Unworkable workdays due to corona? Three tips for contractors.

In practice, clients and contractors frequently differ on the question of whether the construction time has been exceeded and the client is therefore entitled to liquidated damages. Often parties agree the construction time in a number of workable working days. This may raise the question of whether and when there are unworkable working days. Such was the case in a recent Arbitration Council ruling of February 18, 2021 (no. 81783). In this ruling, the contractor claimed, among other things, that there were unworkable working days due to circumstances caused by the coronavirus. How does the Council rule on this issue?

Excerpt

In 2018, the contractor and client entered into a contract for the construction of an apartment with a construction time of 250 workable working days. The contractor claimed that 20 working days were unworkable due to the coronavirus. More specifically, because of a lack of workers on the shop floor at his suppliers and subcontractors due to the measures taken by the corona virus. The Board does not follow this position of the contractor. To assume an unforeseen circumstance due to corona requires more than that, according to the Council. The Board emphasizes that the construction industry is one of the few sectors in which work could (and can) continue despite the corona virus. Moreover, the contractor has not indicated on which days he would have been hindered by this corona (circumstance). The Board therefore rejects the claim as insufficiently substantiated.

Three tips for contractors

This discussion of unworkable working days due to a corona(circumstance) may occur more often in practice. In that case - with this ruling in mind - what is important to know? Three tips for contractors:  

1. Check in the contract / general conditions what has been agreed with the client about unworkable working days. According to Section 8 paragraph 2 UAV 2012 and the Woningborg General Conditions, a workday is unworkable in any case if: at least five hours cannot be worked by the majority of the employees or machines (1) and this circumstance is beyond the contractor's liability (2). This means that for an unworkable workday to occur, there must be a substantial failure of workers or machinery. It also involves a circumstance for which the contractor is not liable. This could include failure of workers or machinery as a result of government-imposed corona rules and measures. This is probably different if it involves a corona (circumstance) that results in failure due to insufficient compliance with precautionary and/or safety measures by the contractor.  
2. The contractor must prove the existence of unworkable working days due to corona. This means - as this ruling also shows - that a good substantiation of this in proceedings is of great importance. The Council underlines this by emphasizing that the construction industry is one of the sectors where work could (and can) continue despite the corona virus. It is therefore wise - just as is customary in the construction industry for unworkable working days as a result of unworkable weather - to at least keep a log about the corona (circumstances) that justify invoking unworkable working days according to the contractor. For example, does this involve employees who have tested positive for corona virus and therefore cannot work on a particular day, or does it involve employees who must be quarantined (awaiting test results) as a precaution? There may also be outages due to a shortage of material because of an import ban due to government measures when no alternative was available. In short: what (corona)circumstance occurred at what time and what specific hindrance did the contractor experience as a result?     
3. In order to minimize a difference of opinion between the contractor and the principal about (the number of) unworkable working days - as a result of a corona (circumstance) - it is advisable to inform the principal about this in good time. In that context, Section 27 (1) UAV 2012 also requires the superintendent to record unworkable working days in the weekly reports.