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NEC ECC - Accepted Programme

3 replies [Last post]
Tue, 2004-09-14 05:51
Ronald Fisher
User offline. Last seen 4 years 37 weeks ago. Offline
Joined: 3 Jun 2004
Posts: 15
Groups: Petro-Chem / Oil & Gas
I am currently working on a large petrochem project in South Africa, which is been run under the NEC ECC contract. One of the areas that I fail to understand is the acceptance non-acceptance of a programme submitted by the contractor.

The current situation is as follows:

The contractor has issued a revised programme for acceptance as per clause 32.2. In the programme the contractor is indicating a delay of 6 days, (planned completion overshooting the completion date). These delays are caused mainly due to strong winds not allowing the required lifts, slow progress on site etc.
Per clause 31.3, there is no reason why I should not accept the programme (or is there?). Should I accept the contractors programme with the 6 day delay, do the new set of dates become contractual? have I accepted the 6 day delay? or do I accept the programme as submitted and the issue the contractor with a Project Managers Instruction, requesting him to revise his programme showing how he intends dealing with such delay?

There are no pending CE’s awaiting acceptance or Early warnings requiring resolution. Time risk allowance of 5 days has been allowed but is poorly defined.

I would appreciate your view on this, and possibly if you could reference some of the clauses within the NEC with regards to change of completion dates, as my understanding is that only an implemented compensation event may cause a change to a completion date.

The other confusing issue is this. What is required to be shown in a revised programme with regards to "Early Warning Matters"? Are these to be shown as milestones within the programme? I understand actual progress, implemented compensation events, but not the early warning matters. What would a typical example of an early warning matter be?
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Replies

Tue, 2010-09-28 16:16
#1
Nick West
User offline. Last seen 8 years 22 weeks ago. Offline
Joined: 11 Sep 2003
Posts: 10
Groups: Civil Engineering

Ronald,

I would say that there is no contractual reason for non acceptance of the contractor's programme if the planned completion has slipped to the right of the completion. Acceptance does not as I understand, mean that you accept ownership of the risk associated with slippage and if the contractor has not submitted a CE notice under Cl 60.1 (13)....which has been implemented then you have not accepted an EoT (revised completion date)

Unless you are/were aware that the high winds were a >10 year event (which you have an obligation also to inform the contractor that a CE has occured) then I would suggest that you raise an Early Warning and instruct the contractor to attend a 'Risk Reduction Meeting' to mitigate the slippage.

 

Cheers 

Nick

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Wed, 2004-09-15 06:07
#2
Shahzad Munawar
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Joined: 2 Jul 2003
Posts: 551
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1) First you seek that whether your Contract provisions allow such unforeseen event like strong winds or unprecedented rains or not?

2) If yes, then Contractor is entitled for extension of 6 days otherwise its discretion of Consultant/Employer to analyze and compensate these 6 days delays on factual grounds if this delay is justified?

3) Moreover you also seek that in Accepted Programme either such events included marginly in Contractor’s progamme or not?
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Tue, 2004-09-14 10:47
#3
Stuart Ness
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Joined: 30 Jun 2004
Posts: 352
Groups: None
Ronald,
I don’t have a copy of the NEC ECC Contract to hand, so I am shooting from the hip.
Is the Contractor claiming “delay” despite the fact that it is really “disruption” – I would doubt if a delay of only 6 days due to wind on a large petrochem project would impact the CP to the stage where you have a resultant EOT of 6 days.
And as for the cause – were the winds abnormally high? Even if not, I would suggest that a prudent contractor (or even an imprudent one) would allow for some float to take account of wind and weather conditions when involved in major lifts.
And the other cause you refer to – slow progress on site; who is responsible for that? Is it self-induced or exacerbated by the Contractor?

I am not convinced that your direct acceptance of the programme is required. The Accepted Programme is part of the original Contract, and it is to be updated to incorporate compensation events. If you agree to and approve a compensation event, then it follows that the time impact of the agreed compensation event will be folded into the revised accepted programme; in other words, your “acceptance” of the programme is a consequence of your agreement or revision to the compensation event. Remember, however, that the Contractor should take mitigation steps to reduce the impact of any compensation events. I suggest that you run a Schedule Impact Study to see to what extent (if any) this particular event has on the overall CP.

The Contractor is obliged to give an early warning notice as soon as he becomes aware of any matter which could increase the price, delay completion or impair performance of the contract works – and do be aware of your time limits!! Examples would include delays in access to some or all of the site; failure of the Employer/Client to provide materials or utilities on time; a force majeure event; delays by Employer/Client in providing drawings and/or instructions.

As far as showing Early Warning Matters (EWM) on a Revised Programme, it is unlikely that this would be shown as Milestone, since the impact of a EWM would be reflected as extended durations to a number of activities, and perhaps add in new activities. EWMs are simply known as Key Events in some other Contracts, and their impact is simply reflected in an updated programme.

As I say, I am shooting from the hip on this, and I hope that others will either add to, or correct, this post accordingly.

Cheers,

Stuart

www.rosmartin.com
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