Force Majeure and Covid- take aways and aftermath

We’re updating this blogpost Nov 2023.  We lost 2 contractors to Covid that we have worked with over 20 years. They were part of our working family and still feel their absence. We are faced , like everyone, with choices and consequences. We have found others to help fill the void. We watch and adjust to the post-covid material supply chain hiccups, crazy inflation,  and labor shortages.
We also learned:
  1. we can get by with zoom and other helpful technology platforms to supplant face-to-face meetings.  
  2. Clients may have to be more patient.  Covid affected project delivery , schedule and costs. Duh!
  3. Building departments and other municipal agencies can still operate with a skeleton crew.
  4. There are, and will continue to be, alternative ways to get things done which are refreshing and very helpful.
  5. Contractors have merged and transformed to help one another to get their work done- we should all pay attention to the shape-shifting that can be transformative and healthy.
Force majeure translates literally from French as superior force. In English, the term is often used in line with its literal French meaning, but it has other uses as well, including one that has roots in a principle of French law. In business circles, “force majeure” describes those uncontrollable events (such as war, labor stoppages, or extreme weather) that are not the fault of any party and that make it difficult or impossible to carry out normal business. A company may insert a force majeure clause into a contract to absolve itself from liability in the event it cannot fulfill the terms of a contract (or if attempting to do so will result in loss or damage of goods) for reasons beyond its control.  (Thank you Merriam Webster online dictionary)
How about Covid ? 
Though we are not lawyers, this situation seems as it would qualify  (please check with your lawyer as it relates to your situation).  I’ll limit this post to the affect on our projects in the contractual sphere, not the tragic human toll and resulting health and economic consequences….But is it in the contract? Yes, we have included language that addresses the potential effect of Covid, health protocols and future work shut-downs.  This is a moving target, with new guidelines emerging constantly.

We saw in the spring of 2020 that construction was shut-down or severely hampered in deference to public safety and pandemic concerns.  New York State no longer deemed Architectural and Engineering services an essential service during this Pandemic unless it dealt with health of safety projects (i.e. Hospitals or Bridges).  So how about Engineers and Architects?  Even as a small 5-person firm, we are constantly changing staffing patterns due to covid exposures and the resulting productivity is challenging.

Contractor and vendor Delays

However, what about the construction vendors like lumber yards that are shutting down?  It follows that contractors are having a tough time getting materials.  How will this unfold – stay tuned.  This rebound will also take some time to get back to normal.  It’s also likely to throw a number of contractors, vendors and related professionals into bankruptcy since many clients will not have the money to pay for the work. Threats and Liens will be filed and it may get ugly.
Municipal Delays
Most building departments and governmental agencies are working in a reduced capacity and inspections are still slow- creating more havoc and likely price increases.   Now imagine if this situation continues for several months, or years how much administrative backlog will be created? And the resulting  log-jam of permit applications, board reviews, and inspections…The resulting delays stink.
Many municipal boards (i.e. Zoning Board of Appeals) are not holding as many meetings, changing formats to zoom platforms -which is another whole debacle or delaying meetings and hearings until social distancing requirements have changed….
As a member of the Rye Planning Commission, we are alternating our in-person and virtual Zoom meetings in in response to the ever-changing stages of Covid,
Can’t wait for this to be over!


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