NEC3 ECC Sectional Completion X5 and X7

We have a NEC Option A Contract with options X5 and X7.

We have a Contractor who is right of Sectional Completion but Completion of the whole of the works is not yet due. The Employer has taken over the works whilst the criteria for Sectional Completion has not been met, but still needs to be met for food processing equipment.

We have held the Contractor present and supporting the operation of the product and facility since take over at their cost, but now we need testing required under the criteria for Sectional Completion to take place.

Am I correct in thinking,

  1. A Compensation event is due under 60.1 (1) for changing how the Contractor provides his works and making the Contractor stay and operate the product and facility even though he was late.

  2. No Compensation Event under 60.1 (15) take over before completion and the completion date as the Contractor was already right of Sectional Completion but not Completion of the whole of the works. The required testing is also the Contractors risk for being late, despite the Employer taking over pushing the Contractors late and final requirements further right.

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The Employer has the right to take over any part of the works before Completion has been certified.

This is a compensation event only where it is before both Completion and the Completion Date (or sectional Completion Date). In your case the Completion Date has passed, so the matter would not constitute a compensation event. Note that secondary option X5 alters the meaning of Completion and Completion Date to apply to each section as well as the whole of the works.

Access would need to be provided for the Contractor to complete that part of the works, treated as a Defect. Be aware that if access is not provided then this may constitute a compensation event (possibly 60.1(3) or 60.1 (5)). Note that any ‘uncorrected’ Defects are dealt with in accordance with clause 45.

If you are requesting that the Contractor does something which is a change to the Works Information, in addition to completing the remainder of the works taken over, then that would likely be a compensation event, as you say, under 60.1 (1), ‘supporting the operation of the product and facility’.

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