Although the Contract will inevitably not provide a detailed answer for every issue that arises over the term of the Contract the Contract Manager should always refer to the relevant provisions prior to taking decisions about the management of the Contract. The provisions of the Contract will have been the subject of extensive negotiations between the parties and should be the starting point for any analysis of a major decision about the project.
The Authority is entitled to enforce all of its rights under the Contract and should expect the Contractor to do the same. However there may be occasions when one or other or both parties have a good reason to waive a term or provision of the Contract. The Contract may contain provisions that relate to such a waiver. Under the WIDP Contract (Clause 93) a waiver is not effective unless given in writing by the relevant party. A waiver cannot be applied to a default or breach and neither can it amend, delete or add to the Contract unless specifically stated in that waiver.
The Contract Manager should be aware that a waiver by the Contractor is not effective until submitted in writing. If a waiver is received from the Contractor it should be reviewed by the Contract Management Team and cleared with the Authority's Legal Department to ensure that the drafting of the notice is clear and achieves the desired effect. If it is not clear in every respect the Contractor should be asked to provide an alternative form of words.
The Contract Manager should also ensure the Contract Management Team is aware that if the Authority agrees to waive a right under the Contract the Contractor will seek written notice.