We are engaged in a NEC3 Option A contract.
In order for the Contractor to complete their works, there are activities that must happen in-between the activities of the Contractor. The Contractor acknowledged, pre-award that the works would be carried out in a phased approach and that there would be a de-mobilization period between Phase 1 and Phase 2.
At Tender stage, the duration of the activities, to be done by Others, was not defined. The Contractor therefore in their submission and again on the acceptance of the first Programme, made allowance for the activities and made an assumption of the de-mobilization period.
Now that the works are underway, the client has made available the Programme of Others. The durations provided far exceed the allowance made by the Contractor (1month vs 7months). The Contractor is now required to de-mobilize from site for a period of 7months, as apposed to the 1month allowed and accounted for.
Does the Contractor have a right to raise a compensation event? If so, under what clause? OR does the Contractor accept the prolonged de-mobilisation and accept time extension only?
Honestly, that’s quite a tough one. If I understand correctly, you knew you would have to demob and remob part way through, but no Works Information exists that describes that.
I’m also assuming that there were no Key Dates, Sectional Completions (these would not really be appropriate here, but I’ve seen them), access dates or anything of the sort to help you out.
You do have an Accepted Programme, by the looks of it.
You also infer that you believe there is a right to additional time, but you are not clear about money. Under NEC the only thing that can give you more time is a compensation event, and they are always for time and money - I don’t know how you could get time without also getting money, unless that is due to amendments to your Contract.
I’m afraid that based on what you sent here there are more questions than answers.
It sounds as though the Contractor should be notifying a Compensation Event under 60.1 (5)
(5) The Employer or Others
- do not work within the times shown on the Accepted Programme,
- do not work within the conditions stated in the Works Information or
- carry out work on the Site that is not stated in the Works Information
Not only is there a contractual right of access provided by clause 33.1, it is a well defined point of law that the Contractor has an implied right of access, therefore to allow the Contractor to take due account of the impact of others in programming and pricing the works, the contract should state any constraints on how the Contractor is to provide the works, which would in itself be Works Information. This is stated in clause 11.2(19).
The Contractor should not suffer a loss because the contract is silent on a matter which was foreseeable by the drafter.
In your question you have stated “the client has made available the Programme of Others “. Presumably you mean the PM is providing it to the Contractor.
This will be a change to the Works Information and is a compensation event that the PM should notify under cl 60.1(1)
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