QUESTION

I find no reference to deal with situations of Force Majeure in the MMCD. The recent explosion of the Enbridge pipeline has created a situation where asphalt suppliers were issued a statement of Force Majeure by Fortis BC. We have no mechanism to deal with this under our MMCD contracts. Are there other means to deal with this in the MMCD contract?

COMMENT

There is no "Force Majeure" as such within the standard GCs. In addition there is also no clause in the Supplemental GCs to cover this event. The only clause that might be relevant to paying more for materials (you would have to evaluate given the specific facts) is 13.4.1. But that is a very tough bar to exceed. Unless there is some provision in the Contract that allows the Contractor to claim additional revenue for price changes outside its control, the Owner would have to be in agreement to consent to any additional payment. i.e. the Contractor bought that risk when they tendered. If the Contractor quoted an increased price and the Owner is considering paying it, then [we] would suggest the mark up should already have been in the tendered and quoted prices. If [we] were the CA, it would be tough to convince [us] that the Owner should pay a mark up on a concession