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NEC ECC: Option A - Can the Employer recover 3rd Party costs incurred due to Contractor error?

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We have a scenario where the Contractor has excavated in the wrong location. As a result, the Employer has incurred additional Archaeological costs which would not have been incurred had the Contractor excavated in the correct location.

Is there any means for the Employer to recover the extra over cost? (Archaeologist is engaged/paid directly by Employer).

Many thanks.
asked Dec 12, 2018 in General by NWQS (510 points)  

1 Answer

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I see no where in the contract that will allow the Employer to recover that cost, so unless there is a Z clause that states otherwise I do not see that they can.

The only right to recover money from the Contractor (which would not be applicable here) would be in the form X7 Delay Damages for missing sectional Completion/Completion Date, cost incurred due to missing a Key Date, or costs incurred to the Employer for a defect not being corrected under clause 45.

It would actually be quite dangerous and no doubt subjective if there was a general clause that said something along the lines of "the Employer incurred additional cost for something that you did wrong so we can seek recovery of that cost in that situation" - hence the contract has no such clause.
answered Jan 10 by Glenn Hide (72,800 points)