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NEC ECC: Key Dates defined as a duration after Access

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The contract I have been given has the following Subcontract Data Part one:

Access Dates: each area states it will be notified under Clause 30.1 between an earliest and latest date (which have been given).
Key Dates: Each area defined as a number of weeks after the Access Date.

The date has now moved past the latest date defined for access, but nothing has yet to be notified by the client.

An NCE will be raised due to late access but in the meantime what should be shown in the programme for the Key Date? A Key Date can only be changed due to an instruction or compensation event. However, as the Key Date has been defined as a period after the Access Date is this still the case?

Secondly, when it comes to assessing the CE should the definition of the date for the Key Date be taken into account? I.E even if the delayed access date does not move the planned completion should the Key Date maintain the same number of weeks after the Access Date.
asked Feb 2 in NEC3 Time by Kevin Cooper (220 points)  
   

1 Answer

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You should notify the compensation event for lack of access by date stated in CD1. When assessing that compensation event, the effects that will have on the Key Date should be taken into account, which will then agree the value of that event and how much the Key Date should move by. At this stage you should have an assumption from the Project Manager as to when access will be given so you can programme/price accordingly (any further movement could be assessed as a separate CE)

At the moment you should have a "planned Key Date" milestone on your revised programme showing where you currently are, which will be beyond the Kay Date milestone. As and when the CE is implemented, then you can adjust the Prices accordingly but more importantly move the Key Date by the agreed amount.
answered Feb 2 by Glenn Hide (35,100 points)  
I agree this is the normal process under clause 63.3. However, isn't the definition against each of the Key Dates a conflict to this?
I guess you would have shown on your programme the latest access date, and the Key Date X days after that access date. If they have not given you access, your planned Key Date will now be beyond the Key Date - but the CE will cover that movement and once implemented the two will be realigned (assuming planned/Key Date were the same).

Not sure that there is a conflict here?
You're correct, but in this case the Access Date wasn't on the critical path for the planned Key Date and therefore the CE doesn't fully realign the two dates. As a result the Access Date has become closer to the Key Date.

Normally the Access Date and Key Date is listed as a date within the contract and then the process is straightforward.

However, when relationships are used for the Key Dates, and the first Access Date isn't listed, when do the dates get "fixed" and the relationships lost? In your example this would have to be on the first accepted programme.
That is a strange one then isn't it - why did the contract state "Key Date is X weeks after access date" if the two are not actually related? Quite an unusual set of circumstances you have here.

It comes back to my first point - it needs resolving at tender stage to know where both Parties stand to not get into this potentially subjective situation (not that that helps when that is the situation you are in).

What has happened here is not what the contract intended in the first place - and hence there is not necessarily a clear solution to overcome what was not envisaged to have allowed to happen!
Thanks for your responses Glenn. Unfortunately I thought this was the case.