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NEC3 ECC: Contractor has not supplied commissioning documentation for project, can Employer recover costs under a CE?

0 votes
Under ECC option A and detailed within the Description of the Works, the Contractor was to supply documentation to support commissioning and documentation of the new facility against an agreed plan.  The Contractor has not provided the documents  despite EW notices.  The Employer has had to use in-house resources to create documents to keep project on track.  Is this a basis for a CE claim against the Contractor?
asked Sep 20, 2016 in NEC3 Compensation Events by anonymous   3 10

1 Answer

0 votes
You can only "claim a CE" against a Contractor if it is a valid reason within clause 60.1 - which I do not see this as a reason. In fact the only CE the Project Manager can really notify in order to recover cost would be 60.1(17) where an assumption is corrected in their favour.

If this requirement had been a Key Date (rather than a date that is key) within contract data part 1 - i.e. commissioning documentation has to be issued by a certain date, then under 25.3 you could claim any resultant cost that has been incurred as a result of them missing this date.

If you have certified Completion, then this could be a classified as a defect that they would be obliged to correct and if they don't you could charge them the cost of doing this as the Employer.

At the end of the day I suspect this is something that you have done to keep the project moving but not necessarily something you can contractually pin on the Contractor. However, they are certainly not doing themselves any favors what so ever and you might be able to get them back (contractually of course) in other ways! You felt the need to do these elements for them to keep the project moving. However had you not done it and they then were late, you obviously would/could have charged then Delay Damages under X7.

Sorry if not the answer you are looking for - but as most answers the answer is what ever the contract says - and this is what I think it does (or doesnt) say.
answered Sep 20, 2016 by Glenn Hide (33,750 points)  
I think that the answer is actually within Clause 25.2 - assuming that the provision of commissioning documentation is required within the Works Information then any cost incurred by the Employer as a result of the Contractor not providing can be assessed by the Project Manager and paid by the Contractor.