A bit of a theoretical question but here goes.
Event XX occurs (happens).
8 weeks later the Contractor has not notified the event as a compensation event because it is NOT a compensation event.
If the event subsequently becomes a compensation event, is the Contractor now time barred from notifying a CE?
It is difficult to imagine how this situation could come about even if theoretical. I would suggest that the Contractor is not time barred. Under cl 61.3 the Contractor is not time barred from notifying but it has lost its entitlement to a change in the Prices and/or Completion Date (subject to the criteria specified). I would also suggest that in the theoretical circumstances the 8 week period would commence from when the event (circumstance) became a compensation event because until that point the Contractor could not believe that the event is a compensation event. My only exception would be if the event had become a compensation event due to an agreement between the Employer and Contractor of an additional compensation event subsequent to the theoretical event having occurred.
Dave, thank you for your comments. The reason for this question is that the advice given on the NEC website is that the 8 weeks commences when the event occurs, not when the Contractor is aware that the matter is a CE, see https://www.neccontract.com/NEC-in-Action/FAQs/Time-barred-compensation-events
This probably implies that the event IS actually a CE, whether the Contractor is aware or not, but all the articles I have read on the subject seem to skirt around this issue.
The eight (8) weeks period (61.3) for the Contractor to notify an event or he losses his entitlement for CE applies to all other CE except CE 1, 4, 7, 8, 10, 15, and 17. Essentially, if the CE is due to the Project Manager giving an instruction or changing his decision, 61.3 does not apply.
With regard to whether an event may subsequently become a CE after 8 weeks, one contract I have worked on had a particular CE (by z-clause amendment) which related to the amount of ‘hazardous’ excavated material exceeding a defined level (5% of total volume).
In this particular instance you may not know whether a CE has actually occurred until most of the material has been excavated, which would be well past the 8 weeks time period.