Early warning notice
The NEC Engineering and Construction Contract 3rd Edition (NEC3) was published in June 2005. It has been adopted as the contract of choice by the government who no longer update the GC Works contracts, and has been endorsed by the ICE whose own suite of contracts will no longer be updated.
The contract makes provision for early warning procedures. Both parties must give early warning of anything that may delay the works, or increase costs as soon as they become aware of them. They should then hold an early warning meeting to discuss how to avoid or mitigate impacts on the project.
If the contractor fails to give early warning of a possible delay to the works, or increase in costs, they will only be compensated for effects that would have remained anyway even if they had given early warning.
If the contractor fails to give early warning of an event that may give rise to a possible delay to the works, or increase in costs, within 8 weeks of becoming aware of the event, they will not be entitled to a change in price, completion date or key date, unless the project manager should have notified the event to the contractor but did not.
They grey area here is whether and when the contractor should have been aware of the event. Judgement is likely to come down to whether and when it would have been reasonable to expect an experienced contractor to be aware of the event.
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