Access Date Windows to Key/ Section Dates

In Contract Date Part 1 we have multiple Access Dates, each dependant upon another date “Access date 2 “X” days after Access Date 1”.

Key, Sectional & Completion dates are linked “X” days after Access Date “Y” is notified.

Access Date 1 (which ultimately drives all other access, Key, Sectional & Completion dates) is a window of a few months, citing that access will be notified within the window dates, where no CE will be applicable.

Questions:

1 - Is it fair to assume that to de-risk time and costs you should assume worse case and utilise the last date of the access window? This way any gain on time is an opportunity to the project.

2 - if we had assumed the starting date of the window, but access is not notified until later in the window; key/ Sectional/ completion dates would be impacted, with no entitlement for time or cost? (This would ultimately push the full programme of works out (by up to 4 months) due to the dependence across the project on Access Date 1.

Points of note:

  • This Contract has been awarded.

  • Technically speaking the Key, Section and Completion date are not fixed in the contract, but an Accepted Clause 31 is in place defining these dates, based upon the assumed access date of the access window start date.

This feels like the full risk for time has been placed on the Contractor by The Employer (NEC3 option A). How do you define the relevant contract dates at CL31 stage without assuming worse case scenario!?

Thanks in advance.

Hi, I think you have already answered your questions correctly.

I would suggest that you submit a revised programme for acceptance asap (cl. 32.2 - 2nd bullet point), following the correct logic indicated, i.e. assuming access date at the access window end date. There should be no reason for this not to be accepted by the PM (4 bullet points in cl. 31.3).

I hope this helps.

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Thanks Peter.

However, if a revised programme was produced, submitted and accepted - would that not mean that the Planned Completion now sits outside the contract dates/ a significant slippage from the Last Accepted Programme. Where does the liability sit?

If I have understood correctly, you do not have fixed dates in CD Part 1, but they are rather dependant on the access date, whenever that happens within the allowed time window. Therefore, the planned Completion that will be shown in your revised programme, although later than the planned Completion in the previous accepted one, will be driven by the latest “allowed” access date.

I cannot see this as a slippage, but rather a change to the Accepted Programme to show the information that the contract requires (i.e. access window & notification of Access Date). I’m not sure under what circumstances the first programme became the Accepted Programme (whether identified in CD or submitted after the Contract Date) but I think that this issue has to be addressed properly (an early warning & risk reduction meeting would help) in order to avoid future complications.

Another approach for the revised programme is to keep the early access date but insert the 4-month window as time risk allowance; the result will be as discussed (all the dates will move) but the logic will be more clear to the stakeholders.

The matter of liability if things escalate (hopefully not - what you are asking is reasonable), will turn on the facts and on what was agreed - without the full details of the contract and correspondence, it is difficult to answer.

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Thanks again Peter.

Yes I appreciate you won’t have the full picture. For clarity though:

  • No contract listed within contract data. Was issued afterwards.

  • Contract Data states against Access date 1 - The PM notifying a date which falls within the access window is not a CE. The Accepted programme uses the earliest dates.

I do like your suggestion of a TRA window to represent the Access window, however am concerned this would still impact Planned Completion later than the Last Accepted.

No worries,

Even if the contract was made afterwards, if it incorporates the CD you refer to, it is still binding.

What is important with regards to liability is the Key Dates and the Completion Date; if your planned dates are shown earlier (i.e. based on a more optimistic scenario) no liability will arise if they are delayed, and of course you will not have a CE entitlement if that delay relates to the PM’s notification within the access window allowed.

So in order to be on the safe side, you can keep the optimistic scenario (planned dates) but you must clearly set the Key Dates and the Completion Date according to the worst case scenario (late notification by PM). The residual (time difference between planned and contractual dates) is terminal float which you will own as the Contractor.

I hope this is more clear and I assume you are familiar with the terms and operation of “planned Completion” and “Completion Date”.

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