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Answered: NEC ECC: Delay Damage liability to Contractor when Employer cannot give access to the network

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It sounds like the project may be complete as defined in the contract, albeit with Defects.

The test you apply to establish if Completion has been achieved or not is found at clause 11.2(2) - in the final paragraph (which usually applies as most contracts don't state what's required in the Works Information) "Completion is when the Contractor has done all the work necessary for the Employer to use the works and for Others to do their work".

Your question isn't entirely clear about if the Employer is using the works or not?

Remember the term works is an identified term, the meaning of which is found in CD part one. If they are using the works then Completion has been achieved and the Contractor's liability for delay damages ended at the point take over occurred. If only partial take over occurred then the delay damages are reduced proportionally in accordance with X7.3.

If the Employer isn't using the works at all then the full amount of damages would normally be deducted, however the prevention of access may have triggered a compensation event under clause 60.1(2) or even 60.1(18). A compensation event would entitle the Contractor for an extension of time as well as cost and delay damages can't be deducted during the extended period.

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