Under the NEC3 ECC Option A standard form, we as the Contractor are experiencing a delayed receipt of a Payment Certificate from The PM. The PM and Employer are currently seeking additional funding and we believe this to be the reason for the non-receipt of the Payment Certificate.
Under Clause 51.2 payments are to be made within 35 days. As the Payment Certificate is outstanding we have raised an Early Warning and Compensation Event Notification under Clause 60.1(6). However, should we not receive payment by day 35, site progress will most certainly be affected due to the constrained cashflow. Would this non-payment constitute a CE under Clause 60.1(18) and could we slow progress to match cashflow and be compensated for this impact?
We cant afford to be in breach ourselves and cannot stop. The ‘‘all fall down’’ option as defined under Clause 91.4 doesn’t allow us to terminate for 11 weeks post day 35, although this hinges on the Payment Certificate (which we don’t have).