I am looking to seek some advice (as the Contractor) on a situation where the Employer is benefiting twice from the application of Delay Damages, under an Option E Contract. To give some background to this, the Employer requested the Contractor to procure the Subcontractor in question, on an Option A basis, to ensure more financial control over the Subcontractor, as opposed to procuring the Subcontractor on an Option E basis. The Contractor is now in a position where Delay Damages are being applied by the Employer, which are then being passed down to the Subcontractor. My question is, under the contract, is the Employer entitled to benefit from the deduction of Delay Damages from Sub-contractor (Option A) and potential loss of same due to Employer paying only the net sub-contract cost to Contractor under Option E?
Please see some notes on this matter below.
Under Option E (Employer / Contractor):
Clause 11.2 (23)
The Price for the Work Done to Date is the total Defined Cost which the PM forecasts will have been paid before the next assessment date plus the Fee
The Defined Cost is defined under clause 11.2 (21) as
Defined Cost is
a. The amount of payments due to the Subcontractors for work which is subcontracted without taking account for deductions for
- Payment to the Employer as a result of the Subcontractor failing to meet a Key Date
- The correction of defects after completion
- Payments to Others, and
- The supply of equipment, supplies and services including in the charge for overhead cost within the Working Areas in the Contract
b. The cost of components in the Schedules of Cost Components for other work,
less Disallowed Cost.
There is no reference to delay damages in the deductions.
Option A (Contractor / Subcontractor)
Note that the clause refers to amount of payments due to the Subcontractors for work and deductions. Neither of these references are helpful to us as 50.2 of Option A for the Subcontractor’s payments states
The amount due is:
a. The Price for the Work Done to Date – (PWDD under Option A is amounts for completed activities or groups of activities on the activity schedule)
b. Plus other amounts to be paid to the (sub)Contractor,
c. Less amounts to be paid by or retained from the (sub)Contractor
And Clause 51.1 states that
The first payment is the amount due. Other payments are the change in the amount due since the last payment certificate.
This seems to result in a situation where the Contractor is unable to recover the cost of delay damages imposed by the Employer but caused by the Subcontractor, as delay damages to be paid to the Contractor by the Subcontractor fall into item c.
Delay damages are chargeable to the Subcontractor under clause X7.1 as follows
The (Sub)Contractor shall pay delay damages at the rate stated in the Contract Data from the Completion Date for each day until the earlier of
a. Completion; and
b. The Date on which the Employer (Contractor) takes over the works
Text on the matter
The items listed in the sub-bullet are all items that are (normally) deducted from or not paid to the Contractor under other clauses. These items are therefore ignored in the calculation of Defined Cost, because otherwise the same amounts would be deducted from the Contractor twice.
The reason for the exclusions is that these amounts are normally deducted from, or not paid to, the Contractor by other provisions of the contract. In turn, the Contractor may wish to deduct them from his subcontractors. If they were deducted again when calculating the Defined Cost, they would be deducted twice from the Contractor.