Assessment of Delay

I am currently working on a NEC3 Option A contract.

As part of the project, we are required to design an element of the works.

The contract specification/ works information states the time period, under the contract, for approval of the design. However, we have submitted our cl 31 and subsequent cl32 programmes, which have all been accepted by the project manager, with a wrongly stated time period for approval.

A compensation event (cl60.1(5)) has now occurred and we have submitted a compensation event quotation and programme. However, the project manager has rejected the quotation and programme on the basis of cl14.1 and requested a revised programme be submitted, citing the error in time period for approval - Note correcting the time period for approval (of the design) reduces the change to planned completion.

Is the project manager permitted to do this, after all he has previously accepted our cl31 and cl 32 programmes which includes the wrongly stated time period for approval?

I don’t see how cl. 14.1 is relevant here, and the grounds for rejecting your quotation and programme do not sound correct.

However, as you say there was an oversight, so I would suggest that you compromise in the spirit of cl. 10 etc. and revise the quotation accordingly in order to be accepted. Just remind them to behave accordingly when you make an honest mistake and submit an undervalued quotation (hopefully not).

In the next revised programme you can correct the mistake; there is no need to delay the CE implementation now.

Apologies, I was not clear in my original query.

The reasoning (cl62.4), for rejection of our quotation/ programme, the PM gave was that under cl14.1 acceptance by the PM e.g. of a programme (cl31 or 32) does not change our responsibility to “provide the works”. i.e. the time period for approval stated in our cl31 and 32 programmes, by mistake, does not supersede the time period for approval stated the specification/ works information.

No worries.

I would not necessarily agree with the PM’s argument. Clause 60.1 (5) - 1st bullet point is clear; “The Employer or Others …do not work within the times shown in the Accepted Programme”.

I also refer you to clause 31.2 - 4th bullet point, whereas the order or timing of the work of the Employer and Others is as last agreed with them by the Contractor or, if not so agreed, as stated in the WI.

In my personal view, that means that your express agreement for different timeframes to be included in the programme would indeed supersede the WI stipulations for the same.

Of course, we know that such was not the case, so the above is purely hypothetical.