NEC ECC: Access Dates

If the Employer fails to provide access in accordance with the Contract/ last Accepted Programme it is obviously a CE. However, if they fail to provide a firm revised Access date, but a third party (another Principal Contractor) advises you a forecast date of access in a coordination meeting (with the Project Manager/ Employer Present), I assume you can use this as “current information”?

However, after several months of this date remaining static (in the future), they provide access [one month] earlier than the forecast with only two weeks notice. Can you claim the impact to the planned Completion for the past few months to push out the Contract Completion date?

I.e. - now that they have brought the date forward, has the Contractor gained Terminal Float as the Contract Completion date is still impacted by the first Forecast date?

My thoughts are you: No you can’t as it hasn’t happened, it was only forecast ‘current information’? However, in the absence of the Project Manager Instructing a revised date (Contract Access date expired over a year ago), is it possible to claim the additional time?

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As you correctly state, the fact that the Employer did not allow access by the access date shown on the Accepted Programme means that it is a compensation event under clause 60.1 (2).

There is no provision to change an access date by a compensation event, although whatever access date you put in a submitted programme would, effectively, be the revised ‘access date’ as clause 31.2 refers to ‘access to a part of the Site … later than …. (the) access date’. If this programme was accepted, then there would be an obligation upon the Employer to provide access by the stated date, where so described, or the matter would be a compensation event, under clause 60.1 (3) or (5).

The issue of planned Completion and terminal float depends upon how the initial compensation event has been assessed and what date has been (was) used to assess the time affect. If you used the date forecast by the Principal Contractor, then the Employer giving access earlier would not change the assessment, just prevent the matter from becoming another compensation event.

If you have submitted a revised updated Programme based on the forecast Access Dates and was subsequently approved by the Project Manager and then the Employer notify you of the revised Access Dates which is one month earlier than the previous (forecast access dates) there will be a Compensation Event and note that CE can only move planned Completion on an earlier date but no the Completion Date.

Due to the CE the Completion Date is not moved but the planned Completion may now be one month earlier. Thus, there will be an increase in terminal float.