I would be very interested to have the Panel’s views on a court case brought by Atkins namely "Atkins Ltd v Secretary of State for Transport  EWHC 139 (TCC), 1 February 2013.
The main premise of this was the validity of a compensation event under a Highways Agency Managing Agent Contractor contract which was a heavily amended form of NEC3 that was entered into between Atkins Ltd (“Atkins”) and the Secretary of State for Transport (“SST”). During the course of the works, Atkins encountered a greater number of potholes (which it was obliged to repair) than it had anticipated and sought to claim additional payment on the basis that this constituted a compensation event under clause 60.1(11). That clause stated (in similar terms to clause 60.1 of the NEC3 Conditions) that:
“The Provider encounters a defect in the physical condition of the Area Network which … an experienced contractor or consultant would have judged at the Contract Date to have such a small chance of being present that it would have been unreasonable for him to have allowed for it.”.
The judge did not agree that this constituted a compensation event and as such I was wondering that this judgement could be applied to many similar situations where a Client/Employer/PM feels his Contractor could have allowed for something within his gift to have allowed for or at least within his experience. After all experience is one of the major criteria that is used to judge and accept any tender bid. The fundamental problem comes with the question “where do you draw the line in expecting or assessing what is reasonable”.