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NEC ECC: Compensation event while Prevention clause fails.

+1 vote
80 views
A project has been delayed for a month and half due to community problems and an early warning was sent. The event fails the Prevention clause since the project is still recoverable by Acceleration. What options does the PM has regarding the lost time since Acceleration cannot be imposed on a Contractor.
asked May 17 in NEC3 Time by anonymous  
   

2 Answers

+1 vote
is your question what power does the PM have to impose on the Contract to complete by the (non adjusted) Completion Date.

The Employer's recourse to late Completion is application of delay damages either as stated under X7 or damages at large..

For clarity I don't think the term acceleration is correct since it does not concern Completion before the Completion Date. It is more mitigation of a delay.
answered May 17 by dave bates (5,050 points)  
+1 vote
Assuming the month and a half delay was a compensation event and on the critical path - it would seem as though there would be an effect on planned Completion and hence a movement in Completion Date. It sounds as though here what you are trying to achieve is for the Contractor to "speed up" to maintain the original date. Once you established where the entitlement in the movement on Completion Date was, you can then issue an instruction to provide a quotation to accelerate, which you then accept or reject. The problem you will have is that contractually (assuming no amendments) you can not make your own assessment of this acceleration quote ans as such are not able to impose it -  it has to be by agreement. The only other option (which I don't like) is under clause 62.1 you ask for alternative CE quotes - one for the planned Completion moving out and the other quote to maintain the original date - in effect including acceleration costs within the quote as one.

You could try a risk reduction meeting to understand and discuss ways of overcoming this issue. Any resultant instruction to speed up is likely to be a compensation event which would then be quoted accordingly by the Contractor. Something else you could do is introduce some kind of extra incentive to achieve the original date - which if they don't achieve you cant penalize but might encourage the behavior/result you are looking for.
answered May 18 by Glenn Hide (30,990 points)  
Comment from author of question:
Starting date was defined as the date that the Contractor receives a fully signed copy of the contract. Access to site was scheduled within 2 weeks of the starting date. Site handover was conducted within 2 weeks of the starting date. However, the Contractor experienced community problems on site since the community raised issues that they were not included during the whole tendering and contract award process, thereby the Contractor could not start work on site. The Contractor issued an early warning to the PM, and the matter was closed 3 - 4 weeks later. Which Compensation event is this one? Since the event is more likely to fail the Prevention clause tests thereby not triggering clause 60.1 (19).
Not so sure it would fail 60.1(19) as this does prevent them from completing the works by the date shown on the programme (and then meets the next three bullets). The fact that it is possible to double shift/work weekends does not detract that the original programme  logic could not be met.

I think as an Employer you can find a reason that fits as long as you agree this is not a Contractor risk item. I would ask what was the conclusion of the risk reduction meeting?  If that concluded in an instruction from the Project Manager to do something different to WI then it could be a CE under 60.1(1), or if they instructed the Contractor to stop work whilst this was resolved then it could be one under 60.1(4).