Loss of Opportunity Claim

Can a Contractor claim for a loss of opportunity claim under NEC Option A?

Contractor claims that a delayed start has prevented it from earning overhead and has submitted a compensation event. Calculation is based on the amount of work it would have completed multiplied by the direct fee in the contract. I don’t believe this is a true calculation of loss (even though by the premise of the CE’s a contractor should be no better or worse of as a result of the CE). Does the direct fee cover this or would it be up to the Contractor to effectively produce a common law type claim for “damages”?

In short - NO.

The Contractor’s quotation is not in accordance with the clause 63 requirements for assessing a compensation event and as such the PM should either instruct the Contractor to submit a revised quotation or make his own assessment (clause 62.3).

Presuming you accept that this is a compensation event (was delayed start due to one of the events listed under clause 60.1?), then the Contractor has to prove the impact of the delayed start on his resources in terms of Defined Cost and planned Completion.

See also clause 63.4 which limits the Contractor’s rights under the contract in respect of compensation events. He could attempt to bring a common law claim, whether it would be successful or not would make some interesting case law.