You are an Architect for Project ABC. The Contractor CDE has delayed. The Contract Period has another 6 months to go. The Contractor is blaming its NSC of non-performance and herewith request you as the Architect for consent to terminate the NSC under PAM2006. What will be your response?
1. One of the method employed by Contractor for mandatory EOT is to determine the NSC almost to the tail end of the Project.
2. The PAM98 form does not require consent for NSC determination. However, in the PAM2006 form Cl27.8 require the Architect’s written consent as a precedent condition for NSC determination.
3. Here is the catch, if the Architect consented, the Contractor is automatically granted for additional EOT as time is required to re-nominate. If the Architect decline, the Contractor may accused the Architect for unreasonably withholding consent.
4. To avoid being unreasonable, the burden of proof rests upon the Contractor to present. Such proof has to be beyond reasonable doubt. The benefit of the doubt must rest within the NSC. Cl27.8 implied the Architect to be in due diligent to the NSC.
5. In the event that the proofs are insufficient, the Architect has the right to withhold consent until further notice. There is no specific time for the Architect to give consent.
I am sharing these information with a caveat that these information is for educational purpose only and shall not be taken as an advice be it legal or otherwise. You should seek proper advice to your case with the relevant professionals. The author cannot guarantee the accuracy of the information so provided here.