Clause 60.1(2) makes it a compensation event when a part of the Site isn't available for the Contractor to get to and use by the later of two dates: its access date in the Contract Data and the access date on the Accepted Programme. Being late against only one of those isn't enough.
The rule is the same in NEC3 and NEC4 ECC, apart from Employer becoming Client. The linked duty is in clause 33.1, and the dates themselves are explained in the guide to access dates.
The later-of-two-dates test
The two dates protect both sides. The Client can't be held to a date earlier than it promised, and the Contractor can't claim for a period when its own programme didn't need the access. Here are the possible outcomes, using illustrative dates.
| Contract Data access date | Date on Accepted Programme | Access actually given | Event? |
|---|---|---|---|
| 3 March | 10 March | 8 March | No. Access came before the later date, 10 March. |
| 10 March | 3 March | 8 March | No. The Contractor planned to start early, but access isn't due until 10 March. |
| 3 March | 10 March | 24 March | Yes, late by 14 days, counted from 10 March. |
The Accepted Programme is what can move. A revised programme showing a later access date, once accepted, can quietly change the second date in the test. Planners should know when that happens, because an access date pushed back to reflect the Contractor's own slippage narrows any later event.
Access and use of a part
The test applies to each part of the Site, so a single late plot, level or haul road can be an event while everything else is on time. "Use" matters too. A gate that opens onto an area still blocked by the Client's stored materials gives access in name only.
It covers the Site as the contract defines it. Land outside the boundary that the Contractor hoped to rent as a compound isn't caught. Check the boundary drawing before you rely on this entry.
How it is usually evidenced
- The Contract Data part one access date for that part.
- The Accepted Programme current at the time, showing its access date.
- A dated record of when access really began: site diary, handover certificate, photos, gate records, or correspondence chasing it.
- What your team was ready to do on the due date, such as resources booked, plant on hire or subcontractor orders placed.
This event needs a notice from the Contractor, because no communication caused it. The eight-week time bar therefore applies. Notify when it's clear access is going to be late; the contract lets you notify an event you expect to happen, and you can also give an early warning.
Worked example
A fictional depot resurfacing on Option C, with illustrative figures. Bay 3 has an access date of 3 March in the Contract Data and 10 March on the Accepted Programme. The Client's tenant doesn't move out until 24 March.
The Contractor warned on 4 March, once the tenant's plans became clear, and notifies on 11 March. The early warning meeting moves the surfacing gang to Bay 4, so they don't stand idle. The bays are not independent, though, and the critical path runs through the drainage connection in Bay 3.
| Effect, as forecast or recorded | Defined Cost |
|---|---|
| Gang resequenced to Bay 4, with an extra plant move | £3,400 |
| Site running costs for the 10-day delay to planned Completion | £11,000 |
| Subcontract drainage rebooking charge | £1,600 |
| Total (the Fee is then added) | £16,000 |
Access was 14 days late, but the delay to Completion is only 10 days. The resequencing, plus 4 days of float ahead of Bay 3 on the programme, absorbed the rest. It's the effect on planned Completion that decides the time, not the length of the late access.
How it is assessed
The dividing date is the day of notification (63.1). Costs up to then are actual and the rest are forecast. Delay is measured from the Accepted Programme current at that date (how delay is assessed). Under 63.9, the Contractor is assumed to react competently and promptly, which is why redeploying the gang counts.
What people get wrong
- Measuring against the wrong date. Starting the count from the earlier date overstates the event.
- Assuming days late equals days of delay. Float, sequence and the critical path all sit between the two. The compensation events guide explains the wider assessment.
- Ignoring programme revisions. The relevant date is on the current Accepted Programme, not the one from tender.
- Using it for Others. If a part of the Site is available, but another contractor is getting in the way, look at 60.1(5) instead. They can overlap, so state both where the facts support it.
- Accepting partial access without saying so. If you start under protest on a fraction of the area, record what's missing on that day.
Related guides
- NEC Compensation Events: The Complete Guide
- Compensation Event: Something the Client Should Provide
- Compensation Event: Instruction to Stop or Not Start Work
- Compensation Event: Client or Others Not Working as Stated
- Common Compensation Event Mistakes
- Compensation Event: Change to the Scope
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This guide is general information in our own words, not legal advice. Your contract and its Contract Data always govern. NEC, NEC3 and NEC4 are trade marks of Thomas Telford Ltd; Contract Status is not affiliated with or endorsed by NEC.