We are a sub contractor on a project and under NEC 3 ECS option A of the ECC. within contract data, the contractor has not applied the option for delay under X7, however, on our final application for payment, has now sent a pay less notice deducting funds for delay. the breakdown of the claim is very basic and one that draws question, however, can the contractor place delay claims against ourselves without X7 in place. for clarity, there is no reference to inclusion of X7 and no data provided within the contract data section.
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X7 is used, in principle, to pre-agree delay damages that will be applied should the Subcontract not achieve Completion by the Completion Date. This is referred to as liquidated damages. If X7 is not used that means there is no pre-agreement of damages and therefore any damages will be unliquidated or at large. The Contractor can claim its damages for the Subcontractor’s delay but will need to be able to demonstrate the cost incurred.