NEC3 ECC: iIs the contractor entitled to payment for remedial works and loses and expenses as this event is to delay the contract?

NEC3 and NEC4 Contracts Main options
1

NEC option A contract. Traditional contract no contractor design. Contractor builds road and batters either side in accordance with the Works Information.

The Works have been given technical approval by the highways department. We have very heavy rain and water pours down the batters and causes significant damage. The contractor raises an EWN and follows up by notifying a compensation event.

The PM asks for the contractor to provide weather records to substantiate that they are entitled to a compensation event if rainfall exceeds 1 in 10-year average. Contractor argues that there is insufficient drainage at the top of the batter and the local authority agree! The PM instructs the engineer to assess if their design is adequate (possible PI issue). The PM (initially assuming the design is not defective) advises the contractor that they are responsible for temporary works/protection of the Works and need to offer the completed Works at completion and it is their risk unless demonstrated that this is a weather event. The contractor argues they have only built in accordance with the Works information and this event would happen in the future and they feel it is reasonably for them to complete Works prior to completion and it isn’t fair they are responsible if the design isn’t fit for purpose. The PM sympathises but isn’t sure if their is a contractual mechanism to issue a compensation event until it is proved this is a weather event or until it is agreed that this is a defective design.

Question: is the contractor entitled to payment for remedial works and loses and expenses as this event is to delay the contract?

The PM feels the Works must be offered by the Contractor at completion but currently doesn’t know if this is actually a defective design. The contractor is awaiting instruction???

2

There is probably a contractual answer and a practical answer here.

Contractually, if there is no change to the Works Information and no weather compensation event occurs, the Project Manager is probably right - as in no clauses which indicate otherwise spring to my mind.

However, practically, especially if it is not a weather compensation event - which by the time of the question in late summer is based on summer weather and not winter weather - does the Employer really want to be left with an asset where the banks are damaged every time it rains hard, thus needing constant repairing until a permanent solution is found ? So regardless of PI issues, the best time - as in cheapest to change and least politically embarrassing - to come up and implement a permanent solution is probably now and not wait for Completion. That would be a change to the Works Information. From an Employer’s view, that would give a clear cost on which the PI claim can be based !

That would avoid the Contractor having to remedial works only for it to rain again and repeat until handover.