NEC Option A - due to their own faults, the Subcontractor is in delay and proposing to work increased hours on site (over and above the working hours stated in the Works Info) in order to achieve the overall completion key date. In doing so, this will result in the Contractor providing supervision for the additional hours working, therefore incurring additional costs. Is there a route to go down to recover these costs from the Subcontractor? Is clause 25.3 applicable here? Or, since they will eventually meet the condition stated and achieve the key date (by working the extra hours), is the recovery nil?
My understanding of the law is that unless a remedy is stated in the conditions of contract for a breach - which in this case would be working outside the Site working hours (but as you are effectively agreeing to it, by conduct you are altering the Works Information/Scope) - then you are not allowed to deduct your costs.
So unless you come to a commercial agreement outside of the contract as written for the Subcontractor to make a contribution to your supervision costs in order to avoid the higher amounts for missing a stated Key Date, you cannot deduct monies.
Rightly or wrongly, I see Employers, Contractors and Subcontractors notifying their supply chain of a compensation event. Then they carry out a PMA (Project Managers Assessment) to ascertain the negative Price.
There are only two ways to undo the implementation of the compensation event i) agreed it outside of adjudication or ii) agree it with adjudication. Meaning that unless it is a large sum of money most Subcontractors or the like let it slide.