ECS refers:
A Subcontractor notified and submitted a CE (also attached the quotation) to the Contractor. There were meetings (risk reduction) in between to try and resolve the CE which was fruitless. It couldn’t be determined whether the CE was valid. The issue was never concluded and both parties went silent for over a year. 12 months later, retention was leased on the subcontract. the retention release was the last interaction between the two parties. More than a year later (after the retention release), the subcontractor reinstated the unresolved CE seeking payment on the basis that no conclusion was reached and final account had not been signed off. The reason that the final account was never signed off is that the subcontractor refused to sign because according to him, he is entitled to the unresolved CE he notified. The Subcontractor also argues that the Contractor’s nonresponse to his CE notification is deeming the CE accepted.
My response:
According to 62.6 & 64.4 of the ECS, the Subcontractor did not fulfill the suspensive condition for him (the subcontractor) to notify the Contractor of his (the Contractor’s) non-response, therefore cannot automatically deem the non-response as acceptance.
furthermore;
The contract has expired (Contract end date), and that according to W1.3, the Subcontractor should have notified a dispute Between two and four weeks after the Subcontractor’s notification of the dispute to the Contractor, the notification itself being made not more than four weeks after the Subcontractor becomes aware that the action was not taken.
Therefore the issue was deemed as closed.
Please advice if this is the correct approach.
Regards
MB