NEC ECC: Should I lose the opportunity to improve on programme dates as a result of the Client not providing something by dates shown on the Accepted Programme?

NEC3 and NEC4 Contracts Compensation Events
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  • Our Accepted Programme stated that a licence was to be provided, by the client, at a certain date.
  • The works which could only commence once in receipt of the licence were due to start at a later date.
  • The licence was issued after the required date shown n the programme but prior to the date shown for the commencement of the activity which required the licence.
  • However, we had improved on programme dates resulting in works being stopped whilst we awaited the licence to be issued.
  • The client believes there is no merit for a CE here as they provided the licence prior to the programme dates for the activity starting.
  • We believe we are entitled to a CE as we lost opportunity to improve on the programme and were delayed on site as a result of the client not providing something by the date shown on the Accepted Programme 60.1(3) .
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The simple answer is that it IS a compensation event, if shown on the Accepted Programme and the Employer is required to provide what is shown.

The time effect is then calculated in accordance with clauses 62.2 and 63.3, which may not impact upon the planned Completion, although has caused remaining work to be altered by the compensation event. This would be calculated from the date when the event actually occurred, which must be the day after the Employer was due to provide the license, as shown on the Accepted Programme.

It sounds like this produced a disrupting effect whereby your progress was disrupted by a compensation event, resulting in non-productive working. You don’t state how the milestone date for providing the license and the associated works are linked in the programme, so I can’t comment on any assessment under clause 63.3 in terms of delay.