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NEC ECC: Planned Completion being driven by a third party
As a Contractor, we currently have a contract where the starting date and planned completion are being driven by a third party.
The contract data has a start date of 1st June and a Completion Date of 30th October.
However due to restrictions being placed on the works taking place by a third party, we will not be allowed access to the site until 1st July, and all work must be complete by 30th September.
This has resulted in an acceleration of the planned work, with additional resources required to complete the works on time, though there is now no float, with planned completion being 30th September.
My main query is, if we encounter a delay and a CE will push out the planned completion, does this have any effect on the Completion Date? Or what would we be entitled to in terms of EOT. Or should the contract data be changed to match the actual access dates?
Jun 25, 2019
It's like an exam question this one!
Firstly, you need to look at all the things that have happened in sequence; the assumptions that i am going to make are the contract was signed, everything was ready to go and then the restrictions occurred.
So, firstly the third party are likely to fall under Others (11.2 (10)) and therefore if they are not working within times stated on the Accepted Programme it would be a CE under 60.1 (5), the non access to site could also be picked up in 60.1 (2). Either way it should be notified in accordance with 13.1 / 13.7.
If the previous assumptions are correct, the entitlement would presumably be 1 month time plus cost therefore planned completion and Completion would be moved by one month on the implementation of the CE. (Look at 63.1 and 63.3 for how to assess and a Programme is required to show impact (62.2)).
Remember any float on the critical path (Time/Risk Allowance) or at the end (Terminal) is 'owned' by the contractor therefore the Contractor is within their rights to keep that and quote within the CE.
Regarding the acceleration,
The contractor is not obliged to accelerate (bringing forward contract Completion Date) however the PM can request a quote for acceleration (36.1) the Contractor can decline for whatever reason (36.2). If you provide a quote for that, you need to consider the impact of Delay Damages (if they are a secondary option) and other risks and price them accordingly.
Regarding your main query, if the delay is one of the CE's you would quote the cost impact and the impact on planned Completion and the PM would move the Completion Date accordingly - Remember there is no 'EOT' global claim scenario within NEC more the events are assessed for impact on time and cost and should be done at the time they occur and within the timescales prescribed by the Contract.
Jun 26, 2019
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I would add to Ellis's thorough answer that if the PM wants a compensation event quotation to meet the current Completion Date and arguably planned Completion, he or she could instruct a quotation for a compensation event, but only having had discussions with the Contractor about the practicality of doing that. The Contractor would be entitled to include for the additional time and cost risk allowances as a result of a programme with less free and terminal float.
If the Project Manager wants either or both planned Completion and the contractual Completion Date move forward then we are thoroughly into 'acceleration' under 36.1.
Jun 26, 2019
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