I have an issue with a Contractor not being able to start works.
This is an NEC3 Opt B Contract. The Contract has been awarded and the start date and access date have now elapsed.
The Contractor is now stating he has no availble squads and he cant start the works for another 6 months.
Where do I stand Contractually?
@WilliamBrown would you be able to help Jim?
It sounds like the Contractor is committing an anticipatory breach of clause 30.1 i.e. the obligation to achieve Completion on or before the Completion Date. Are there any Key Dates? If so, the same would be true for clause 30.3.
That said, is it possible that the Contractor can flood the project with resources to recover the lost time?
In terms of practical next steps - I would suggest that you give an early warning to sit down and discuss what is going on. The Contractor needs to be made aware of the commercial consequences of a 6 month delay i.e. potentially 6 months of delay damages under X7, or even termination under clause 91.2 for a substantial failure to comply with its obligations.
If the above doesn’t help, the Employer may need to consider the nuclear option of terminating and brining in a replacement. I would strongly suggest seeking legal advice before you do this - as getting it wrong will put the Employer in an even worse place.
Lastly, is there another side to this story? Has the Contractor put its resources on another project because of a delay in this project being awarded? The answers to these questions might change the approach here.