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NEC ECSC - Weather Claim for weather event after the Completion Date

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I have an interesting situation under the ECSC for a claim under 60.1(10).  

The clause provides that that the event will be a compensation event where the Contractor is prevented by weather from carrying out all the work on the site for periods of time, each at least one full working day, which are in total more than one seventh of the total number of days between the starting date and the Completion Date.  

My situation is that the Completion Date has passed.  The Contractor is still busy with the works due to his own delays.   It now rains and the days are greater than one seventh of the days between the starting date and Completion date.

My difficulty now is the interpreation of the clause which can be in my opinion interpreted in two ways.

First way is that the Contractor is only entitled to claim for a compensation event if the rains between the starting date and the Completion Date.  The rain in this example occurred after the Completion Date and hence its now a Contractors risk and no claim.

Second way is the Contractor can claim provided the rain that he is claiming for is greater than the one seventh of the days between starting date and Completion Date.

The guidance notes don't deal with this situation neither does any literature i've read.

Your assistance is greatly appreciated.
asked Jul 31 in NEC3 Compensation Events by cameronstaude (490 points)  

1 Answer

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Interesting scenario and one which would equally apply to other compensation events that occur in a period of culpable delay.

Whilst on examination of clause 60.1(10) it may seem that the Contractor is entitled to a compensation event. If it was notified to me as PM I wouldn't accept it under the first bullet point of clause 61.2. My position would be that whilst it's not the Contractor's fault that work was stopped due to the weather (in that the Contractor doesn't control the weather), if the Contractor had achieved Completion on or before the Completion Date then the weather events would not have impacted Completion of the works. Therefore it is the Contractor's fault that he is still on Site completing the works when the weather events occurred.

Assuming of course that there weren't any other compensation events that would have affected the Completion Date during the same period.
answered Jul 31 by Neil Earnshaw (16,080 points)  
Thank you for your answer Neil.

However I don't entirely agree with your interpretation of the first bullet point of clause 61.2.

In my opinion, the fault aspect is only attributable to the causation of the event.  Just because the event happended after the Completion Date should not exclude the Contractor from claiming.

If I give a slightly different example would your views change.  E.g the contractor has not completed the works by the Completion Date and the delay is his fault.  The Employer now does not allow access to the Contractor to finish the works, but insists he finishes the works after hours which are severely restriced and still imposes the daily delay damage until the works are completed?  The Employer doesn't entertain an extension of time claim because of first bullet point 61.4.

Surely this was not the intention of the NEC otherwise it would be grossly unfair to the Contractor where the Employer can impose delay damages as well as reject legitimate compensation events.