On our ECC project, the contractor has notified us of a compensation event under clause 60.1(2) following industrial action that resulted in it being unable to access the site. Although access is our risk as employer, the contractor is late – with the completion date delayed by nearly a year and delay damages being applied. There is also some remedial work currently being undertaken which is not due to our actions. Does the ECC have any provisions to waive our risk in this case?
Clause 63.3 of ECC provides that any additional time to be awarded is based upon how much the planned completion has been changed by the compensation event. Planned completion is when the contractor is planning to complete, not when it should have.
Let us say the latest delay is 4 days. Therefore planned completion is delayed by 4 days and the completion date will move by 4 days. The contractor will still be responsible for all the other delays to completion. Clause 63.1 also makes it clear that the compensation event is assessed based the increase in defined cost caused by the 4 days delay.
You therefore have the risk for the 4 days of delay you are responsible for and the contractor remains responsible for all the delays that it has caused.