Where is the industry in a post pandemic world? 

COVID-19 has had a profound impact on the construction industry that will be felt for many years to come. Projects and frameworks have experienced delay, lost productivity, increased costs and lost profits.

For the industry and business’ to mitigate the impact of these risks it is essential that all  parties across the whole supply chain implement proactive strategies that identify and manage contractual and commercial impacts.  

Contractors and those in the wider supply chain may experience numerous issues due to the pandemic, however the following examples are more likely in a post COVID world than others:

Force Majeure: During the early stages of the pandemic, force majeure claims were throughout the construction industry. While many of these may have had merit, many were issued carelessly and without sufficient consideration of how the pandemic actually prevented performance of specific contractual obligations.

Little consideration had been given to the disruptive costs associated with the force Majeure event and associated delay to completion, however it has proved essential that contractors (particularly under NEC) are in a position to adequately prove the delay and disruption and also to demonstrate the mitigation measures that they have undertaken to avoid further impacts on the time for completion or delivery.

Delay Claims: In connection with force majeure claims or other delay and disruption claims, there can be supply chain interruptions, staff and consultant absences and other issues that cause significant delays. Often these are already categorised as contractors risk events, however the test of reasonableness comes in to play when for example the contractor could not have reasonably expected that their specialist materials supplier would go bust due to the impacts of COVID thus delaying the completion of a critical part of a project

Disruption (or productivity) Claims: The pandemic is expected to reduce productivity, at least in the short term whilst we all adjust to the new normal, this is measured as the amount of (workforce) input required to achieve a specific output.

For example, a civils contractor building a slab base under a lump-sum contract may have assumed, pre-COVID, that it will take 6  operatives, 8 hours per day to lay the concrete and rebar in each base slab. However, PPE and social distancing requirements now mean that this same work takes 10 hours per day forcing this contractor to incur additional costs.

Additional Material Costs: An example of this could be the contractor intending to procure certain materials internationally but being forced to procure those same materials from a more expensive domestic source.   
Insolvency Issues: Unfortunately, some owners, contractors and suppliers may not and have not survived the pandemic. 
HSE and staff: Construction teams have rightly expressed safety concerns relating to their ability to work  safely during the pandemic. These issues may cause delay and disruption. In addition to this there is a legal and moral obligation for contractors and the supply chain to keep their workers safe.

So, how do we minimise the risks and mitigate the impacts of COVID?

While the impact of the pandemic and claims associated with it claims will largely depend on the risk allocation under the applicable contract, below are some key considerations:
1. Clear Lines of Communication: Almost all parties on any construction project will have concerns regarding the impact of the pandemic. To help manage claims and address issues when they arise, it is important to have clear and transparent discussions with respect to the impact of the pandemic and the potential contractual ramifications. 
2. Review and Comply with Notice Requirements: Clients, employers and contractors need to identify any applicable contractual provisions, as a failure to comply may result in a loss of entitlement to an otherwise valid claim. In addition to notice provisions related to compensation events or variations, most contracts also contain stringent notice requirements with respect to the start and end of the alleged force majeure period.
3. Cost and time: While many standard form contracts do not entitle the claimant to claim additional compensation for a valid force majeure claim, others do and If the pandemic is impacting your ability to perform in accordance with the contract, it is important to undertake a comprehensive contractual review to see if you are entitled to either or both. 
4. Updated programme and mitigation: It is important that:
o pre-COVID programmes should be updated to reflect the measurable impacts of the pandemic;
o all steps being taken to mitigate and overcome delays are documented;you have a duty to mitigate!
o owners ensure they are receiving and reviewing such documentation which will allow them to assess the contractor's performance, costs and potential impacts of the pandemic; and
o contractors keep records if they are looking to obtain time and/or cost relief.
o And just in case you missed the last point KEEP ACCURATE RECORDS!

5. Proactive Change/Claim Management: There is a natural tendency on many projects to focus on completion of the work leaving the resolution of claims to the end of the project. This approach often results in larger claims, more legal involvemnent and often less positive outcomes. Under the NEC claims are dealt with on the hoof and long shall it stay this way, however if you are working to another standard or bespoke contract it is important that clims are raised immediately to enable a fresh approach and review.

6. Understand Project (commercial) Security: Most large construction contracts require some form of project security, with the most common being performance bonds, collateral warranties and retention bonds, all of which include stringent notice and other technical requirements. A failure to comply with these bonds may result in the loss of an important available remedy should the worst happen.

7. Supply chain insolvency: it is near on impossible to monitor the financial health your supply chain, particularly if they are not listed, however there are often warning signs that they may be experiencing difficulties. For example, a sudden change in invoicing practices (e.g., more aggressive), deteriorating performance and loss of key personnel, regular credit searches and keeping ones ear to the ground will also inform you regarding financial health.

