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NEC3 Subcontract - X7 used but 'not applicable'

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The Subcontract Data Part 1 states that X7 is one of the secondary option clauses used, however further down it states that
If Option X7 is used (but not if Option X5 is also used)
Delay damages for Completion of the whole of the subcontract works are Not Applicable

Does that mean that delay damages have been left unliquidated and that the Contractor will be able to claim 'reasonable' costs incurred as a result of delay?
asked May 2 in Secondary X, W and Y options by QS84 (140 points)  

1 Answer

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Inserting 'Not Applicable' for the delay damages amount is likely to be interpreted as meaning that contractual (pre-determined amount) delay damages do not apply.  Unless there is some express provision excluding common law rights, then it is also likely that the Contractor could pursue 'unliquidated damages' in the event of a (breach of contract).delay

The drafting is not great because with NEC contracts you choose to ADD such Options rather than deleting applicable clauses so it is a bit of a strange way to deal with this matter.  Nevertheless, choosing Secondary Option X7 then adding 'Not Applicable' could be interpreted as reinforcing the intention to pursue a common law right, rather than the contractual route, when it comes to such damages.
answered May 7 by Andrew W-I (19,900 points)