NEC3 ECC Option A.
The PM has notified a CE advising that one of the Access Dates defined in the CD1 will not be provided on time and we won’t get access to that area for another 8 weeks. In the CE, the PM has asked us to stand by the original SC Date related to the Access Date by considering additional manpower, double shifts etc. Can he do that or is he really asking us to accelerate the works?
In a separate communication (a PMI), the PM has advised that access to areas covered by some other Access Dates in the Contract will be provided earlier than stated in the CD Part 1. The PM is stating that this should result in a cost and time saving - the cost saving being Prelims (we have not done the schedule assessment yet, but if we were able to complete earlier, would we have to give back some Prelims?). The PM is stating that all this should be wrapped up in a variation to the contract, which I understand is the correct way of dealing with it. Lastly, as mentioned above, the PM has notified all this on a Project Manager’s Instruction. What is the meaning of the PMI in this context? We will need to instruct a few of our subcontractors very quickly if we are to take advantage of the early access, but that is likely to be before we have agreed the contract variation with the PM/Employer. Thank you.
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Hi Peter, 1st paragraph:
Under clause 62.1 the PM and the Contractor can definitely discuss alternative ways of dealing with the event but the PM cannot instruct you to accelerate or force you to assess in that way under the CE. Also, the PM cannot assess it that way if they decide to notify a PM assessment. Under clause 63.9 the Contractor is assumed to react competently and promptly to the CE and time and cost must be reasonably incurred but there is nothing that will force the Contractor to accelerate or take unreasonable risks. You could ask the PM to use clause 61.6 and make assumptions which if proven to be incorrect have to be corrected by the PM which in turn triggers CE 60.1(17) - note Contractor assumptions do not trigger 60.1(17).
Acceleration is dealt with under clause 36 and requires mutual agreement, it carries great risks and it is not a CE and the quotation referred to is not the same as a CE quote, it is a commercial offer - take it or leave it.
I suggest you assess the CE as per clauses 63.1 to A63.16 and if planned Completion is affected by the CE the Completion Date should be changed, then you can start talking about acceleration. Note that under NEC4 either the PM or the Contractor can now propose acceleration but neither can force the other into doing so.
2nd paragraph:
The Client is obliged under clause 33.1 to provide access on or before the later of its access date and the date for access shown on the Accepted Programme - providing access before the access date is not a CE only if it is provided later (see clause 60.1(2), so the PM is wrong, there is no way to reduce the Prices because access has been provided earlier.
Under Option A the Prices can only be reduced if one of two CEs occur, 60.1(1) or (17) - see 63.4.
When the PM is stating that “all this should be wrapped up in a variation to the contract”, they are wrong. I believe they are probably referring to a clause 12.3 agreement (deed of variation), this can only be done if there is mutual agreement between the Parties and it is recorded in writing and signed by the Parties, the PM is not a Party and does not have the authority to act in this way.
Remember that the Parties to the contract are the Client and the Contractor and the PM is there to administer the contract on behalf of both Parties and must act as stated in the contract - see clause 10.1. Despite what a lot of PMs think they are not all powerful and able to instruct anything they want to.
Happy to discuss.
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