NEC ECS option A compensation event scenario

Good Morning,

We are a subcontractor operating under an NEC ECS option A subcontract agreement (minor amendments). The scenario is a storm came blowing through and did a lot of damage. We queried whether the site was closed at 07.30 to which we received no response. Squads mobilised and travelled to site and were told late in the morning that the site was indeed closed due to power and water being knocked out. We thus lost abortive time which we are charging due to the client not letting us know in due time.

Now this is the tricky part…there are many CE numbers which to hitch your event on to. 60.1.4 has been amended to say the client can issue a stop notice if it’s on health and safety grounds and they could blanket reject if this CE was used. We avoided this one.

60.1.13 is a weather measurement and we feel this one didn’t really cover us either as it would need to go through the rigmarole of getting an NEC report to prove this.

60.1.18 was about breaching…has the client breached by not letting us know sooner?

We raised under 60.1.19 with the rationale being that a larger prevention event has stopped us from performing on that day although our real issue is the client not letting us know but couldn’t find any specific CE covering administrative and instruction duties, hence why we went for 60.1.19…

Would people agree with this or is there another CE number?

Thanks.

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You say that 60.1(4) has been amended to include an instruction to stop, or not to start, any work on health and safety grounds, which could be important, depending upon the exact wording of the amendment.

Under CDM Regulations 2015, the principal contractor is obliged to provide adequate welfare facilities throughout the construction phase, which would not be deemed suitable without power and water. I was working on site a few years ago when this principle occurred, as the water in the pipes froze during the ‘beast from the east’ and an instruction to stop work was given accordingly.

You could try 60.1(18) as the Contractor has not allowed access in accordance with sub-clause 33 and see what response you get, especially if an instruction to not start work was not actually given at the time. If the work gang was ‘verbally’ told that the Site was closed, then this does not constitute a formal communication under NEC.

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Hi Andrew,

Thanks for your response. 60.1.4 has been amended to say “unless the instruction relates to health, safety or environmental measures” and it said the remedy is for time only. This is one of the reasons we avoided this one as we’ve found this one can be used to issue adhoc stop notices and blanket apply it across the whole site, e.g a forklift incident over on the west face, near miss with a piece of steel…MC then issues a blanket stand down to all site teams who could be on the other side of the worksite performing a critical path activity.

60.1.18 was my initial thought and was looking for the clause or legislation that governs site access so thank you for providing this. I did however, issue via 60.1.19 which is more generic. Would you agree that both are relevant? as the storm technically “prevented” us from working that day…? it was the underlying cause because the site would still be open if not for the storm? is there a “wrong” one or is it a matter of interpretation?

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60.1(19) is where you are prevented, or stopped, from completing the work by the (planned) Completion Date, which may not actually be the case. If you have notified under the ‘wrong’ clause then this should not influence the response as the obligation is to decide whether the matter constitutes a compensation event, although referencing a specific clause often helps to assist with the decision making process.

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Thank you kind sir. Very true. Prevention is not the most suitable clause here as we would still complete the works by planned completion, it’s more disruption related.

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