The Contractor published an assumption regarding the Contractor providing information to the Subcontractor by a certain date. The information was then provided later than that date; thus, the impact should be assessed as a new compensation event, correct?
The Contractor is seeking to reject the new compensation event on the grounds that the Subcontractor could not demonstrate that the Subcontractor was not already in concurrent delay during the period the information was not provided by the Contractor.
Despite the Subcontractor reacting to the late information and progressing the works (reliant on the information) within days of receiving said information, the Contractor is citing a concurrent delay as being the reason for rejection, without any justification that a concurrent delay had arisen. What approach should be taken in this instance?
It sounds like the Subcontractor’s CE notification is made on legitimate grounds.
Regarding concurrency (NB. there is no such concept in the NEC, and even if there was it is not simple as the two events should have started occurring at the same time, with the “same time” being a topic by itself; the Contractor probably refers to “overlapping” delay), any such matter would have to be dealt with within the assessment process, following acceptance of the CE and the Subcontractor’s quotation for time and cost impact.
See below some very helpful resources on the matter of concurrency, in relation to the NEC contracts: