Failure to Reply: Treated Acceptance

NEC deemed acceptance, which the contract describes as being "treated as" accepted, happens when the Project Manager misses a reply, the Contractor notifies that failure, and there is still no reply two weeks later. It doesn't happen by silence alone: the Contractor has to send the notice first.

The rule was the same in NEC3 for quotations and assessments, and NEC4 has extended it to programmes. It applies whether or not the figures are reasonable, so both sides should know how it works. The full route is in the compensation events guide.

The four routes in NEC4 ECC

What was missed	Normal period	Then	Result	Clause
Decision on a notified event	1 week	Notice + 2 weeks	It is a compensation event, and quotations are treated as instructed	61.4
Reply to a quotation	2 weeks	Notice + 2 weeks	The quotation is accepted	62.6
Project Manager's own assessment	Time allowed for a quotation	Notice + 2 weeks	The Contractor's quotation is accepted	64.4
Reply to a programme	2 weeks	Notice, then a further period	The programme is accepted (NEC4 only)	31.3

The programme route is covered in deemed acceptance of a programme. Check the periods in your contract, as Z clauses often alter them.

Step by step for a quotation

1. The Contractor submits a quotation. The two weeks under clause 62.3 start.
2. The reply date passes with no reply.
3. The Contractor notifies the failure. It should be a separate notification (13.7), and it should refer to the quotation and its submission date.
4. If more than one quotation was submitted, the notification says which one the Contractor proposes.
5. Two weeks pass with no reply.
6. The quotation counts as accepted, and the event is implemented (66.1). The Prices and dates change.

The timing, in a fictional example

Day	What happens
0	Quotation submitted for £210,000 and three weeks (illustrative)
14	Reply due. None arrives
16	Contractor notifies the failure
30	Two weeks after the notice. No reply: quotation treated as accepted

The Project Manager can still reply at any time up to day 30, and a proper reply under 62.3 stops the route. On day 31 the matter is different: a late reply no longer stops it, and the assessment of an implemented event isn't normally revised (66.3).

Note that the time doesn't begin at the reply date. If the Contractor never sends a notice, no treated acceptance arises, however late the reply is.

Exceptions to watch

• Proposed instructions. Silence goes the other way. Under NEC4 65.2, no answer in time means the quotation isn't accepted. NEC3 62.6 likewise excludes quotations for proposed instructions and proposed changed decisions.
• Acceptance only of what was quoted. Under 61.4, you get an event and an instruction to quote, but not a sum. The value comes later.
• Amended contracts. Treated acceptance is a common target for Z clauses. Some clients lengthen the periods or remove it. Read yours.

Advice for Project Managers

• Treat every failure notification as urgent. You still have two weeks to send a valid reply.
• Reply with one of the permitted answers. A general holding letter saying the matter is under review isn't one of them, and it may not stop the clock.
• Delegate clearly during leave. Absence doesn't stop the periods running, and clause 14 lets you delegate your actions.

Advice for Contractors

• Send the notice promptly and make it unmistakable. A reminder email saying "please could you reply soon" may not be enough.
• Keep the proof of when it was sent. The two weeks count from there.
• Be sure the quotation stands up. Don't assume silence means agreement until the period has ended. Treated acceptance protects you from delay; it isn't a reason to overprice. The commercial relationship outlasts one event, and a quotation so high that it's only accepted through silence is an invitation to a dispute.

A related point: a missed reply to a Contractor's communication is listed at 60.1(6) as a separate event. The two remedies aren't alternatives in the wording, though the Contractor will rarely need both. Keeping track of these periods is covered in the guide to tracking periods for reply.

Related guides

• NEC Compensation Events: The Complete Guide
• Revised Quotations: When and Why
• When the Project Manager Assesses a Compensation Event
• Assessing a Compensation Event: Clause 63
• Quotations for Compensation Events
• Clause 62.3: Time to Submit and Reply

This guide is general information in our own words, not legal advice. Your contract and its Contract Data always govern. NEC, NEC3 and NEC4 are trade marks of Thomas Telford Ltd; Contract Status is not affiliated with or endorsed by NEC.