Programme changes communicated to the Contractor without a PMI

NEC3 and NEC4 Contracts Compensation Events
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A new section of work was instructed to Contractor by the Project manager.

The Contractor is new build another unit in a section of land next to the site, of which the Project Manager does not currently have access to.

There were no dates in the PMI. The Contractor has raised EWN’s regarding this as procurement and construction is currently at risk due to programme uncertainty. The Contractor was told to work to X date in the risk reduction meeting.

The Contractor has input the new section of work into their clause 32 programme, which the Project Manager has accepted.

5 months on the Project Manager has issued a communication telling the Contractor to work to the following “indicative” dates.

The Contractor has requested for a PMI, however the Contractor has declined, stating that they do not need to instruct dates as the new section of works do not have their own Access Date.

The Contractor has then raised a Compensation Event, regarding the dates in the communication, stating that this moves the programme by 2 years, however this has also now been rejected due to there is no effect to the critical path.

Should the Project Manager be instructing a significant change to the programme, even is it’s not a formal Access Data?

Is the Contractor not entitled to a CE as the resource loading of the project with be significantly affected by the programme changes?

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@stevebrownassociates Is this something that you would be able to advise on?

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A lot going on here. Things I’d note, in no order, include:

  1. The PM cannot unilaterally extend the Site. Boundaries of the site are in Contract Data, which can only be changed by mutual agreement, not instructed by the PM
  2. Similarly, the PM cannot unilaterally add access dates
  3. You describe this as a section of work. If its an X5 Section, see above. The PM can’t instruct that. That also means they can’t instruct a sectional Completion Date.
  4. In the absence of an implemented compensation event, your original Completion Date continues to apply.

Even if we can overcome all of that, the PM cannot instruct changes to the programme. They should be notifying a compensation event for the new Scope (which, by the sounds of it, will be a very large one), instructing a quotation, and following the compensation event process. That’s how you get your 2 years.

Your quotation includes all the impacts, including on resource loading.