When an owner returns the script, they can invoke the suspend or termination clause for simplicity, which is explicitly specified in the EAR form. If the contract were suspended for convenience, a contractor would be entitled to an increased adjustment to the value of the contract, including profit (Article 14.3, “Suspension by the Owner for Convenience”). If the contract was terminated for convenience, the owner would still be required to pay the contractor for the properly performed work. costs resulting from termination, including costs resulting from termination of subcontracting; and any other contractual termination fees (Article 14.4, “Termination by the Owner for Convenience”). Not all construction contracts contain force majeure clauses, but this does not necessarily mean that a contractor has no recourse. In Wisconsin and many other jurisdictions, the doctrine of impossibility in the Common Law of Contracts excuses performance when it would be impossible for a party to fulfill its contractual obligations. If the doctrine is successfully applied, the contract can be terminated without liability, even if there is no force majeure clause. It is essential to try to mitigate these problems in the drafting of contracts. Here are some suggested terms: a contractor`s decision to invoke a force majeure clause can be a tricky proposition – if not done correctly, the contractor could be presumed to have breached the contract, and the other party would have the right to terminate the contract and claim damages from the contractor. In addition, the contractor would move away from the balance of the contract. Therefore, if possible, serious consideration should be given to working with the other party to find a way to weather the storm together, so that both parties can eventually get what they negotiated on – even if the parties only receive these benefits later than expected. Unless a contract contains an express force majeure clause or similar language dealing with “force majeure” or unforeseen delays beyond the contractor`s control, there is still hope for the contractor, and the owner is not necessarily immune. Another view to consider is the application of the common law doctrine of commercial impracticability.

While not all states recognize impracticability as a common law defense, the Uniform Commercial Code (UCC) and the (second) Reprocessing of Contracts have recognized the defense that could be applied to COVID-19-related delays. It is very important to nest the definitions, which result in an unknown COVID-19 disease. As explained in the following sections, to be eligible for relief, the contractor must demonstrate that a problem is an unknown disease related to COVID-19. This is based on the principle that if the contractor knew or ought reasonably to have been aware of the problem when signing the contract or amending the GMP, it should have taken it into account in the price and schedule. In accordance with this principle, if a COVID-19 condition arises after the contractor has submitted its offer or proposal, it should be allowed to revise it on the basis of that condition until the time it signs the contract or the GMP amendment. Such a language should be included, where appropriate, in procurement documents and procurement documents. When formally issuing a warning or formulating a basis to mitigate the effects of COVID-19, entrepreneurs should try to cite contractual terms or legal theories, but also be careful not to categorize too quickly and potentially cut themselves off from being exempted by other clauses and theories. Owners should also exercise mutual caution and caution when responding. If you are working on a design-build project that uses a standard Design-Build Institute of America (DBIA) form that includes the standard terms and conditions form (DBIA 535, 2010 version), the contractor is likely entitled to an extension of time for COVID-19 impacts, but not to an adjustment to the contract price. DBIA forms define cases of force majeure as events beyond the contractor`s control, including “epidemics”. However, Section 8.2 of form DBIA (“Delays in Work”) is different from other standard contract forms and expressly contains a case of force majeure and prohibits a contractor from agreeing on price adjustments for force majeure events, but allows such adjustments for other changes such as different site conditions and unsafe conditions.

When the construction industry felt the effects of COVID-19 earlier this year, the parties considered whether their contracts contained a force majeure provision and whether COVID-19 was a force majeure event. Such a provision releases part of the performance of the contract by reason of its inability to perform, which results directly from an event beyond the control of one of the parties and which was not foreseeable at the time of the conclusion of the contract by the parties. Section 6.3 of the ConsensusDocs contract form deals with force majeure in the sense of excusable delays. If the Owner decides to invoke termination for reasons of expediency in accordance with Section 11.4 of Form 200 ConsensusDocs, the Contractor may still (a) claim payment for the work performed to date, including overhead and profits; (b) demobilization costs and costs incurred as a result of termination, but not overheads and profits from unperformed work; (c) reasonable attorneys` fees and costs related to termination; and (d) a premium — if the parties initially agreed to do so. Other force majeure clauses may be a mixture of specific and general forms and may include a collective provision designed to cover additional potential scenarios that go beyond certain events. In these cases, some courts have held that the conditions of force majeure under the common law, such as.B. Unpredictability must be taken into account if a party has not protected itself by the express inclusion of an event in the force majeure clause. There, it can boil down to a question of what the parties have considered and whether the parties have voluntarily assumed the risk of COVID-19 (or, perhaps less specifically, a general pandemic). [2] Impossibility/improbability/misappropriation are recognized in unforeseen events that make the service impossible or impractical, but price escalations generally do not constitute a termination of the contract. However, the commentary on the Uniform Construction Code (UCC) opens the door to a possible defence. UCC §2-615, Excuse by Failure of Presupposed Conditions, Comment #4 states: [1] See Jones Walker March 2020 Client Alert regarding in-place shelter orders for more details, available at: sites-communications.joneswalker.com/20/1389/landing-pages/impact-of-state-and-local–stay-at-home–or-shelter-in-place–orders-on-construction-in-al–fl–ga–la–ms–and-tx—lp-(fwd).asp?sid=blankform.

Construction contracts often contain “choice of law” regulations that set out which law of jurisdiction applies in the event that the parties subsequently have a dispute over the contract. For example, a real estate developer outside of Wisconsin who hires a Wisconsin-based general contractor for a construction project in Wisconsin might insist that the law of another state govern the contract. Therefore, it is important to review not only the force majeure clause, but also the “choice of law” provision and all other relevant parts of the contract. The last important issue that needs to be addressed is the contractor`s right to be paid for COVID-19-related costs, including but not limited to price escalation due to COVID-19 supply disruptions and the cost of complying with COVID-19 proclamations. This critical wording should strike the right balance to achieve both goals, discourage entrepreneurs from including excessive COVID-19 contingencies in their packages and GMP proposals, and encourage lenders and owners to allocate their funds to new projects. The answer to this question will probably depend on whether the construction contract contains a force majeure clause. If your force majeure clause contains a very specific list of events (e.B. “epidemic”, “pandemic”, “disease outbreak”) or other similar terms, the COVID-19 pandemic would almost certainly fit into that clause. However, keep in mind that “epidemic” and “pandemic” are not technically the same thing.

And some courts will strictly interpret the exact wording of force majeure clauses to exclude events that are not expressly identified. When proposing and negotiating a contract, add a backup plan of two or more alternative sources of supply and information about acceptable replacement items. Since border restrictions related to the pandemic could affect supply chains, you should also determine alternative shipping and delivery routes (and any additional costs associated with them) and indicate which party would be responsible for covering these costs. Consider asking for a down payment to purchase and store equipment before the project begins. William represents a wide range of domestic and international clients, including owners, general contractors and design-build contractors, with issues related to major industrial construction and infrastructure projects in the United States and abroad. .