5.5.2 Definition of Qualifying Change in Law

The WIDP Contract (Clause 44.1) requires the Contractor to comply with all applicable Legislation and Guidance, subject to applying a mechanism for handling the effects of a Qualifying Change in Law. 

The definition of a Qualifying Change in Law is complex and involves, for example, distinctions between Discriminatory, Specific or General Changes in Law, changes that are foreseeable or unforeseeable,  Legislation or Guidance which comes into effect after the date of the Contract and which brings into effect any of the matters listed in the Waste Law List, certain changes to the terms of Environmental Permits, and certain changes made by the Environment Agency to their understanding of Guidance or Legislation that affects Consents at the Facility⁴⁴.

Given the complexity of the definition of a Qualifying Change in Law, it is very important for the Contract Manager to secure the early involvement of the Authority's Legal Department if the Contractor claims that such change has occurred or is about to occur.  

Before undertaking the practical steps needed to manage a Qualifying Change in Law, the Contract Manager should ensure that there has been sufficient scrutiny of the Contractor's claim there is a Qualifying Change in Law. This may require the use of advisers to look carefully at the different limbs that make up the definition, and to assess whether the definition has been properly met. Where the cause of a Change of Law is a factor likely to be affecting other projects at the same time the Contract Manager should ensure (s)he knows whether other Authorities are accepting it is a Qualifying Change of Law before making any commitment. WIDP will provide assistance to Authorities wishing to contact other Authorities. 

The Contract Manager should be mindful that although the Contract defines the list of (Qualifying) Changes in Law that, commercially, are for the Authority's account in many respects it would be easier to list the exceptions to this general rule. The Contractor has no control over the likelihood of a Change in Law arising and although it can potentially take action to mitigate the impact, this is a risk where it will normally have contractual protection. The risk allocation in relation to Change in Law can be summarised as:

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⁴⁴ Please note these bullet points provide a general summary of the definition in Schedule 1 of the WIDP Contract. For more detail, please refer there and of course to the Authority's own Contract.