CE vs Early Warning advice

NEC3 and NEC4 Contracts
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We are a contractor operating under an ECC option A NEC 4 Contract. We have an encountered an issue on site that only became known when debris was moved away. We subsequently raised a CEN under 61.3 citing 60.1.14 asking for the valuation to be conducted via dayworks as the event is difficult to value. The Project Manager responded and rejected our CEN citing the event not happening and has then included a blurb about using the EW process and said the CE would apply when the dayworks are completed, i.e we submit the CE only when the dayworks are done.

We disagree with this as we feel the PM is negating our time/money (albeit not known yet) to the EW process which is not a vehicle for recovery, the mechanisms to recover are via the CE process. We believe this to be a valid CE with a valid notification with quantum and value to be determined. If we proceed on dayworks when it’s not recognised as a CE, there is a risk we do not get paid.

Any thoughts from the community on this?

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That sounds like a CE to me, although I’m maybe a bit surprised you think its 60.1(14). The test here is not whether the CE has happened. You can only reject if the CE ‘has not happened and is not expected to happen’. It could be that this has not happened yet, but it is expected to happen. It seems that both parties agree that there is extra cost - so why not get on with it?

You also don’t need to Early Warn this, because per 15.1 EW is not required for things already notified as CE.

As for the dayworks element, NEC does not support that approach, so be aware of the pitfalls there. The closest NEC gets to ‘dayworks’ is using PM’s assumptions, and then having other CEs to correct the assumption.

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Hi Andy,

The item is a client risk/liability for a fault in the design, although could arguably be 60.1.18 also.

I guess our issue is proceeding with it and then not getting paid for it at a later date if it’s not officially gone through the process.

Thanks for clarity on non requirement to EW.

We are proceeding with it and can debate the case for payment, but was just wanting to get some insight on the EW/CE process which has been helpful.

Thank you.

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