NEC ECC: PM change in phasing to CL31 programme

PM accepted our CL31 which shows phasing of 3 elements of works. Our programme showed us starting with phase 2, following on with phase 3 & 4 . Upon attending site the Employer/PM has decided to start the phasing in different parts 3&4 then 2. There is no key dates within the contract or requirements to carryout phases in a certain order to release other phases. We’re working as labour only on option A

Problem being is that we’ve started in phase 3, hit delays out of our control reducing productivity and extending this phasing up to 2 months.

The PM is refusing to grant EOT due to that phase 3 wasn’t due to start until later so shouldn’t impact programme but they changed the phasing of works.

At point of tender we specified we could only provide certain amount of labour which we have and are delayed due to service clashes in phases 3 and 4.

The PM now wants to start phase 2 to mitigate delay to his program but we’ve made him aware we don’t have the resource. We see this as acceleration in programme due to delays caused in phase 3 out of our control.

There was no contract programme provided at tender for the phasing other than drgs showing phasing which we’ve programmed to. I see this as change in WI?

Anyone agree, disagree?

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In NEC3 the Works Information is defined in Clause 11.2(19). In NEC4 the Scope is defined in Clause 11.2(16).

In both cases the definition includes the words: “states any constraints on how the Contractor Provides the Works”.

If the Project Manager has instructed an additional constraint, by requiring that certain works are carried out first, then that is a change to the Works Information/Scope under Clause 14.3 (both NEC3 and NEC4). Note, however, that under Clause 13.1 the instruction MUST be in a form that can be read, copied and recorded - if it was just a spoken instruction the Contractor should not have changed the phasing of the works.

An instruction under Clause 14.3 constitutes a compensation event under 60.1(1). It may well be that, at the time of the instruction being given, it was not thought that there would be any cost or time implication.

Establishing the Contractor’s entitlement to additional payment/time would depend on the nature of the ‘delays out of our control’ which are now being incurred.

You are obliged to mitigate any delay, but not accelerate. If your sequence was originally phase 2, then 3 and then 4, if they instruct you to do 3 first then 2 then 4 you should show on your programme how you will now do the works. It sounds like the initial instruction was not the problem, as if 3-2-4 can be done by the same planned Completion at no additional cost/risk then the effect of that instruction is zero. This should be reflected on the next programme issued for acceptance.

You then said you had problems in area 3. If these are valid compensation events, then you should show how these affect the most recent Accepted Programme. If it is impacting planned Completion then there is an entitlement to any cost and time associated which should be assessed within that CE and the Completion Date moved by the agreed amount.