NEC ECC: If an area of the Site physically changes post award of the contract who's risk is it?

If an area of the Site physically changes post award of the contract who carries the risk? Cl. 60.1(12), 60.2 & 60.3 are all removed from the contract.

Unless you can’t build what is in the Works Information and therefore an instruction has to be issued by the Project Manager to change it, then the Contractor takes the risk (assuming the two bullet points in clause 60.1(1) don’t apply)

Very clearly the intent of the Client/Employer to transfer this risk to the Contractor. By deleting these clauses the Contractor has no way of notifying this as a compensation event and therefore this would be their (Contractor) risk.

The Contractor has to carefully read Z clauses at tender stage to understand what risk transfer they are doing - and decide if you wish to withdraw, price risk accordingly or exclude that amendment from the price (which may or may not make their bid non-compliant and discarded)

If a bidder prices a risk accordingly (e.g: everything below ground level, UXO, Hot Spots, Contamination, Tunnels), however the site information cannot define this to be 100% correct, would this not be an estimate by the bidder (provisional fee) , which NEC trys to avoid?

It might be an estimate but it is an estimate of the Contractors risk - and if they underestimate it they would not be able to claim it as a compensation event if the contract has been amended to make it their risk. It is not a “provisional fee” as you call it - no such thing within NEC.

John - If the physical change of the Site results in the Works Information requiring amendment, is this covered via the exception of the 2nd bullet of 60.1(1)? The physical change does not mean the ‘end product’ cannot be built, but it does require that associated WI needs revised to account for this change. Given the risk associated with 60.1(12) has been passed to the Contractor and the fact that the Contractor’s Works Information reflected the condition of the Site prior to the physical change, is the onus on them to propose the necessary changes to the WI for the PM to accept?

My view is that:

  • if the works can’t be built as per the Employer’s WI (including the subsequent Contractor’s WI which was developed to comply with this), then it would be a compensation event as this is not covered by the exceptions in the two bullets of clause 60.1(1).
  • however, if it was not possible to build the Contractor’s outline design as per its Works Information, but no change was needed to the Employer’s WI, then this would fall under the second bullet of clause 60.1(1) and therefore not be a compensation event.