NEC ECC: Access date changed but Key and Completion Dates did not

We are working on a civils contract under NEC3 Option B. After the contract was awarded, but before it was signed, the Access Date was postponed by 70 days by the Employer. (contract access date). The Employer moved the key and completion dates in the contract out by 70 days to compensate, and the contract was signed, showing a Completion Date which had been moved by 70 days (contract completion date).

After that event, the Access date was changed a further 9 times, and the PM did not notify compensation events, nor did he move the Completion Date. Finally we were only given partial access to the site on a date which was a further 80 days late. We submitted a revised programme showing the Completion Date being moved out to compensate for the delayed access. The PM rejected the programme and told us we had to stick to the Completion Dates in the previously accepted programme. We were instructed to start immediately, which we did. No further revisions to the programme were submitted or requested.

We are now submitting compensation events requesting that the Key and Completion Dates be moved out accordance with the revised access dates, and seeking to be compensated for the extra cost in delaying the works and only having partial access. The PM is stating that seeing as the last accepted programme showed the contract Completion Date, we are not entitled to have the dates moved and we are not entitled to compensation.

Who is correct here?

From what you have said it looks to me to be a clear compensation event under 60.1 (2), where the Employer does not allow access by the access date (stated in the contract data).

Technically, the access date does not change under the contract, but where you are still not given access this could also be a CE under 60.1 (4) with an instruction not to start work, that is work dependent upon obtaining access.

I agree with Andrew that the matters are compensation events, ie a compensation event for each occasion that the Employer does not allow access. The compensation events should result in a change to the Prices and a change to the Completion Date(s) and Key Dates; the access date(s) does not change.

Your question does not state how the subsequent delays in giving access were instructed/recorded. Hopefully you had instructions from the Project Manager otherwise you may have a situation where the PM may try to time bar you from “time and money” under clause 61.3.

James - we have spoken about this off line and the issue here is the point that Dave touched on. There is no doubt that not having access is a compensation event. The problem is that this is one that could be time-barred under clause 61.3. For 12 of the 19 standard compensation events it is the Contractors responsibility to notify if access, weather, unforeseen conditions caused them a problem. If it is not notified within eight weeks that it has, then there will be no change to Prices or Completion/Key Date at later stage. The intent of the clause is to stop Contractors at the end of the project coming up with numerous delay entitlements which come out of the woodwork and the Client had all but set their budget for the project.

This situation is a bit different as your Employer MUST have know the lack of access would be a problem - but it doesn’t take away the fact that it was you who was obliged to notify it. I know neither party on that project were particularly following the contract. As Andrew mentioned, if they gave you an instruction to not start work under 60.1(4) then this is not one you are time-barred on as they should have notified this one. This hopefully therefore would be the angle to come from (assuming you had that as an instruction or at least in writing somehow).

The other thing that should have been happening was the regular issue of programme, which would then have shown (progressively) planned Completion moving out beyond Completion Date due to the lack of access. You have told me these programmes were not issued at the time.

They haven’t followed the contract either - and I think you just need to get round the table with your (retrospective) progressive programmes showing the effect this clearly had on planned Completion, and also show any communication you were raising at the time that stated that this was a problem.

Easy to say with hindsight, but I honestly have no idea why a Contractor will not make sure they understand the rules of the contract (which are pretty sensible and proactive) and follow them to create transparency between the Parties and also protect the Contractor financially. It has but you in a weaker position than you clearly deserve to be.

Making sure you are notifying a compensation event for a reason you are not time-barred on i.e.60.1(1,4,7,8,10,15 or 17) is your key defense here (other than relying on a spirit of mutual trust)

Good luck!

Thanks guys
We have multiple written instructions from the Project manager stating that access will not be possible as the site works area is not ready. We also have emails from him stating that these are compensation events

Glenn mentions the regular issue of a a programme.

You say in your question that “no further revisions to the programme were submitted or requested” but that is missing the point.

Irrespective of whether a revised programme is requested, Clause 32.2 requires the Contractor to submit revised programmes at no longer interval than that stated in the Contract Data - in my experience this is usually monthly. Had you been submitting such programme revisions, it would probably have made it clear to both you and the PM that something was not right with regard to access. An up to date programme is absolutely vital.