Does 12.3 allow anything to be changed in the contract (if client and contractor agree)?
A CE raised post event where 8 weeks has passed would not be a CE. But, if both parties agree under 12.3 that in this instance it can be a CE, I’m assuming this then becomes a CE?
Is this the intention of 12.3?
Hi Alastair, yes it is possible to change anything in the contract using 12.3 provided there is mutual agreement. The example you cite is possible, it is very important for PM’s to realise that they do not have the ability to waive the 8 week time bar stated in clause 61.3, it can only be done by the Parties under 12.3. The wording of the agreement should be carefully drafted so that it is not construed as a blanket waiver but just for one instance.
One other thing I would also comment on is the language you use in the example, it is very common for people to say raised a CE or early warning, the contract requires someone to notify a compensation event or give an early warning by notifying and that starts the CE process of assessment and implementation. I know it sounds a bit picky but when reading the questions it’s sometimes difficult to understand the context. For example when you say raised a CE, I assume you mean the Contractor notified an event to the PM because you are referring to the 8 week time bar in clause 61.3? When you say it would not be a CE post 8 weeks, that would only be the case if it were not one of the events which the PM is obliged to notify under clause 61.1, these can never be time barred.
Hope that helps.
Yes, apologies the Contractor notified a CE. It can be easy to slip away from the language of the contract.