NEC3 Option A: Request for quotation through response to EWN

NEC3 and NEC4 Contracts General
1

Background: On a current project we had a requirement to carry out a desk top study. The study had float within the programme and was not on the critical path. We issued the desk top study and four days later issued an early warning advising that if the report was not actioned it would cause a delay. The client responded to the the early warning a week later and requested a quotation within the EWN response. We went to market as per the framework agreement and had issues getting quotes in for the works. The quotation was submitted 6 weeks after request and we received an instruction (A) to carry out the works.We revised the sequencing in the programme to mitigate delays and carrying out the instruction was not on the critical path. We are now a number of PMI’s on and the client has accepted 3 programmes to date. We are currently trying to reach agreement on an instruction issued as a result of the outcome of Instruction A previously mentioned. Questions are: Can an instruction to quote be issued in the form of a response to an EWN? If so, does the period for reply apply and can we be time barred? Can the client take in to account delay on the return of the quotation requested in response to the early warning, in the assessment of the follow on PMI?

1 Like
2

Marc,
I’ll start from the instruction A; your deadline for submitting a quotation would be 3 weeks from when it was issued and even if it was submitted later than that, the subsequent assessment is irrelevant as you are normally obliged to start work immediately after the instruction.

There is probably some confusion regarding the response to the EWN/request for quotation, which the Employer seems to believe it constituted a proposed instruction under clause 61.2; should that be the case it would have to be a separate communication leaving no doubt that it is an instruction pursuant to the aforementioned clause. If that was done properly and the Employer accepted the quotation, they could then issue an instruction under clause 61.1.

So answering your questions in the same order:

  1. Can an instruction to quote be issued in the form of a response to an EWN? No.
  2. If so, does the period for reply apply and can we be time barred? No, there is no such time bar provision. However, if the Contractor does not submit a quotation within the required timeframe, the PM is obliged to do his/her own assessment.
  3. Can the client take in to account delay on the return of the quotation requested in response to the early warning, in the assessment of the follow on PMI? No, the quotation timing does not correlate with the progress of the work instructed.

All the above, subject to your contact amendments/Z-clauses.

1 Like