As above. NEC 4 option A. There is an accepted contract programme and the client has requested the inclusion of some of their activities which affect the works and push out the end date. This has also delayed procurement. The revised programme with these activities has been accepted by the PM. Client/PM are refusing to accept a CE for the delay and/or responsibility that their actions have caused the delay. It is difficult to cite a specific clause to deal with the event as there are nuances to the clauses under which it could be applied. I believe it should be a simple case of measuring the delay between the two programmes as it has occurred due to the client introducing their activities into the programme. To be clear these activities affect the works and create constraints as to what can take place and when. There is a clear difference between two programmes and the reason it has been delayed is not due to the Contractor but the PM/Client. I know NEC states that accepting a programme which has been changed/delayed does not necessarily comprise a CE but in this case surely it does as it has occurred due to the PM requesting the change. Thoughts?
I don’t think that your starting point should be the revised programme - you will use that to support the proposed alterations to the (previous) Accepted Programme of the CE quotation, if the CE is accepted. Your focus should be on what were the PM’s/Client’s actions that have delayed your works based on the previous Accepted Programme*; go to the list of events (clause 60.1) and see which ones suit your case.
Should you overcome the CE acceptance issue, you can then demonstrate the delay as mentioned above - see clause 62.2. At that stage, since the revised programme has been accepted, I don’t see how the PM would deny the time impact. However, you need to get the CE(s) accepted first following the notification process etc.
*Admittedly, things are somewhat complicated by the latest revised programme, which reflects the changes, now being the Accepted Programme but I cannot see any other way around it.
Thanks for your reply Peter. Several CE’s have been issued to deal with the change, all of these have been rejected by the PM. Essentially, the project has now been delayed with an impact to procurement having already occurred however, the PM has rejected those CE’s on the basis that there is no change to the scope. The Contractor issued those CE’s against clause 60.1 (1) as they were asked to include Client activities in the programme that created a significant extension, as well as having an effect upon the works, what can take place and when. The programme was then accepted despite knowing full well the resultant effect brought about via inclusion of those activities. They were not known about or included as part of the Works Information. The PM is claiming they are not Contractor activities but are refusing to accept that they affect the works and timings of same. In short, the Contractor seeks additional prelim costs for them and their supply chain to deal with the additional time on the project. We know that planned completion is now well beyond the completion date as included in the Contract Data. The PM is not going to change that date as it can only be done via a CE, so technically they are forcing the Contractor into a position where they are in delay, even though it is through no fault of their own.
I hear you; it is not an easy situation and it looks like the PM has adopted a rather rigid stance - not ideal for avoiding disputes. Things are only going to get more contentious as the LDs will kick in, so this is something that has to be resolved sooner than later.
Truth be told, Cl. 60.1 (1) might not be the proper clause to notify those CEs under, but on the other hand I don’t see how the PM can impose the inclusion of further Client activities into the programme without an instruction.
My suggestion would be to assess your position carefully and then invite the PM/Client to discuss this extensively; draw their attention to the fact that due to the financial implications, this must be resolved between you, otherwise a third party would have to do it and both Parties will incur irrecoverable costs (subject to any contract specifics).