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NEC3 ECC: Key date missed - EW issued - 25.3 - Back charge issued within 4 weeks - Subcontractor objecting.

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Background - Option B - Subcontractor (SC ) missed key date. Managing Contractor (MC) notified event and issue costs (back charge) within assessment period 4 weeks).  Now SC does not agree and did their own assessment?

My questions is as follows:

1.  I understand that MC can only recover cost from the time the condition was not met, up to a time when the condition was met. BUT, due to SC not meeting his obligation in terms of 20.1, MC had to throw resources at the issue to mitigate the actual duration, which would have carried on longer if these resources was not put in place before the key date was missed.  Longer duration more cost for SC, and MC would have had to pay penalties to Employer.  MC wants to recover cost but SC does not want to accept the rates of personnel and in effect had reduced the claim by 50 %, only assessing what they feel should be applicable. so my question is,  seeing that this is "linked" can MC claim actual time x rates per discipline prior to key date being missed and then for the actual time up to and incl when this was met?  keep in mind that sufficient back up was given to substantiate this cost.  I did not want to call on the performance bond.

2  I believe SC main objection is Mc's rates and have done their own assessment? Can SC do that? is it not only the Project manager that can do a assessment? SC is also of the opinion that MC should carry half of the loss as its MC's risk as well and that MC had waited till the key date that mc would recover cost incurred 25.3.  what would be an alternative solution without declaring a dispute?

3.  Since the NEC does not recognise claims or back charges how do we deduct the monies? Do we deduct it from their payment.  (invoice) And then when I do Final account I would have the remeasure less penalty.

Thank you.
asked Oct 30, 2015 in Time by Anonymous   10 57 84

1 Answer

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Under clause 25.3 of the ECS it is for the Contractor to assess the additional cost which the Contractor has paid or will incur. The key points are "in carrying out work", or by paying an additional amount to the Employer or others "on the same project"

If we then go to clause 50.2 the amount due includes an item "less amounts to be paid or retained from the Subcontractor". Clause 25.3 is one of those amounts to be paid or retained.
answered Oct 30, 2015 by Barry Trebes Panel Member (27,790 points)