Our works are let under NEC 2013 Option A - Priced with Activity Schedule.
Whilst excavating for Reinforced Concrete Foundations, we have encountered rock at a depth <350mm. To proceed at required depth the rock will require breaking out and removal.
This unexpected obstruction has potential to delay the programme and will require additional work to break out and remove which will have an impact both in terms of time and cost on the project.
I have reviewed the contract and the work information and rock is not risk item in the contract data.
Clause 60.12 does not provide me with much comfort having reviewed the contract/Work information.
I would appreciate for some advice if this our risk (as a contractor) or if there is an opportunity to raise a CE.
This all comes down to what would have been reasonable for you to have allowed for in relation to the Site Information you were aware of at tender stage. 60.1(12) states that it is a compensation event if you have experienced unforeseen physical conditions that would have had such a small chance of occurring it would have been unreasonable for you to have allowed for it. That is then a test as to what the Site Information indicated, and if it would have been reasonable for you to have foreseen this concrete. If the answer is that it would not have been reasonable, then the Project Manager should agree that this is a compensation event and request a quote.
Until you notify the CE you wont find out f they agree, Within a week (assuming no amendments) they should respond to your notification as to whether they agree, and if yes request the quote. I recommend when you notify the CE you give as much evidence as possible to prove that this (from your point of view) was not reasonable foreseeable to try to head of a rejection that it is a compensation event.
Thank you Glenn for your quick response.
I will put your recommendations into action and wait for the client response.