NEC3 Option C: Non Working Equipment on Site

Hi, we are the main contractor and we have a subcontractor who is working under an NEC3 option C subcontract. The site we are working on was open until 23rd December 2022 but the subcontractor decided that they would finish their works on the 16th of December irrespective.

My initial thought was that the cost of both the labour and equipment wouldn’t be defined cost in the first place on the basis that it/they weren’t providing the subcontract works. Having looked through the subcontract however it would appear that this only holds true for people costs. There is nothing for equipment that states that it must be providing the subcontract works (which is understandable I suppose as there will be items not used at all times). I could also see nothing on the disallowed cost definition.

I am sure that there must be a simple mechanism to deal with this as I can’t see how a subcontractor could effectively down tools whenever they want and still expect to have the equipment paid for? There is obviously the option of going down the route of breach of contract but that feels like a sledgehammer approach for an issue that must be pretty common.

I’m hoping that someone can say I’ve missed something super obvious!

Many thanks

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Cl.11.2.(25) of an unamended NCE3 Option C: (disallowed cost)

“resources not used to provide the works (allowing for reasonable availability and utilisation) or not taken away from the Working Areas when the Project Manager requested.”

Were they using the resources available at the time, if not then I would suggest it’s a disallowed cost. Was the reason due to a lack of operatives by the Subcontractor? This could hinge on “reasonable”… it was only 5 working days, is it worth the dispute v the overall good working relationship of the project?

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Just out of curiosity, when did the Accepted Programme show the Subcontractor pausing over the Christmas period ?

Secondly, What are you expecting the Contractor to do with the Equipment over the Christmas Break, are you expecting for all Equipment to be demobilized and then remobilized in the new year which can be costly and also time consuming exercise ?

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Thanks, once I got home I re read my hard copy of the original and saw it myself. Why this would be removed from both our mian contract and subsequent subcontracts is beyond me as it now opens up the flood gates. Thanks for the response though.


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The accepted programme showed 23rd December. With regards to the Christmas shutdown costs, we accept that the costs will be present for the accepted Christmas shutdown, but not when the subcontractor effectively decides to down tools a week before. Looks like we removed the relevant bullet point from 11.2 (25) though so kind of a moot point!