Coronavirus in construction: who gets the bill for stay-at-home advice and government action under the UAV?
Date: March 13, 2020
Modified November 14, 2023
Written by: Noreen Sturris
Reading time: +/- 2 minutes
Date: March 13, 2020
Modified November 14, 2023
Written by: Noreen Sturris
Reading time: +/- 2 minutes
The coronavirus is spreading and the number of infected people is on the rise. The Dutch government is currently advising workers to work from home whenever possible. However, a construction project without builders on site is unthinkable. When a contractor decides not to take the risk and decides that workers should stay home, construction can be delayed or even halted completely. This costs money, but who gets the bill for that under the UAV?
In this blog, you will read about what solutions the UAV offers, to pass on damages, in the situation where a principal and contractor have entered into an agreement to which the UAV applies.
That workers should stay home as much as possible is currently only government advice. Unlike Italy, the Netherlands does not (yet) have government-imposed quarantine measures for the entire population. The advice given by Rutte will most likely not qualify as a government decision or legal requirement. Employees are free to go to work, thus ignoring Rutte's advice. That it is an opinion and not a governmental action has implications for the award of damages. If a contractor decides to follow Rutte's advice and, as a result, a construction project is delayed (causing damages), that is the contractor's own choice and, in principle, it appears that those damages will be borne by the contractor. Whether that is actually reasonable remains to be seen.
If, in the future, the government feels compelled to take a legal measure or decision that prevents the Dutch population from going to work by the government, the allocation of damages may become different. Indeed, such a government decision qualifies as a government measure under the relevant provisions of the UAV. Several circumstances may arise:
In this case, the contractor is deemed to be familiar with the measure, and any resulting damage is therefore borne by the contractor (see section 6 paragraph 11 UAV).
In practice, the circumstance that the measure is inserted after the contracting agreement has been concluded will provide most of the material for discussion. In particular, the question of whether the contractor should have seen the measure in question coming at the time of the conclusion of the contract.
The question is whether a possible future extreme measure, similar to the Italian lock down, was (was) foreseeable for a contractor. To answer this question, the date of conclusion of the contract and the actual circumstances and developments on that date must be taken into account. If a contracting agreement was entered into in the period prior to the outbreak of the virus, the measure was unforeseeable for a contractor. However, if a contracting agreement is entered into in the current period, it is advisable to contractually take into account the advent of foreseeable measures to control the coronavirus.
If you have questions about how to take into account (contractually) the possible consequences of the coronavirus, please feel free to contact us using the form below or Koen Roordink.
As attorneys for business owners , we understand the importance of staying ahead. Together with us, you will have all the opportunities and risks in sight. Feel free to contact us and get personalized information about our services.