NEC3 Option C. Until this month (Jan2024) the last accepted programme on the bridge restoration project was July23. Programmes were submitted by the Contractor in this period but all were not accepted as key Critical Path dates stated were incorrect / not agreed.
In early August a CE was issued to undertake design check works which would possibly lead to additional repair works following Critical Path grit blasting works. Grit blasting needs to complete to undertake an accurate inspection.Some known repair works are covered in the programme linked to completion of the grit blasting. The Contractor failed to submit a quote within timescales and eventually a quote was submitted over 2 months late. No extensions requested. The key grit blasting works were still not complete at this time due to Contractor delays. The Contractor is insisting they use the last accepted programme from July23. My view is the ‘logic is outdated’ (GMH NEC user group 61- Jan 2013) and they do not take into account the Contractor caused delays. The rejected programmes identify the known delays to CP works as the key grit blasting works extends each time. Can i use Not Accepted programmes along with my records as a basis to determine accurate times at the time of quote submission? The impacted programme at submission date clearly contradicts their submitted programmes in the same period.
@neilfoster99 , it seems that the Accepted Programme (July 2023) is not far away from the CE acceptance or instruction issuance (early August - dividing date). Although the Contractor delayed, as you say, to submit quotations, the CE should be assessed on a forecast basis for works undertaken after the dividing date (cl. 63.1).
I understand that it is very difficult now to ignore the delays that subsequently occurred but, in my view, this can be resolved by assessing the CE - on a forecast basis using the Accepted Programme - taking into account cl. 63.7, i.e. that the Contractor reacts competently/promptly to the CE and that any resulting Defined Cost and time are reasonably incurred.
The contract requires you to assess the CE using the last accepted programme. You are also required to value the CE based on the effect of the CE on the remaining work.
To do that, your approach is correct in its idea but not in execution. I dont believe Peters approach is consistent with the contract or case law (Healthy buildings) as you cant go back and pretend that what has happened hasn’t actually happened. To do so would allow the contractor benefit from his own breaches (failure to submit compliant programmes for acceptance and failure to submit the quotation on time).
The actual solution, requires a bit of work and assessment of records but should start with the accepted programme, update actual progress to the next interval (month?), impact it with all events (accepted CE’s, rejected CE’s and contractor delays) in the period. That then gives a new programme, you then repeat in every period up to the date of the PM assessment and forecast the effect of the CE from there.
That will give you the defined cost of the work already done and the forecasted effect of the remaining work.