NEC ECS: Option A - Work areas unavailable. Is this a CE under clause 60.1(3) or 60.1(4) or something else?

NEC3 and NEC4 Contracts Compensation Events
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Main Contractor and M&E Sub-Contractor enter into ECC Option A Sub-Contract and the project is 50% complete from an M&E perspective.

The M&E Sub-Contractor has been poor at issuing programmes for acceptance (although good at updating its progress programme reporting) and the Main Contractor even worse at responding / accepting revised programmes. Therefore the project only has had a handful of accepted programmes throughout the life of the project so far.

There has been varying delay events typically resulting from poor progress to preceding trades and the M&E sub-contractor will notify a CE under 60.1(3) or 60.1(4) but wants to know if it is his responsibility to notify or not. i.e. 60.1(3) M&E Sub-Contractor responsibility or 60.1(4) Main Contractor responsibility.

The various events can be described as follows:-

  1. Incomplete water main due to obstruction by scaffolding
  2. Incomplete preceding construction work in apartments
  3. Delayed installation and construction of the floors on the ground floor apartments
  4. Site phasing and logistics (access routes restricted)
  5. Rectification of incorrect initial installation of kitchen furniture

What is the difference between clause 60.1(3) and 60.1(4) when relating to the above scenario?
For each of the above events what appears to be the most suitable CE description? e.g. 60.1(1); 60.1(3); 60.1(4)
p.s. I appreciate that often the devil is in the detail!!

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See clauses 61.1 and 61.3 for who should notify. In essence, if it is a compensation event under 60.1 (1) or (4), then the Contractor should notify and there is no time bar on the Subcontractor notifying. If under 60.1 (3), then the 7 week time bar of the ECSC will apply.

There is no difference under the contract in principle in how the CES are assessed. However, depending on the timing of the notifications relative to the event, the quotations may either be assessed as a forecast (event though the work may already have been done) or on records : see last para of clause 63.1.

Another factor to take into account is which ‘event’ will give you the maximum entitlement. I.e. the bigger the effect on Defined Cost, the greater you entitlement. Ditto for additional time under clause 63.3. This might affect which compensation event heading you notify the physical event under.