PMI issued under 32.2 - Time Bar

NEC3 and NEC4 Contracts Compensation Events
1

The project manager instructs to submit a revised programme under clause 32.2 to include the impact of additional treatment works based off results found when on site post tender.

The project manager was advised of an additional number of days delay on the programme within the narrative included with the submission. The project manager accepts the programme on the basis that the new planned completion date includes timescales for some assumptions and as such will be requesting a new programme and clarifying the assumptions (but never did), the project manager requested the contractor take this into account in order to move the planned completion back closer to the contract completion date. The project manager also mentions the current contract completion date has not been affected and remains. Any changes to this date will be treated through the NCE process.

A portion of this time has been claimed under a CE relevant to the treatment works which subsequently led to the PMI. At a later date it is realised the programme has been as built incorrectly therefore the programme impact has not been fully claimed for

The project manager instructs to submit a revised programme under clause 32.2 to include the impact of additional treatment works based off results found when carrying out scoped works on site, post tender.

This was provided by the contractor within 2 weeks from instruction. The project manager was advised of an additional number of days delay within the programme itself and programme narrative included with the submission. The project manager accepted the programme on the basis that the new planned completion date includes timescales for some assumptions and as such will be requesting a new programme clarifying the assumptions (but never did), the project manager requested the contractor take this into account in order to move the planned completion back closer to the contract completion date. The project manager also mentions the current contract completion date has not been affected and remains. Any changes to this date will be treated through the NCE process.

A portion of this time has been claimed under a CE relevant to the treatment works which subsequently led to the PMI. At a later date it is realised the programme has been as built incorrectly therefore the programme impact has not been fully claimed for

Can the contractor submit an NCE for the additional delay previously not claimed due to the additional delay being associated with works not relating to the request of the revised programme i.e. resequencing is related to additional treatment works to the full works area which were meant to be carried out pre-possession. The resequencing meant that items previously not on the critical path now fell onto the critical path to allow time for the treatment works to be completed prior to commencing with contracted works but the CE submitted had not allowed for the further delay to the programme caused by moving other activities which fell onto the critical path. This was not realised until a date past the 8 week notification period but the project manager had not notified the contractor of the delay under Clause 61.1 which states that the project manager is obliged to notify the contractor of any delay arising from an instruction, at the time the instruction is given despite being advised of this with the submission of the revised programme requested under clause 32.2

Can the contractor still raise a sperate NCE for this issue without being time barred and can they recover their costs for this?

2

Firstly there are separate procedures that you refer to which should be administered separately under the contract, including; programme management, PM instructions and compensation events. Although there are clear links between these procedures, each one needs to be managed separately to ensure compliance and to account for the commercial position of each party.

The initial PM instruction to submit a revised programme at sub-clause 32.2 is a programme management action. It seems that further discussions around this revised programme have raised numerous issues. If there are matters which constitute a compensation event and impact upon the ‘time’ (planned Completion), however, then they need to be separately notified under sub-clause 61.1/61.3, as appropriate, outside of the programme management procedure.

You state that 'a portion of … time has been claimed under a CE … ’ which suggests that the ‘treatment works’ were addressed as a compensation event with an assessment made of the ‘time impact’. The PM subsequently instructed the submission of a revised programme, for acceptance, presumably to include for this assessment, to ensure that it is included in the latest programme submitted for acceptance.

You mention ‘assumptions’ but it is not clear in what context they relate to. Were they PM assumptions specifically included as part of the compensation event procedure? If that was the case then there could be an entitlement to ‘correct’ these as a further compensation event.