It depends on your disputes Option. Under W2, you can usually still refer, because adjudication is available at any time; under W1, a dispute time limit that has passed normally ends the right to go to the Adjudicator or the tribunal, unless an extension was agreed before the date.
Two things can catch you even under W2: the final assessment window in NEC4, and any compensation event time bar that has already run. So check which limit you've actually missed. Periods here are from the NEC4 subcontract text and NEC3 ECC. The NEC4 ECC follows the same structure, but read your own W clause.
Find your position now
- Look at the Contract Data to see which Option applies: W1, W2 or W3.
- Identify the matter in dispute. Is it an action or inaction of the Project Manager, a treated acceptance, a final assessment or something else? The limit depends on that.
- Fix the date you became aware. Use documents, not memory.
- Check for any amendment. Z clauses often alter these provisions.
- If time is still running, refer now, or get a written extension before the date.
- If time has gone, take legal advice before you write something that concedes the point.
How the Options differ
| Issue | W2 (the Construction Act applies) | W1 (it doesn't) |
|---|---|---|
| When can you go to adjudication? | At any time | Within the stated periods. NEC4 runs through the Senior Representatives first, with four weeks to refer an action or inaction after becoming aware. NEC3 has four weeks to notify and then two to four to refer |
| Effect of missing the period | No bar on adjudication under the Option's own terms | It can no longer go to the Adjudicator or the tribunal, for either Party |
| Can it be extended? | Not needed for the start of adjudication | Yes, but only if agreed before the notice or referral is due |
| After a decision | Four weeks to notify a dissatisfied intention to go to the tribunal | Four weeks, likewise |
| Final assessment (NEC4 only) | Refer within four weeks of the assessment, or it becomes conclusive | Refer within four weeks to the Senior Representatives, likewise |
W2 is the Option for contracts that the Construction Act applies to. See the guides to Option W2 and Option W1, and our table of dispute time limits for the fuller detail.
Don't confuse the two time bars
Being able to refer doesn't mean you'll win. Suppose you missed the eight weeks in 61.3. Under W2 you can still adjudicate, but the Adjudicator would be looking at a claim the contract says was notified late. Whether that can be overcome depends on the facts and the argument: see missing the eight weeks. A separate limitation period under the general law also sets an outer limit on legal action.
An example under each Option
A fictional dispute: the Project Manager replies on 3 March that an event isn't a compensation event. The Contractor's commercial manager is on leave, and nothing happens until mid-May.
- On W2: the Contractor can give a notice of adjudication in mid-May, then refer within seven days.
- On NEC4 W1: the period to go to the Senior Representatives ended around 31 March. Unless an extension had been agreed by then, the Contractor is shut out.
If you're out of time under W1
The contract's words are strict. In practice, your options are few, so take advice on them:
- Ask whether the matter really is a time-limited one. "Any other matter" can be referred when the dispute arises.
- Check the awareness date honestly.
- Check whether a later, separate decision by the Project Manager raises its own question. Don't dress up the same point as a new one, because that may fail.
- Try to reach a commercial settlement, since nothing stops the Parties agreeing one.
Sample request for an extension (W1)
"We dispute your decision of [date] on [matter]. We became aware of it on [date]. The period to refer ends on [date]. To allow time to resolve this between us, we ask you to agree to extend that period to [date], and to confirm the extension in writing before [date]."
What the other side will say
It'll say you're out of time and may refuse to take part. It may challenge the Adjudicator's jurisdiction, too. A Project Manager shouldn't refuse a timely extension just to gain an advantage, though nothing forces agreement. Whether to adjudicate now is the next question, and more answers are in the NEC questions hub.
Related guides
- NEC Questions Answered: Real Situations on Site
- Should We Go to Adjudication or Keep Negotiating?
- A New Project Manager Is Reversing Earlier Decisions
- The Project Manager Works for the Client: Are They Impartial?
- Our Contractor Has Gone Insolvent: What Does the Client Do?
- The Client Is in Breach but No Event Fits: Is There a Remedy?
How this looks in Contract Status
The record shows the date you became aware and how long you took to notify. See the worked example.
See how this works in practice
Click through Contract Status with sample contracts: raise the notice, reply to it, and watch both sides of one record.
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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.