We are currently pricing an NEC4 Option C project and the Client has decided the completion date for the whole of the works in Data 1. The stated duration seems to be vastly under estimated for the construction works period.
Questions I have as follows:
Should our submitted tender programme be based on the Client completion period / dates or should we submit a realistic programme with our tender that may be deemed non-compliant and run the risk of being dis-qualified?
Should we raise this issue as a tender query and state our concerns?
If we were to submit a programme to match Client duration’s and price any LD’s within our tender price, if successful and we won the contract would the LD’s be treated as disallowed cost? I’m guessing that they would be?
If the Client has decided the completion date in CD Part One, this cannot be changed by your programme submission - I’m not sure that you would be disqualified but if you won the project you would be bound to the completion date set out by the Client, thereby running the risk of incurring delay damages if X5 or X7 applies or general damages if not.
I think that raising the issue at tender stage is a very good idea.
If you priced the expected LDs (say as a risk sum in the Activity Schedule) that would form part of the tendered total of the Prices, and this cannot be disallowed. However, when it comes to the PWDD I don’t see how would you be paid any delay damages imposed after the Completion Date, as they do not form part of the Defined Cost (see cl. 11.2 (24)). Therefore your only benefit including the estimated delay damages sum in your price would be a higher threshold for calculating the Contractor’s share when it comes to the preliminary and final assessments.