SUPPLY CHAIN DISRUPTION FOCUS
Clause for
One of the ongoing side-effects of the COVID-19 pandemic has been the disruption to progress of works – and unfortunately, it’s no surprise that the risks are being passed along the supply chain
By Professor Rudi Klein SEC Group CEO and Barrister
T
he recent resurgence of COVID-19 and the ever-growing number of areas subject to lockdown have once again raised the spectre of disruption to construction works.
Such disruption may take many varied
forms. Sites may be wholly or partially closed because of workers testing positive or due to government-ordered
lockdowns, or there may be a delay to site deliveries, all leading to an interruption in progress of work. It may come as no surprise to many in the industry that COVID-related risks are being shunted along the supply chain. This is in spite of exhortations from the UK and devolved governments that we should all be working together and sharing risk in these unprecedented times. Clearly this message hasn’t got through to some clients and contractors. When it comes to COVID-related clauses, here is a rather unpleasant one: “The Sub-Contractor shall have no right or remedy pursuant to any provision of this Sub-Contract, whether by adjustment to the Sub-Contract Sum or by adjustment to the Completion Date(s) or otherwise or in damages at common law or in tort [delict in Scotland] or pursuant to any other theory of law to the extent that any matter listed in Schedule 1 (Notifiable Diseases) and/or Schedule 2 (Causative Agents) of the Health Protection (Notification) Regulations 2010 has any affect, whether direct or indirect, on the Works or on the progress of the Works.”
If you have survived a careful reading of the above, here is another example: You are informed at bid stage that if you are unwilling to take on “the risk of COVID” – whatever this may involve – your tender/offer will not be considered. Your sub-contract then tells you that: “For the full period of the sub-contract works – sub-contractor takes on the risk of maintaining productivity assuming 2m social distancing in place.”
This clause continues as follows: “In relation to pandemics (current and future) in the event of any future lockdowns, implemented by government instruction, which lead to the site shutting down: ●Week one to eight sub-contractor is responsible for all costs but an extension of time will be granted for each day the site is closed ●Week nine onwards, reasonable costs are recoverable under the sub-contract where the subcontractor has used best endeavours to mitigate delays and an extension of time will be granted for each day the site is closed.”
38 CABLEtalk DECEMBER 2020/JANUARY 2021
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