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Answered: NEC ECC: Can a Contractor claim loss of bonus/incentive payment/profit if a Subcontractor misses a Key Date?

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Assuming you're talking about a subcontractor who is employed by a contractor using the ECS and the contractor in turn is employed by a client under the ECC ...

Clause 25.3 provides a three point test which must be passed in order for a contractor to recover anything from a subcontractor as a result of failing to meet a key date:

(1) it must be an additional cost that the contractor has paid or will incur
(2) the additional cost must be incurred on the same project and
(3) the cost must be incurred in relation to the carrying out of work

Further, the final sentence in the clause seeks to exclude indirect or consequential loss from being recovered in relation to this breach of contract.

You can see how loss of a bonus, an incentive payment or profit fails to meet the tests in this clause and indeed is specifically excluded by the final sentence.

This said, it's not unusual to see the ECS being heavily amended by contractors so check your Z clauses, you may find they give the contractor very broad rights to recover costs, losses, damages etc.

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