NEC ECC: Lack of Employer access under option A on the programme being a CE?

NEC3 ECC: Option A:

The Contractor has put an “un-agreed” access milestone for an area of the site in their Cl.32 programme. This access requirement is not a contract access date (as per contract data part 1). The programme was accepted and the date missed. The Contractor has raised an NCE under Cl 60.1 (2). This is all correct but what affect does Cl 31.2 fourth bullet point have, this states that order and timing of works must be agreed with the contractor or in the Works Information, this was neither of these. Does the PM have a case for arguing the Contractor is including I un-agreed requirements into the programme ?

Firstly, the programme does not trump the contract, so if the Contractor has put a date on the programme by which he requires access to a particular part of the works, that does not supersede the access date stated in the Contract Data. It is only a compensation event under 60.1(2) if the Employer fails to give access by the later of the access date in the Contract Data and the date shown on the programme.

The fourth bullet point of clause 31.2 relates to work undertaken directly by the Employer or by Others and not work to be done by the Contractor.

The PM’s case for arguing the Contractor is including ‘un-agreed’ items is to reject the programme for one of the reasons at clause 31.3, probably either the 1st or 3rd bullet point.