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NEC ECS: Can costs be claimed back under 25.2 for poor performance

+1 vote
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We have a Subcontractor who has met the requirements for X5 so avoided LD's but has then dragged their feet completing the remainder of the works and one of our staff has taken over managing their close out as well as our expert in that area. Under clause 25.2 can we recover these costs as they have not completed their works in a timely manner.
asked Mar 13 in General by WatersideSurveyor (660 points)  

2 Answers

+1 vote
 
Best answer
If you have certified Section Completions, or should have certified them - see definition of Completion at clause 11.2(2) - then you will struggle to justify why you should be entitled to claim your losses as a result of the Subcontractor not completing.

If this hasn't happened then you'd still have the right to recover delay damages from them.

In choosing to use delay damages you made a decision that means you cannot now pursue the Subcontractor for your losses as a result of their delay.

Usually use of sectional Completion means there would be a stated damage per day for each section as well as one for the remainder of the works and these are your remedy for delays caused by the Subcontractor.

If you want to recover any cost under clause 25.2 you will need to demonstrate that the Subcontractor has not provided something that the Subcontract Works Information required them to provide. It sounds like that may not be the case here, merely that they aren't doing it as quickly as you'd like. You can't force them to finish "on time", they are allowed a "reasonable time" to complete even if this means they are going to be "late". In the NEC your remedy isn't being able to force them to be "on time", it is X7 damages or if you hadn't used them you'd have to pursue your losses outside the contract.
answered Mar 15 by Neil Earnshaw (19,120 points)  
selected 4 days ago by WatersideSurveyor
Thanks Neil. Inheriting a contract is never good. The scope states that they are to manage the close out in a timely manner and as they never resourced the close out, we had to manage this process so I will collate this cost and see what happens. Thanks for the sounding board.
+1 vote
No. But what you could do is notify the outstanding works as Defects - a part of the works not in accordance with the Works Information, whereupon they have the defects correction period to correct it. If they fail to do it in this time, then clause 45.1 kicks in (assuming it is NEC3)
answered Mar 14 by Jon Broome (51,860 points)  
Jon - Apologies I may not have been totally clear, they have finished the work now but due to the way the Contract was setup there was no punishment on the Completion Date only the X5 dates so we had to camp people in their offices to move the project along incurring additional costs to ourselves.