Enquiring what grounds there are to disallow costs due to a health and safety accident under ECC option C - for Instance if an accident occurs and the site is at a standstill due to investigation. PM instructs the Contractor to cease work due to an investigation, can the Contractor still claim for standing around time, extended prelims or can these be disallowed on any grounds?
Firstly, the circumstances described might lead to a compensation event. However, as it is likely that it “arose from the fault of the Contractor”, the assessment is likely to be zero, so any extra Defined Costs (which are not Disallowed) would be split in accordance with the pain / gain share.
In terms of Disallowed Cost, I am focussing in on the bullet point which states “correcting Defects caused by the Contractor not complying with a constraint on how he is to Provide the Works stated in the Works Information” with the definition of a Defect being “a part of the works which is not in accordance with the Works Information”.
So if the accident has also caused a Defect AND the WI explicitly states that the Contractor is to comply with the law and, for example, good industry practice in H&S and they haven’t, which is the reason for the incident, then there is a good for saying the subsequent Defined Costs should be disallowed.
I think the writer is referring to the fact that the Contractor’s men are not delivering the scope so would that not fall under the 7th bullet point of clause 11.2(25) meaning he could disallow the defined cost? There is always the argument that the cost is payable and the pain/gain takes care of the situation however the Employer suffers due to increased cost - such is the desire to disallow.