If clauses 60.1(12) / (19) / 60.2 / 60.3 have been deleted by Z clause, is the Contractor not entitled to a compensation event if physical conditions encountered are different to that allowed for?

NEC3 and NEC4 Contracts Compensation Events
1

In carrying out piling works, sub contractor has encountered ground conditions which are not as per site information/ factual report.

1 Like
2

Simple answer is No. If these elements have been deleted it would seem that the Employer had clearly made that intent at tender stage that this was something that he wanted you to price for and take the risk.

With any “claim” under the ECC contract you have to find a reason under the contract why it is a compensation event. In this case I believe no such reason exists consudering the deleted elements.

This is not necessarily unfair - that is the risk profile the Employer put forward and the Contractor should have priced accordingly. However this may be difficult to assess and the Contractor will be pressured to keep the risk cost low if they want to win the work.

3

Agree with Glenn’s comments - if main Options C and D the target contracts are used then the deletion of physical conditions menas that the target Price is not adjusted but if physical conditions are experienced then the costs of risk are shared in the proportions set out in the contractors share. The risk is then shared rather being fully transferred to the contractor.

4

Agree with the above comments.

However, if it is an Employer designed piling foundation and the Works Information needs to be changed for the works to progress / stand up when completed, then an instruction changing the Works Information would be a compensation event.