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NEC ECSC: How does one assess the Contractors liability for a weather event that impacts on a scope increase CE?
I have awarded an ECSC contract with defined starting date and Completion Date. At a later date I subsequently instructed additional scope as a compensation event. The work is not similar to the original scope, is of short duration relative to the original contract (10 days versus 100 days) but will be completed within the original duration with no assessed effect on the Completion Date.
Without the ability to apply sectional completion to this work I needed to constrain the time for this work by specifying a date for completing this additional scope, but clearly this doesn't carry the same weight as the Completion Date from Contract Data 1.
A weather event has now occurred that has prevented the Contractor from carrying out any of the additional work and they are faced with costs for Equipment that cannot be off-hired because of it's scarcity.
My question is who pays for the delay?
Clause 60.1(9) says the Contractor is liable for the "first one seventh of the total number of days between the starting date and the Completion Date but can this sensibly be applied to the additional scope which is of a far shorter duration than the original contract.
I'd be interested in views on the contractual position here and maybe a more pragmatic/fair solution, if there is one.
Jul 27, 2018
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Unfortunately, if the compensation event has been implemented i.e. the cost and time effects of the event (change to Works Information) have already been assessed, then the Contractor is liable for the delay to the additional work.
The compensation event states that "the Contractor is prevented by weather from carrying out all work on the site ..." If the Contractor is only prevented from carrying out the additional work and other works could continue then the test isn't passed and there can be no compensation event.
Obviously if both you and the Contractor feel that what has happened wasn't envisaged by either party and are uncomfortable with the contractual result, you could negotiate / agree to share / pay the additional costs ... but that isn't what the contract says!
Jul 31, 2018
Aug 6, 2018
Thanks Neil, advice greatly appreciated.
Aug 1, 2018
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