NEC ECC: Option x2 - Covid 19

NEC3 and NEC4 Contracts Compensation Events
1

I have seen a few questions along these lines, but just wanted to check.

We have an NEC3 with Option X2 included (this clause is not amended). Clause 19 is not applicable, as amended so Covid cannot apply. Site is in England, law is England.

We consider there has been a change in law (the Coronavirus Act 2020) thus option X2 applies, and thus it is a compensation event. The Employer is saying the Coronavirus Act 2020 does not prevent/ impact construction works, so Option X2 does not apply. When we mentioned the CIC guidance, they have said that is just guidance so not a change in law so again option X2 does not apply.

In my mind, it is still a compensation event as the law has changed (the Coronavirus Act 2020) post contract date.

The Project Manager may then seek to argue that the law change has not had an impact on the Prices/ Planned Completion Date, when he is assessing the same.

Do people agree with this interpretation? Do other people think Covid 19 is an option X2 event in England?

I would also be interested in people’s thoughts on whether we can argue that the new guidance is a change in law? As i do think we might struggle to show the Coronavirus Act 2020 has impacted (as it does not mention construction/ prevent anything) if we cannot also refer to the guidance.

2

Dear Ashley

I’m not sure if this would be of any use but in South Africa the government implemented Disaster Management Regulations. This certainly gave rise to a claim under X2.

3

The law has changed yes but the Coronavirus Act 2020 is an enabling piece of legislation i.e. it enables Government to (quickly) bring in Rules and Regulations without having to go back to Parliament each time. For example we have the Coronavirus Regulations - it’s these that actually bring about the practical changes i.e. social distancing, hygiene rules etc which you are seeking rely on to nail your Comp Event. I am dealing with this for a client at the moment and happy to help further on your specific contract.