NEC3 ECC Option A: Late Payment Certificate & Late Payment

The PM should certify a payment within one week of the payment assessment date, which is the ‘due date’.

If a payment certificate is not given 5 days after the ‘due date’, then your application for payment, if you submitted one, would become the ‘default’ payment notice.

Where there is no payment application you may give a payment notice, provided it specifies the amount considered due and the basis upon which that sum is calculated (see definition of Price for Work Done to Date).

When the ‘default’ payment notice has been identified, then the stated amount should be paid by the final date for payment, which in your case looks like it is amended to 35 days, unless a notice of intention to pay less than the notified sum (‘payless notice’) is given.

Where payment is not made by the final date for payment then you would be entitled to interest.

You also have the right to suspend performance, although you need to give 7 days notice of your intention and state the grounds. This is a compensation event (see Y2.4).

As you have stated there is also an option to terminate where payment is not made within 11 weeks.

Giving an early warning by notifying of this matter, which would probably increase your total cost, is a sensible way to ‘highlight’ this issue. I am sure both the PM and Employer are aware of the ‘problem’, but there are contractual rights and obligations which are not linked to external funding procedures.