Does a contract amendment need to take place when new plant items have been instructed under the contract and damages are to be included

The Contractor has instructed the Subcontractor via clause 60.1.(1) to design and fabricate additional plant items similar to that of the original scoped works. The contract (NEC 3 Supply) contains X7 (damages), with the original scope (5 items) all having different delivery dates with separate damages attached to these.

We are now in the process of reviewing the CE quotes and need to agree on a form of damages against the new items.

How do we go about incorporating the plant items and damages into the contract? Would a contract amendment need to take place or is there another form to resolution to add damages to the new items.

Thank you for any help.

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Daniel, the Supply Contract doesn’t envisage different Delivery Dates, it only has the one. the Delivery Date is defined under clause 11.2(6) and clause 63.4 assesses a delay to the Delivery Date; has your contract already been amended to allow for something similar to the ECC X5, Sectional Completion? Without a clear amendment to the contract I cannot see how you can do what you want to do. In order to amend the contract you will need to agree any proposed amendment with the Supplier in writing which both Parties then sign under clause 12.3.

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Thank you for your reply Steve.

Within CDPT1 there is an agreement against each plant item which states the overall delivery duration with damages also agreed against each induvial item. I’m not sure if this is classed as an amendment as such, but it is clear to see there is different delivery dates which all hold there own form of damages against them.

What would be your suggestion to resolve the matter? is it possible under 12.3 to agree to the additional delivery dates and damages? Would a contract amendment have to take place or could it be done via a general communication on CEMAR?

Thank you for all your help on this.

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Daniel; I think from what you say it would have to be a 12.3 amendment, the problem of course is that the Supplier might not agree to the damages. Without seeing the contract it is difficult to give you clear advice, if the Supplier is unwilling to sign an amendment then the instruction to supply more goods is a CE and must presumably extend the Delivery Date for the whole of the contract or the last Delivery Date?

I would suggest that CEMAR can communicate the agreement but seek advice as to the wording of the agreement, both Parties need to ensure they are happy with it before signing.

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Hi Steve,

Thank you for replying, this is extremely helpful.

The Supplier is happy to agree to the damages and dates which these are set to. I understand seeing the contract would no doubt help in making a more robust decision, but I believe the answer you have provided helps greatly.

You are 100% correct, the CE does extend the overall delivery date, but the contract is set up with different delivery dates for the different items. Maybe the contract isn’t entirely correct and a subcontract with X5 should have been utilised?

Thank you once again for this.

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