I am in need of some advise. The short of it is, after a lot of back and forth we are in agreement with Subcontractors RECOVERY plan. If I notify them of such, do I then by default agree to their new dates, therefor changing the delay damages date. We have never asked for a revised programme only a recovery programme. which has taken them 2 months to produce and comply to 32.2 . I don’t want to change my damages dates but I need to give them feedback, but this recovery plan pushes that date out. we obviously aren’t happy about it but what can we do. They are putting my project at risk. Their recovery plan is not actually a recovery plan, it is an extension (of time only) as they are not recovering any progress, if I communicate acceptance but do not give then a CE to change the dates, will the communication serve as confirmation to change my delay damages date?
I always find it really interesting when people or companies make up their own non-contractual terms! I have no contractual idea what a “recovery plan” is, but I do understand what a revised Accepted Programme is which would show how the Contractor plans to execute their remaining works and where that takes planned completion to. The only why your “damages date” (or as the contract calls it – the Completion Date) moves is with an implemented compensation event. By accepting a programme that is a true reflection of how the Contractor plans to do their works and their relative planned completion does not entitle them to move Completion Date accordingly. If their revised programme shows planned Completion after Completion Date then they will be liable for any delay damages under X7.
You say you have never asked for a revised programme, but firstly you could/should have, and secondly they are obliged anyway to submit regularly at the intervals stated in contract data part 1, which is normally every four weeks or monthly.