As you say, I think the ECC is clear on the course of action when an EW has not been raised prior to issue of an NCE (clauses 61.5 and 63.5). The question was more so aimed at the course of action/ramifications (if any?) when the Contractor is aware of the event which could increase the total of the prices and increase his total cost but does not notify the Project Manager via an EW as soon as he becomes aware of it thus impeding the opportunity to mitigate costs. For example despite being aware of the event, he waits 2 weeks before submitting the EW albeit prior to last available opportunity to raise a NCE within 8 weeks as defined by 61.3.
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I still read 61.5 as being applicable. If a Contractor waits 2 weeks before raising an early warning, the Project Manager can still use clause 61.5 to say that they ”did not raise an early warning of an event that an experienced Contractor could have given”. The fact that they have just given one does not mean that they can not be held to account for not raising it 2 weeks ago. The intent of this clause and that of 63.5 is for the chance for the Project Manager to mitigate the problem to lessen the time/cost impact to the Employer. The fact that the Contractor has finally gotten round to raising the issue does not mean that they should not be held to account for not raising it before now.
Otherwise this could lead to a (risky) game of the Contractor holding onto an early warning until just before they think they have been found out and then raising it before the Project Manager does. Clearly this would not be the intent of the contract. With this in mind I believe this clause is applicable if they have not raised an early warning at all or if they did not raise it early enough where you can prove (may be difficult) that they did know about it.
Your last point about waiting to raise an early warning until just before the end of the 8 week period raises a far different question. The 8 weeks should be irrelevant, as it has to be something you are aware of if the 8 week time bar is to be applicable, and if you know about it I would suggest it is no longer an early warning (as early warnings are for matters that could or might be an issue). Last line of 16.1 states that an early warning for a matter already notified as a compensation event is not required.
Glenn totally agree with your comments. Early Warnings should be notified “as soon as you become aware”. A PM should consider if an early warning notification should of been given or was given as soon as he was aware.
The timely issue of early warning notifcations is an essential element of the good management of nec contracts.
However, the timing of a “late” early warning is also relevant. It may well be that the contractor could have issued the EW previously to when he actually did and it is from this time that the costs/time implictions of any possible CE would be calculated. It is also perfectly possible that the mitigation factors are not changed by the timing and that despite the lateness of the EW issuance, the resultant action would be the same.