NEC ECC: a CE Weather Event - is it calendar days or working days?

We have recently received weather report for the month of February (2020) for our site at the named station in the contract. In the month there were 14 days where the rainfall exceeded 5mm. The 1 in 10 event needs it to occur more than 6 days.

As we were 8 days in the month above the 1 in 10, we have notified the client. The Client however has responded, that since of the 14 days, 8 of these days of exceed were recorded at the weekend and since we do not work weekends we are not eligible and there is no effect on the Completion Date.

Does the 1 in 10 weather event need to take cognisance of ‘working days vs weekends’. It is NEC Option A contract. Is the Client position a fair one to take?

Weather is always a very difficult compensation event to assess without subjectivity. There is no doubt this is a CE under 60.1(13) as it is 8 days over the 1 in 10 year event. The tricky bit is then to justify the specific effect the extra eight days of rain had. This is also one of the rare compensation events that will be done retrospectively based more on actuals as you only know it was a CE after the event when you have the Met office data.

What some people assume (and you have not said this) is that the extra 8 days of rain means 8 days movement to the Completion Date. This is not the case. If your current critical path for that month was offsite procurement of materials, then the 8 days rain will have no effect on planned Completion. If it rains on weekends, then yes this will have less impact to the works as you were not planning to work that day anyway.

What you need to do is when you updated your programme at the end of February, did you find overall that you had been delayed? If so, you then need to (try) to prove/demonstrate that the additional 8 days had a big part or exclusive part in causing the delay.

So I think yes the Client has a point, in as much as rain at the weekend should not hinder progress when you had not planned to work anyway. Equally that does not mean there is no entitlement. You need to look at what the overall delays were in February, and try to demonstrate that any item that was delayed was due to the excess of rain. If you can not do this, then there is no time entitlement to be assessed as part of the CE (but here may be direct cost you can still claim).

Let me try to cheer you up - that is probably the least of your problems, as once you have got weather out of the way in February you have got Coronavirus entitlement to tackle in March!

1 Like