NEC3 ECC: How is X6 dealt with if there is an instruction to reduce the scope of works?

If a Contractor engaged under the ECC option A contract with X6 have had a significant section of their works removed through a change to the works information. This will move their planned Completion date forward by one month. However Contract Completion cannot be moved forward as a part of the implementation of the CE which will mean that they will be entitled to an additional month of bonus for early completion which will not have been earned.

How should this be dealt with? They can refuse a request to accelerate so that may not be an appropriate way to move the Completion Date. Is the only way to include within the assessment of the compensation event a negative of the value of the extra bonus to which they are entitled?

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Very interesting question Philip.

There is no easy, and for easy read direct contractual, answer to this. There is, for a host of reasons, no mechanism outside acceleration for reducing the time available to carry out the work.

Better than just writing out the cost in the CE equivalent to the bonus would be to make an assumption that the Contractor will finish early as a consequence of the change and therefore lose the effect of the bonus for that period (probably phrased as a reduction in risk) that way the assumption can be revised if necessary. The wording of the assumption, and indeed any deduction would need to be very carefully thought through.

It may also be possible to change the WI to define Completion to hold it back to where it was originally intended to be. That is however very hypothetical and without context may or may not be possible.

Any of these solutions are difficult and challengeable. Much more secure, and certainly the right option, is to have a sensible dialogue around acceleration. Yes the contractor could refuse but it is still the better contractual mechanism, refusal is a commercial issue. The above options are contractually insecure so while they might give the perception of a fair answer you could end up spending a lot on legal costs to find out whether an adjudicator, arbitrator or judge agrees.

Ultimately, if there is no dialogue, the contractor is almost certainly entitled to its bonus and the Employer should take that into account when changing the scope.