NEC3 ECSC: Payment of CE

NEC3 and NEC4 Contracts Compensation Events
1

I have an issue where our client is waiting for their end client to assess a CE which originated from us as a Contractor. This CE resulted from an instruction to complete additional works and has not been assessed in the 2 week time frame. In my assessments for payment the PQS certifies works done but not the CE as they have not yet responded to it ( which is because their client have not yet assessed it or agreed it). How do I contractually get them to 1) assess it and pay it or 2) get it paid in the next valuation due to the PM taking longer then the prescribed timescale. I canā€™t find a clause which give consequence if my client does not accept or reject my quotation within the 2 weeks? Help. Iā€™m technically on a paid when paid or paid when price agreed up stream situation surely there must be recourse under the contract to prevent this? Thanks

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2

Clause 62.6 states that if you have submitted a quotation to the Project Manager and this has not been responded to, then you must notify them of their failure to reply. If they do not respond to your notification within 2 weeks then the CE is deemed accepted. The ā€˜headā€™ contract between your client and their client has no bearing on your contract. Unless they have changed the period for replies or ammended clauses through z clauses then the deemed accepted route is the method for having this agreed. Many large companies will try and bully the smaller contractors and ignore the time frmaes involved, just make sure you serve all the correct notices and ensure delivery is proven of these notices and if it goes down the arbitration route, you will have a very strong case.

3

Just to build on Stephenā€™s comment, you really need to understand what terms (if any) from the upstream contract are incorporated into your contract as this may give them the right to wait until they have a decision from their client before they assess your entitlement. In an unamended Engineering and Construction Subcontract then you can use the reminder under clause 62.6 to trigger deemed acceptance as Stephen says. However when you say ā€œECSCā€ do you mean the Engineering and Construction Subcontract (ECS) or the Engineering and Construction Short Contract (ECSC) - if itā€™s the latter then you donā€™t have reminder provisions unfortunately.