Due to heavy rainfall the Traffic Management could not go out on a night shift.
The Subcontractor, who is on an NEC4 Option B, and is claiming a Compensation Event against 60.1, that the Contractor does not allow access.
They have the same standard weather clauses 60.1(13) for a 1 in 10 year issue.
Is my colleague correct in rejecting the CE?
They also notified nearly 9 weeks later, which i believe also could time bar them under cl 61.3, which states they must notify within 7 weeks?
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My first question to the TM company would be, how has the Contractor not allowed access ? That said, you should be doing your due diligence and impartially assessing whether this is a Compensation Event under your contract.
If a 1 in 10 year event has happened, then you should be accepting the Compensation Event as 60.1 (13).
Re. Time Barr, If the event has happened, and can be demonstrated as happening more than than 7 weeks, you would be able to reject the Compensation Event - ‘has not been notified within the timescales set out in these conditions of subcontract’
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Hi I think the CE would stand (if it was a CE) but the assessment would be no change to the Prices and no change to the Completion Date.
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I don’t see how the Subcontractor can claim heavy rain on its own is the Contractor not providing access and use in accordance with 33.1? My question is did the Contractor prevent the Subcontractor from having access and use? If not then there’s no grounds for a CE on this basis.
Also weather CE’s are data driven and based on calendar months so it doesn’t matter what happened on one particular day / night of the month, it’s the cumulative rainfall or number of days with rainfall more than 5mm in the month that is used to determine if there is a CE or not.
Finally, due to the above, the 7 week time bar for a weather related CE couldn’t have started from the night shift in question as the Subcontractor couldn’t have been aware that the heavy rain on that night would have meant the threshold for the month was going to be exceeded. This would surely happen the month afterwards when the Subcontractor could obtain the data to see if a CE had or had not been triggered in the month before. If however the CE is not weather related then the 7 weeks would probably start from when the Subcontractor was aware that the traffic management could not be put out, but counting the 7 weeks from the day after the shift in question.
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Depending upon how the BoQ has been measured, it may be that the Subcontractor can notify this event under clause 60.4, or 60.5, instead. There could, however, still be an issue regarding ‘timing of notification’ under clause 61.3.
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