NEC3 ECC: Main contractor not supplying a revised program or dates, for the subcontractor to issue a program foe acceptance.


The contract period of 34 weeks/program was coming to an end. Our contract works have not been completed within this period due to many issues on site which are no fault of our own. I issued a detailed email 2 weeks before the end of the contract with all are works areas listed and reasons behind us unable to completed are works. I also ask within this email for an update program or dates from the main contractor, for us to issue an update program for acceptance under the contract. We have no control over the scaffolding strip supply by the main contractor, which stops us accessing are work areas with MEWPs to complete are works. The program of works and work areas change daily due to the complexity of the site so I’ve found it impossible to issue a program. We have over 30 different work areas ATM at various stages with no control over access.
We issued an EWN one week before the end of the contract stating we will be claiming Prelim costs For every day over the contract period.
3 weeks on we included these Prelim cost in are an evaluation as a compensation event.
The Main contractor Said;

" “WE” have not certified your reference CE, as there has not been enough supporting documentation submitted to allow a clear valuation, also “We” view’ are that under the NEC what has been submitted is not a recognisable Compensation Event. Please demonstrate under which category this would fall and provide all supporting substantiation and programmes.

So are not paying the prelims cost at this time is this acceptable?

Yesterday I was able to build a program to end a date with there contract manager, I’ve submitted this as EWN for acceptance. This adds 3 months from this date.
Can we claim prelim cost for this total period? Does this program have to be review weekly and submitted if there is changes or dated are not hit by the main contractor’s scaffold strip?

Any help would be kindly received. Matt

It very much depends on what main option of the ECC (or ECS?) you are working under as to whether you are entitled to any additional payment. By the sounds of things, the Contractor is advising that what you have issued does not constitute a notification of a Compensation Event.

Whilst you may have submitted several EWN’s, this in itself won’t (necessarily) mean that you are entitled to any additional payment.

If for instance, you are working under option A, you will have to follow the procedure in core clause 6 in order that a CE is implemented before you are entitled to receive any additional payment as a result of a CE i.e from notification to quotation to implementation.

Hi Phil Thanks for your time with this matter.
We are working under option A. Is this the clause you are referring to?
X19.11 This sub-clause outlines the procedures for dealing with compensation events
affecting a Task Order and their consequences. If a compensation event has
the effect of delaying the Contractor’s activities in performing the Task, the
Contractor is required to revise the programme and show the effects of any
I’ve issue a program with time and effect. Am i right in thinking the PM will need to except this event for this to become implemented?. Do you know are position if this is not excepted.
As the time/ end date could be extended. Do we need to re issue a EWN or program, or could this be reviewed weekly?.

You need to differentiate between early warning and notification of a compensation event.

Early warning is for something which may happen, the purpose of the warning being that the relevant people can try to avoid it happening or reduce the impact if it does happen.

Compensation events are for things that have happened which are compensation events under the contract.

From what you are saying, the situation you are now dealing with is a CE, so it’s a bit late to be issuing a EW, you need to be notifying a CE, and you need to be careful that you haven’t been time barred.