NEC ECC: Can I retract a programme under option A

The client have not provided the design on time and the project is delayed by 1 year. The contract completion date has passed and the client has provided new dates that are can only be met if we incur additional cost i.e. more people. The client asked us to quote to meet his new dates.

We issued a new programme the meets the dates and then issued a quote.
The client has since done nothing. Has not accepted our programme or quote but expects us to achieve the dates.

Can we or do we need to retract the programme that showed we could meet the dates? The client has 2 weeks to accept the programme and 1 month has passed and we have submitted a new programme.

The last accepted programme is 6 months old.

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The ‘client’ (Employer) not providing the design on time (as shown in the Accepted Programme) is a compensation event under clause 60.1 (3). This would entitle you to submit a quotation and a corresponding programme, showing the effect on planned Completion (and Key Dates). Although you are obliged to mitigate the effects, this does not include accelerative measures so your planned Completion date may not align with the ‘client’s’ expectations.

Contractually the Project Manager would need to instigate the acceleration provisions under clause 36 to achieve Completion by a revised Completion Date. Note, however, that the Project Manager can instruct a change to a Key Date under clause 14.3, which is a compensation event under 60.1 (4).

It sounds like your submitted programme and quotation may have encompassed both a compensation event AND acceleration measures. I’m not sure what mechanism was used to request this under the contract, but be careful not to get caught up with ‘sloppy’ contract administration.

If the submitted programme was part of an instruction for an acceleration quotation, it sounds like the Project Manager hasn’t responded and the Project Manager not responding in the period for reply (clause 13.3) would effectively make your submission ‘redundant’ and require a further instruction to start the process again.

If the programme was submitted as the regular (4 weekly / monthly) submission, then the lack of response means that the Project Manager has effectively lost the chance to respond and the matter is actually a compensation event under clause 60.1 (6).

I hope that any assumptions I have made are correct.