Where due to mitigation of an Employer risk the starting date for certain works were pushed back and this becomes the Accepted Programme, can a later assessment of that compensation event ever take account of the original planned completion date (i.e. before the dates were pushed back) or does clause 63.3 mean that only the adjusted planned completion date on the Accepted Programme can be used to assess delay and costs?
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No, a later assessment of a CE can’t take place. Cl.63.3 is essentially saying that a CE once implemented moves Planned Completion, Completion Date & Key Dates by the same amount (assuming this is on the critical path). Once implemented a CE can’t be revisited (Cl.65.2).
If it is an NEC 4 contract and has the 2019 amendments to it, this allows you to “take account” of the CE changes already shown on the relevant accepted programme. You could then re-wind that change, baseline it and reintroduce the change as it it were a normal CE assessment. That is my interpretation anyway.
I am struggling, myself, with how to deal with such a situation when the CE changes are already shown on the accepted programme but take place before the data date (100% complete). Any ideas?
My answer above is based on the title “Can an NEC3 Programme”. NEC4 requires you to update the programme to the dividing date (notification, or PM instruction) then impact it with a CE forecast of Defined Cost and time, upon implementation it is closed in the same manner as NEC3. Not sure I understand the “re-wind that change” comment. Once implemented it can’t get “re-wound” otherwise the PM could take advantage and correct things in their favour each time (Cl.66.3). The data date is not relevant here, it’s a planners date, not a NEC defined date. CE’s are a forecast, the contractor needs to use their experience to forecast time and cost, they may/may not get it right (just the same as any other pricing)
My reading of the initial question is that it is about what happens when the accepted programme at the dividing date has already included the unimplemented CE within it. It appears that this has happened in the scenario above. They are now having to assess the impact of the CE impact from an accepted programme with the CE already shown within it. The NEC4 2019 amendments address this point. The planner needs to create a baseline without the CE before introducing the CE to allow for quantifying the movement of the Planned Completions. This is the “re-winding” of the CE within the programme that I was referring to.
Regarding my point about the data date, I think this is of significant importance because of the following scenario. Let’s assume a weather CE delays work by one week but the contractor does not raise this as a CE until 8 weeks later. Within that period, say 1 week after the weather event, the contractor issues a new Clause 32 programme with a data-data of that day, which becomes accepted the following week. When coming to access the CE the accepted programme as of the dividing date (CE notification event in this scenario) will be the programme with a data date after the weather impact. So the programme to assess change from is already progressed past the CE event in question and therefore the principle of introducing the change and rescheduling would have no impact on the planned completion date. To clarify, the critical path logic linked programme recalculates the programme as of the data date.
To me in such situations that dividing date needs to be considered as the accepted programme as of the event starting date and not the notification date as there can be an 8 week difference between the two dates.
Thoughts / comments on the above would be much appreciated.
Thanks Sebastian. I couldn’t agree more. The weather scenario you summarise is pretty much exactly what has happened and we would need to try and persuade the PM that the Accepted Programme to use under the old pre 2019 approach (NEC3 Clause 63.3) is not the most recent one but the programme existing at the time of the event.
In that scenario the contractor has shown an unimplemented CE in their Cl.32 programme, as per Cl.32.1. This will likely show “Planned Completion” being late, or possibly past the “Completion Date”. If the PM has accepted this Cl.32, then the impact programme submitted with the CE quotation needs to update the programme to that point in time and move the Completion Date by the same time amount to suit (the duration of the weather event), once the PM accepts the CE impact programme that becomes “the last accepted programme” and everything is up to date, this would then show PC before the Completion Date. At this point the Cl.32 is superseded. The requirement is to update to that point in time from the last accepted programme.
Thanks, LU, what about when the data date (progress status date separating actuals from forecasts) on the relevant accepted programme, based on the CE notification date dictating by the dividing date, is later in time than the CE event in question. This was the scenario I set out above. In such a situation you cannot progress up to the event because according to that programme the event already took place and is shown there as 100% in the past.
To me you have three choices here.
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agree with the employer an alternative earlier Accepted Programme with a data date/status date before the CE event date, so not based off the dividing date as set out in the contract.
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Rewind or unprogress the relevant accepted programme to a point in time before the event took place. This then raises questions as to how to deal with concurrent contractor delays.
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Run a two-stage delay assessment firstly doing a retrospective as-build analysis to work out delays caused by the CE up to the programme status date and secondly running a prospective assessment of the remaining impact to Planned Completion.
@Glenn_Hide your thoughts on this would be very helpful I think. See my simple scenario set out in a previous post.