NEC ECC: Assessment of CE (Time) which is as-built at Dividing Date

Within NEC 4…

Cl63.5 tells us to assess the impact based on the Accepted Programme current at dividing date.

Cl63.1 tells us the dividing date is the date of the communication.

In most cases this following scenario wouldn’t happen but on the rare few it might…how do we deal with the assessment of time for the element of the works which are now part of the as-built information within the Accepted Programme due to the late communication from the PM or Notification of CE. (so if the event occurred a number of weeks back, then the latest Cl32 was accepted and the works associated with the future CE were now as-built).

The Accepted Programme would have captured the delay (if any) associated with this future CE but it would also have captured all other delay within that period and therefore unless you went further back you would not be able to demonstrate this part of the delay associated with the CE.

Within NEC 3 there was the there was the wording to assist this scenario - under Cl63.1…the date the PM instructed or should have instructed…

One answer would be …well get your notifications in so this doesn’t happen - but inevitably it will happen so when it does how do we deal with it.

In October 2017 the NEC issued guidance around what they meant with their amended NEC4 clause 63.5, and then finally in 2019 version of NEC4 they have amended the wording of the contract clause 63.5 to make it very clear how it is assessed. It states now:

The assessment takes into account:

  1. any delay caused by the compensation event already in the Accepted Programme, and
  2. events which have happened between the date of the Accepted Programme and the dividing date

Point 1 would therefore cover your issue, where if the last accepted programme showed a two week delay, you can still retrospectively demonstrate that the two weeks was due to a CE that has only just been (say) notified.