If a Client has not decided the Completion Date for the whole of the works (i.e. it is not stated in the Contract Data), how should a completion date be fixed?
And can delay damages be included for completion of the whole of the works if the Completion Date has not been decided?
Presuming that you have a contract, either signed and executed or by performance then you have no binding Completion Date and as such merely have an obligation to achieve Completion in a reasonable time. What is deemed as reasonable would ultimately be a matter for the courts to decide as Client and Contractor will no doubt have different opinions on this.
The delay damages mechanism is therefore ineffective as there is no binding Completion Date from which to measure how late Completion is.
Was it the intention of the Parties to have a binding Completion Date and was the failure to include one in the Contract Data a mistake? If so then agreeing a change to the contract using clause 12.3 would give both Parties more certainty and mitigate the risk of disputes over time matters.
Neil, thanks. Regarding delay damages, I thought that might be the case. Yes, we have a formally executed contract.
It throws up a bit of a conundrum because on programmes submitted for acceptance the Contractor has to show the Completion Date. How this can be shown or indeed introduced/agreed when one isn’t stated in the contract data? I’m conscious that the acceptance of a programme doesn’t change the completion date.
I should also explain that the contract includes option X22. I understand that the proposals for stage 2 must include the effect on the accepted programme but notwithstanding that I still don’t see a mechanism to actually fix or introduce a completion date either before or after the notice to proceed with stage 2.
I would agree and have added in such provisions when doing ECI based on X22 for clients.