Curious to see what most people here would notify in this situation. For clarity, we are a subcontractor under an amended option A NEC contract.
There was some text in the subcon agreement works information stating the contractor was to provide clear, unhindered access with the perimeter to be backfilled to allow our plant to access the working areas. Upon a site visit, one of the elevations was not backfilled leading us to hire in scaffold platforms to span over the void so that workers could access the working area.
We put in the comp event notice and it was rejected on the basis of āsubcontractor has not proven how the access requirements have changed from CAā to which we rejected given myself and the PM went to site, took photos and even discussed it in various meetings.
My question is, how would most of you notify this which is essentially the main C not providing something to us. There is a category in 60.1 for not providing something for a date shown on the accepted program? I notified it under a change to the works information given it said that access would be provided and as a result of our site visit, it wasnāt.
The matter has since been resolved and we are receiving payment.
Curious to see how others would notify and under what clauses.
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Hi leroyS
If the subcontract works information expressly states that clear unhindered access would be given then, in your case, as it was not given it would be a compensation event under 60.1(1).
There is a missing step though, at the point you knew about it (and you would have raised an early warning about it), the Contractor should have issued an instruction to change the subcontract works information to account for the constraint on access that now exists. That instruction might just be to hire in scaffold platforms etc.
Once that instruction is issued, you can continue with the work as instructed, and that instruction would be a compensation event under 60.1(1) notifiable either by you or the Contractor.
If the Contractor refused to give any instruction, and absent an instruction you are unable to access the site, then that may well be a compensation event under 60.1(2) or even 60.1(18).
LeroyS, I would add to what Steven has said and say that it is not necessary for the Subcontractor to identify the specific compensation event, the Sub only has to notify āan eventā which they believe is a CE [clause 61.3]; it is the responsibility of the Contractor to decide whether it is one of the compensation events in the contract - see last bullet of clause 61.4.
Iām afraid it is not uncommon for this type of wrangling to go on over someone notifying a genuine compensation event but for it to be rejected simply because the wrong clause number has been identified; utter nonsense, a bluff and a time wasting exercise.
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Hi,
Thank you sir. Very helpful. Iāll bear this in mind.
P.S I canāt remember ever seeing a contractor issue an instruction on the back of an EWā¦in my experience it goes in to a PM meeting and getās washed up as part of the overall strategic level discussionsā¦
Really? we donāt have to specifically highlight the clause? Iām going to check that tomorrow when Iāve got the contract in front of me. That would be a massive help.
Totally agree, just deliberate stumbling blocks to bludgeon you in to not submitting CEās, Iāve had a few belters in my timeā¦āstandard industry practiceā is a good one. Tends to be worse when you go to site and actually see the event right in front of you and people still take no notice.
The contract does not require the Contractor to state why it thinks an event is a CE, but I would strongly suggest that you do so, even if only to ensure that you comply with the mutual trust and co-operation clause. Iāve used a number of software applications for managing NEC contracts and, from what I can recall, all of them require a box to be ticked to say under which clause the Contractor believes the event constitutes a CE.