The following is a timeline of events for this scenario:
- Employer design was noted as impossible by the Contractor Nov 14
- Contractor submitted design changes as per the design process of the Contract
- Employer was not aware this design was impossible and Contractor did not notify the Employer this was impossible
- Contractor subsequently raised this as a CE notification the following July 2015
- Accepted and Employer issues change to the WI under 60.1.1 as not possible to be time barred due to an event which the Employer should have notified of.
My question is which programme would you use to review the CE?
The Contractor was aware of this change in Nov 14 however did not notify the Employer of his original design being impossible until the following July 2015. If you use the last Accepted Programme at the time of notification this would already have the effects of the new design present. I would consider two options:
- Review the programme available at the time the Contractor became aware of the event, Nov 14.
- Review the last Accepted Programme but remove the effects of the current design to replace with the effects of what would have been anticipated originally.
Could anyone please offer guidance or had a similar scenario?
I am not sure if either Party are trying to play any contractual games here. It appears from your description that they noted the design was not viable in Nov 14 and amended the design to something that was possible at that point. They did not notify until July 15 that it was due to a compensation event.
If it is widely recognised that the Contractor has changed the design to suit something that was impossible, and that this was agreed as a compensation event then it would seem right/correct to be using the Nov 14 programme to assess the impact upon planned Completion of this event, - and agree the respective movement of Completion Date accordingly.
This does illustrate the point that both Parties should be administering the contract as they go to understand liability at any point in time. The Contractor would have been showing (I assume) a delayed planned Completion due to the impossible design running beyond the Completion Date. They should have notified straight away that it was a CE, and indeed would have time barred themselves if they did not notify within 8 weeks that it was a CE (for the 12 reasons within clause 60.1 that they are responsible to notify). The effects of that CE could then have been measured/understood at the time rather than in July.
The very fact you are asking this question in April 2016 just shows how retrospectively you are having to look at things - which is the very thing that the contract is trying to avoid for the good of both Parties.