How do we deal with situation where a Contract has been signed but subsequently the Starting Date has been agreed at a later date, does this constitute a CE or is it not possible to alter the Starting Date once the Contract has been signed, and instead such as impact would be recognised via a delay to the Access Date via Cl 60.1 (2)?
However Cl60.1 (2) can only be applied to an Accepted Programme and therefore would only if the Cl31 programme had been referenced in Contract Data Part 2, however if it hadn’t then there wouldn’t be an Accepted Programme against which to apply the impact – making things very difficult as it would be unlikely the PM would accept the Cl 31 based on the dates stated within the Contract if he knew that the Access Date had changed, because they find it difficult to place themselves at the point in time prior to the impact occurring.
An interesting question, and not quite such an obvious answer as I may have first thought. This could have been amended before the contracts were signed, so that if starting date is delayed then Completion Date would be moved by a similar amount (even that may not be so obvious, as Completion Date may move more if it moves activities into winter working or periods of non-work).
However, if it has not been resolved before signing then it will be resolved as a compensation event. Looking through the list I would say it would fit either 60.1(2)/(3) and/or (5) if there was a programme tied into the contract, such that starting date is later than that shown in contract data. If an accepted programme is not in place then the only other place to capture it as I see it would be 60.1(18) which is any other breach of contract by the Employer… This an example where it “must be one” and you just have to see where to make it fit.
Only caveat I would add to this was where I saw one (sneaky) Employer amend the starting date in the final version of the Contract Data before both Parties signed it but did not move the Completion Date. If that is what both Parties have signed up to (unwittingly or not) then I see no recourse for the Contractor in this event.
This is a difficult question which has been posed to me before.
Glenn is quite right, it doesn’t fit easily within the CE list. It possibly could go under 60.1(18) if you can show a breach. However, the easier way to deal with this is to step outside the contract mechanisms and identify it as a side agreement altering part of the contract.
I suggest you also look carefully at the consequences of changing the start date. Are the access dates the same? Is the completion calculated as a period after the starting date rather than being a set date? In either circumstance the need and purpose of a CE may be greatly diminished if not completely removed.
Just because it feels like it should be a CE doesn’t mean it is or has to be. Keep your practical head firmly in place and try to avoid getting sucked into “the contract say I can have…” rather than “what is the consequence and does that need to be dealt with”