If it is acknowledged that the Covid-19 pandemic is a Clause 19.1 prevention event there is an obligation on the Project Manager to give an instruction to the Contractor stating how he is to deal with the event and this would subsequently result in a compensation event being notified under Clause 60.1(19).
If the same prevention event is due to a change in law this obligation remains unaltered but the Contractor then has the right to notify a compensation event under secondary option Clause X2 and would time-barred if they did not notify within eight weeks that the change in law has or will cause them a problem.
Does this mean the both of these notifications need to happen for this event to be a compensation event?
In the event that the PM does not instruct under clause 19.1 you are still entitled to notify a compensation event under clause 60.1(19) however would be time-barred if you didn’t do so within 8 weeks of being aware. Note there is a common misconception about when the 8 weeks starts, it does not start from when you should have been aware of the event, it starts from when you were actually aware of the event.
Under X2, in NEC3 ECC the PM had the right to notify a compensation event for change in the law however this right was removed in NEC4. In both NEC3 and NEC4 the Contractor should notify the compensation event if the PM has not notified it. Again you will be time-barred if you don’t do this within 8 weeks.
You need to carefully pick which event you are notifying as failure to select the right one could lead to non acceptance. A clause 60.1(19) compensation event is not the same as a X2.1 compensation event. There is a four-point test for a clause 60.1(19) event whereas the law merely needs to change for a X2.1 event. There could be events that fall under one, or the other or both compensation events. You don’t need to notify both in order to be entitled to cost and time, you do however need to notify the right one as it is possible that cost and time attributable to COVID-19 may not directly flow from a change in the law.