As a subcontractor working under an NEC Subcontract could I ask:
Our subcontract has Access dates to different Areas of works. The main area is tidal and we are aware that this is a risk we share with the MC. However, because we have not been given access to other areas as our contract states that are non-tidal, we have had men standing when they could have been fully employed on these Areas.
We have had to pay these operatives for standing. to the tune of £32000 to date. If we send them home we have no guarantee they will return to site.
Is this a CE?
On the face of it this is clearly a Compensation Event. Clause 60.1(2) states that a CE arises if the Employer does not allow access to and use of the site by the later of its access date and the date shown in the accepted programme.
The issue to check flowing from Clause 60.1(2) is that you do not have an accepted programme that has now changed the agreed dates that you state are in your contract. If this is the case then the Employer can give you possession on the later date without it becoming a CE.
As Jeremy highlights these may or may not be a compensation event. However, what I would question is whether you raised an early warning about this matter to raise the issue about it happening again in the future. Did you give them the chance to know that these costs were materialising? You may have an issue if this is the first that they know about it.
It is a compensation event if it subsequently fits one of the reasons within clause 60.1. (as Jeremy says probably 60.1(2)). You then have to notify within 8 weeks of becoming aware of the event.
Glenn - yes they have been aware from the first 2 weeks on site and we have notified the delays on a daily/weekly basis although have not issued a formal Early Warning Notice. The only Programme we have received is the MC original programme which shows the access dates as our contract dates. Prior to signing the contract, we agreed a set operative rate for each operative to be used in the Event of a CE such as this. This rate was inclusive of use of small plant and OHP… At the present time we have asked for payment for the standing hours at this rate. We have not been formally asked to issue revised programmes, and although we are in receipt of the MC Programme, the Contract states “programme to be agreed on site”.
Which contract option therefore have you been engaged under? If it is ECS then you should have had a requirement to submit regular programmes. If it was the short contract it was less prescriptive but would have done it anyway, and if anything other than an NEC form of contract you will have much bigger problems as there is no requirement.