Contractor will incur damages (X5 & 7) to be paid to Employer due to Subcontractor missing a key date which lead to Contractor not being able to meet key date. Question is can this costs (damages) be claimed back from Subcontractor in terms of 25.3? And if not can Contractor recover this from any other clause in the NEC ie: 83.1) or being in breach of contract. or will this be seen to form part of the key date cause it is as a result of the key date?
There are two elements to this question:
Firstly and quite subtly there are different financial liabilities for missing a sectional completion rather than a Key Date. If a sectional or the overall Completion Date is not achieved for reasons that are the Contractors liability then they will be liable for the (fixed) damages outlined in X7 (contract data part 1). However, if a Key Date is missed due to the Contractors fault then clause 25.3 states that any cost incurred by the Employer as a result (on the same project) will be recoverable from the Contractor. These are undefined costs from the outset so could be a big risk to the Contractor compared to delay damages which are at least ascertained.
The second part is easy. You can claim back from the Subcontractor what ever your contract allows between you and your Subcontractor. If you have put in a sectional completion or a Key Date in their contract that they fail to meet for reasons that are their risk then you can use 25.3 or X7 accordingly. If you haven’t then I fail to see how they can be in breach of contract and section 8 of the contract will not help you.