Construction Delay and Construction Claims News
Construction Contracts Language and Force MajeureForce Majeure during the Pandemic and into 2022
January 06, 2022
COVID 19 has presented multiple challenges and complex legal issues for many industries. Regarding construction delay, various project owners and financiers are faced with new uncertainty and risk. Supply chain and distribution continue to have disruptions not only regarding materials, but also in the supply of labor, tradesmen, craftsmen and the like. In addition, due to extended project timelines and schedules, additional testing and inspections are required further complicating the process. At various periods of time during the pandemic, state and local governments have and had issued shutdown orders regarding nonessential businesses and operations. The risk bearer of these types of shutdowns depends on the construction contracts and specific language therein.
Many construction contracts have provisions for acts of God and force majeure. Simply stated, force majeure are conditions / events which are unforeseeable and beyond the control of a given party, and which prevent this party from completing a given project on schedule. Acts of God, on the other hand, generally refer to natural events like floods, hurricanes and earthquakes etc. While force majeure may include some natural disasters, force majeure events typically also include events beyond control that could not have been prevented through anticipation and diligence.
Force Majeure, the Architectural Institute of America (AIA) and Covid 19
While construction contracts may or may not have force majeure language, construction contracts typically discuss which and what delays are excusable and how compensation may adjust based on excusable delays specific force majeure events. We hope that in time, all will learn how to best navigate construction delay and schedule delay through these uncertain times.
Additionally, the AIA has provided some guidance around this matter. Under AIA A201 Section 8.3.1 (Delays and Extensions of Time), though not specific to force majeure or pandemics etc. The section reads:
“If the Contractor is delayed at any time in the commencement or progress of the Work by (1) an act or neglect of the Owner or Architect, of an employee of either, or of a Separate Contractor; (2) by changes ordered in the Work; (3) by labor disputes, fire, unusual delay in deliveries, unavoidable casualties, adverse weather conditions documented in accordance with Section 15.1.6.2, or other causes beyond the Contractor’s control; (4) by delay authorized by the Owner pending mediation and binding dispute resolution; or (5) by other causes that the Contractor asserts, and the Architect determines, justify delay, then the Contract Time shall be extended for such reasonable time as the Architect may determine.”
Other entities and agencies have attempted to address construction delays including Federal Acquisition Regulation (FAR) Further information may be found at links such as:
https://www.govinfo.gov/content/pkg/CFR-2008-title48-vol2/pdf/CFR-2008-title48-vol2-sec52-249-13.pdf
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