NEC3 ECC: Assessing extention of time entitlement from "incorrect" programme

NEC3 and NEC4 Contracts Time
1

We have an accepted programme with incorrect logic that contains a number of access dates.

These access dates have now been delayed

When accessing the delay entitlement do we just amend the access dates, progress the programme and claim for the delay generated by the programme,

or

do we need to amend the access dates and correct the erroneous logic?

2 Likes
2

This is where the contract is not specific enough. The contract states that it is assessed against the Accepted Programme - but does not explicitly say whether you take into account progress, delays and other things like incorrect logic in the programme. Equally it doesn’t say you cant do that. The only practical way to do this (which I think is contractual as well but not clear enough within the words) is to take into account progress and other things you know have happened since the last Accepted Programme up to the point the CE became apparent. So my answer to your question would be the latter.

Here is a link to an article I wrote in the NEC User Group newsletter which explains this in more detail:

3

Glenn do you mean 1) correct the logic link record planned Completion, 2) amend the access dates to the actual record planned Completion, Delay = 2 -1 (on the assumption that the access dates in the programme were later than those in the CD)

4

Mike, This is a really good question, and I agree with Glenn that the contract is not specific enough.
But I do think that there are a few clauses that suggest that you do need to take account of progress(and errors) since the last programme was accepted up to the date that the compensation event arose:

  1. Clause 63.3 " A delay to the Completion Date is assessed as the length of time that, DUE TO THE COMPENSATION EVENT, planned Completion is later than…" This clause is suggesting that you need to assess the delay due to the compensation event, and the only way to do this is to adjust the Accepted programme for all other changes first.
  2. Clause 63.7 states that “Assessments are based on the assumptions that…any Defined Cost and time due to the event are reasonably incurred…”
    3). Clause 63.1 states that changes to the Prices are assessed using “actual Defined Cost of work already done”, and “the forecast Defined Cost of work not yet done” and the clause also specifies a dividing date between work already done and work not yet done. Therefore this clause almost implicitly requires that the Accepted programme needs to be updated with actual progress up to the dividing date before the effects of the compensation event on the work not yet done can be calculated.
5

Yes! Amend the logic first, see where planned Completion really was, then see what extra over effect the Compensation Event has upon revised planned Completion to see if entitlement to move Completion Date.