Covid and MF/1

One question that has arisen quite frequently in the last few months is how does MF/1 deal with covid? Well, naturally there are no covid-specific provisions contained in the current Revision 6 given that it was published back in 2014, so we have to look elsewhere.

The most obvious clause to look for is force majeure (clause 46) which, under MF/1, allows either party to terminate the contract for “any circumstance beyond the reasonable control of either of the parties”. Covid would certainly fall within this category. However, the force majeure event has to result in either party being “excused the performance of any obligation for a continuous period of 120 days” and this seems like a much harder category to satisfy given the stop/start nature of the national lockdowns that have been imposed and the government’s more relaxed attitude towards restrictions on construction and other work sites.

What about extensions of time? Well, clause 33.1(d) allows for an extension of time “for any circumstances beyond the reasonable control of the Contractor”. But this might not be enough for either party in terms of certainty so the better way is to draft a definition of a “Covid Event” which specifically references the virus as a defined term.

As to money, here again it might be wise for there to be clear wording on a money entitlement if that’s the agreement struck by the parties. If the contractor is to be allowed more money, they might also wish to add a “Covid Event” to the allowance for profit on claims clause(41.2).

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