NEC3 ECC: What effect does take over by the Employer have on money, defect correction and delay damages because Contractor is late?

The Contractor is 8 weeks beyond Completion Date and the Employer is planning to take over. The contract has delay damages identified within X7 but what are the implications of the Employer taking over on defect correction, delay damages, time and money?

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In very simple terms:

  1. Contractor is liable for full delay damages for the 8 weeks that they are already beyond the Completion Date before the Employer is or has taken over part/all of the works (unless of course there are any compensation events that are yet to be assessed that would ever move Completion Date).

  2. Once the Employer takes over part of the works then you need to take into account X7.3 which requires that delay damages are reduced taking into account the benefit the Employer is now receiving (could well be subjective but that is what the contract says. This stops the Employer charging full delay damages for a single piece of missing documentation whilst still enjoying full benefit of the constructed works)

  3. Defect correction process and in particular the “defect date” remains unaffected by take-over. The defect date is the period for which the Contractor is responsible for identified defects and is triggered upon “Completion” not “take-over”.