NEC Contracts: getting something done by a certain date

Employers usually require something done by a certain date. How can this be done using the NEC3 Engineering and Construction Contract (ECC) or the NEC3 Professional Services Contract (PSC)?

When it comes to  something being done by a certain date it’s not just as simple as highlighting days on a calendar.
When it comes to something being done by a certain date it’s not just as simple as highlighting days on a calendar.

The ECC offers an employer various ways of requiring something to be done by a certain date. The same provisions apply in the PSC except that the equivalent of the ECC works information is the PSC scope.

Setting significant time-bound requirements in the works information is not appropriate. An employer should use either sectional completion under option X5 or key dates.

Takeover risks (ECC only)

As is often the case in NEC there is no right answer. In deciding which is appropriate, the employer should be aware of the consequences. In the case of the ECC often the deciding factor will be whether the employer wants take over a part of the works prior to completion of the whole of the works.

In the ECC, if the employer does take over part of the works it takes on risks in relation to the part of the works because of clause 80.1. This states the employer is liable for loss of or wear or damage to the parts of the works taken over (with a few exceptions).

Loss to or wear or damage to the parts of the work taken over is therefore a compensation event under clause 60.1(14). In this case the employer should use secondary option X5, sectional completion and then may use associated delay damages for late completion (secondary option X7).

If the employer does not want to take over a part of the works, then a key date may be appropriate. If so, the employer needs to be aware of the lack of clarity for the bidder on the consequences of it not meeting the key date – and might chose to use a Z clause to put a predetermined amount of damages on not achieving the stated condition by the key date.

Go to the NEC website to see the full article including an example situation and a table showing mechanisms and consequences.

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