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NEC ECC: Interpretation of term physical condition under 60.1(12)

+2 votes
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The term 'physical conditions' is not defined in the NEC3 contract but is often associated with ground conditions.

The Contractor has notified a compensation event under 60.1(12) regarding a nesting bird preventing works within an area of the site being undertaken. As Project Manager I believe the bird has nested in a location that would have been unreasonable for the Contractor to have allowed for it. Do you think the nesting bird can be classed as 'physical condition'. I have looked through the other compensation event clauses and no other is applicable (we have deleted 60.1(19) through z clause).

Any advice welcome

thanks Steve
asked Jul 29 in NEC3 and NEC4 Contracts by shayes (260 points)  

1 Answer

+2 votes
I would say yes it can be classed as a physical condition. Clause 60.1(12) refers to physical conditions within the Site and 'Site' is defined as the area bounded by the boundaries of the site and the volumes above and below. So as long as it passes the test of being unreasonable for it to have been allowed for (are those type of nesting birds typical of the area) then it should be a compensation event.

As an alternative, if it is a protected species, it may fall under the event at 60.1(7) being of 'other interest' providing you issue an instruction on how to deal with it.
answered Jul 29 by stevencevans (2,360 points)