We propose to amend an EEC3 contract by deleting Clause 19 and 60.1(19) and replace with a force majeure type clause. If an event occurs which would normally fall under clause 19 and notified under the amended force majeure clause, would there be any grounds to reject the CE if the Contractor stated he was notifying against the force majeure clause in lieu of the clauses we have deleted.
1 Like
Not quite sure what the question is here. If you amend any element of the list within 60.1 for compensation events then for any event that occurs it has to satisfy a reason for being a compensation event within (your amended) clause 60.1. However you have now worded 60.1(19) you have to test whether it is a compensation event or not. They can never make a claim under the original wording, only the revised wording.
For example, if you delete 60.1(13) in its entirety which is to do with weather, it is now clear that weather can never be claimed as a compensation event and is the contractors risk. They can never reference the original deleted wording to try and claim that they have any entitlement.
You presumably mean NEC3 not EEC?
I wonder why you wish to adopt the force majeure format? Clause 19 and 60.1(19) are already force majeure in all but name. If you amend them substantially or delete then as you propose , be aware that clause 80.1 employer’s risks may be compromised.
Why not simply add some additional bullet points for the standard FM phases as used on other contracts?
Traditional FM clauses in essence provide that both parties share their costs. NEC prevention and subsequent 60.1(19) assume that the PM gives an instruction to the Contractor to do something ( the something may in extreme cases be a nothing) and thus is a recompensible CE.
but in answer to your question, if the clause “19 s” do not exist anymore, then a contractor has no grounds to notify accordingly, only the amended clause you want to insert.