The NEC3 does not appear to state that the PM must instruct the Contractor to provide a quotation for a CE, only that the Contractor must provide a quotation or alternative quotations when instructed to do so by the PM.
What is the contractual position of a quotation issued by the Contractor where the PM has not instructed a quotation although the PM may have notified the CE?
How are the follow on provisions, e.g. period for reply and failure to respond, implemented on uninstructed quotations?
Clause 61.1 confirms that for CE’s arising from a PM issuing an instruction that changes the Works Information, the PM should notify that this is a compensation event and instruct the Contractor to provide a quotation. This should be done at the same time as giving the instruction.
Furthermore, it is worth noting that:
- There is no mechanism for a Contractor to issue a quotation off his own back without having been instructed to do so. They should all have been at the request of the PM. The main areas where a Contractor is required to provide a quotation (all of which have to have been instructed from the PM) are 36.1, 61.1, 61.2 & 62.1. (One exception to this is proposed quotations offered for savings for not correcting a defect.)
- If a Contractor is submitting a quote where the PM has not instructed a quotation then a key part of the process has been missed by both Parties. Too often a Contractor submits a quote for a change to the Works Information that has not been instructed that for what ever reason (probably thinking they have to in a “spirit of mutual trust and co-operation”) they are proceeding with the works in the meantime. A Contractor should not need to submit a quote without being instructed to do so as they should not be doing the work in the first place. Remember clause 20.1 states that “the Contractor provides the Works in accordance with the Works Information”. Unless they have an instruction to do otherwise, that is what (and all) they should be doing.
The process should be as follows:
- PM gives an instruction to change Works Information
- At same time PM should state that this is a compensation event and instruct the Contractor to provide a quotation
- Should the PM fail to carry out item 2, then under clause 61.3 they can/should notify that it is a compensation event
- PM should respond to point 3 with agreement it is a CE (at which point they instruct the quotation) or a statement it is not a CE and stating the reasons why. No point in the Contractor submitting a quotation for something that the PM has already said is not the Employers liability.
So to answer your final question – do the follow on provisions (period for reply/failure to respond) count for uninstructed quotations? In short, no not really or at least not in a way that will help the Contractor, as they do not follow the correct contractual process. Whilst any communication should be responded to within the period of reply, there is certainly nothing to ever be “deemed accepted” for a quotation that has been issued off the Contractors own back for an event that has not been recognised by the PM as being a compensation event in the first place.
The fallback is that the Contractor notifies the PM of the CE (again) under clause 61.4; then if the PM fails to repond as per 61.4 (e.g. just confirms it is a CE again but does not instruct a quotation), the Contractor then gives a notification of this failure and after a further two weeks, the Contractor’s notification is treated as accepted and the Contractor can proceed to give the quotation.