NEC FOR NEWBIES | Tip series 6 of 6

RAINING IN THE RISK

The NEC contracts entitle an award of both time and money for successfully claimed compensation events, which include both cumulative rainfall and the number of days on which more than 5mm of rain fell.

The NEC contrasts with most other standard form contracts wherein, generally speaking, there’s a less scientific and historical threshold for adverse weather. With those contracts, the contractor will be awarded time but not money for delays and disruptions. At the end of the day, this places greater risk at the feet of the employer, as they’ll be liable for weather which is found to be generally disruptive to the works.?

In NEC contracts, clause 60.1 (13) stipulates that “only the difference between weather measurement and the weather which the weather data shows to occur on average less frequently than once in ten years is taken into account in assessing a compensation event”. Simply put, this means that a contractor can only claim a compensation event for weather that is worse than the more scientific once-in-ten-year average. Accordingly, the employer is at risk for weather that exceeds the high threshold of that average.

Top tip:?Whereas QAnon conspiracy theorists can claim anything they like at any time, the contractor can only claim the compensation event for the weather which occurs within the calendar month. It’s important to note that weather that affects the site for a period overlapping consecutive months may not reach the required cumulative threshold of the once-in-ten-year monthly average. The notification period of eight weeks (a sub-contractor has seven weeks) under clause 61.3 starts only from the end of the calendar month in which the effect of the disruptive weather was known.?Contractors and Employers should pay close attention to the location stated in the contract data in which weather will be recorded on site.?

It is imperative for the contractor to understand how to mitigate risk with regard to adverse weather under the NEC contract. The contractor should make allowances for the once-in-nine-year weather event by including sufficient time-risk allowance in the works programme. Furthermore, the contractor should understand what constitutes average weather, and what constitutes weather in excess of the once-in-ten-years phenomena; armed with that knowledge, they’ll be able to forecast accordingly. Importantly, the average weather measurements should be included or attached to the contract data.?

With tropical cyclones making landfall and La Ni?a continuing through March 2022, knowing how to mitigate the associated risks will continue to save you time and money – and as always,?NSDV is here to help you do just that. Reach out to us at?[email protected].