Day 100 - The Contractor issues an early warning notification to the PM stating that it is impossible to commence programme activity A [drain run X to Y] as the Employer designed Works Information is silent on trench width.
The Accepted Programme shows that activity A is planned to commence on Day 107 and is a critical path activity on a linear programme.
Day 121 - PM gives an instruction changing the Works Information - trench width 600mm.
The period for reply in the Contract Data is 2 weeks.
The Contractor’s quotation for the Cl 60.1(1) compensation event includes and assessment of the cost of the time delay from day 100 to day 121 as the delay is solely a consequence of the change to the WI.
The PM believes that there are 2 compensation events to be assessed [subject to notifications]. He alleges the delay to be a Cl 60.1(6) compensation event and the quotation should only include a cost of delay of 1 week as the 2-week period for reply is Contractor’s risk. He then states that effect on Defined Cost of the CWI cna only be assessed as the effect after the Cl 60.1(1) event occurred.
Please note that the Accepted Programme stated does not contain an activity that states the Employer was to provide the designed trench width so a cl 60.1(3) does not apply.
Do you agree with the Contractor’s approach or that of the PM?
I am tempted to say that both Parties should have had their heads banged together a little here! A few points of note:
• An early warning allows either Party to instruct the other to attend a risk reduction meeting – which is how an early warning should be moved forward. It should have been made very clear the implications of the lack of trench information would have. There is no formal response time for an early warning – the period of reply is for any communication – but even a response would be irrelevant here as it would not necessarily be resolution. There is no timescale in which an early warning HAS to be closed within.
• Day 107 the Contractor could/should have notified a compensation event that the lack of trench width IS now affecting the works. That should have prompted a response within one week as to whether the PM agreed. It should have been made much clearer the issues that this lack of trench detail was having.
• It would have helped having a milestone on the programme to state they needed this information from the Employer, but then again there may have been lots of bits of information they needed and you would not always/generally have these on the programme – especially when you did not think it would be an issue in getting it.
In any event – the apparent delay to planned Completion here is from day 107 to day 121 – so that
Looking at this more generally I would summarise with following questions:
• Was it Employer responsibility to provide trench information?
• Did Contractor highlight that this information was lacking with sufficient notice?
If the answer to both of these questions is yes, then from the information you have given here I would say that it is a compensation event under 60.1(1) as the PM is changing the works information(giving trench width). The effect of this was a two week delay on the critical path works (day 107-121) which should be assessed in terms of time and cost.
If the Contractor notifies there is an issue within a communication, the PM can NOT expect always to have two weeks to respond and that two weeks will ALWAYS be the Contractors liability.
Just wanted to add two points to Glenn’s very full answer and reinforce his point on notification of an Early Warning really not being enough, why didn’t the contractor call the Risk Reduction meeting?.
First, the periods stated in the NEC are the MAXIMUM time periods not the targets or what you should do or what you are allowed to do. Answers should always be given as early as possible.
Second., I would have thought the delay period could well go beyond the day the information on trench width is given depending on how the contractor now chose (bearing in mind its obligations under 63.7) to mobilise for and carry out this work. Glenn is of course right that the delay cannot have started to impact the activity until it was due to start unless, which seems excessive, there was a 7 day procure and mobilise period for the trench works.
Glenn made a point that the Contractor may need lots of things from the Employer and that these will not always be shown on the programme. A handy tip is for the Employer to add, in the Works Information, to what an Accepted Programme has to show and that is a an up to date list of deliverables - be it access, materials, tests to observe and info - with dates beside them.