Employer is to provide access to “section 2” of site on day 20 of programme but this is now delayed by 20 days due to Employer not completing their works.
Contractor is currently working on “section 1” of site which is delayed due to Contractor and all works to “section 1” must be completed before work can start on “section 2”.
When assessing the impact of this CE, the latest accepted programme showed planned completion of “section 1” on day 19 but actual progress on site/next programme submission would show planned completion being on day 30. Should the CE be based on a delay of 20 days due to Employer or does the CE consider the Contractor’s delay and reduce this to only 10 days?
NEC4 practice note 1 gives us a bit more clarity on that and is relevant to NEC3 as well as it is the same point of principle. It was always intended that whilst you use the last Accepted Programme, you take into account progress and other CE’s that had occurred up until the point you became aware of the compensation event being assessed.
That being the case, if the Contractor was already in delay by 10 days then the extra over affect due to the CE would only be 10 days not 20. However, if the Contractor can demonstrate that they could have mitigated that delay themselves, then they could still be entitled to the 20 days.
As a general rule you should assess the delays in the order that they occurred.