A Contractor has undertaken a procurement process for a subcontract. They have followed all of the requirements for the procurement set out in Clause 26 and the Works Information which included a requirement for them to submit a subcontract tender report including their recommendation to the PM for acceptance.
The report was duly produced submitted and accepted by the Project Manager and then right at the last moment the subcontractor decided that they did not want to undertake the subcontract and withdrew…
The Contractor is claiming that neither they nor the Employer had any control over the subcontractors decision to withdraw right at the last minute and as such are claiming a compensation event for the lost time under clause 60.1(19).
To me this doesn’t seem to be the appropriate way to deal with this situation bearing in mind that the Contractor had control of the following items:
- Who was on the tender list
- The terms of the tender
- The recommendation of who whom the tender report recommended to undertake the subcontract
Any experience or advice would be greatly appreciated bearing in mind that the PM has acknowledged the NCE as valid