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NEC ECS: Concurrent Delays
Our query relates to a disagreement we are currently involved in relating to concurrent delays.
Working under an NEC 3 Subcontract, Option D
Contractor has not allowed access to part of a site due to his works in the area not yet been complete so the area has not been handed over to us the subcontractor. Contractor is in agreement that this is a CE and willing to grant us relief in the programme, however Contractor is unwilling to accept the full cost liability for the delay due to the fact that we the subcontractor did not have the necessary paperwork in place to commence works (Risk Assessments and Method Statements).
Our position is the lack of a work site is the primary cause for the delay and the lack of the necessary approved paperwork is of no significance given that we did not have a site to access and commence work. Is this position reasonable? How should concurrent delays be assessed under this form of contract?
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Broadly speaking I always state that there is no such thing as concurrent delay under NEC contracts. One delay will have happened first and you assess the impact of that, and then see the extra over effect the second delay has over and above the first.
If the lack of access has happened first, then that should be assessed to see the impact that would have had. However, if you did not have the paperwork in place to start on the day you did not get access, then they would have a point. In that eventuality I would look to demonstrate how quickly you could have got it in place - all be it the Contractor would have been entitled to a contractual timescale to respond and accept that documentation. Then the remaining lack of access would be the critical delay.
With hindsight it is obviously important to have all the documentation in place, materials procured and ready to go - then the lack of access can not be argued.
Your best defence here is to try to demonstrate how quickly you could have done the necessary paperwork, and the only reason you didn't is that there was already clearly no access so there was no rush for the paperwork, otherwise you would have done it. Being option D - you can argue that you focused on other things other than the paperwork to work more efficiently elsewhere and to minimise your costs and to maximise your and the Contractor gainshare being option D.
thanks for taking the time to respond.
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