Hi
I refer to an earlier (and related) thread, which states “The Programme then shall include additional works due to a CE even if it was not yet implemented so that the Programme reflects the Contractor’s plan realistically”'. I also refer to Glenn’s note (regarding non-implemented CEs) in that thread:
and to Glenn’s guidance note ECC Clause 31.2 – Programme Requirements. I did do a bit of search but could not find a definitive answer to this one, apologies if I missed it.
It seems from this site (and indeed others) that the inclusion of “non-implemented” CEs in the programme is well covered and I fully understand these, in terms of " reflecting the Contractor’s plans realistically". This seems logical, fair and reasonable (and in accordance with the Contract, which is what matters), assuming these CEs will be implemented e.g. variations etc…
What is less often discussed and is probably more contentious is the inclusion of “non-accepted” CEs (more often delay events that are not related to scope change or additional works). The NEC Contract Website is one of the few that directly discusses this in the context of inclusion of (inter-alia) “notified but not accepted” CEs. I have googled a bit but there are not too many other sites that discuss this directly (but I would be happy to see any references please).
While not specifically stating it, it is implied in the NEC Contract Website that planned completion reflects ALL of:
(a) notified but not accepted compensation events
(b) those notified and accepted but not implemented; and
(c) agreed CEs that are implemented
with each represented by a different colour in programmes submitted for acceptance. Sounds reasonable and again, it makes sense in the context of “planned completion” from the Contractor’s perspective (it is after all their planning) to keep these in the Program as the Contractor (presumably) believes they ‘are’ genuine events that should have been accepted.
Notwithstanding, purposely including all (or a very large proportion) of non-accepted CEs in the Programme does not seem to be the way NEC was intended to work, despite doing so being at the Contractor’s risk. At Completion, the Contractor still has the risk of exposure to delay damages, if they chose not to mitigate delays caused by these (non-accepted) events.
I can see parallels with other forms of Contract (some personal experience) which might end with a similar result, the non-accepted CEs all staying in place in the programme, an already substantially delayed planned completion getting pushed out, planned completion delayed further by accepted CEs and a scenario no-one wants arising, whereby the PM has to either (a) accept the Project will be seriously delayed or (b) instruct acceleration to mitigate (also a CE) or (c) the Contractor elects to do so (or not), but it is often too late to have any effect.
Don’t get me wrong, I really, really want NEC to work as intended and I appreciate it takes a genuine effort from both parties to make sure it does.
So my question is simply this:
Can someone definitively confirm that the NEC Contract intends for ALL three of (a), (b) and (c) above to be included in Planned Completion so that Cl 31.3 is satisfied “In accordance with sub-clause 31.3, the Programme shall represent the Contractor’s plan realistically” i.e. he plans to complete on a date that has been pushed out by all (or most) non-accepted CEs and that this is their realistic planning? As opposed to an earlier planned completion which does not include such delay events but does include planned mitigation?
Thank you
Kristian