NEC4 - CL 61.1 vs 61.3

NEC3 and NEC4 Contracts Compensation Events
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NEC4 Option A (amended to remove time bars for Client only)

We (the Contractor) proposed our design to the Client and through a HAZOP study the Client suggested a change to the works to improve safety. The original design was agreed to be adequate however, the Client requested this change.

The Client never formally instructed this under 60.1 or 61.1

After several weeks the Contractor notified the Compensation Event (NCE) under 61.3

The Client rejected the NCE 12 weeks after under clause 61.4 - has not been notified within the timescales set out in the condition of the contract.

Is the contractor free from being time-barred as the Project Manager failed to notify under 61.1?

The contractor was merely proceeded to work under CL 10.2 but now it likely to be out of pocket.

Thanks in advance as always.

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@WilliamBrown can you help with this query?

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Christian, firstly the Client’s suggestions are irrelevant under the contract, if a change is to be made it has to be instructed by the PM - see clause 14.3 & 27.3.
If the original design was acceptable then the PM should have accepted it within the time allowed under the contract, if the PM did not respond in time that is a breach and covered by 60.1(6) if that CE is still in the contract.
Unless there was an instruction given under clause 14.3 there is no compensation event to be notified other than perhaps the failure to respond in time.
If the PM did not instruct any changes then the Contractor should not do anything different than Provide the Works in accordance with the Scope - see clause 20.1.
Watch out for clause 21.1, you cannot proceed with any work related to your design until your design has been accepted by the PM, the reasons for not accepting the design are that it does not comply with the Scope or the law, any other reason is a CE under 60.1(9).
Do not rely on 10.2, you must rely on 10.1 and that everyone under the contract is acting as stated, failure to act as stated is likely to be a breach of contract and likely to give rise to a CE - see the CEs under clause 60.1.

If you want to provide some more information then I’ll be happy to help further.

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