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NEC ECS: Delay to programme works under Option B
Schedule 8 of the Subcontractors contract NEC 3 Option B contained a high-level 12 month program for works which was different to the program issued at tender stage to which the subcontractors construction methodology was based.
The site access date in schedule 4 part one of the contract was 03.07.18 and based on this information the subcontractor mobilized their site management & offices to site on 25.06.18, (pre-start meeting required subcontractor to call off materials in sufficient time)
The subcontractor submitted their first 8 week lookahead program showing the sequence of works commencing from 16.07.18 and were informed by Contractor that no access areas were available and agreed that the subcontractor would work on "daywork" basis until work areas became available.
The subcontractor submitted their second 8 week lookahead program showing the sequence of works commencing .1.08.18 to which again no access areas were made available by the Contractor.
The subcontractor submitted a third 8 week lookahead program showing works commencing 16.08.18 and again were denied access to working areas by the Contractor.
This has been a recurring theme throughout the project where the client has continually denied access to working areas through no fault of the subcontractor,(noting the contractor did not reply to the subcontractors program until 10 weeks after submission)
The contractor notified the subcontractor through a CCM on 26.11.18 that pursuant to clause 32.2 of the subcontract agreement, the contractor notifies his instruction to the subcontractor to submit a fully revised main Subcontractor program to the contractor for acceptance in accordance with Clause 32.1 / the contractor believes the subcontractors plans shown on the previous programs submitted to be not practicable as the program shows continuity (refer to schedule 8)
On the 09.01.19 the contractor issued another CCM in reply to the subcontractors request for extension of time issued through clauses 61 & 63.3,
The contractor states that no quotations have been submitted by the subcontractor with regards the extension of time however they acknowledged and agreed that several of these cannot be assessed until the contractor provides revised access dates.
Which clause should the Subcontractor use as a cost recovery exercise for the documented delays above,
NOTE: The contractor has issued revised access dates on 25.01.19 (the first since the contract commenced)
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Not sure why you were only submitting an "eight week look ahead" programme. Contract requires a "full" programme which would be issued shortly after contract award (within the period stated in CD1). Once you have a first Accepted Programme, then you have to submit regular revised (full) programmes at the interval stated in CD1 which is normally every four weeks or every month. If you have been denied access then that would be a compensation event which you should notify, and once agreed it is one submit a quote showing the cost and the time effects against the Accepted Programme. Any further lack of access or any other compensation events should then be assessed on their own merits and any further impact captured against the Accepted Programmme.
Sounds like neither Party has done what they should have done here and you have little choice but to go back in time and demonstrate this process retrospectively but in accordance with the rules of the contract.
There is no such thing as an "extension of time claim" under NEC contracts - they have to be captured specifically against individual compensation event(s).
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