Currently joined a project where the sub-contractor is looking to put in a claim for Prolongation. The Contract is an Option C (Target Cost). The sub-contractor has submitted “and had accepted” several hundred CE’s however none of these CE’s has a time element for delay against them – now the Subcontractor wants to push the Completion Date out to avoid delay damages and also to increase target (Believe the Subcontractor is entitled to some prolongation however seems tricky as wasn’t measured against CE’s). The Sub-contractor has also not had an accepted programme for long periods of time. I understand that any CE’s / delays should be assessed against the last accepted programme however this would be unachievable due to how long ago the last accepted programme was accepted.
What are the options as assessing delay?, we as the Contractor have definitely delayed the Sub-contractor (by how much I do not know!) but what would be the best way of assessing prolongation / time delays? I believe they would not be entitled to the full delays being claimed
Would it be best to revisit every CE against the last accepted programme at the time (literally hundreds?!)
Under NEC3 is it even viable to submit a CE for prolongation? Should this not have been picked up and measured under each separate CE?
The answer to your very last sentence is yes - it should have been picked up along the way against CE’s occurring in each period. There is no general extension of time/prolongation type claim.
I would say there is a failing on the Contractor here for not identifying this earlier. The Contractor can make their own assessment of a CE if they think it has been assessed incorrectly - which they always remember to do if it is over assessed, but in my experience rarely do they do it if they think it has been under assessed i.e. no entitlement for time included.
If both Parties understand the contract I really don’t understand how this can happen. If I was the Subcontractor, every four weeks/month I would have to submit a revised programme. Each period I would have to revise the programme and take into account any delays that have occurred and see where planned Completion now sits in relation to the Completion Date. If planned Completion has moved and it is for a reason that was not my fault it would make me consider if I have notified a compensation event that can then pick up the time element of this delay.
Also emphasises the importance of the Accepted Programme to both Parties through out the life of the project. You have no choice here but to go back the last Accepted Programme and assess CE’s against it (also taking into account progress and other CE’s that had already occurred - see NEC4 practice note 1 in download section of “gmhplanning” website.