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NEC ECC: Is the lack of an NCE crucial for an Access Date Change in Adjudication?
This question is for a professional who has experience of adjudication or has actually adjudicated.
Contract is NEC3.
The Employer instructed a change (PMI) to the Access Dates in the contract but did not issue a corresponding NCE. Normally you would be covered under the standard 61.3 clause but this has been amended so the Employer has no obligation to notify under this contract or through the law.
I’ve only just joined this project and so cannot comment on why the Contractor signed up to such a uncollaborative contract – so please don’t state the obvious!
We have missed the notification period, so the time-barring mechanism is in play and that is what the Employer is stating.
The Employer has a fundamental obligation to allow the Contractor access to the site (Cl 33.1). This clause recognises two dates, that shown in the Contract Data Part 1, and that shown in the Accepted programme.
The Employer should be aware that if the Contractor shows a date in his programme when he requires access to and use of the Site (or a part of the site), the Employer accepts the programme, then the Employer is obliged to allow that access by the later of that data, and the date in the Contract Data, failing which a CE occurs.
The Employer’s stance is to make the Contractor solely responsible for an NCE under this contract, despite their obligation under Cl 33.1.
My question is whether the adjudication will take the fundamentals of the Employers obligation or just refer to the amended contract mechanism?
Although not an Adjudicator, an initial observation is that the Employer (or actually PM) cannot instruct a change to the access date, under the standard NEC form, which can only be changed by showing a later date on a programme submitted for acceptance, which becomes an Accepted Programme, as you have said.
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An adjudicator will make a decision based on the rules that the Parties have signed up to. I do not believe the adjudicator has the power to really assess if these rules are "unfair", that would need to be challenged through the courts in the next stage which would be tribunal if you were willing to risk going that far.
I think the intent of the amended contract is clear. Contractor has to notify all compensation events within eight weeks otherwise they would be time-barred and there is no means of seeking recovery.
I have to state the obvious - no Contractor should sign up to this contractual amendment. Thankfully now most Clients would not write such a clause, but any party has to understand the rules they are signing up to - and in particular amended rules. The standard contract wording is pretty balanced to both Parties. A Contractor should be very wary of any changes to those rules - or potentially pay the consequences.
I think in this case you have to get round the table and try to reason with your Client how such an event was not your fault and what it has cost you in time/money and see if you can get them to concede this fact and agree it as a CE. If not then you have no choice but to follow the dispute process which would be firstly senior representatives under NEC4, then adjudication and if still not in agreement of that decision to tribunal
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