In regards Cl25.3 the Employer incurring additional cost due to Contractor not meeting a Condition for a Key Date, in either first and second bullet point. Does this relate to all additional cost borne by the Employer, on the same project, i.e. PM, Supervisor etc, or only additional costs for ensuring the Key Date is met to allow Others to carry out their works e.g by adding resources, or paying Others to carry out work to mitigate delay. In essence, does this clause relate to cost in carrying out work, or all cost incurred due to not meeting Key Date.
The first words used in clause 25.3 are “If the PM decides that the work does not meet the Condition stated for the Key Date by the date stated …”. So in you question, you ask if “additional costs for ensuring the Key Date is met” i.e. before the Contractor is in default, are allowed ? The answer for me by the opening words are are definite ‘No’. For the rest of clause 25.3 to kick in, the Contractor has to have (past tense) defaulted on meeting a Key Date.
So once the Contractor has defaulted, can the Contractor be charged cost for the Project Manager and Supervisor ?
Firstly, there has to be demonstrable additional cost. So if the PM and Supervisor would have been present on Site in any case and there is no overall delay to the project, then there would be no extra cost. And even if there was a delay to the overall project, depending on the circumstances, it could be argued that they are covered by any delay damages.
Secondly, this demonstrable additional cost has to be associated with the missing of the Key Date. So if the Employer brought in additional PM / Supervisor resource because the work of Others was now being condensed into a shorter more intense timescale and hence needed more supervision and the Employer was paying for this additional PM/S resource in some way, then that would be allowable in my view.
Providing these criteria are met, I see no reason why the Contractor cannot be charged for the additional cost incurred by the