8. External Support: Most contracting parties do not have the internal resource required to deal with the complex snd wide ranging maters that arise from the impacts of COVID, in fact it is usually eft to the QS team to muddle through. To avoid this, early engagement of external support should be a priority, be it claims consultants, expert advisors or lawyers it is a fact that the swifter the engagement then the better the final result.

In conclusion it is clear that the impacts of covid have had a wide ranging and potentially long lasting impact on the construction industry in the UK and wider world it is also clear that businesses who plan, communicate and understand their obligations regarding mitigation and legislation will be better placed to not only suffer the impacts of COVID but potentially seek to capitalise from the opportunities presented by the new normal. 

The services offered by claims consultants and construction lawyers are quite different. Who you need depends on your circumstances, so who you gonna call? 

A construction lawyer has specialist expertise in legal matters that are specific to the construction industry and is a bona fide lawyer, the Claims consultant provides commercial assistance in preparing and delivering a claim. They will often have expertise in specific areas, such as program analysis or quantity surveying.

So, with all this COVID, lockdowns and added risk to projects, whom should you call, Ghostbusters perhaps?

Claims consultants are able, depending on their specialism, to perform a forensic program analysis or calculate the value of specific work, materials or other specific costs. They can help you work out the value of your entitlement, assuming you have an entitlement in the first place., they are able to advise on contractual matters relating to your project and if the need arises are able to rebut claims from other parties on your behalf. All this and more.

A construction lawyer will be able to provide advice around your rights, obligations and entitlements under the contract, from a purely legal perspective, That is, they will be able to explain the principles that will be applied in determining whether you have an entitlement and, if so, how that amount should be calculated.

The fact is that Lawyers and consultants’ skills are usually very aligned. Lawyers rarely have the years of on the ground experience that a QS may have and as such will not possess the  technical background to determine the quantum of a claim, assess periods of delay or provide an opinion on, for example, engineering matters, such as whether a design of a building’s foundations was below the standard of competent engineering practice. They will expect that information to be provided to them by an expert in the relevant field.

Both usually work well together if they know their skillsets well and when they do, it is a formidable partnership. Unfortunately, this isn’t always the case and doesn’t help with the choice of who to call for your project or claim (not Ghostbusters)

So, who you gonna call? 
Well, it really does depend on your claim and the matters at hand and to a certain extent, your own understanding of your requirements. 
If you are looking to receive advice around legal principles or your contractual rights and remedies, you will need a lawyer, they are best placed to determine this and well-practiced. They are also able to use their rights to represent your claim all the way through to court if necessary. 
If you need someone to determine, value, time, specific contractual arguments relating to compensation Events or variations for example then you will need a claims consultant.

You may potentially need multiple claims consultants, any multi-disciplinary firm will be able to accommodate this and will be used to pairing teams of planners, QS’s and contracts managers depending on the nature of the issues.

And if you need advice and support on both fronts?

Well, most firms, including my own, have close ties with lawyers and vice versa on the lawyer’s side. The advantage of this is that you will receive the multidiscipline service that you require, but with the added advantage that you will get a fully functioning team that are used to each other’s methods and means.

So, what’s the best option?  

Well, frankly, both. If it’s looking like your claim is serious enough to end up in court then the best suggestion is that you look to engage the services of a lawyer, CICES has a panel that would be more than willing to discuss. Engaging a lawyer for these disputes affords you the opportunity to engage with the same firm that will represent you in court if it goes that far, this will mean you are likely to have more engagement and therefore get a better overall outcome. Particularly if you involve them earlier in the process rather than later.

Engaging a consultant firm, it is important to understand that in a formal dispute resolution process, there are formal rules of evidence, including particular rules that relate to evidence given by technical experts – including quantity surveyors and programming experts.

If those experts are not engaged in the right way, you may find yourself in a situation where:
• their evidence is inadmissible or given little or no weight; and/or
• you are unable to claim legal privilege over communications with these experts. This can potentially result in sensitive material becoming available to your opponent, thereby opening your technical evidence up to potential attack.

The final point is: if you find yourself in a situation where there might be a legal dispute, a specialist construction lawyer is likely to be the best place to start, they will be the ones that are able to look after your dispute from cradle to grave, however due to the wonders of adjudication, mediation and all the other ADR processes  It is best that claims consultants with specialist expertise will play a role in that process these are the ones with the deep knowledge of construction and engineering gained over a multitude of years. 

Further Publications 

March 2020 CICES Journal 

Delays, What delays? 

April 2020 CICES Journal 

Contract, What Contract? 

May 2020 CICES Journal 

Expert Failings 


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