NEC ECS: Access Date windows, Key Dates and additional prelims

we have a NEC3 option A subcontract with amendments. In the contract data we have access dates which have a window. The subsequent key date is based upon X number of days from the access date given. In addition a programme is added within the WorksIinformation.

We have two questions:

  1. Due to the windows in the access dates within the contract data, eg level 1 between 06/06/2018 – 06/09/2018; level 2 06/07/2018 -09/09/2018 it could result in the subcontract period extending by circa 3 months. For example we issue notifications of exact access dates to the subcontractor Level 1 06/06/2018, level 2 09/09/2018.
    If this is the case would the s/c be entitled to additional prelims to cover the additional period within the access dates even though the duration of the works is the same as per the key dates being based upon X. no days from the access date?

  2. If the programme in the works information within the subcontract conflicts with the access dates within the contract data, which takes precedent? Eg access date in contract data says level 1 between 06/06/2018 – 09/09/2018; however the programme says access date 02 February 2018?

I have assumed that there are no Z clause directing how to interpret the “window”.

In respect of the anomaly between the (Subcontract) WI and the Subcontract Data there is no set precedent. Arguably, since the Subcontractor is to Provide the Works in accordance with the Subcontract Works Information the WI would take precedent however this should not be assumed and the Project Manager should be requested to clarify. The access date is, by definition, the date given in the Subcontract Data so changing those dates would require agreement between the 2 parties which could have financial consideration. This situation highlights the need to robust contract documents.

Whilst not in accordance with the standard contract, the intended use of a “window” for the Employer to provide access seems clear and I would not consider a CE was due provided access was given within the “window” (or in accordance with the subcontractor’s accepted programme if later).

  1. In terms of question 1 I don’t think they are entitled to additional prelims as there has been no change as to what you told them would happen. You have given them access between the dates as you said you would. I don’t like this approach as what is the Subcontractor meant to price at tender stage? I would have had no choice but to price the worst case scenario as you were asking the Subcontractor to price that situation – so not very sensible if you wanted a cheaper tender price from the Subcontractor. If you had been more specific as to when they can expect access they would have priced less risk.

It is a bit like when a Contractor states no starting date and states the Completion Date will be 16 weeks from when starting date is instructed. Again how can I price that as a subcontractor not knowing when I am going to be working – will I be digging in autumn or Winter which will make a big difference to programme and price?

  1. Normally programme milestones and a reference to a programme should be stated in contract data, not Works Information. In contract data part 1 the Contractor would state the starting date, and access date(s), and Key Dates or Sectional Completions and the overall Completion Date. In contract data part 2 the Subcontractor would reference a programme if they have submitted one as part of the tender, and if this reference remains in the final signed contract then that is the first Accepted Programme.

I DISAGREE with Dave stating Works Info will take precedence here. For example, definition of Completion Date is the Completion Date stated in Contract Data or as changed in accordance with the contract. A programme in Works Info would not change Completion Date – only implemented compensation events (or acceleration) can subsequently change it.

The Subcontractor should be issuing the Contractor a programme that meets the requirements of the contract and the Contractors dates that they have identified in contract data – not the Contractor issuing them a programme.

On point 2 I would agree with Glenn here…

The Programme is referenced in the Contract Data, not Works Information. The dates in the Contract Data are the contract dates, irrespective of what the programme states. These can only be changed by the Change Control Process (CE’s). The Contract Data takes priority over Works Information nevertheless anyway.