NEC ECC: Monthly programme displaying delay but no CE

NEC3 and NEC4 Contracts Time
1

The Contractor has submitted the monthly progamme to the client for review/acceptance. It displays the Completion Date delayed by 1 week. They have a good case for this 1 week delay (it is one of CEs in clause 60.1), however they have not submitted the CE, and will await until any further slippages are caused by this issue, then it will be one CE. However if we accept this months programme displaying the 1 week delay, will this also accept the CE, which we haven’t seen yet? Or shall we reject programme, and state we cannot accept the delay of works until a CE is issued?

Or can we accept programme, and leave comments regarding awaiting the CE?

Thanks

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2

At this point in time they should only be showing the effect against planned Completion, and then as and when a CE is implemented then Completion Date can be moved by the agreed amount. That is why the contract has the two milestones.

By accepting the programme you are not accepting the Completion Date and it could be corrected later. Having said that it is so fundamental I would suggest you reject it and ask them to resubmit as it would be very quick to rectify. The programme at this stage can show the delay to planned Completion whilst the CE is assessed. Alternatively you could accept the programme if everything else about it is correct stating that the Completion Date is incorrect, but as I say it is so fundamental and important I think better to reject for clarity and so they are under no illusion as to what acceptance means

3

An additional element to cover in your question is the fact they are waiting to see the full effect of a CE before issuing it. That is not contractually or practically what could be done. The Contractor should price what they know at that point including for reasonable risk, and again any variables could be dealt with by Project Manager assumptions so the quotation could be ring fenced at that point. If the assumptions turn out to be incorrect, then that would be revisited as a new compensation event.

For example, if the Contractor was unsure what the ground conditions would be at invert level for a new drainage run, the PM could say “assume good solid clay at invert level”. This means the Contractor does not have to price for worse ground and over dig which would take time/cost. If it turns out not to be good solid clay, then any extra over incurred due to worse ground would be a new CE - but only that element. The rest of the original CE stands.