COVID-19 and the administration of JCT contracts

Problem:  I am an Architect working in private practice.  For administering contracts, I use the JCT.  Given the current pandemic, in your opinion, what is the best contract mechanism for administrating pandemic related additional cost claims made by contractors?

 

Response:  If you mean how best can an Architect or contract administrator manage additional cost claims caused by the pandemic, then I would need to look at the specific details.

 

That said, back in April 2020, the JCT published a helpful guide titled: ‘Coronavirus (Covid-19) and JCT Contracts’ (https://corporate.jctltd.co.uk/wp-content/uploads/2020/04/Coronavirus-Covid-19-and-JCT-Contracts-v3.pdf).

 

The guide flags up the difference between the virus per se and the public health matters enacted by the Government’s intervention, each project will need to be considered on its own facts in relation to the contractual position.  The guide then summarises the groups of delays that projects may come under:

 

  • The virus, prior to Government intervention, causing a shortage of labour and materials, different working or by delay of a Statutory Undertaker carrying out statutory obligations;
  • the virus, both before and after Government intervention, causing a shortage of labour and materials, different working or by delay of a Statutory Undertaker carrying out statutory obligations and compliance with the requirements of site operating procedures (“SOP”); and
  • the virus after Government intervention, causing a shortage of labour and materials or by delay of a Statutory Undertaker carrying out statutory obligations and compliance with the requirements of SOP.

 

Some of the delays in the groups may be grounds for a contractor to claim a delay, but others will not be.  Additionally, contracts such as the JCT IFC and Standard Form have listed relevant events, but the JCT MW does not  – the only requirement for a contractor to do under the JCT MW is to give notice to the CA if it becomes apparent that the contract works will not be completed by the Date for Completion and that the contractor is not culpable for the delay/s, although the contractor will not have a claim for loss and expense as the delay was not occasioned by the employer.

 

© Michael Gerard 2021

 

The advice provided is intended to be of a general guide only and should not be viewed as providing a definitive legal analysis.

 

Author background

 

Michael is a Solicitor, Chartered Builder & Registered Construction Adjudicator, and is a director at Michael Gerard Law Limited, a solicitors practice regulated by the SRA.

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