So it appears that our contract we have with our client, the Clause 90.2 termination table has been excluded A4 in the amount due, and they have terminated our contract for no reason other than “for contractors convenience”. I have been told by others that the client cannot exclude/change this part of the NEC clauses legally, others say they can exclude what they want and its down to the Subcontractor to point it out at the beginning, seems a bit unfair especially as it has such an impact on us currently. Can we do anything about it, can the Contractor pick and choose what parts he wants to exclude or not, thanks in advance.
From the amended ECS forms I have seen, the deletion of A4 in clause 93.2 and the Termination Table is actually a common amendment. Although you might consider this to be ‘unfair’ there are far worse amendments than this which place significant potential liabilities on to Subcontractors, which your form probably also includes.
Unfortunately what you have identified is an issue ‘waiting to happen’ as I am sure the contract conditions are the same as when you entered into the contract. This highlights the importance of having a contract independently reviewed to highlight the commercial risks which you are signing up to. This will allow you to consider your options before signing on the ‘dotted line’, such as negotiating amendments or possibly even to ‘walk away’ if necessary.
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