NEC Option E - An EWN was raised about a possible issue which may have given rise to an NCE. However the NCE was never raised and the issue surrounding the EWN came into play - in May 2018! The Client is looking to disallow the costs attributed to the event. Does the EWN hold any weight on this issue?
Firstly, I am not sure what bullet of the ‘Disallowed Cost’ clause the Client is looking to disallow costs under. Any Disallowed Cost would relate to the costs incurred due to not notifying an EWN, which, as you say, has actually been notified.
The fact that an NCE was not consequently notified should not influence the assessment of Disallowed Costs.
There are only two areas where the cost of lack of an early warning comes into play. Under Disallowed Cost definition, if a cost materialises only because an early warning was not notified then any resultant cost (that could otherwise have been avoided) could be disallowed.
Secondly and for all options, if a compensation event is notified, under clause 61.5 if the PM agrees it is a compensation event but that an early warning was not issued that should have been, then the lack of early warning can be taken into account when assessing the compensation event. The lack of early warning has to be communicated when the quote is requested - it cant be notified afterwards when the quote has been issued.
As Andrew says - not sure either of these apply in this situation.