NEC4 Option B ; Comensation Event Relevance

Due to the current work restriction in place due to COVID 19 we are having issue with resources getting to site mainly due to carparking and access issues. People travelling to works are now travelling in separate vehicles and are not carpooling as they would have previously.- due to this we do not have the capacity on site to park vehicles. It is now becoming a safety hazard how people are parking. i.e. no in designated car spaces. We have requested the client to provide additional car parking as the allocated carparking in the contract is at capacity. The client has refused and we may need to look at alternative carparking arrangements or prolonged duration on activities in the programme to accommodate the various trades.

Looking at 60.1 my understanding is this event could fall under 60.1 (19). However if this event falls under 60.1 (19) is this event only relative to time and not costs? Could this be categories as a 60.1 (12) event a physical conditions? Or another clause 60.1 event?

Clause 60.1 (19) is linked to clause 19 and provides a procedure where an event ‘prevents’ completing the whole of the works, either at all or by the (planned) Completion date.

Where this is a compensation event then the matter is assessed in terms of both cost and time. The confusion may be that under JCT (D&B 2016) ‘force majeure’ is a Relevant Event at 2.26.14 but not a Relevant Matter at clause 4.21.

The test under clause 19 is quite strict, however, including a test of possibly using ‘best endeavours’ to mitigate the effects of such events.

It is unlikely that this matter would constitute a ‘physical condition’ CE under 60.1 (12), not least because the physical condition of the car park has not actually changed and it is the requirement of ‘use’ that has changed, which is a different matter altogether. The car park may also not be within the boundaries of the Site.

Give an early warning by notifying of this matter, which at least formally recognises the issue and allows it to be discussed at a risk reduction meeting, where you can propose various options, also ‘demonstrating’ the possible programme effects of each, which should hopefully facilitate sensible discussions leading to a reasonable solution.

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Further to Andrew’s point it depends on when the contract was agreed and issued. It could be potentially be argued that this issue should have been reasonably foreseen and will ultimately affect your entitlement.

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