NEC3 ECC Option C
An event occurred that introduced a CE (referred to as CE100) which has both a time and cost impact. A quotation was instructed at the time the CE was notified. No EWN proceeded the CE.
At the time of instructing a quotation for CE100, there was an Accepted Programme
(Referred to as AP10)
The subject matter is complex and it has taken the Contractor some time to assess the impact of the change, requiring the PM to grant an extension to the period for response.
In the meantime, a new programme has been submitted by the Contractor for acceptance, which has now been accepted by the PM as the Accepted Programme referred to as AP11). The Accepted Programme AP11 did not include any assessment of the effect of the impact CE100 on Planned Completion.
Which programme should the effect of CE100 be based upon? The Accepted Programme AP10 at the time the quotation for CE100 was instructed? Or, the current Accepted Programme AP11?
For me the answer to this is simple, you use the programme that was current at the time the CE arose. If you use a later programme you will not necessarily be looking at the impact of the CE if, for example, some work has been resequenced in the update. Although the direct consequences of the CE may not have been brought into the programme update can anyone be 100% sure that the changes made in the update have been entirely uninfluenced by the pending CE.
I agree with Rob that you should use the Accepted Programme at the time, i.e. AP10. However, this question raises a long held concern of mine regarding NEC3 whereby another compensation event occurs that alters the programme for the remaining work, say CE101, just after AP11. CE101 should be assessed against the relevant Accepted Programme at the time, AP11, but this programme omits the time effect of CE100, which could or is even likely to affect the assessment of CE101. Whereas this can be addressed in alterations to the Accepted Programme in the Contractor’s quotation under clause 62.2 it can lead to inappropriate assessments of the time impact of compensation events when for example more recent compensation events have been assessed before the assessment of older compensation events. This should not happen if the contract is followed properly but is a scenario that occurs practically as parties grapple with problematic compensation events. Clearly it is beneficial to keep the programme up to date in accordance with clause 32.1 recording all the remaining work including implemented compensation events and other impacts which may or may not become implemented compensation events.