to be that the PM is not accepting your notification of a compensation event on the basis that it does not fulfil the criteria in clause 60.1 (6) i.e. he/ she has 3 weeks to respond as per the Contract Data. From what you say, I am not sure if that quite matches the circumstances described in any case.

However, you are saying that you notified as a compensation event under clause 60.1 (3) as the PM accepted the programme with this date on it.

As a Contractor, you only have to find one heading listed as a compensation event for it to be a compensation event. So, assuming the “Project Manager’s engineer” can be considered part of the Employer, then the PM is wrong to not accept your notification.

Even if the engineer cannot be considered part of the Employer, but an ‘Other’, then it could be a compensation event under 60.1 (5).

For it not to be a compensation event at all, the “Project Manager’s engineer” / “engineer” would have to be either the PM, the Supervisor or a delegated sufficient powers to be considered such and what is ‘sufficient’ is another argument.

Just to add to Jon’s answer with some other points that may or may not be relevant to you:
• Period for reply is identified in Contract Data part 1 as the timescale to respond to any communication that does not already have a timescale attached to it. This does not supersede any timescale for a specific communication identified in the contract or in Works Information.
• Just because you show something you need from the Employer and they accept that programme, if the contractual timescale for that item has been reduced on the programme then the acceptance of the programme equally does not supersede the timescale and it would not instantly be a compensation event.

Taking these into account, now you can follow Jon’s points about assessing if this is a compensation event.