Getting on with the day job in the construction sector

As I write this, the construction sector in Scotland has moved to Phase 4 of the five-phase Restart Plan brokered between the Scottish Government and industry stakeholders, which has been touched upon in earlier insights.

Phase 4 is defined as ‘Steady State – where physical distancing can be maintained and/or with PPE use’. The sector seems, at last, to be shaking off the worst effects of COVID-19 and the position now reached should allow most construction projects to get off the ground or re-commence. As the industry works towards ‘the new normal’, whatever that will be, it is to be hoped that there won’t be a ‘second spike’ of the virus leading to fresh site shutdowns and restrictions forced again upon a sector which has already been particularly hard-hit by the virus.

At the start of the pandemic, with people concerned about delays to projects and the cost in terms of time, money and jobs, a vital economic sector virtually ground to a halt other than to carry out ‘essential’ works as defined by the Scottish Government. Concerns were rife about resulting disputes between employers and main contractors, between main contractors and sub-contractors, between contractors and suppliers and so on.

In an industry where it has often been said that contracts are placed in a bottom drawer, never to be looked at or operated properly, parties have been reaching for their contracts to find out just what their rights and obligations are in these unprecedented circumstances. Many have discovered that, with the benefit of hindsight, their contracts may not protect them as well as they would like when considering the effects of a pandemic, the likes of which have never been seen in this country in living memory! Contract administrators have been grappling valiantly with contract terms, claims for extension of time, disruption and all the other effects of the virus.

At the start of the pandemic, I urged people to try to avoid too much reliance upon the black letter of contracts and to try to work together to find a way through, including agreement on who would bear the consequences of the virus in terms of additional time and cost. An unusual stance for a lawyer to take, perhaps, but the avoidance of disputes, where possible, must be the aim if the industry is to focus its full time and attention on the day job – getting the works done – rather than wasting time, energy and money on disputes.

Some intelligence, including first-hand experience, seems to suggest that many in the industry have been sensible in dealing with the effects of the virus. Further, if the word from the ground is to be believed, the fear that on-site operations would inevitably be delayed and disrupted as a result of the virus may not be altogether true. Some reports from the front suggest that more pre-planning and more attention to the details of how on-site works are to be carried out may actually lead to higher productivity and efficiency than expected.

We’ll know more as we move from Phase 4 to Phase 5 and the sector can look back in detail to determine what the real impact of the virus has been. Notices of delay and/or additional costs may have been issued, but the final outcome may not be quite as bad as many had reasonably feared.

Latest updates from @MacRoberts