Within the Works Information, access was to be arranged by the Contractor. Subsequently the third party the Contractor arranged to use, declined access leading to a delay to start date. The Contractor has then submitted a Notification of Compensation Event under Clause 60.1 (5) for the delay.
Common sense would say that the Employer in not liable for this as they have no control over these others and they are not stipulated as Others under the Contact, is this correct?
Common sense would indicate that you are correct’ish !
If I was a Contractor, I would say that I have done everything right, which for Statutory Undertakers (SUs), might include doing lots of stuff in the Works Information (WI), yet they still did not turn up : how come it’s fair on me to take the hit ?
Some points to note :
while this may well be a compensation event, it may have a zero assessment if it “arises from the fault of the Contractor” (see clause 61.4). So to take our SU example, if they haven’t done stuff clearly listed out in the WI, then it is clearly is their fault. If you start to get into discussions over what an experienced Contractor should have done etc. , then it is less clear cut. So the lesson is that if you want the Contractor to co-ordinate the work of Others, then either
(a) state what you expect them to do in the Works Information or
(b) include the actual physical work in the Works Information, so that they are a Subcontractor, not an Other.
Obviously - and especially in a rising market - there is cost to this risk transfer.
I personally think that the definition of Others in clause 11.2 (10) could be improved to include a statement that Others only applies to people or organisations who are in contract with the Employer to provide Plant and Materials, works or services related to the same project.