We are currently working under an NEC4 ECC option A contract in which we have to pay Others to be present to allow for the movement of vessels around a harbour / river (pilot). This a statutory requirement, however the fees in which we are being charged have grown significantly from that allowed for at tender. The Subcontract Scope is silent on the matter and does not state we have to pay these costs, however as competent contractor we would always have expected some charge.
Would we have recourse under clause 80.1 bullet 1, in that we are having to pay costs to Others for the purpose of the works which is the unavoidable result of the works or is this clause just related to damage to 3rd part property?
Many thanks.
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Jack, I would not necessarily exclude the possibility - you would have to look into the definition of the “Site” (clause 11.2 (17)) in the context of the vessel movements/pilot charges; you might have entitlement if those costs are incurred within the boundaries of the site (see CD Part One).
Subject to the above, you would then be able to notify a CE under cl. 60.1(14), on the grounds that the Client is liable for the costs of Others in accordance with cl. 80.1 - 1st bullet point, which you correctly spotted.
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Hi Peter,
Many thanks for your response.
Just out of interest, when does clause 80.1 apply and when would clause 81.1 apply? I’m referencing the ECS here!
Many thanks.
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No worries Jack.
Not quite sure of your latest question - are you asking when clauses 80.1 and 81.1 of the ECS would apply?
If that is the case, cl. 80.1 sets out Client’s and Contractor’s liabilities in addition to those stated in CD Part One (if applicable); any event falling under both of these categories, would normally be notified as a compensation event under cl. 60.1 (14). Recovery, according to cl. 82.2, includes “any cost as a result of the event” and is therefore not restricted to the Defined Cost as set out in the SCC or the SSCC (i.e. not only if it is incurred in order to Provide the Subcontract Works) - the latter is my personal conclusion.
Clause 81.1 sets out the Subcontractor’s liabilities, including those that it is obliged to insure; any costs arising under those (that are/to be paid by the Contractor) are recovered under the payment mechanism (cl. 50.3 - 3rd bullet point). The recoverability is set out in cl. 82.1.
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