Force Majeure - Special Conditions for ABIC Contracts26 March 2020
Special conditions for the ABIC SW and ABIC MW contracts introduce the concept of Force Majeure, including pandemics.
Moray and Agnew has developed the following special conditions for ABIC SW 2018 and ABIC MW 2018 contracts on behalf of the ACA. In their unamended forms, these contracts have no provisions addressing risk for, among other things, pandemics such as COVID-19. The harsh result in the unamended contracts is that it will likely be the case that the contractor bears the risk for delay caused by the pandemic.
Once incorporated into the ABIC SW 2018 or ABIC MW 2018 contracts, the Special Conditions will:
- introduce the concept of a Force Majeure Event, which includes pandemics
- allow for the owner or the contractor to, in effect, suspend the operation of the contract if a Force Majeure Event causes that party to be unable to carry out its obligations under the contract for a stated period of time
- allow the contractor to claim for time (but no money) where this occurs
- oblige the contractor to make the site safe for the duration of the suspension
- allow for the architect to assess the contractor’s claim for time, and
- allow for either party to terminate the contract if the Force Majeure Event goes on for an extended period.
These Force Majeure Special Conditions work with the following forms of the ABIC contracts:
- The two non-residential ABIC forms, being ABIC SW 2018 and ABIC MW 2018
- The 16 jurisdiction-specific residential forms of the ABIC SW and ABIC MW contracts, being ABIC SW 2018 H ACT, ABIC MW 2018 H ACT, ABIC SW 2018 H NSW, ABIC MW 2018 H NSW, ABIC SW 2018 H NT, ABIC MW 2018 H NT, ABIC SW 2018 H Qld, ABIC MW 2018 H Qld, ABIC SW 2018 H SA, ABIC MW 2018 H SA, ABIC SW 2018 H Tas, ABIC MW 2018 H Tas, ABIC SW 2018 H Vic, ABIC MW 2018 H Vic, ABIC SW 2018 H WA and ABIC MW 2018 H WA.
Note: These Special Conditions are designed to be incorporated into Schedule 2a of the ABIC contracts listed above. They may not be used with any other form of contract.
The Special Conditions are available to all ACA members – log in to download below. If you aren't a member, find out more about the benefits of ACA membership here.
These Special Conditions were initiated and funded by ACA – NSW.