NEC ECC: Access Dates and accessing site prior to this date?

NEC3 and NEC4 Contracts Time
1

We have an NEC4 contract with the access date listed within the contract data. We have opportunity to go to site prior to the access date, the client has “verbally” agreed to pay the defined cost for works prior to the access date.

My first question is:
How is it best to formalise the agreement to pay the defined cost for works prior to the contract access date?

Second scenario is:
The client has offered to amend the access date within the contract and bring it forward to meet the proposed access date, it’s not 100% confirmed that we will be able to beat the contract access date as it depends on roadspace so there is a risk that we may only be able to achieve the contract access date afterall. Subsequently we are reluctant to move the access date.

Second question:
assuming we leave the access date as it is, is there a risk associated with starting on site before the access date? other than the risk of payment?

2

Q1Assuming the work will be done after the contract date and assuming you are not changing the definition of the Price for Work Done to Date for the work to be done prior to the access date, you do not need to formalise the agreement. In summary for Option C or D the PWDD is the Defined Cost plus fee. Defined Cost is based on the Schedule of Cost Components for cost incurred in order to Provide the Works; there is no time stipulation (if after the contract date). For People they will need to comply with the Working Areas requirement.

If the definition of PWDD is being amended eg you are on an Option B but the Client has agreed to pay Defined Cost and not work x rates, the you will need to confirm the agreement in accordance with clause 12.3. The agreement will need careful drafting to ensure it works.

Q2 From a legal perspective, there is a risk that you do not have permission to be “on site”.