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Does the PM making a Key Date earlier amount to acceleration?

+1 vote
317 views
If the PM issues a PMI instructing an existing Key Date to be made earlier and it is a CE under 60.1(4). Can the PM amend / assess the Contracor's quotation in the usual manner because isn't the PM effectively instructing acceleration? Is this where 12.3 comes in as it is a fundeamental change and so both parties would have to agree.
asked Oct 15, 2015 in NEC3 Main options by dwoodhams (240 points)  
edited Oct 15, 2015 by dwoodhams
   

1 Answer

+2 votes
I can see your argument, but would say 'No' as this is covered by the express provisions of the contract in the following way :

- acceleration under clause 36.1 means bringing forward the contractual Completion Date and as a result of that, the PM also states changes to Key Dates. Therefore, bringing forward a Key Date only is not acceleration as defined in the contract.

- under clause 14.3, the PM can give an instruction which changes a Key Date, which could include bringing it forward.

- under clause 60.1 (4), changing a Key Date is a compensation event, which means that additional costs, including increased risk allowances under 63.6 can be included in the quotation, but it is assessed by the rigour of the compensation event process.
answered Oct 15, 2015 by Jon Broome (21,320 points)  
Jon has correctly pointed out that this is not acceleration as per clause 36 of the contract but from a commercial perspective it might still be considered as back door acceleration where a Key Date that is potentially critical has been brought forward. Whereas bringing forward a Key Date will not change the Completion Date defined in the contract, it can result in planned Completion being brought forward increasing terminal float and affecting the assessment of compensation events. Crucially changing a Key Date falls to the Project Manager to assess as a compensation event instead of acceleration being in the gift of the Contractor and quoted for under clause 36.
Thanks Jon and Ewen, good answers and comments.
Let’s hope there aren’t any unscrupulous PM’s/clients that use this unfairly to their advantage – perhaps something for NEC4.