NEC ECC - Procurement during lock down (COVID-19)

NEC3: Currently going through procurement exercise for road improvement project and don’t have anything specific in documentation regarding COVID.

Prevention Clause 19.1 has been removed from the contract as my solicitors don’t like it!. Tenderer is asking how they address COVID-19. Starting date in CD-1 is shown as September 2020 on the assumption that restrictions would be removed/reduced.

As no one really knows how this will all end up, its surely up to the tenderers how they view the risk and price the tender accordingly?

Tenderers could also rely upon Compensation Event 60.1(19).
I would have thought that asking Tenderers to include both options in the tender would be a good idea. One to take the risk and one to leave it with you. Then you will have a better idea of what you may have to pay for this risk

Clause 19.1 is only the PM’s obligation to issue an instruction, so if this has been removed but not clause 60.1(19), as @Tiplady says the Contractor still has a right to a compensation event.

This said, for contracts that have either been entered into after the COVID-19 outbreak it would be much harder for a Contractor to demonstrate that the event had such a small chance of occurring it would have been unreasonable for it to have allowed for it,. Therefore the risk may well now sit with the Contractor and should be priced accordingly, this said I can forsee many disputes about this in the future. It would be better for both Parties to use a Z clause to clarify the position in respect of COVID-19.

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