The Contractor is purchasing additional items in relation to COVID 19 to allow staff to go back into their offices i.e Perspex screens and hand sanitiser stations. Is this a compensation event under a NEC4 ECC Option C contract?
Not in itself. Firstly, the threshold for clause 60.1(19) has to have been crossed. Then the Contractor has to demonstrate the extra cost as a result of the compensation event - not the ‘event’ i.e. COVID-19.
So if the Contractor would have fitted screens regardless of whether the threshold for it being a clause 60.1(19) compensation event was reached or not, then it could be argued that it is not an “effect of the compensation event” as per 63.1 in both NEC3 and 4.
Harsh, but a literal interpretation of the what the contract says.
From my view further information is required in order to address the question., certainly in a South African context. Our Covid-19 procedures have been passed onto Contractors via a change in law i.e. triggering X2 alternatively via a Project Manager’s instruction amounting to a change in Works Information. I am of the opinion that in these two situations, the cost of the PPE would be recoverable as a compensation event.
Certainly if X2 was specified and a change in the law happened which made it a legal requirement to do stuff. In the UK, the situation is complicated whereby guidance by industry bodies has been issued on how to work safely which would then need to be incorporated into method statements etc. to work safely, but are, in themselves, not changes in the law. Without X2, if a change in the law occurs and the Contractor has to comply with the that law, that does not mean you need to change the Works Information and hence not necessarily a compensation event.
Jon I certainly agree with your comments. It’s quite an interesting scenario you are facing in the UK where industry bodies have given guidelines rather than government passing regulations.