NEC4 - The Weather Event Notification I never thought I would write

NEC3 and NEC4 Contracts Compensation Events
1

We (Contractor) are on a remote site in Scotland, where the water supply is served by a local reservoir network. Since the start of this year, the rainfall has been exceptionally low, to the point where the local supply is now becoming affected. This coincides with the works involving large quantities of in situ concrete works, which due to the location, is site batched. In the last few weeks, the local water supply has become so low that we cannot keep the batcher supplied with water, so in order to keep works moving along, we used tanker lorries to bring water to site. However, as the situation has worsened, the local water authority has now requisitioned the available tanker fleet to keep the island population’s water supply going. This leaves us in the situation where we do not have a consistent water supply of the volume required to feed our batcher.

Although the wording of NEC4 suggests that it is permissible that low rainfall could trigger a compensation event, the problem comes in proving that this is beyond a 1-in-10 year event. The MET Office provide upper 1-in-10 year limits (i.e. which allow measurement and valuation of events where excess rainfall is experienced), but they do not have lower limits, so it would appear that I cannot prove that this event is outside the 1-in-10 year envelope.
Ordinarily, I would then look to 60.1(19), but in this instance, there is a Z clause which severely limits 60.1(19)'s application, and would not allow this.

Any suggestions gratefully received…

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Shaun,

I presume that you are precluded from drawing production water from bore holes.

Does your contract stipulate that weather records have to be from the MET Office? If not, as Scottish Water are involved in this scenario, both operating the reservoir and requisitioning “your” tanker fleet have you asked them for copies of the records from their local weather stations and/or ask them how frequently the reservoirs are measured at such low levels, invariably they will have records of this too. I have asked them for weather records (for unrelated construction contracts) previously and found them to be very obliging. SW may have sufficient records to illustrate years or decades… from which you could do a similar averaging exercise to what the MET Office does.

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@Shaun_Farrelly unfortunately I agree with your analysis of clause 60.1(13), it doesn’t look like you’ll find relief there. Before I’d finished reading your post I was contemplating clause 60.1(19) however it sounds like you’ve already considered this and ruled it out due to the Z clause.

Does the contract e.g. the Scope or Site Information state that there is a water supply that can be used? I’m wondering (a) if the Client is potentially in breach of clause 25.2 so you could trigger clause 60.1(3) or (18) and (b) is the absence of a water supply a changed physical condition which could trigger clause 60.1(12)?

Otherwise I think you’re probably stuck I’m afraid …