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What does NEC4 clause 60.1(17) mean?

When your main contractor notifies a correction to an assumption it stated about a compensation event, that correction is a new compensation event.

Updated: . By Jack Butler-Kettle, Construction Claims Consultant.

The answer

In the NEC4 main contract the assumption is the Project Manager's. On an NEC subcontract it is your main contractor's. This is the only route by which a settled compensation event is revisited. When an event's effects are too uncertain to forecast, the other side can state assumptions about them. The quotation is then assessed on those assumptions. If an assumption later proves wrong, it notifies a correction, and that correction is a new compensation event. The event is the notified correction, not the discovery that a forecast was wrong. And the assumption must be one the other side stated, not one you made. Your own assumption in your quotation does not count. Under clause 66.2 a settled assessment is not revised, so a wrong forecast of yours stays wrong. To rely on the clause, show the earlier event, the assumption stated about it in writing, and the notice correcting it. If you think an assumption is wrong, ask in writing for it to be corrected. If that is refused, there is no event. Your main contractor should notify the event with the correction and ask you to quote. If it does not, you notify under clause 61.3, and the 8-week bar does not apply. The change to the Prices, your contract price, is assessed under clause 63.1 as the difference the correction makes, plus the Fee. It can reduce the Prices as well as increase them. What goes wrong most is that assumptions are never stated in writing. The later argument is then about whether one was stated at all. Any delay to the Completion Date is assessed separately under clause 63, and that is a job for your planner.

Example

Illustrative example. The scenario and figures are invented.

The facts

A civils subcontractor is told to dig out and replace soft ground under a road formation. The extent cannot be probed first, so the main contractor states an assumption that 250 cubic metres will be replaced. The event is quoted, accepted and implemented on that basis.

What happens

  1. On completion, the surveyed volume is 410 cubic metres.
  2. The subcontractor writes to the main contractor with the survey, asking for the assumption to be corrected.
  3. The main contractor notifies the correction, and with it a compensation event under clause 60.1(17).
  4. The quotation assesses the extra 160 cubic metres at the recorded Defined Cost of digging, disposal and imported fill, £48 a cubic metre. That is £7,680, under clause 63.1.
  5. The Fee is added at the Contract Data percentage.

The correction in figures

ItemQuantity
Volume stated in the assumption250 cubic metres
Volume surveyed on completion410 cubic metres
Difference assessed160 cubic metres
Defined Cost from the records£48 a cubic metre
Additional Defined Cost before Fee£7,680

The outcome

The original event is not reopened. Only the corrected difference of 160 cubic metres, £7,680 plus the Fee, is assessed.

To have every quotation built from the contract's cost components, with its assumptions stated, and sent inside its period, see our Compensation Event Loss Prevention service.