Expert advice in minutes not days. Register it's free and ask your first question now.
ReachBack is a free community help desk for construction professionals run by Built Intelligence. A library of high-quality questions from real users with answers delivered and curated by industry experts.

Do you want to update your skills in NEC3, NEC4, JCT, Procurement, CDM or Project management?

Sign up for one of our free online courses.

4,582 questions

4,839 answers

812 comments

Register its Free

Download here

NEC ECSC: How does one assess the Contractors liability for a weather event that impacts on a scope increase CE?

+1 vote
127 views
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.
asked Jul 27 in NEC3 Compensation Events by SL58 (350 points)  

1 Answer

+1 vote
 
Best answer
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!
answered Jul 31 by Neil Earnshaw (16,080 points)  
selected Aug 6 by Neil Earnshaw
Thanks Neil, advice greatly appreciated.