COVID-19 Contract Resources
AGC partner ConsensusDocs have contract templates that directly address situations such as pandemic impacts on projects. See the below excerpt:
"6.3 If Constructor is delayed at any time in the commencement or progress of the Work by any cause beyond the control of Constructor, Constructor shall be entitled to an equitable extension of the Contract Time. Examples of causes beyond the control of Constructor include, but are not limited to, the following: (a) acts or omissions of Owner, Design Professional, or Others; (b) changes in the Work or the sequencing of the Work ordered by Owner, or arising from decisions of Owner that impact the time of performance of the Work; (c) encountering Hazardous Materials, or concealed or unknown conditions; (d) delay authorized by Owner pending dispute resolution or suspension byOwner under §11.1; (e) transportation delays not reasonably foreseeable; (f) labor disputes not involving Constructor; (g) general labor disputes impacting the Project but not specifically related to the Worksite; (h) fire; (i) Terrorism; (j) epidemics; (k) adverse governmental actions; (l) unavoidable accidents or circumstances; (m) adverse weather conditions not reasonably anticipated. Constructor shall submit any requests for equitable extensions of Contract Time in accordance with ARTICLE 8."
Sample COVID-19 Contract Language
AGC is pleased to make available for your consideration the following contract language to help address the challenges COVID-19 may present:
- On March 13, 2020, the White House issued Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (the “National Emergency”). The parties agree and understand that any potential impacts associated with the effects of the National Emergency, including but not limited to supply chain disruptions, manufacturing shutdowns and associated delays, material shortages and workforce shortages, and impacts to availability of required inspections are not yet known and, therefore, have not been included or addressed in this GMP. All pricing and schedules are based upon work conditions anticipated prior to the National Emergency. The parties agree that any cost or schedule impacts arising from the National Emergency shall be cause for an equitable adjustment to the contract time and the contract price. The Contractor will notify the Owner of any such specific impacts contemporaneously as they are identified.
UDOT Delays & Force Majeure Information
On Tuesday, April 7th, Highway Committee Chair Mike MacArthur, RLW and Rich Thorn, AGC President/CEO met with UDOT leadership Kris Peterson and Robert Stewart to keep abreast of updates within the department and how it may impact current construction. The following email received from Robert outlines UDOT current view of construction contracts, potential delays and Force Majeure.
"The purpose of this email is to give you information regarding how the Department is approaching delay on UDOT projects. UDOT contracts define pandemics (epidemics) as force majeure delay. Most force majeure delay language requires contractors to detail and justify any claim for delay. However, the continuous shift in local and national approaches has made this over-onerous. Since force majeure is considered excusable, non-compensatory (i.e. time but no overhead) the Department is granting day for day delay retroactive to March 16, 2020. Each contractor should work with their Department counterpart on how this will be practically applied (e.g. suspend time, track and add days to completion dates, etc.).
The tradeoff of granting day for day delay is to remove time incentives from each project. If any contractor wishes to pursue the incentives, they will need to track and justify their delay due to the pandemic. Although this is our statewide approach, there may be instances of exception due to special circumstances.
We appreciate contractors willingness to keep projects moving forward despite the enormous challenges. However, we expect contractors to do what is needed to keep themselves and those around the projects safe from the COVID-19 disease. We hope removing the constraint of time helps contractors to do what is right.
The Utah transportation industry has a great reputation for partnering and is known as a national leader. We anticipate the work we have done to become great partners in the past will pay dividends through this time.
Robert Stewart, P.E..
Director of Construction
Utah Department of Transportation"
AGC thanks UDOT for their extraordinary efforts in keeping construction moving along. They anticipate a regular schedule of bidding, and proposals for future work with no anticipated work or bidding stoppages. We remind all members to incorporate best safety practices for your employees. Stay vigilant and keep up the good work.