NEC ECC: Dates in Contract Data vs Programme

I am interested in what takes precedence when there is a difference between access dates stated in the contract data part 1 and the programme included in the contract.

The issue relates to a contract between Sub-contractor A and Sub-contractor B which is NEC 3 Option A. Sub-contractor A is in contract with the Main Contractor for the project – also a NEC 3 Option A.

The Subcontract Data Part One states the subcontract access date is 1 June 2017 and the subcontract completion date to be 40 weeks after the subcontract access date.

A programme was included in the Subcontract Works Information which is the programme from the Main Contract (ie it covers the whole project and not just limited to the scope of this particular subcontract). The activities in this programme that relate to the scope of this contract show a start date of 17 August 2017 and completion 29 weeks later.

The actual dates subsequently changed and the final position was a construction period on site of approximately 40 weeks.

Sub-contractor B is claiming that he only needed to include in his tender for a site duration of 29 weeks (ie as per the programme) and therefore is entitled to 11 weeks additional site costs.

Sub-contractor A considers there is no additional cost as the duration on site is the same as the original dates in the Contract Data Part 1.

Which takes priority?

My reading of the Subcontract is that the subcontract access date is the 1 June 2017 and the Completion Date is the 8 March 2018 (40 weeks after the access date). The Subcontract Works Information requires the work to be carried out between the 17 August 2017 and 8 March 2018 (29 weeks).

I would therefore say that Subcontractor B only needed to include for 29 weeks of prelims (on the basis that it could complete the work in 29 weeks).

If the change in actual dates and duration was due to compensation event(s) then the Subcontractor is entitled to an adjustment in the Prices and Completion Date under the provisions of clause 60. The adjustments would have to be assessed under the CE process.

First thing to say is programme does not supersede contract data. I think the programme included is frankly a bit of a red herring. What should have happened is that when the contract was signed - the revised starting date and hence Completion Date should have been amended accordingly. Starting date and Completion Date are those shown in contract data – unless superseded by a mechanism within the contract. A programme showing something different is NOT a mechanism to change either of them.

As a general point if the Completion Date was 40 weeks and the planned Completion was 29 weeks then the gap is terminal float which is owned in your example by Subcontractor B.

If the contract was signed upon the original dates – then the lack of access would have been a compensation event that should have then been assessed in terms of its impact on planned Completion which in turn would then entitle the Completion Date to be moved by the same amount. You will have to follow this rule to ascertain entitlement.
If Subcontractor B showed 29 weeks on site it needs to be ascertained why they then needed 40 weeks on site. If this is due to compensation event(s) then yes they would be entitled to additional prelim type costs – but only costs they can prove they would have incurred. The fact they have been on site for 40 weeks does not instantly give them recourse to claim – it has to be as a result of a specific compensation event. Equally Subcontractor A can not just simply say they were not there for more than 40 weeks so there is NO entitlement. It has to be assessed as a compensation event to decide what the impact on planned completion was