We are a subcontractor working on the NEC 3 subcontract.
In the initial days, the Contractor was rejecting our Clause 31 programme for reasons not stated within the subcontract - their reason was that it did not match their clause 31 programme with the Employer.
It was therefore agreed, through various meetings, that we would mirror their clause 31 programme (for our part of the works). This resulted in an increased duration to one of our activities, by circa 56 days.
Can we notify a compensation event for this increased duration, citing clause 60.1(1) i.e. changing the Works Information?
My concern in doing so is that the Works Information does not contain any specific dates. Our tender and accepted Target Price, for this particular activity, had been agreed and it did show the number of days we targeted for the activity, but as the clause 31 is effectively the baseline programme, can the Contractor argue that no compensation is due as there are no provisions under clause 60.1 for this?
To expand - we mirrored the Contractor’s cl.31 programme as the access dates had changed (note that these are not Access Dates stated within the Contract Data or appendices) but just dates to enable us to mobilise on the platforms we require.
Our original price was submitted based on a continuity of working, however by mirroring the Contractor’s clause 31 programme, we now have a number of days standing between activities and it is these days I would like to recover via a compensation event but is clause 60.1(1) the correct clause to use?
I’m assuming there are no section access dates and that at time of preparing your tender you were not aware/informed there would be programme constraints in the Works Information on how you would be required to provide the works.
If that is the case, then the Contractor now imposing constraints on you which is a change to the Works Information and a CE under 60.1(1).
Sorry I should have mentioned that there are Access Dates and Key Dates stated in our subcontract, but for each activity stated within our scope of works.
To clarify, for this particular activity, we have an Access Date and Key Date (our Completion Date) - based on this information, we forecast carrying out the works based on a continuity of being able to access each platform and complete the works and provided a tender programme to show this.
However the issue is that by, effectively, instructing us to mirror their clause 31 programme, they have shown the ‘access dates’ (not contractual or stated anywhere in our subcontract/Works Information) to each platform, which now does not allow continuity of works and has led to standing time and increasing the overall duration of our works.
Despite there being an Access Date (which has been revised via a PMI by the Contractor), are we still entitled to claim for the standing time we are now incurring under clause 60.1(1)?
Note we will now not be able to achieve our Key Date, due to the above, and informed the Contractor accordingly, however they are unwilling to issue an instruction revising the Key Date, despite moving our Access Date back - would we be able to capture this within the above claim?
I’ve understood your first paragraph to mean that you do have Access Dates and Key Dates in the Contract Data that align to the individual activities in the scope/Works Information. I presume the Activity Schedule reflects the activities within the scope/Works Information.
You mention a tender programme, was this part of the tender offer referenced in Data Part 2 and accepted as part of the process.
Am I right in understanding that you have now been provided with access dates for each platform. These dates do not align with the Access Dates for the activities.
If I have understood correctly, the new Access Dates (platforms) contradict with the contracted Access Dates (scope activities) so the Contractor has created an ambiguity. I don’t believe the Contractor can revise an Access Date or introduce new ones that relate to different items, it can introduce a new constraint in the Works Information which is a CE and would allow you to include additional cost.
You should also include the effect of the CE on the Completion Date and Key Dates and have them amended accordingly. Be very careful with the Key Dates because if you fail to achieve them then damages are at large.
Hope the above makes sense.
I apologise that I have not been very clear.
To clarify, yes, you have read the first paragraph right.
Perhaps an example might be easier.
For this particular activity (building 40 platforms), we have an Access Date (as stated in the Contract Data) of 1st June 2021 and a Key Date of 1st June 2023.
We priced the works to show a continuous working programme i.e. we would have access to each area to build the platform, following completion of the previous platform.
The Contractor then asked us to mirror their programme, which effectively became our clause 31 programme.
However, their programme does not allow us continuous working and therefore there are a number of days we are now standing.
This has increased our overall duration, pushing our planned completion of 1st June 2023 to 1st July 2023.
Apologies again for the confusion but based on the above, which I hope is more clear, are we still able to notify a compensation event under clause 60.1(1)?
If you had a single Access Date in the Contract Data (for the 40 platforms) and the Contractor is now only providing phased access to the platforms then that is an additional constraint and a change in the Works Information which is a CE. Any extended activity time (standing time) should be considered in the assessment of the change to the Prices and similarly any delay to planned Completion/Key Date.
Thank you - appreciate your feedback.