Under NEC3 ECC, can a Key Date be instructed to be completed early?

Clause 14.3 states that PM may give an instruction that changes a Key Date, but given consequences are undefined surely the PM can not do this and expect to charge the Contractor whatever cost is incurred by the Employer (in exactly the same way that they can not impose acceleration, only request a quotation)?

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The short answer is ‘Yes, they can’ as the Contractor signed the contract which allows the PM to bring forward Key Date !

However, bringing forward a Key Date is a compensation event under clause 60.1 (4). In putting together a quotation, the Contractor can include for time and cost risk allowances which for me can quite definitely include the extra risk of having to pay for not meeting a Key Date. If, after a bit discussion, this risk allowance cannot be agreed, then the PM can take out theirisk by stating assumptions under clause 61.6.

If that risk then occurs, then this is an additional compensation event under clause 60.1 (17).

Jon - I think I agree contractually that this is the case, but why do you think the contract allows this. How can they bring forward a (Key) date that allows them to impose un-liquidated costs against the Contractor when even if we say is a compensation event can be assessed by the Project Manager as to what they assess it be be (in accordance with the Contractor of course, but no doubt they will assess the risk element lower, and then the Contractor has to go to adjudication to recover).

Why should this be any different to a Completion Date - which can only be brought forward with agree acceleration under clause 36 (which the PM has not right to make their own assessment of or impose)?

Firstly, I have changed the second reference to a compensation event in my reply above to 60.1 (17) as opposed to 60.1 (7) - a typographical mistake.

In respone to your query Glenn : I am not saying this is right or wrong, just that the contract seems to allow it. Reasoning is :

  • under clause 60.1 (4), it says a “change”, not “delay”.
  • if the key date (small k and d) was stated in the Works Information as a constraint, then the PM could bring it forward.
  • for the Completion Date and sectional Completion Dates, apart from via the acceleration procedure when it is effectively by agreement, the rules only allow it to stay the same or be put back. While Key Dates are put back as a result of CE’s, I cannot find anything specific which says Key Dates cannot be brought forward.

Counter arguments could be :

  • above arguments ‘imply’ but do not explicitly state that can be brought foward;
  • that a Key Date is a key deliverable and that under contract law cannot be brought forward without both Parties agreement i.e. the acceleration procedure. However, the counter argument to this is that the contract (for the reasoning given above) does give authority for the PM to do this.