Notify it: late site access under NEC is a compensation event under 60.1(2) once a part of the Site isn't available by the later of its access date in the Contract Data and the access date on the Accepted Programme. It's the same in NEC3 and NEC4 ECC. What decides it is those two dates, so check both before you write anything.
What to do, in order
- Today: find both dates for the affected part. Contract Data part one gives one and the current Accepted Programme gives the other. Take the later.
- Today: give an early warning (15.1) as soon as you can see it's going to be late, and ask for an early warning meeting.
- As soon as you expect it, notify the compensation event. Clause 61.3 lets you notify something you expect to happen, so you don't need to wait for the date to pass. The time bar is eight weeks from becoming aware it has happened (seven under NEC4 ECS).
- Project Manager has one week to reply (61.4). If there's no answer, notify the failure, and two more weeks of silence counts as acceptance that it's an event, along with an instruction to quote.
- Stop committing resources you can't use. Rebook plant, hold deliveries and redeploy gangs: 63.9 assumes a competent, prompt response.
- Record the first day you could use the Site and how much of it you got.
- Quote within three weeks of being instructed (62.3). If the access date is still unknown, ask for an assumption to be stated under 61.6.
Sample notice: "Access to [part] was due by [later date]: Contract Data [date], Accepted Programme [date]. As of today we do not have access to and use of it, and we expect access no earlier than [date]. We notify a compensation event under clause 60.1(2). Please confirm when it will be available. We are holding [resources] and will mitigate as set out below."
Checking the test
| Situation (illustrative dates) | Result |
|---|---|
| Contract Data 2 June, Accepted Programme 16 June, access given 10 June | No event. You got it before the later date, however keen you were to start |
| Contract Data 16 June, Accepted Programme 2 June, access given 10 June | No event. The Client doesn't have to give it before the Contract Data date |
| Contract Data 2 June, Accepted Programme 16 June, access given 30 June | Event. Late by two weeks, from 16 June |
| No Accepted Programme yet, Contract Data 2 June, access given 16 June | Only one date to work with, but expect an argument. See when there's no Accepted Programme |
The worked detail is in the guides to the access compensation event and access dates.
Points the access argument turns on
- "Access and use". A gate you can open onto ground still blocked by a tenant or by stored material may not be real access. The duty in clause 33.1 covers both.
- Each part counts. The test applies part by part, so one late bay can be an event even if the rest is fine.
- Your own programme can move the date. A revised programme you submitted showing a later access date, once accepted, moves the second date in the test. Check before you submit.
- Don't start early. Under 30.1 you don't start Site work before the first access date. An agreement to go early doesn't change the date unless it's recorded properly.
Assessing the effect: fictional example
A fictional sports hall on Option A, with illustrative figures. Access is due on 16 June and arrives on 30 June. The steelwork order can be held back, but the groundworks gang can't be redeployed for the first week. The quotation includes one week's standing cost, remobilisation, and two weeks of extended site overheads. Planned Completion moves by 12 days after resequencing, so the Completion Date moves by 12 days, measured against the Accepted Programme at the date of notification (63.5).
The response to expect
Expect to hear that the Accepted Programme gave a later date; that you weren't ready anyway; or that the delay would have been absorbed. The contract says delay is measured by the effect on planned Completion (63.5). A delay that doesn't move planned Completion gives no time, but the cost effect can still be assessed. If you really weren't ready, the Project Manager will argue that the delay wouldn't have caused the loss claimed, so keep evidence of your readiness: orders, resource plans, method statements and any permits.
In practice, early warning meetings often find a partial fix, such as handing over half the Site, and that's worth having. For access being pulled back after you've started, see restricted access part way through. Other situations are in NEC questions answered.
Related guides
- NEC Questions Answered: Real Situations on Site
- The Client Restricted Our Access Part Way Through
- Another Contractor Is Delaying Us: Is That a Compensation Event?
- A Utility Company Is Late: Who Takes the Risk?
- Snow or High Wind Stopped Work: Is That Covered?
- The Site Flooded: Who Is Responsible Under NEC?
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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.