In an instance (under NEC4 Option A) where the Contractor has notified the Project Manager of the occurrence of a compensation event and the Project Manager has not responded to this in the following 3+ weeks:
Clause 61.4 of the contract states that the Contractor “may” notify the Project Manager of that failure and if the failure continues for a further two weeks the notification is treated as accepted.
The NEC4 User Guide, however, against this clause states that it “requires” the Contractor to notify the Project Manager of its failure.
The analysis in the User Guide is obviously more definitive than the contract itself - I would expect that if the contract said that the Contractor “shall” or “must” notify the PM of its failure, then the User Guide would find it was a requirement, but not when the contract simply states “may” notify.
Which document is correct?
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Oliver. I think that the drafting requires the Contractor to give the further notice if it wants the matter resolved by the operation of the last paragraph of Clause 61.4. If you don’t notify then the deeming provision will not come into effect. However you are not obliged to notify. You just have to in order to take advantage of the deeming provision in the Contract.
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Thanks Mike,
Yes, your explanation reconciles, what on first reading, appears to be a difference between the Contract and the user Guide.
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The reminder notice is a condition precedent to obtaining deemed acceptance, it doesn’t happen without it.
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glad to be of assistance
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