Contractor on NEC option E is in delay with contract Completion unlikely to be met. Who pays to complete the works? No compensation events are in place. No accepted programme is in place.
Not sure how either Party have allowed yourselves to get into a situation where there are no compensation events being managed and no Accepted Programme in place.
Under option E the only Contractor liability is falling fowl of anything defined as a Disallowed Cost, and also they would be liable for delay damages if they exceed the Completion Date and X7 delay damages are included within the contract. You said they are unlikely to meet the Completion Date, but they are not late yet. In the absence of any implemented CE’s moving Completion Date, then if they do exceed that date they will be liable for the delay damages identified per day in contract data part 1.
There needs to be an education piece here where they are educated on the contractual rules and understand their contractual liability, and then try to work together to agree an Accepted Programme and understand the liability of any compensation events. Talk to each other!
Last thought - clause 50.3 allows the PM to withhold 25% of their Price for Work Done to Date if they have not submitted a programme showing the information that the contract requires. That could be invoked as part of the next application if the programme is still not issued/agreed.
Comment on Glenn’s final paragraph: it is highly likely that if you have paid the full amount once in any month that the incentive in 50.3 would be judged unenforceable. This is because they only have to submit a programme for acceptance - i.e. it’s there or thereabouts, but may have been rejected for a specific reason - but specifically does not show the information required. Once they have done this, you cannot you use it.
I am not sure I agree with Jon’s comment that it would be unenforceable, as you may not have reviewed the programme last month so you did not withhold in the meantime, or you now know it is a clear error that you did not withhold. Anywhere else in the contract mistakes are corrected month to month. If a PM has not disallowed a cost one month it doesn’t mean they 'disallow it the next month?
Not withstanding that and more importantly, whether or not it is judged enforceable, who is going to stop the Project Manager doing it anyway? The Contractor could take the matter to dispute but that will not be resolved within 28 days which is when the next payment application will be due anyway. Better therefore putting the time and effort into doing a decent programme rather than trying to go to dispute on whether money should have been withheld for not doing a decent programme!