NEC3 ECC: Delay damages to acceleration

Can the employer impose delay damages if the Contractor fails to complete acceleration on time, if yes how to go about, if not, what recourse does the Employer have?

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If the Project Manager accepts a Contractor’s quotation for acceleration under clause 36, then the total of the Prices are changed by the amount in the quotation and the contractual Completion Date (and or Key Dates/sectional completions) are also brought forward by the time stated in the quotation. Very importantly, note that this is a different procedure to a quotation for a compensation event under which the contractual Completion Date CANNOT be brought forward.

If X7 delay damages has been included within the contract as a secondary option then those delay damage figures would be applicable to the revised earlier Completion Date (not the original later one). Once the Contractor has exceeded this date and the reasons are not due to unimplemented compensation events then the Project Manager would be able to assess delay damages from the amount due from that period onward.

The only problem I have seen is when delay damages are negligible, and the Contractor has been paid a large sum of money to accelerate but then does not achieve that date. Depending upon which ECC option they are working under then there is the potential for the Employer to not be able to much about that. It would not be an instantly disallowed cost just because they had not hit that date.

‘Acceleration’ in practice has to be by agreement and it is very important both Parties understand what they are signing up to along with associated liability when they enter into such an agreement.