Delay of construction projects due to corona measures: is there an unworkable working day?

A client and contractor can agree that a project should be delivered within a certain number of workable working days. For example, the UAV explicitly offers this possibility. If the agreed maximum number of workable working days is exceeded, a discount on the contract price applies. With a view to the application of the discount scheme, it is important for both the principal and the contractor to determine when the (temporary) stoppage of the construction due to coronagraphs of coronagraph is at the contractor's risk (workable working day) or at the principal's risk (unworkable working day).

When is a day unworkable?

A working day is unworkable according to Section 8 (2) UAV if:

• the majority of workers or machines were unable to work;
• For a period of 5 hours on a working day; and
• due to circumstances beyond the contractor's liability.

The burden of proof that a day is "unworkable" is on the contractor. Common circumstances beyond the contractor's liability are weather conditions, such as frost, high winds or rain. However, it is also quite defensible that coronavirus is a circumstance beyond the contractor's liability.

Possible situations that lead to unworkable workdays

Outlined below are some possible situations in which a workday might qualify as unworkable:

Workers get sick because of coronavirus

If the "majority" of the workers (more than half at least) were unable to work for 5 hours or more in a day due to infection with the coronavirus or because they had to stay home as a precautionary measure in accordance with RIVM measures due to symptoms of illness, such as a nasal cold or cough, the contractor is likely to be entitled to a claim for an unworkable day's work. The RIVM measures are outside the contractor's liability and therefore should be at the client's risk. However, it is important for the contractor to heed the measures of RIVM. If the contractor ignores these measures and employees fall ill, a judge could rule that the contractor had influence on the failure of his employees. So it is important to keep good records of the measures taken. For current measures in construction, see the protocol.

Quarantine (of the area in which the construction site is located)

Should the government decide on a total lock down, or quarantine the area in which the construction site is located by means of a lock down , construction work will come to a halt. In that case, this far-reaching government action causes most, if not all, of the workers to be unable to work for at least 5 hours a day. Such government action is beyond the contractor's liability and results in an unworkable work day.

A shortage of material due to corona measures

Of course, if certain materials are not available, most of the machinery and workers may be shut down for more than 5 hours in a workday. For example, if an import ban is imposed by the government, making materials unavailable, this could be a circumstance beyond the contractor's liability.

If a workable alternative is available but the work is not resumed, an unworkable working day will not easily be considered. Because the contractor did not continue working with the alternative material, the delay is in principle at his risk. It is therefore important for the contractor to investigate whether it is possible to work with an alternative material, provided it is equivalent. It is important for the contractor to pay attention to the question of what consequences purchasing an alternative has for the current contract with the supplier. In addition, the contractor and client must discuss the use of an alternative, especially when a prescribed product is involved. If the client does not approve an equivalent alternative and a delay occurs as a result, that is a circumstance beyond the contractor's liability. The work day will then qualify as unworkable.

Tips

When delays in construction work are unavoidable because of the coronavirus, discussions may arise as to when a day is "unworkable. Section 8 paragraph 2 UAV provides guidance for its assessment, but leaves room for interpretation. It may therefore be wise for the contractor and client to discuss what can and cannot be considered an unworkable working day under corona. Furthermore, it is important for the contractor to report immediately if a day is unworkable and announce now what problems you are facing, in order to find solutions in common interest.

Should you have questions regarding the presence of an (un)workday in your specific situation. Please feel free to contact the attorneys of team Construction.