The Contractor has indicated that the implications of a CE instructed under 61.1 will have a time effect on the Planned Completion. They would like an extension of time in order to try to mitigate this delay, through a collaborative risk meeting etc. to which the PM granted. However during this period a revised programme for acceptance was issued that showed that the Planned Completion Date was brought forward.
My question is once the time for the CE has been agreed, which programme should be used to show the effect of the CE, the revised programme or the accepted programme at the time the CE was issued.
The correct programme to use must, in my view, be the Accepted Programme at the day the compensation event occurred. Use of an earlier programme is unlikely to show the parties’ intent (as demonstrated by the update) and using a later one is likely to include the effects of or a reaction to the very compensation event you are trying to assess.
It would be very unusual for a programme to show an earlier contractual Completion Date as the Contractor would have had to submit a quotation for acceleration (having been instructed to do so by the PM) and the PM accepted it, all under clause 36.
I am pretty sure that you mean (something like) the date for planned Completion. Please correct if I am wrong.
Having said that, and having been asked to look at this for a client recently, I totally agree with Rob’s comment : I could find no contractual justification for using a later programme, just 'cos the Employer got a better answer (and I was advising the Employer) !
Jon, would you still give the same advice if the accepted programme no longer shows the Contractor’s intentions. Especially on small and medium sized projects we find that things change quickly and a CE issued in the middle of the month causes us problems as to which programme to use.
Phil, would agree that that was the right thing to do from a common sense point of view and would do if both parties agreed : indeed that is the approach taken under the E&C Short Contract. But not quite in line with what the ECC actually says !
Just to add to Rob’s point – the contract is relatively clear that it should be assessed against the Accepted Programme. That would be the one that is accepted at the time that you are assessing the quotation. What the clauses are less specific about is whether you have to take into account progress and other things that have happened since that programme was accepted but prior to the point that the compensation event in question became apparent. Practically speaking you have to, and I believe contractually speaking there is enough in the contract clauses to suggest that must be the case contractually as well. It should be better/clearer spelled out, but in meantime I wrote an article in the NEC Usergroup newsletter as to why that must be the case of which a link appears below:
Link to article: