NEC3 ECC: Ground conditions and 1 in 10 weather events

NEC3 and NEC4 Contracts
1

I am asking for clarification around claims in and around weather and their effects.

We are getting situations that due to the level of rainfall that we have experienced over the winter this has started to saturate the ground and therefore mean that extra trackway and prevention is required to stop the damage to the land. The Contractor had already priced for trackway in the original price but is having to put a considerable amount extra in. They have raised a claim under a 1/10 weather event and the data supplied does seem to support the claim that we have had a greater than average level of rainfall during the period.

However and here is where I am asking for clarification, I always worked under the assumption that CL60.1 (13) works on the basis that you calculate weather impact by time delay on the averages of the stated weather station etc in days against rainfall .

How do we deal with the consequence of the weather, is this detailed under 60.1 (12) and if so how do we determine the difference between that expected and that encountered if there was no data to compare against in regards water tables, saturation tests etc?

I am of the opinion that this is a Contractor risk but wanted to confirm before responding.

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2

This is always a difficult one to assess and the contract only goes so far (but equally not sure how it could do it definitively better). The first test is to see if the one in ten year weather event has been exceeded. If it has, you then need to justify the impact that the extra over has had which is likely to be subjective rather than definitive. As you say there is unlikely to be specific saturation tests to call upon as historical data.

If the weather has made the ground conditions worse than they would have expected then it would seem that this would be a compensation event. Whether it is under 60.1(12) or (13) is of little relevance as once it has ticked the box as being a CE it then has to be assessed.

Seems like one you are just going to have to try to get a joint agreement on - and if you can’t you just have to make the fairest/most correct assessment as PM that you can - but recognise that this could be challenged by an Adjudicator if the Contractor does not agree and wants to take it that far.