In an ECC contract, does the fact that the contractor was already behind its contract programme before an inclement weather period was advised in a compensation event have any bearing on the period to be assessed? For example, if the contractor had hit its original key date of watertightness in mid-November, then the inclement weather would have had less of an impact.
Answer
The accepted programme is not a preserved original programme, it is merely the latest one accepted by the project manager – see clause 11.2(1). The parties are supposed to use the latest information that they have to assess compensation events. The contractor is required regularly to update its programme and submit it for acceptance (clause 32.2), and that update has to show actual progress achieved (clause 32.1). This accepted programme is then used to assess compensation events (clause 63.3).
If project managers do not accept the latest submitted programme, or if contractors do not submit one for acceptance when they should, project managers should make their own assessment using their assessment of the programme fro the remaining work (clause 64.1 and 64.2). The programme should obviously include for any delays to date (for whatever cause) – that is clearly what the wording in clause 32.1 and 64.2 means.
