The Contractor submitted quotation for inclement weather in 2021 and claim delay to Completion to sectional completion and also for key date. However, key date of the contract had been achieved in 2022 and notification of achieving key date already issued to the Contractor. In this case, any delay to key date have to be granted? If yes, this is based on the programme at dividing date (i.e. 2021) and ignore the current fact that it is achieved?
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Hi SuC, if it is NEC4 then refer to clauses 63.5, 63.1 & 62.2. If it is NEC3 refer to 63.3, 63.1, 62.2.
It is difficult to answer your question without knowing how it is that the review of the delay is being done so much later than when the event occurred.
My question is, why if they submitted a quotation in 2021 is it only being looked at now?
The process in the contract is notify a CE [60.1(13) - within 8 weeks - 61.3; PM decides on principle i.e. is it a CE or not - 61.4; if yes then the PM instructs a quotation and the Contractor submits it within 3 weeks - 62.3 [so presumably the PM agreed that it was a CE if they instructed a quotation?]; the quotation is the Contractor’s forecast of the effect of the CE on time and cost using the Accepted Programme updated to show the forecast effect upon the remaining work - 62.2; the PM either accepts, rejects and instructs a revision or makes a PM assessment - 62.3; the PMs assessment is made within the same time allowed for the Contractor’s quotation, the PMs assessment time begins when the need becomes apparent - 64.1, 64.2 & 64.3. Under NEC3 or 4, a CE cannot be altered once it has been implemented.
So in short it sounds as if this should have been sorted a long time ago and there should not be a debate about what actually happened.
The contract states that the delay had to be assessed on a genuine forecast back in 2021, then I think the entitlement would be to have the dates changed accordingly but if you are assessing in retrospect you have a problem to sort out, which I doubt you can rely wholly on the contract for.
Apologies but this might not be much help but if you are able to give more details then maybe we can provide some help.
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Our contract is NEC4.
The Contractor had submitted the quotation in 2021 and PM’s delay assessment had been done in 2021. At that time, 10 days extension of time (EoT) has been assessed to key date. Under our contract, approval of the PM’s delay assessment from the Client is required before implementing the CE. Such approval from the Client was just received recently, and therefore we would like to implement the CE now.
Our thoughts are as follows:-
(i) If we take into account of the actual achievement of key date in February 2022 (clause 30.3), the planned date for key date in the current latest Accepted Programme is the same as the achievement date (i.e. February 2022). Following this, the Contractor does not need to pay delay damages as per Clause X7. We consider that it is sensible not to ignore this actual achievement date by the time of implementing the CE to reach a fair and reasonable assessment. That is, the PM does not need to grant 10 days EoT to key date.
(ii) Or should we follow our assessment in 2021, that is, the PM still grant 10 days EoT to key date for the reasons that the Programme at the dividing date which is in 2021 showing there is a 10 days delay?
(iii) Our concern on (ii) above is that, will there be any implication of the contract that planned date when the Condition of Key Date will be met in the Programme is now later than the actual achievement date of key date?
Currently, the Contractor is insisting on approach (ii), and we (as a PM) consider approach (i) is more correct.
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Suc, I’m afraid the published contract doesn’t work like that, the Client doesn’t have the right to say whether a CE is implanted or not, the Client has appointed the PM and only the PM can implement a CE, and clause 66.1 states how, either accept the quotation, make a PM assessment or if the PM is caught by a time bar then the Contractor’s quotation is treated as being accepted.
If your contract has an amendment to it which allows for this then I don’t see how it works, no one can control the weather so if the event qualifies as a CE and if the rules of the contract under clause 63 have been followed, what influence can the Client have over it?
My personal opinion is that the predicament you are in is exactly why the contract should not be amended to allow the Client to interfere in this way.
I think you should implement the original assessment as per the contract, otherwise you might face a dispute and the contract will be enforced [whatever that might say].
Happy to discuss.
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