nec play dirty

B CARD_2594
Providing experts to support your project,



Dover Eastern Docks Berth 2 and 7
"Employer" decided to abandon "trust and cooperation" (NEC3 cl 10.1)
Retaliation included revising programme to make any event a substantial compensation event
Leicester Square Refurbishment 
1200 Compensation Events after 50 % increase of scope
A13 Canning Town improvements
700 Compensation Events after 50 % increase of scope

LUL Hammersmith 
Brighton i360 Tower = 600 foot viewing tower to get your money back 
who will help you? - we will 
how do projects get late? –  one day at a time 
what is critical? – all unfinished work is critical 
what can be done? – claim giving lots of reasons 
how to be believed? – take lots of photos, then write a good story is ideal when you need to 
- claim for time and cost,
- communicate from your smartphone
- send results immediately to your expert advisor
NEC Foreseeability Review
Contract Documents review
When it comes to documenting site problems we recommend  
Development Consent Documents Review
such as Environment Statement and Construction Methodology
Employer Provided Site

Site Information Review
Time Risk Allowance
Float seize control
Design during Construction
Planning of Design and Construction
Once Though Engineering (1TE)
NEC Background

NEC is for engineers, programme, resources, methods are central to dealing with EWNs and Compensation Events
ICE and JCT contracts defined programmes in 2 sentences,
there was no settlement during construction
and then a multi-year period to debate as-built programme and concurrent events.  
NEC Programme requirements expanded to 2 pages, they require Contractor to 
re-plan monthly, 
re-plan for every “event”, 
list out everything that Employer/PM is expected to do, 
list events and impacts - effectively PMIs/NCEs. 
NEC brings analysis and discussion forward into construction phase with strict time tabling for notifications and decisions
Programme is more important than Activity Schedule (or BoQ), and is central to defining interactions between Employer and Contractor, get programme correct, and success of project soars
There is continuity expected between Tender Programme, through programme attached to CD2, to that submitted for acceptance at end of first month. 
Programme in CD2 is an agreement between parties and is not subject to the jurisdiction of Project Manager. 
Likewise any programme derived from CD2 programme cannot be rejected.
Prices in CD2 together with any explanations, qualifications are agreements between the parties and not subject to jurisdiction of Project Manager.
NEC3 Programme for acceptance requirements

Programme does not include WBS, Activity Ids, Predecessors, Successors, logic relationship lines, calendars

Programme does not include : Unforeseeable Events 19.1, (60.1(12) and (19) including physical conditions which neither Employer nor Contractor could prevent and which an experienced Contractor would not judge reasonable to provide for due to its low probability of occurrence.

Contractors Programme 31.2. 1/17, 2/129, 2/133-136, 3/28-29, 4/24-27 which has to be a realistic representation of Contractor Plan, constrained by level of detail of Contractors Plan, plans by Employer and Others and Works Information, and must show information required by 31.2 and Z clauses

Excessive duration or lack of parallel activity is not a good reason in 31.3 to reject a programme as it only has to be a realistic representation of Contractor Plan as an illustration compare with a sketch made from a photo, sketch is only a representation - it cannot completely give as much info as a photo but what it does must be consistent with photo

Programme must represent Contractor Plan realistically, eg you plan to build in turn bay 1, 2, 3, 4 but programme shows 1,3,2,4

NEC does not specify that a barchart is required, and if a barchart can be hand drawn on squared paper and does not have to use software, much less require delivery of p6 or MS Project files

Programme does not include Site Information or Reasonably Unforeseeable Physical Conditions or Events (see Contractor Plan)

Detail of future works with all current "needs" (31 for design, approvals, consents, and works by 3rd parties (utility diversions and traffic controllers).
Works Information into programme
NEC3 Early Warnings and the programme
NEC3 PMIs and NCEs
On NEC and need to preserve your profits? 
You need a really good programme 
NEC is for engineers NOT QUANTITY SURVEYORS NEC is meant to be a collaborative (one team) contract and cl 10.1 requires early and honest reporting of events and impacts 
NEC has no provision for oral or informal communications thus either WI changes have to be confirmed 60.1(1) as a PMI or a 61.3 NCE from Contractor (effectively a claim). 
Whereas the Contractor has to proceed with a PMI whilst the CE is assessed, he has no obligation to commence work agreed orally and can insist that the CE is agreed before commencement 
Types of Works outside those defined in the Works Information are outside the jurisdiction of the Project Manager. 
For example the Contractor tenders to construct the Works..then it is discovered that the design is incomplete. 
Project Manager instructs the Contractor to complete the design..he cannot…A Supplement to the Contract needs to be agreed between the parties. 
Is  PMI outside the scope ? In the case of Thorn -v- London Corporation (1876) 1 App.Cas.120 the Lord Chancellor said of variations "If, on the other hand, it was additional or varied work, so peculiar, so unexpected, and so different from what any person reckoned or calculated upon, that it is not within the Contract at all; then, it appears to me, one of two courses might have been open to him; he might have said: I entirely refuse to go on with the Contract - non haec in foedera veni: I never intended to construct this work upon this new and unexpected footing. Or he might have said, I will go on with this, but this is not the kind of extra work contemplated by the Contract, and if I do it, I must be paid a quantum meruit for it." The Contract is limited to the Works within the Boundaries of the Site and Working Areas.  Where the Employer wants additional work performed outside the Site he cannot allow the Project Manager to instruct the work as that would be unlawful. A Supplement to the Contract needs to be agreed between the parties. At this point the Contractor has the upper hand..he is the incumbent, he is not in competition, he can demand clauses that rectify previous injustices inflicted by the Project Manager.  Additionally using lawyers will mean the negotiation will take weeks and months… 11.2(22) Defined Cost : excluding cost of preparing quotations for compensation events. This does not prevent Contractor from raising under 60.1.19 that he want a Compensation Event for overing cost of managing quotations. The cost is not in the Preliminaries as they would not have been provided for in Tender Price. If Completion Date is not adjusted due to incidence of Compensation Events then “Time at Large” emerges. 61.3 Compensation Events on Programme and input sequence Add topics to WBS - much more impact. Compensation Events per Worksite Bar: a bar for CE is shown for each Worksite expressing cumulative effect of CE s
NEC Programme Revisions

% complete should be physical % not duration %. Option A only pays on 100 %. If work is say 95% complete then make a new bar and explain the reason for the delay.
 Cause and Effects Recording  - Best practice

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