NEC4 ECS Option A - Cl60.1(19) - Materials Off Site

We are currently working on a scheme in the UK, in which we have to procure Plant & Materials (rock) from a European supplier for installation within the Subcontract Works. Being a European supplier we have a bespoke agreement, which has various force majeure events included within it.

If such event were to occur (riot, war, strike, hurricane), and the materials were lost at the place of collection (were title transfers) or on whilst sailing in transit, would the 60.1(19) compensation event apply? Assuming that the three parameters are met, neither party could prevent, had such a little chance of happening, is not one of the other CE’s.

Thanks.

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Hi, provided that they are within the parameters of 60.1(19) then yes but also refer to clause 80.1, the Client’s liabilities. This clause includes strikes, riots, etc and should any one of these occur it is a CE under 60.1(14); 80.1 is often overlooked and missed when looking for compensation events, but remember the 8 weeks time bar on notifying under 63.1.

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By the way, ‘hurricane’ would not be a CE unless CD1 includes wind as an additional weather measurement under section 6.

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To build on @stevebrownassociates answer I note in the final sentence of your second paragraph you say “assuming that the three parameters are met” when in fact there are five under 60.1(19) and four of them must be satisfied to trigger the CE.

The five bullet points under 60.1(19) are split into two groups, one of the bullet points from the first group must be satisfied as well as all three of the bullet points from the second group.

It appears that all three from the second group may be satisfied however the event will not stop you from completing the whole of the works (first group, first bullet), however it may delay you (first group, second bullet).

So you may have a CE provided planned Completion on the Accepted Programme is delayed i.e. the event must impact the critical path.

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