Jon Broome's answer in relation to the ECC is equally relevant to the ECS:
https://reachback.builtintelligence.com/18883/nec-which-ce-would-delays-due-to-coronavirus-be
With clause 60.1(19) being deleted you will have to look elsewhere for your CE though which could be any of:
- clause X2: changes in the law
- clause 60.1(2): Contractor does not allow access
- clause 60.1(4): Contractor gives an instruction to stop or not to start work
The force majeure clauses do not work as you describe. Yes under clause 19 the Contractor is obliged to give an instruction if the event occurs however, in the case where this doesn't happen, the Subcontractor can still notify the CE under clause 60.1(19). The instruction is not a condition precedent on notifying the CE. In your case it's a moot point anyway as the CE was deleted from the contract so you have to rely on one of the others.
As a side, check your Z clauses in case 60.1(19) was deleted but replaced with something similar, I've seen this in contracts where the drafter isn't happy with the NEC approach.
https://reachback.builtintelligence.com/18883/nec-which-ce-would-delays-due-to-coronavirus-be
With clause 60.1(19) being deleted you will have to look elsewhere for your CE though which could be any of:
- clause X2: changes in the law
- clause 60.1(2): Contractor does not allow access
- clause 60.1(4): Contractor gives an instruction to stop or not to start work
The force majeure clauses do not work as you describe. Yes under clause 19 the Contractor is obliged to give an instruction if the event occurs however, in the case where this doesn't happen, the Subcontractor can still notify the CE under clause 60.1(19). The instruction is not a condition precedent on notifying the CE. In your case it's a moot point anyway as the CE was deleted from the contract so you have to rely on one of the others.
As a side, check your Z clauses in case 60.1(19) was deleted but replaced with something similar, I've seen this in contracts where the drafter isn't happy with the NEC approach.