The current situation, whereby some countries require quarantine for some persons returning from countries or regions impacted by COVID-19, does not constitute a Force Majeure in the sense of clause 26 of the General Conditions of CERN Contracts. Quarantine requirements that may apply to personnel returning from CERN may be commercially difficult for the contractor, but they do not prevent it from fulfilling its contractual obligations.

The Procurement Officer shall use the template message below to inform contractors of CERN’s position.

In parallel, Procurement Officers are advised to seek pragmatic solutions with contractors. For example, if the contractor does not wish to send its personnel to CERN it might instead request CERN’s permission to use a subcontractor to complete the on-site activities (in accordance with clause 8 of the General Conditions of CERN Contracts). The Procurement Officer may also invite the contractor to seek advice from its competent authorities on the precise rules and exceptions to quarantine measures, as some countries waive the quarantine obligation for persons who test negative upon their return from regions concerned by the restrictions. Finally, the Procurement Officer might accept some delays in the contractor’s completion of its on-site activities without applying penalties, if this is agreed in advance with the Technical Officer.

The Procurement Officer shall also refer the contractor to the extensive health and safety measures in place on the CERN site.

“Dear Madam, Sir,

We acknowledge receipt of your message dated xxxx concerning the circumstance that you consider to affect the performance of your obligations under Contract xxx and to be an event of Force Majeure.

However, CERN considers that the risk of your personnel being subject to quarantine does not constitute a case of Force Majeure in the sense of clause 26 of the General Conditions of CERN Contracts.

We take this opportunity to recall that CERN has put in place extensive health and safety measures to protect all the persons working on the CERN site. The measures applicable to contractors on the CERN site are detailed here: https://edms.cern.ch/ui/file/2373120/LAST_RELEASED/CERN_COVID_instructions_contractors_EN_docx_cpdf.pdf.

Therefore, please ensure that you continue to perform your obligations according to the Contract.

Should you intend to use subcontracting, please refer to the provisions of clause 8 of the General Conditions of CERN Contracts.  

Best regards,

xxxxx

Procurement officer»

IMPORTANT: Such claims require a case by case assessment. Please contact Alexandra before sending the above reply to a contractor having notified a force majeure.

No. If the force majeure situation was already known by CERN at the time of placement of the order/contract, CERN is expected to have taken such situation into account and will not be released from its obligations under the order/contract on this basis.

The Procurement Officer shall consider whether to place the order/contract or whether, under the circumstances, it would be better to wait until the exceptional circumstances have passed. If an order/contracts is placed, the wording must allow for the possibility of delays or suspensions in CERN’s performance.

For example, if CERN anticipates that delivery or acceptance may need to be delayed then the following sentence shall be added to the order/contract:

“The delivery dates shown on the order lines above are indicative only. The contractor shall deliver the supply within X weeks from written notification by CERN that the delivery can be made.”

The Procurement Officer shall consider on a case by case basis whether payment terms should be adjusted, taking into account the general principles described in the FAQ "How should I respond to a contractor requesting payment after delivery or acceptance is delayed?"

The CERN Goods Reception is still open, albeit with limited resources. Therefore, supplies can still be delivered to CERN. 

(1) Wherever possible, supplies should be delivered to CERN as normal. In particular, for supplies that are critical for the safety and security of the site and equipment, the procurement and technical officers should contact the contractor proactively to ensure the delivery will go ahead and seek alternative arrangements if not. 

(2) If the supplies are not critical and require heavy handling (by EN-HE) upon delivery to CERN, then it should first be verified with EN-HE that delivery is still possible. If not, CERN needs to delay the delivery on the basis of one of the options in (4).

(3) If the supplies are not critical and the contract foresees acceptance testing which it appears CERN is unlikely to complete within the contracted timescales (three months according to the General Conditions of CERN Contracts), CERN needs to delay the delivery on the basis of one of the options in (4).

(4) In case the Procurement Officer and the Technical Officer determine on the basis of (2) or (3) that a delivery needs to be delayed, this can be done either on the basis of:

(a) mutual agreement with the contractor, in which case an order or contract amendment is needed to change the delivery date; OR

(b) a notification of force majeure by CERN using the standard text; OR

(c) suspension by CERN according to article 20 of the General Conditions of CERN Contracts.

If the force majeure situation was already known by the contractor before the signature of the contract, the contractor is expected to have taken such situation into account and will not be released from its obligations under the contract on this basis.

