I have just started a new role and been handed a subcontract to manage and I have spotted in Subcontract Data Part 1 that the key dates and conditions to be met are stated in Annexure C of the subcontract data. Further I have spotted that delay damages for each section of the works (Option X5 and X7 used together) are also stated in Annexure C of the subcontract data?
In Annexure C which is titled ‘Key Dates’ there is a table with the column headings of (in order);
Structure - Element - Key Date - Condition to be met - Delay Damages Per Day
It seems that whoever put this subcontract together was trying to tie Key Dates and sectional completion dates together.
My question is, am I ok to continue to use as it is as the intention was that completion was essential for those dates and the damages were required or do I have to amend and separate as an amiguity?
If I do have to amend, what are the clauses I need to use?
@simsai1 it’s difficult to advise you without being able to analyse the contract in more detail. I’ve seen similar approaches to the one you describe and usually there are Option Z clauses used to introduce a liquidated damage for failure to achieve the Condition for a Key Date. There’s nothing wrong per se with the use of both Key Dates and Sectional Completions and it may not create an ambiguity or need an amendment to resolve. I wrote a paper last year that covered this subject in detail which you may find useful to read, you can find it at:
Thanks for the reply but can you let me know how to communicate if I wanted to separate the key dates from the sectional completion dates just to make sure that everyone is clear? I assume this will make it much easier in the long run to manage.
Hi @simsai1 if the subcontract has been signed and executed then you would need to agree a formal contract variation with the Contractor if you wanted to change any of it’s terms. Even if it hasn’t been, if you have started work on the Site you will have a contract by performance, its just that the precise terms of that contract might be unclear. Either way there isn’t a procedure under the contract to follow, you will need to negotiate any change with the Contractor. If you genuinely think there is an ambiguity or inconsistency then you can notify this under clause 17.1 (assuming NEC3 ECS) then the Contractor will have a duty to resolve this by giving an instruction. Again, if the ambiguity or inconsistency can only be resolved by changing the contract terms the Contractor (arguably) can’t do this without your agreement.