We are the contractor on a recently completed NEC3 Engineering and Construction Contract. The contract incorporated option W1 and an adjudicator was named in the contract data. We are in dispute regarding a compensation event and misinterpretation of a part of the specification in the works information. We have tried to resolve this matter mutually but to no avail. The last two communications we sent have been ignored by the employer and project manager. We have tried to contact the adjudicator by email twice, asking what the next step is. The adjudicator has replied saying they cannot advise as it would show bias. We are in agreement with the employer to use this adjudicator but are unsure of the process. Do we send the adjudicator information on the dispute and is there a certain wording we need to use?
The referral will have to provide everything you want to say about the dispute and any evidence you wish to provide, see clause W1.3(1) and (3). Remember the adjudicator knows nothing about your contract, so you need to explain it and the dispute clearly to them, why you dispute the project manager’s decision and what decision you want the adjudicator to make.
If the adjudicator is unable or unwilling to act, they need to tell you so when they receive the referral and they should resign. Then you can either agree with the employer who the replacement is, or you can ask the adjudicator nominating body named in the contract to choose a new adjudicator. This is all set out in clause W1.2(3).
The adjudicator is then appointed by both parties under the NEC3 Adjudicator’s Contract and will usually provide you and the employer with a copy of the proforma agreement and contract data in that contract. Both you and the employer will pay the adjudicator in equal shares, unless you both agree otherwise, see clause 3.2 of the Adjudicator’s Contract.
The processes and the timescales that the adjudicator and parties are to follow after that are set out in clauses W1.3(5) to (11) of option W1.