Assessing Prolongation on CE's and Cl.62 Programmes

NEC3 and NEC4 Contracts Compensation Events
1

I am working on behalf of the Contractor under an NEC4 Opt A contract.

The Contractor has raised an NCE which was accepted by the Client as a CE at the point of the last Accepted Programme Rev 2 (CP02), and therefore at the point of the dividing date, the assessment on the Planned Completion for this CE was measured against CP02.

The Contractor is claiming for a 5 day delay to Planned Completion within the cl.62 programme submitted with the CEQ, and the EoT is measured against rev. CP02. In the period between the Client assessing the CE, and the Contractor submitting the quotation, CP03 had been submitted and accepted which shows a 10 day improvement on Planned Completion against CP02. The Client is now saying that the Contractor has mitigated the claimed delay for this CE (through hindsight), and not by using/disproving logic on the cl.62 programme.

Whilst the Client may be correct in their statement, the Contractor doesn’t believe this is the correct way to assess delay associated with the CE and the cl.62 programme should be referred to, not a subsequent Accepted Programme.

Is the Contractor correct in their stance with the cl.62 prog?

2

in short, yes the accepted programme at the time of the compensation event occurring should be used (with the programme progressed to the date of the CE occurring).

Presumably, but for the CE planned Completion would have come back by 15 days.

3

Ask the Client whether, if CP03 had shown that the Contractor had incurred a further delay (say 5 days) due to its inefficiencies, the Client would have been prepared to pay for the whole 10 days that planned completion is now beyond contract completion.

I think we all know the answer to that one.

If the Client wanted to benefit from the Contractor’s efficiencies, it should have used Option C.

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4

The Contractor is correct.

It should also be remembered that the Contractor will have a bad month at some point and has earned (through good performance between CP02 and CP03) 10 days float for himself. The Client shouldn’t take that away.

Implementing zero time in this way is wrong.

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