No, the time bar doesn't apply to an event that arises from the Project Manager's or Supervisor's own communication. It does apply to everything else, even where the Project Manager knew all about the event.
So it depends on the event's source, not on what the Project Manager knew. That surprises many people: the 61.3 exception where the project manager should have notified an event is tied to the kinds of event 61.1 covers. A Project Manager who watches a late delivery happen has no duty under 61.1 to notify it, and your eight weeks still runs. See the NEC questions section for related problems.
Which wording do you have?
| Edition | The exception covers events arising from | Practical effect |
|---|---|---|
| NEC4 ECC (and NEC4 subcontract, with the Contractor acting in that role) | An instruction or notification, a certificate, or a changed decision | Clear list. Check the event's origin against it |
| NEC3 ECC, April 2013 print | An instruction, a certificate, a changed decision or a corrected assumption | Clear list, and "notification" isn't in it |
| NEC3 ECC, June 2005 print | Events the Project Manager should have notified and didn't | Closer to the question on this page, but in practice the duty it points at is the one in 61.1 |
Some contracts also amend this with Z clauses, and some still use older prints. Find out which yours is before writing anything, as your argument should use the right words.
Which side of the line is your event on?
| Event | Time bar applies? |
|---|---|
| Instruction changing the Scope, 60.1(1) | No |
| Instruction to stop work or change a Key Date, 60.1(4) | No |
| Instruction about an object found on Site, 60.1(7) | No |
| Changed decision, 60.1(8) | No |
| Search instructed and no Defect found, 60.1(10) | No, as it arises from an instruction |
| Correction of an assumption, 60.1(17) | No, under NEC3's list and as a notification under NEC4's |
| Late access 60.1(2), late Client item 60.1(3), Others 60.1(5) | Yes, even if the Project Manager saw it happen |
| Missed reply 60.1(6) | Yes |
| Physical conditions 60.1(12), weather 60.1(13), breach 60.1(18) | Yes |
For the full treatment, see clause 61.3 and clause 61.1. Note the outer limit in 61.7, which catches every event: under NEC3 no event is notified after the defects date, and in the NEC4 subcontract no event is notified after the Defects Certificate.
What to do now
- Send your notification today, whichever side of the line you think you are on. Being exempt from the bar doesn't excuse leaving things any longer.
- Identify the communication. Quote its reference, date and author, and say which limb of the exception it meets.
- If it was only spoken, say so. Under clause 13.1, a conversation is a weak basis for "an instruction", and the exception may not protect you. If you are inside eight weeks, keep inside them.
- Don't over-claim. If part of the effect comes from a different, time-barred cause, split it out now.
Evidence that helps
- The instruction, certificate or decision itself, not a summary of it.
- The earlier decision, for a changed decision: you need both to show the change.
- The Scope clause or drawing it changed, so the change is plain.
- Your records of when work was affected, because the dividing date for this kind of event is the date of the communication.
Sample paragraph
The response to expect
A Project Manager may answer that the document wasn't an instruction: "It was a design development note," or "I was only passing on the Client's comments." If so, ask what it was, under which clause it was sent, and whether you're to disregard it. Either answer helps. If it was an instruction, the exception applies. If it wasn't, you have the right to go back to the Scope, and any cost after that is on the other side of the argument.
In practice, the Project Manager's knowledge still counts for something even where the bar applies. It's relevant to any discussion of what's fair and any legal argument about waiver, and it may well shape what the Client will agree. The contract, though, doesn't make it an exception, so if you've missed the eight weeks, treat that as a separate problem. Other time limits are listed under NEC time bars.
Related guides
- NEC Questions Answered: Real Situations on Site
- Can We Notify a Compensation Event Before It Happens?
- The PM Has Not Replied to Our Compensation Event Notice
- The PM Has Not Replied to Our Quotation
- The PM Issued an Instruction but No Compensation Event: What Now?
- We Missed the Eight-Week Time Bar: Is It Over?
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