If you are involved in construction, NOW is the time to consider the potential force majeure impacts associated with the pandemic Coronavirus. Things are beginning to drastically change on a minute-by-minute basis. From travel restrictions, to the suspension or cancellation of events on an international level, to company-wide policies and restrictions, the global uncertainty has led to the possibility that a force majeure delay will occur. Thinking otherwise is not being proactive. The Coronavirus, and the impacts / delays associated therewith, is beyond anyone’s control. Due to the uncertainty, it is hard to fathom at this time a reasonable challenge to someone’s reaction to this concern or their companywide response to the concern.
If you are a contractor, subcontractor, or even a supplier, my suggestions would be as follows:
- Revisit your contracts and see what type of force majeure language it has – anything relating to delays beyond your control or epidemics;
- Examine to see whether you have a basis for additional compensation AND additional time;
- Examine what type of notice you are required to provide for force majeure events;
- Be proactive – send notice now of the potentiality that this pandemic can impact / delay the job –no one should take offense to this letter as this pandemic has impacted all walks of life;
- If an impact occurs, send follow-up notice accordingly to ensure rights under the contract are preserved; and
- For future contracts, incorporate language that specifically addresses epidemics and pandemics now that the occurrence of this issue has become real.
If you are an owner, I would suggest that you also revisit your contract to reacquaint with the force majeure provisions and whether a force majeure provision allows for additional compensation and time. This is important for you to deal with too. You should also consult with your insurance broker to review policies in place to see whether you have insurance to cover losses associated with a pandemic.
If you need assistance with any of these activities, or want to inquire as to your rights, please give me a call. You can also call my cell at (954) 295-6117. Be proactive, not reactive, and having a contingency in place, determining a solution, and preserving rights is the right approach. I remain here to help and to steer you in the best possible direction in light of this uncertainty.
Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.
If you have questions or concerns, and I am sure you do, as it pertains to the coronavirus and its force majeure implications on construction projects you are involved with, please do not hesitate to contact me or someone else that you trust can help. Do NOT take a reactionary position and wait for things to get worse or for there to be more formalized suspensions in place, or impacts realized. It is not worth it. Please make sure you are undertaking efforts to know your contractual rights and options so that you can develop the best plans to preserve these rights and options. Do it for you, your business, your personnel, and all the people you rely on in the performance of your work. I remain here to assist in any way that I can to help you get through any delay, impact, and interruption the coronavirus and its force majeure implications may have on your business.