Order & timings of works carried out & programme NEC4

NEC3 and NEC4 Contracts
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NEC4 ECS option A

Within the Subcontract the Contractor has ‘Order and timing of works carried out by the Contractor’

Supply the Subcontractor with XXX by (Date)

However, the original date that was inputted was an error within the subcontract document.

The original cl31 programme submitted by the Subcontractor and accepted by the Contractor references the date that should have been inputted into the Subcontract which is 5 months after the incorrect inputted date.

The Subcontractor have now realised this error and on their latest cl32 are trying to make their programme reflect the incorrect date to gain a CE for time and cost delay. The Contractor could never have provide the item to subcontractor on that incorrect date.

Does the accepted Cl31 take precedence or is there any other ways to play this out?

Thanks for reviewing I look forward to hearing your solutions if any.

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@Neil_Earnshaw any thoughts on this great question?

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@KD191 the term Accepted Programme is defined at clause 11.2(1) which makes it clear that once a programme is accepted by the Contractor it is the new Accepted Programme and this therefore supersedes the previous one in Subcontract Data part 2.

Under clause 31.2, unless the reason the Subcontractor is trying to move the date back is practicable for their plans or realistic the revised programme should not be accepted. It sounds like this is not the case in your situation.

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@Neil_Earnshaw
Ok understood.
We have an accepted cl31 programme which states the date of provision of water as 1st Nov 23 we also have a Scope document that states we provide water by the 1st July 23. We have not issued a CE to change the Scope to the 1st November 23. We understand that if a NCE was raised by the Subcontractor for water provision delayed from the Scope date (1st July 23), is it correct that we may assess this as Nil time & cost as the accepted programme states the 1st November 23?

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@kd191 the Subcontractor has an obligation to notify an event which it thinks is a CE, one of the reasons for rejecting a CE is “it is not one of the compensation events stated in the subcontract”. I can only see that it could be (1) Contractor gives an instruction changing the Subcontract Scope, or (3) Contractor does not provide something by the date shown in the Accepted Programme. It cannot be (1) as you have not given an instruction and it cannot be (3) because the date in the Accepted Programme is 1st November. Ultimately it is for the Subcontractor to prove their entitlement to a CE which you have to consider on its merits, you can only reject a CE for the reasons stated under clause 61.4.

There’s probably an issue here that needs resolving under clause 17 which deals with ambiguity / inconsistency and illegal / impossible requirements as the Accepted Programme conflicts with the Scope. I think you’re saying that the date in the Scope is incorrect, therefore it should be corrected to 1st November, this will trigger a CE but if the Subcontractor had always planned around the Contractor providing water on this date it might be possible to reject it as there’s no effect on Defined Cost or Completion (provided this is the case).

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@Neil_Earnshaw that’s correct I’m saying that the date in the Scope is incorrect.

The Subcontractor are aware of this error and have submitted a CL32 programme referencing this incorrect date which is 5 months prior to the current accepted programme (cl31). It is an impossibility for the Contractor to deliver the water by the date on the latest CL32 programme but are being held by the incorrect Scope date.

Thank you as always.

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@KD191 unfortunately it might now be seen the Contractor as incorrect but it’s in the contract Contractor’s Scope and the risk of errors etc in the Scope sit with the person who wrote it.

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A simple way to look at this topic is simply to look at the practicalities of it.

What preceding activities have to be executed by the subcontractor in order to make the late provision of water a delay event?

What is the supply of water needed for?

If this is a water pipeline, and water is needed to test it, then you first have to build the pipeline. In that scenario, the provision of water 5 months earlier is not required.

The subcontractor should show all the dates of items to be provided by the contractor on his programme.

In this case, he has corrected his mistake to properly construct the CL32 programme.

The onus is on the Contractor to correct the Scope if it is incorrect.

It would appear that the Contractor is trying to take advantage of the Accepted programme to avoid having to correctly amend the scope.

Bearing in mind that NEC requires CE’s to be assessed prospectively, from the dividing date, using the Accepted Programme, the Contractor would likely be acting correctly by proceeding as follows:

  1. Issue and instruction to amend the scope
  2. Notify a CE and ask for a quote
  3. Allow the Subcontractor to submit a quote using the Accepted Programme
  4. Accept the nil valuation (which it ought to be if the subcontractor uses the accepted programme to assess the delay

If point 4 results in the Subcontractor delaying a quote or refusing to use the Accepted programme, you can move it to Contractor assessment and value the CE based on the Accepted Programme (likely to be very low value).

The subcontractor may yet execute his works quicker, thus making the new date a CE later in the project, however, under NEC if you follow the contract properly now, there won’t be a CE later.

Most Contractors would fear to change the scope and address that change now, leading to a ongoing cycle of rejected programmes and arguments and have a breakdown in trust between the parties.

All of that can be avoided by simply following the contract now. In this particular case, following the contract will result in a good result for the Contractor