Our design / build Contractor under an NEC4 Option C is in delay because of the slow delivery of designs being submitted for acceptance. The Scope states that the Contractor shall deliver design packages consisting of minimum of 900 and a maximum of 1100 units per week for acceptance, however the Contractor is proposing to increase this to 1800 units per week in an attempt to get the programme back on track.
The Clients design team do not have the resources to cope with the proposed increase in design submissions, so should we advise the Contractor of the requirements of the Scope or is there a mechanism for the Client to recover the additional cost of checking the designs through the contract?
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I would suggest that because the Scope sets a maximum of 1100 [design] units that in the event the Contractor submits more than the set amount there would be no recourse for the Contractor via CE’s. Therefore I would suggest that practical approach of reminding the Contractor of the constraints in the Scope, whether that be of a General Communication / Early Warning.
I would also be checking the Accepted Programme during this time to ensure both Contractor and Client / Project Manager are planning design activities in accordance with the Scope constraint.
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Sound advice. Thanks very much.
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The Client should think about what is the most desirable outcome for their project? Stick to original constraint and it’s delivered late or increase design resources in an attempt to recover the time? It might be in their best interests to pay their consultant more as the cost of delay on the Site will most likely be the greater cost. In Option C the Client pays the Contractor’s Defined Cost plus Fee so if the Contractor is late, regardless as to who’s fault it is, the Client will pay more. This is of course subject to the pain / gain mechanism so if the Contractor is pushed into pain the Client can use the Contractor’s share of this as a contribution towards their additional costs. Also if there are delay damages in the contract these would contribute to the Client’s loss.
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Thank you, Neil for your comprehensive reply.
Looks like we have some costing exercises to do to decide which may be the preferred option.
Regards
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The NEC4 ECC allows for the Client to recover from the Contractor those additional costs that it may incur as a result of the Contractor’s failure to act in accordance with the Scope.
Clause 81.1 1st bullet and clause 82.1 provides the basis for recovery in the scenario outlined by @trailace should the Client’s design team consist of a review consult that is named as an Other in the contract and makes a claim for the additional resources needed to accelerate the design reviews.
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