Late Submission of Programme Resulting in Losses

NEC3 and NEC4 Contracts Compensation Events
1

Under NEC3 Option A S/C the Subcontractor should submit programme for acceptance within 2 weeks of the starting date.

Subcontractor did not submit a programme for acceptance until 4 weeks after the starting date.

Contractor has not issued an EWN until after 4 weeks as full extent of requirements was not understood. Contractor has now incurred costs as a result of Subcontractor’s failure to provide a timely programme and lost opportunity to undertake preparatory work in a different manner. There is no key date within the Subcontract aligned to the submission of the programme (to facilitate recovery of consequential losses). In old money, Contractor’s QS would try to offset Subcontractor account with contra-charges. Is there a remedy for the Contractor to recover these costs? If so, how? If not, how can I avoid it happening again - would it be wise to have a key date attached to the date for the submission of the first programme?

2

A failure to submit a first programme by the date stated in the contract would be a breach entitling the injured party to sue for damages. It would be necessary to establish a causative link between the actual loss and the breach of contract and that link should not be too remote and the amount should not be unconscionable. There is no mechanism under the contract for this, so it would be a claim at common law.