The contractor is only entitled to be compensated for those events listed as compensation events in the contract (clause 61.4). For weather, the applicable compensation event is 60.1(13). This will only apply in respect of the weather measurements included in the contract data and if the criteria in clause 60.1(13) have been met. If wind speed was not included in the weather measurements listed in the contract data, the contractor will by default carry the risk of this event.
Clause 60.1(19) applies to disruptive and unpreventable events that an experienced contractor would have judged at the contract date to have such a small chance of occurring it would have been unreasonable to have allowed for them. However, the risk of named storms causing high winds is a risk an experienced contractor should have allowed for, as named storms are a common occurrence in the UK.
Note that force majeure is not a termed used in NEC contracts. Such events are dealt with in the ECC under clause 60.1(19) and the fifth bullet of clause 80.1.
Frequently Asked Questions
We are the project manager on an NEC4 Engineering and Construction Contract (ECC) Option B (priced contract with bill of quantities). Following on from the red weather wind warning issued because of a recent named storm, the contractor decided to not work on safety grounds. It has now notified a compensation event under clause 61.3. However, in contract data part one section 6, wind is not included as a weather measurement. Is the compensation event valid, or would clause 60.1(19) or ‘force majeure’ play a part here?