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NEC ECC: Continually Delayed Start Date

+1 vote
195 views
This is a theoretical question.

If the contract states a start date of 1st January 2019 and then the Employer continually delays the start date in one month iterations (say 1st Feb, 1st March etc), at what point is the Contractor able to terminate the contract?

While it is acknowledged that the Contractor would be due some level of compensation as a consequence of the delayed start date, at what point can the Contractor ask to terminate the contract?
asked Nov 18, 2018 in Compensation Events by TGarrett86 (190 points)  

1 Answer

+1 vote
If the postponed start date is not notified and the Employer simply fails to provide access then this would be a compensation event under clause 60.1 (2).  If this situation continues then notify an early warning to discuss options with the Project Manager.

If the postponement is notified prior to commencement, discuss with the PM the issuing of an instruction not to start the works under clause 34.1.  This would be a compensation event under clause 60.1 (4).

Where an instruction to not start the works continues for 13 weeks then the Contractor has the right to terminate under clause 91.6.  Clearly this would satisfy the 'substantial work' requirement.

During the period of 'suspension' all the usual contractual procedures continue including submission of a programme and the payment procedure.

Hopefully the situation would not simply be left for 13 weeks and a sensible way forward discussed and agreed.
answered Nov 19, 2018 by Andrew W-I Panel Member (25,460 points)