In a few weeks, or whenever the COVID-19 coronavirus is under control, affected businesses and individuals are going to have to assess their losses. This checklist should assist you so that you can either minimize or altogether avoid issues that may be the subject of litigation or cause payments to be withheld indefinitely. The cordial demeanor of owners, general contractors, subcontractors, laborers, suppliers and materialmen, will likely disappear as bank accounts are drained and invoices pile up. Here are 7 things you need to know or do:
1. NOTICE PROVISION/NOTICE REQUIREMENT
Many contracts, bid documents, general conditions contain a specific number of days (in some instances hours) to provide Notice of any delay. A delay caused by COVID-19 Coronavirus is no exception. If, you either anticipate or have evidence of a delay of any type (materials, labor, transportation, etc.) you should look to your contracts, bid documents, and general conditions to determine how many days you have to provide the written notice.
If the contracts, bid documents and general conditions are silent as to Notice relating to delays, you should still draft a Notice Letter to ensure that you have attempted to provide notice of a delay. Even if a directive comes from the federal, state, municipal or administrative government, you should still be intimately knowledgeable about the Notice requirements in each of your contracts, to leave no room for interpretation later.
For those of you who may be working based on work orders, purchase orders, oral or “handshake agreements,” providing a written notification of a delay may provide you with additional time and possibly money, if you are affected by COVID-19-related delays.
2. DELAY LANGUAGE
It is inevitable that your projects are going to face some delays, whether directly or indirectly caused by COVID-19. Do not rule out any type of delay which may be remotely related to your work or your trade. Suppliers, delivery trucks and laborers will be slowed down as time progresses and the coronavirus remains unresolved.
While delays caused by an Order from a federal, state, municipal, administrative or similar agency may not be directly addressed in your contract, there may be language there which helps. If your contract does contain an express provision it will likely contain the words force majeure or acts of God. In certain instances, especially in contracts for work with the federal government, there are express provisions for fire, floods, epidemics, quarantine restrictions, strikes, freight