A Contractor is not pricing a clause 65 Proposed Instruction inline with clause 63 and is using the proposed instruction as opportunity to reprice the entire project (project has not yet started construction), with their position being the Contract does not state how a proposed instruction should be priced. Is this correct or should clause 63 be the basis for valuing a quotation for a proposed instruction?
For proposed instructions issued by the PM in accordance with clause 65.1, Clause 65.2 states that the “quotation is assessed as a compensation event” so in theory the quotation should follow the principles of clause 63 in terms of assessment. However i would add that the Contractor doesn’t have to “obey” a Proposed Instruction and may decide to issue a quotation in any manner they choose under clause 65.2 and its then for the PM to decide if they:
- accepts that quotation and issues a corresponding compensation event,
- doesnt accept the quotation (which would be a compensation event under 60.1(20)) or
- Instructs a requote with reasons.
I would suggest in your scenario you would choose the third option and explain that you would consider the quotation to be more appropriately provided in line with clause 63.1 & 63.5.
If you did want to instruct the Contractor just to get on with the work issue a compensation event and then the Contractor must follow clause 63 assessment provisions for the quotation. If they don’t and the quotation assessment is still not correct, the PM can then assess the CE themselves under clause 64.1, 64.2 and notifies that assessment under 64.3.
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