NEC ECS: Clause 80.1 "Contractors Risk"

We have received a NCE from a subcontractor under 60.1 (15) An event which is an Employer’s or a Contractor’s risk stated in this subcontract.

The subcontractor is making reference to 80.1, a fault of the Employer or the Contractor or a fault in their design.

The works involved the installation of a watermain diversion designed by the Contractor. During the installation of the pipeworks the subcontractor realised when they went to install the final section of pipework there was an alignment issue, they have stated that the cause of this is a faulty design as there was a short section on plactic pipework between two ductile iron pipeworks arrangements. They claim that it would not be possible to get the curvature required by the design in this short section of pipework. Their CE is to cover cost of the additional pipework procured and the associated standing time whilst the design change was approved.

We however believe the Subcontractor is time barred as the design information was issued in excess of 8 weeks ago and as an experianced Contractor a EWN should have been notified to identify this risk of misaligment when the design was issued.

Well, for a start it is 60.1 (14) that is relevant to a NCE for a specific reason under clause 80.1.

Secondly, this heading is for claims, proceeding and costs payable is if someone else is making such a claim against the Subcontractor due to the fault of the Contractor or its design.

And if it was under this clause, you would be absolutely right in saying that potentially it is time barred and any assessment reduced due to not giving an early warning.

However, as it is the Contractor’s design which cannot be built, unless I am missing something, then the Contractor should issue an instruction changing the Works Information and notify a compensation event. If the Contractor fails to do this, the time-bar on the Subcontractor notifying is the defects date - normally a year after Completion.
i.e. the 8 week time bar does not apply.

Further I do not buy the argument, that an experienced Subcontractor should have noticed this “risk of misallgnment” when the design was issued. They should have notified as soon as they became aware of the issue though which is presumably when they opened up the ground though.

We are working with a heavily amended contract and 60.1 (14) is with regards to a weather measurement.

60.1 (15) An event which is an Employer’s or Contractors risk stated in this contract.

Once we have satisfied ourselves that the design could not be built, we will look to issuing an instruction to the Subcontractor changing the works information.