If no other reasons apply within an amended clause 60.1, could the Contractor request a compensation event, through secondary option X2 (changes in the law) citing the Coronavirus Act 2020 specifically in relation to the costs of implementing social distancing guideliens as issued by Public Health England and Construction Leadership Operating Procedures?
It is recognised that the Contractor is incurring additional costs in connection with recommendations concerning social distancing guidelines such as all operatives having to travel to site separately rather than pre COVID travelling together, hence transport costs have increased.
This is a cost that is recognised, but where does the risk lie under the contract. The Service Manager has not instructed the Contractor to comply with any guidelines.
It seems like your question relates to a Term Service Contract, which does not include the ‘prevention’ clauses found in the ECC form, except in relation to a Task Order at X19.10 (6) (NEC3).
If secondary option X2 has been included then you could notify a compensation event, most likely in relation to;
Coronavirus Act 2020, and
The Health Protection (Coronavius, Restrictions) (England) Regulations 2020 (as amended)
These impose restrictions on movement and gatherings and for people who are potentially infectious to isolate for a period of time.
The ‘social distancing’ requirement is not a mandated legal requirement, although should be considered to comply with Health & Safety law, unlike in Wales where Regulations provide that a ‘distance of 2m is maintained between persons’.
There are other possible compensation events under the TSC form, at core clause 6, which may relate to this situation, although would require some form of breach by the Employer or a direct instruction from the Service Manager.
It would also depend on what main option you have, as under Option E the commercial risk would be with the Employer, under Option C it would be shared, although this is not the case under Option A