Stephen VanDyke, CSI, CDT, NCARB
As I write this month’s President’s Message, the country is in the throes of the COVID-19 pandemic. Whether you think the virus is the deadliest thing since the Bubonic Plague or whether you think the state of the nation is media-hype inspired overreaction, the effect on our lives has been staggering. State-mandated closures have forced most of us to work from home, some of us (my office included) for the first time. Early on, Boston Mayor Marty Walsh closed down construction sites in Boston, and yesterday Worcester’s City Manager Ed Augustus did the same for almost all City construction projects here in Worcester. Governor Baker’s order, which closes all non-essential businesses, initially identified construction sites as essential, but subsequently revised that definition to reclassify only State projects, infrastructure projects, first-responder projects and certain housing as essential.
Even with the allowance for those projects to continue, we’re starting to see reluctance on the part of contractors to man the job. Earlier this week, I arrived at the jobsite of a classroom laboratory renovation project at a Worcester college, to be greeted by a nurse in a full Tyvek jumpsuit with a hood and goggles. After logging me in, giving me a questionnaire and taking my temperature, I was allowed to enter the site to perform the construction observation required by code. This screening process is a requirement of DCAMM on their projects, in an effort to protect workers. But despite that, we’ve seen various trades refuse to show up, which is beginning to affect the critical path of the construction. For some trades this is a voluntary decision on the part of the company, but yesterday we received notice that the North Atlantic Region of the Carpenter’s Union directed all member firms to pull off. Word on the street is that other Unions will follow suit shortly.
How this plays out legally will be interesting to watch. If government has declared your project to be “essential” are you obligated to work on it? If you elect to not work on it, and the Owner suffers financial damages when the project is not delivered on time (say, a dormitory which can’t house the students returning to campus), does the Owner have a claim against the Contractor? If a filed sub-bid trade pulls off, but the GC intends to keep going and hires a replacement trade contractor or self-performs the work, does the sub have a claim against the GC? Everybody is in that cooperative panic mode right now, but rest assured, when the dust settles there’ll be plenty of fights over this.
Many contracts include a couple of clauses that speak to things like this.
“Force Majure” is a clause that is included in contracts to remove liability for natural and unavoidable catastrophes that interrupt the expected course of events and restrict participants from fulfilling obligations. While it’s a fairly common clause, it doesn’t actually appear in the AIA’s General Conditions document A201. Delays for various circumstances including “causes beyond the Contractor’s control” are discussed in A201 8.3, where 8.3.1 allows the “Contract time [to be] extended for such reasonable time as the Architect may determine.” The EJCDC’s C-700 discusses Delays in article 4, where 4.05 specifically sites “epidemics” among other circumstances and allows the Contractor a no-cost time extension provided the critical path is not impacted. What General Conditions do your jobs have, and what clause(s) have you agreed to? In the absence of a defined procedure, matters will likely be reconciled by mediation or litigation.
Separate Work” clauses in the General Conditions define circumstances under which the Owner can hire other Contractors to perform work on the site, and the GC’s obligations for cooperating with them. The boilerplate language in the AIA-A201, doesn’t discuss the Owner pulling work out of the contract though and giving that to a different firm. The EJCDC C-700 discusses the Owner’s right to correct defective work (14.07) but doesn’t discuss the Owner’s right to perform work themselves or through other contractors at all. But if your project manual doesn’t use either of these General Conditions, you may be under other obligations.
So, while you’re holed-up at home for the next few weeks, curl up by the fire with a few nice, thick Project Manuals, and get familiar with the rules you agreed to play by. The next phase of this crisis will be triaging your projects that stopped and figuring out how to recover.