1 in 10 Weather Event - NEC4 Opt A

The Contractor has put in a CE for a 1 in 10 event which has been accepted by the Client. There is a disagreement between the Contractor and the Client on how this CE should be assessed.

The Contractor is working nights on a highways project, one night in particular was cancelled due to heavy rainfall resulting in the site not being safe to set out TM, therefore cancelling the planned works for the other Subcontractors causing the Contractor to incur abortive costs for the supply chain. The Contractor subsequently got a weather report for this month and the weather report shows 7 days expected rainfall (1-in-10 Year Value(1971-2010)), and the actual summary within the month was 9 days where rainfall was a 1 in 10 event.

Contractor Position
The Contractor’s main concern is recovery of abortive cost and EOT for this particular abortive shift which occurred earlier in the month which was a 1 in 10 event. The Contractor sees this claim as being entitled to 2 shifts entitlement (extra over from what is expected) and therefore can assess this claim to recover the abortive shift, and the option of further shift providing the Contractor can demonstrate delay to completion and/or increased defined cost.

Client Position
The Clients position is largely the same in regards to the effect of the claim a being 2nr shift entitlement, but the Client believes the Contractor can only assess the penultimate 2 shifts in the series of 9 days 1-10 events, being the 21st and 22nd (for this arguments sake) as the Contractor should have priced for the first 7 days in their tender as a Contractors risk.

The Contractor has an issue with this position as these shifts in particular did not effect the works despite being a 1 in 10, and believes this claim should be looked at globally for the month and not concurrently. The difference is 2 shifts, and irrelevant of when these 2 shifts occurred, that is the contractors entitlement within this claim.

Which position is the correct way to assess a 1-10 event under the NEC4? If neither position is correct, please comment on why.

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The Client is not correct, there is nothing the contract that states, in this case, the Contractor’s risk is the first 7 days. The Contractor’s risk is 7 days over the entire month. An assessment over the whole month is more appropriate

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