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NEC ECC: X7 Delay Costs inserted at £0 per day, Employer trying to counter charge additional PM costs to Contractor

+1 vote
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Following a delay caused, in part, by the Principal Contractor (PC) the consultant acting as PM has applied for additional costs from the Employer (believe their fee is a time based contingent).

The Employer, in turn, has attempted to pass these costs onto the PC. However, Optional Clause x7 has been inserted into the main contract at a value of £0.00 per day. Therefore, unliquidated damages cannot be applied and any delay caused by the contractor can only be charged at a value of £0.00 per day.
Does the Employer have any other mechanism within the contract (NEC3 ECC Option A) for recovering these additional costs applied for by their PM from the PC?
asked Feb 8 in NEC3 Secondary X, W & Y options by Bernie Keens (210 points)  
   

1 Answer

+3 votes
 
Best answer
I will keep this brief...

No.

They have no other recourse - that is the whole point of putting them in at zero - to show the Contractor they have no liability and therefore would no doubt have given a cheaper tender price accordingly!

Had they not have included X7 at all, then they could have claimed for losses incurred in a court of law but outside of the contract. By setting X7 at zero they cut of that legal right.
answered Feb 8 by Glenn Hide (35,100 points)  
selected Feb 8 by Neil Earnshaw