NEC ECC: Delay costs and acceptance of defects

  1. If the Employer has awarded EOT under 61.1(14) for an event which is the employers risk that subsequently delayed the works into a period of bad weather when additional costs were then incurred, can these costs then be recovered through the contract despite the fact that weather risk is with the Contractor? (i.e. consequential costs?)

  2. If the Employer has issued the Completion of the Whole of the Works Certificate (certifying that the Contractor has corrected notified defects) a few days after raising a CE requesting a quote under clause 14.3 & 61.1(1): Changing the Works Information so a defect does not have to be corrected how should the Contractor respond?

First of all, it is not the Employer who does this: it is the Project Manager who, in this instance, would be acting as an impartial administrator as per Costain v Bechtel.

For your question 1: A forecast quote should include for risks that are the Contractor’s risk under the contract i.e. up to the point at which they become CEs. So you should allow for weather risks up to the point at which they become a compensation event. If this threshold is subsequently passed, then it is an additional compensation event. If the Employer has deleted the weather risk, you are entitled to allow more for that increased risk.

For your question 2: this seems illogical : if all the Defects have been corrected, why /how does it work to change the Works Info so that work which what is not a Defect now can be done to a reduced standard. I would respond with an early warning pointing out the illogicality of it !