https://www.xperagroup.com/blog/covid-19-construction-claims-successful-mitigation-risk

• Who is responsible for damages suffered as a result of COVID-19 and what should I do to mitigate risk?
• Can the contractor claim for additional time and cost due to the impact of COVID-19?

Pandemics can be dealt with by a stand-alone clause on pandemics or alternatively by mentioning the outbreak of a pandemic in the Force Majeure clause. Construction contracts seldom directly address the occurrence of pandemics. The main reason is that until the COVID-19 pandemic construction projects were seldom impacted by pandemics.

Force Majeure provisions can be utilized in the event of the occurrence of a pandemic.

One view is that these events are a shared risk providing a right to additional time to the contractor but not the right to time-related cost.

Timeous notification to the other contract party of the impact of COVID-19 on the construction process is critical. Many contracts have a strict time provision or a time bar for the contractor to notify the owner when a delay event occurs.

Claims should provide evidence that a specific cause (COVID-19) affected a critical activity that will result in a delay to completion. Records of the cause and effect of the delay are extremely important. Records that will be useful for COVID-19 claims are, for example:

• Official government directives issued that directly impact the execution of construction, for example, a directive to stop construction work.
• Official government directives issued that indirectly impact the execution of construction, for example, social distance regulations that will prevent construction workers to work together to execute activities or the transport of workers to and from the job site.
• Any notices or records of disruptions in the supply chain, for example, construction material suppliers that are closed or deliveries that are delayed.
• Documentation and records providing evidence of the effect on specific construction activities. These records can take many different forms: site diaries / daily reports; emails to suppliers, sub-contractors and other role players; meeting minutes; dated photographs; material delivery records and schedule updates.
• Records of mitigating measures taken. Many contracts require action to be taken to mitigate delays as a prerequisite for claims to be successful. These efforts should be documented and recorded to be submitted as part of future claims

Specific meetings to deal with the impact of COVID-19 should take place on a regular basis. An adversarial approach to deal with the impact and the division of risk during this challenging time will be counterproductive.