NEC ECC: Option A Option X7 selected but Rate not stated in the Contract Data

NEC3 Option A contract where X7 has been selected. “The Contractor pays delay damages at the rate stated in the Contract Data” The contract data does not include a rate. Can we still enforce X7 Delay Damages?

Yes, but it would be at a ‘reasonable’ rate whatever that is, whereas if it had been stated in the Contract Data, provided there was some rationale to it being a genuine pre-estimate of likely loss, that rate could be charged.

In line with Jon’s answer neither party should allow this to happen in the first place. The Employer having listed X7 in the first line of contract data should have either not listed it or then filled in the blank line in X7 for value. As a Contractor they should not have signed the contract without questioning what the delay damages were to understand their risk.

I think it is as common misconception that no delay damages listed in contract data means no risk for the Contractor for overrunning. Unfortunately it does not mean no risk - it just means that the Employer can claim whatever damages that they incur. If the Employer is deliberately looking for a cheaper tender price because they do not intend to charge delay damages then X7 should be included but set at a low number or zero.