Utility Performance - CE or Not?

NEC3 and NEC4 Contracts Secondary X, W and Y options
1

NEC4 Option C Contract including X15 ‘Contractors Design’ with two relevant additional compensation events within Contract:
• Utility performance (risk item) will be measured against stated notification periods and works durations within the C4 quotations. Any durations in excess of the stated notification periods will be a client risk and Compensation Event.
• All C3/C4 utility payments have been excluded from the tender and will be covered by other contracts or a Compensation Event.

The Contractor comes across known utilities (shown on GPR survey and surveyed via trial holes at the design stage), which now need diversions. These utilities weren’t identified for diversion at the design stage (validated by the Contractor in their design).
Is this a valid CE under the additional compensation events? If yes, would it include C4 cost only?

2

Hi Jason. I am not sure either of these CEs are relevant to the example you’ve given, the first CE seems to cover utility companies performance and the second seems discretionary and requires an instruction to form part of the Scope. A good place to start would be to investigate what the Site Information states. As this is potentially a CE that might cover the scenario you have described. The test will be whether you meet the requirements of clauses 60.1(12) and 60.2.

I would also suggest you consider what the Scope states as well. The Contractor obligation is to provide the works in accordance with the Scope (but not do obliged to do extra work necessarily), this unforeseen issue might require a Project Manager’s instructions if the Scope did not envisage this and this is a compensation event under clause 60.1(1). Hope this helps!