An event occurs on site which will result in a delay to planned completion, however the Contractor initially fails to recognise this as a compensation event.
Whilst continuing with this work, the Contractor prepares his next monthly update to the programme which shows the delay to planned completion as a result of the event. This programme is submitted for acceptance and subsequently becomes the Accepted Programme.
Following this, the Contractor realises that the original event was a compensation event under the Contract and, within the allowed 8 week period, submits his notification of compensation event which is accepted by the Project Manager.
When assessing the compensation event, Clause 63.3 requires delay to planned completion to be assessed based on the Accepted Programme. However, in the scenario outlined above, the Accepted Programme at the time of assessment already includes the time impact of the event.
In this situation, it would seem appropriate to base the assessment of delay on the Accepted Programme at the time the event occurred rather than the latest Accepted Programme, however the Contract does not appear to allow this.
Clause 63.1 makes reference to the date when the PM should have instructed a quotation, however this only relates to Defined Cost and not delay.
Grateful for any advice / guidance on this.
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the intention is to compensate the Contract ie put him back in to the position he would otherwise have been in. Therefore the time assessment should be based on the accept programme at the time of the event occurring ie 63.3 the length of time that due to the CE …
Thanks Dave - I agree 100% that this is the intention of the Contract, however I am not sure that the Contract actually provides for that approach. Clause 63.3 refers to the Accepted Programme which is defined in Clause 11.2(1) as being “the latest programme accepted by the Project Manager”.
I agree that it is not expressly stated. However clause 62.2 (part) does state “If the programme for remaining work is altered by the compensation event, the Contractor includes the alterations to the Accepted Programme in his quotation.”
The reference to remaining work must be referring to work remaining at the time of the CE occurring.
Clause 63.3 sets out how to measure the time impact of the CE ie the movement in planned Completion. For the purpose of 63.3, the Accepted Programme should be the one that was in existence at the time of the event. I don’t think this conflicts with 11.2(1), it is the latest programme accepted by the Project Manager (at the time of the CE occurring).
There is a school of thought that the Accepted Programme should be progressed (updated) to the point of the CE occurring in order to be able to measure the true impact. Following that approach if you were using the Accepted Programme at the time of making the assessment, and assuming it was the data date was after the CE occurring, you would have to unpick the programme back to the point of the CE occurring which would give you the same starting point.
Thanks again, Dave. Again, I agree 100% that the approach you suggest is fair and reasonable but still feel that the Contract could be clearer.
You are right Matthew - the contract should be clearer. Lets wait and see if on the 22nd June NEC4 brings us better words, or if not look out for my article on the 23rd June about this matter!
Thanks, Glenn - in the absence of that added clarity, can I assume that you also agree with Dave’s (and my) preferred approach?
Just a further point : legally clauses are not read in isolation from each other and there is obviously a logical linkage between 63.1 and 63.3. As Glenn says, hopefully this will be explicitly stated in NEC4.
I would agree that the approach outlined is sensible, both practically and legally (see above). See here - http://www.jonbroome.com/resources/videos/simmons-simmons/does-clause-63-1-apply-to-assessing-time-as-well-a - for a video discussion about by les quatro amigos !