Contractors who need to access the CERN site have to be included in the egroup of the CERN Department concerned. During nights or week-ends access will only be possible if the personnel concerned is in possession of a valid AET (“Avis d’exécution des travaux en dehors de la plage horaire admise comme horaire normal”: see Section 2.1 in “Working on the CERN Site” document available under:. https://procurement.web.cern.ch/sites/procurement.web.cern.ch/files/key-reference/WoCS_Rev9_Dec18_1.pdf). The system will carry out verifications as follows: during the day egroup = access; during the night egroup + AET = access.

Contractors who need to cross the French-Swiss border (in order to access the CERN site) shall be able to justify such need by providing a document signed by the Director-General of CERN, certifying that the member of its personnel concerned needs to access the CERN site/cross the border for the performance of the contractual obligations. The list of persons receiving such a document is based on the instructions provided by Head of Department to Derek Mathieson. Therefore, you must ensure that the technical officer responsible for the contract informs his/her Head of Department of the names, contractor and contract number of any persons needing to cross the French-Swiss border for the performance of non-suspended services on the CERN site. Please note that the border control demand a paper version of this document; showing it on a mobile device is not sufficient.

If there is nobody at CERN to ensure the reception and perform the acceptance test, the delivery must be postponed by CERN in accordance with the terms of the contract (clause 20.3 of the General Conditions of CERN Contracts if applicable). Contractors have the obligation to store the supply for two months at their own costs if requested.

If the delivery has already taken place but the acceptance tests cannot be performed by CERN because of the Force Majeure situation, then CERN must notify such Force Majeure to the contractor forthwith so as to ensure that CERN is released from its obligation to carry out the tests in accordance with the contract (otherwise the contractor will claim that the supply are de facto accepted after three months in the sense of clause 21.5 of the General Conditions of CERN Contracts).

The following text shall be added to all purchase orders concerning training on the CERN site:

"CERN reserves the right to postpone, cancel or terminate the present Order in case of public health emergency situation due to the COVID-19 virus. In such case, the sole and exclusive liability of CERN towards the Contractor and therefore the sole compensation paid by CERN to the Contractor will be limited to the costs wholly and necessary incurred by the Contactor as a result of such cancellation or termination. Such costs shall be limited to cancellation fees for travel and accommodation.

As a consequence, the Contractor shall ensure to take out the appropriate insurance cover."

This corresponds to a situation of force majeure and the following message shall be used to inform the contractor. The technical officer and their group leader shall be in copy of the message. The notification of force majeure shall be recorded here.

Dear Sir, Madam,

Following the recent evolution of Covid-19 in the Host States, CERN has now entered Stage 3, which implies that activities on site are to be limited to those which are essential for the safety and security of the site and equipment.

As a result of this force majeure situation, CERN had to suspend some of its activities in connection with your order/contract [REFERENCE]. In particular, CERN is prevented from sending you components and materials as foreseen in the order during this period of force majeure. This suspension will remain in place until the restrictions imposed by CERN’s Host States are lifted.

May we ask that you liaise as soon as possible with the CERN technical officer in charge of your order so as to ensure the continuation of activities not impacted by the force majeure event and to implement all measures necessary as a result of the suspended activities, such as the safe storage of work in progress at your site.

Please note as well that you are responsible for informing any subcontractors as well as for taking all necessary actions with the competent authorities.

To stay informed of the situation at CERN, you are invited to consult: http://hse.cern/fr/news-article/coronavirus-informations-mesures-et-recommandations

Please consider this email as notification of force majeure in accordance with clause 26 of the General Conditions of CERN Contracts:

http://procurement.web.cern.ch/sites/procurement.web.cern.ch/files/key-reference/CERN-FC-6211-II-v2018-03-14-EN.pdf

CERN is aware that these are exceptionally challenging times not only for CERN, but for its contractors as well. We wish to thank you for your understanding and your pragmatism.

Kind regards,

[PROCUREMENT OFFICER]

For contracts foreseeing category 2 works, the following procedure for updating the PdP shall be completed prior to any activities being restarting by the contractor on the CERN site:

1. The Procurement Officer informs the contractor of the restart of activities using this standard email (for activities restarting before T0) or this standard email (for activities restarting on T0) 
2. The CERN Technical Officer responsible for the contract updates the PdP based on the template provided by HSE stipulating the special measures linked to Covid-19
3. The CERN Technical Officer sends the updated PdP to the contractor, in principle by attaching it to an OS, requiring confirmation of receipt
4. The contractor provides updated modes operatoires taking into account the special measures linked to Covid-19 and confirms in writing that it will inform and train its personnel concerned on the risks, special measures and their specific impact on the services being performed
5. The updated PdP or amendment is signed by both parties