Just wanted to douuble check this with you. If no programme was issued with a CE and no delay to porgramme was indicated is it acceptable to state N/A to delay to Completion Date?
Regardless of anything the Contractor has done not done or indicated the Project Manager must make his own assessment and state his reasons why he is makingn his own assessment. If the Contractor has not indicated any programme impact then simply putting Not Applicable - is not adequate. You need to image standing in front of an Adjudicator justifying your assessment - what information did you use - latest accepted programme, site diaries, etc who did you consult with planner/supervisor - in short you need to justify your assessment of the programme.
Barry - as with any compensation event the Project Manager has to make their own assessment if they feel the Contractor has not assessed the event correctly. They would be very quick to point out if they have over assessed and look to assess it themselves. If the Contractor has obviously under assessed then the Project Manager should be making their own assessment and increasing the value under their own assessment (some might say at this point “watch out for those flying pigs”!). The biggest chance of under assessment is quite likely to be where the Contractor has not assessed the time implications accordingly.
If a Contractor has not assessed time and it is not obvious to the PM that it has included a time delay to planned Completion then I would say it is reasonable to assume there is no change to Completion Date for this event. If however the Project Manager thinks that there was a delay to planned Completion and that the contractor has not assessed it he would be wrong to just write N/A.
The main burden of proof therefore has to come from the Contractor in the first place, to assess the full impact of the compensation event including time and claim for it within that compensation event. There is no other mechanism to move Completion Date at a later stage.
If the Project Manager does not think there has been a delay to the Completion Date he may simply accept the quotation as per clause 62.3 and it becomes implemented as per clause 65.2. However, if the Project Manager believes that there was a delay he should not blindly assess the compensation event as having no effect on the Completion Date just because the Contractor did not include a programme showing alterations to the Accepted Programme. This is despite clause 62.2 placing a duty on the Contractor to submit details of his assessment with a quotation including alterations to the Accepted Programme if the programme for remaining work is altered by the compensation event. Clause 64.1 provides for four circumstances in which the Project Manager assesses a compensation event and the second bullet point that the Contractor has not assessed the compensation event correctly in accordance with the contract may be applicable in this case. Then as per clause 64.2 if no programme was issued with the compensation event then the Project Manager assesses a compensation event using his own assessment of the programme for the remaining work according to the second bullet point of that clause. The Project Manager then needs to notify the Contractor of his assessment giving details of his assessment (clause 64.3) so just stating not applicable to a delay to the Completion Date may very well be insufficient.
The fact that the Contractor did not submit a programme is persuasive evidence that there may well have been no delay to the Completion Date and it is not up to the Project Manager to make the case for the Contractor. However, the Project Manager should still be alert to any other contemporary evidence that was a delay to the Completion Date to review this matter fully. It is open to the Project Manager to invite the Contractor to submit an alternative quotation in accordance with clause 62.1.
This point is becoming key in a discussion on our project. It is surely not sufficient for the PM to simply say that the contractor’s assessment doesn’t show the entitlement to time in enough detail and that therefore it is zero days? Surely there has to be a demonstration that it is zero says impact, given that there is already acknowledgement that there is a compensation event?
Absolutely. If it is agreed it is a CE and the PM has requested a quote, then once the quote comes in the PM either accepts the quote or don’t. If they don’t accept the quote, they either ask for another quote explaining why they do not agree with it, or make their own assessment. In making their own assessment, they have to make their own assessment of time. Whatever assessment they make they have to ask themselves “is this the same decision an adjudicator would make” if it goes that far. What ever conclusion they come to with regards cost and time, they would have to explain how they got to that conclusion the same way the Contractor has to when they submit the quote if they want a realistic chance in it being accepted/agreed.
Trouble is what if the PM doesn’t do all this and just says zero? Well the only/ultimate contractual answer I am afraid if you cant reason with them is adjudication - but that is what it is there for! Normally the mere threat of adjudication brings the other Party back to the table as it normally means they have a good case/reason for going.