NEC4: PM's mistake in Accepted Programme impact CE assessment

NEC3 and NEC4 Contracts Time
1

Our project is a design and built contract and the Contractor is responsible to design a drainage pipe from one location to another. The Contractor designed it along a road which would require diversion of other utilities by other utility owner (the Others). While liaising with the Others, the Contractor included this plan in their programme but input a wrong date for Others to complete their work in the programme (e.g. Q4 2024), despite Others had already notified both the Contractor and the Project Manager that they would require 2 years time to complete (Q4 2026). The Project Manager overlooked and accepted it, making it the latest Accepted Programme. Subsequently, the Contractor issued a notification of CE claiming for 60.1(5) the Others not work according to the Accepted Programme. The Project Manager stated the following two reason not to accept the NCE:

  • 61.4 it is arise by the Contractor’s fault of putting a wrong date, and
  • The Contractor could have other alternatives to complete the work (constructing it along other road)

In view that the Project Manager already accepted it, is the Contractor entitle for CE?

Thank you.

1 Like
2

The Project Manager also supplemented that under 14.1, their acceptance of a communication from the Contractor does not the change the Contractor’s responsibility to Provide the Works or liability for its programme and design (as amended under Contract Document). Does the Accepted Programme count as acceptance of a communication?

3

Has the PM written confirmation (before the programme was accepted) that the works would be in 2026 and thus can prove the programme was wrong.

If so, the Contractor will get no where it this CE as he is trying to benefit from his own error.

4

Thank you for your reply.

Would a written confirmation from the Others serve the same purpose? Since it was the Contractor’s responsibility to communicate with the Others and PM would not issue confirmation for their discussion.