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5/15/2020 | Articles & Alerts, General, News & Resources

Construction work in Pennsylvania not previously restricted by governmental order is set to restart beginning on May 1. However, that work will be subject to changed circumstances and conditions and new governmental guidelines and restrictions. Whether you are a general contractor, construction manager, or subcontractor, there are important issues that you should consider before re-commencing project work. Here is a summary of some of the more significant issues, and questions that should be considered before work is restarted.

Changed Conditions and Circumstances Due to the Suspension

If a project has been shut down for weeks or months, the conditions applicable to your work may be changed and your work may be affected and impacted. Here are some questions to ask:

  1. Has an inventory of the site been performed to determine if equipment or material left at suspension has been damaged, removed, or otherwise changed in condition in a way that will increase cost or delay the work?
  2. Have site conditions changed which will materially affect the timing or cost of my work?
  3. Have I given adequate notice under my contract of any impact that the work suspension will have on the schedule and cost of my work?

Schedule, Delay, and Timing

Virtually by definition, a significant suspension of work will require a change in the schedule and sequencing of work. The schedule may also need to be changed to account for the impact caused by the new guidelines and restrictions, which will likely impact the sequencing and pace of the work. Work may be compacted or accelerated. Other work may need to be re-sequenced or performed in shifts. Some work may get pushed into different weather conditions. Here are some questions to consider:

  1. Just because the work may proceed on May 1st, it doesn’t mean it should proceed. Has the schedule for resuming the work been carefully considered and agreed to by the principal participants?
  2. Are all contractors, subcontractors, suppliers and labor needed for the project available and ready to proceed with the work?
  3. Is there a revised schedule for the project and if so, how does it affect my work?
  4. Does the schedule allow for the extra time and inefficiencies caused by the new safety and crew size restrictions?
  5. Since the new guidelines and restrictions limit the total number of workers who can be on site, does the schedule properly coordinate work times for the various trades and allocate a number of workers to each trade, and does it do so fairly and efficiently?
  6. Is the revised schedule sufficient and acceptable in the amount of time and sequencing to allow my work to be performed without additional cost, or will my work be impacted?
  7. How does the revised schedule affect my exposure to liquidated damages?
  8. What was the status of the schedule at the time work was suspended and what responsibility could I have for delay that pre-existed the suspension?
  9. Do I need to request a change order for additional time and money?

Impact of COVID Safety Regulation on the Cost and Timing of Your Work

For now, the “new normal” for construction work in Pennsylvania will incorporate a full regime of COVID based health and safety regulation. These regulations run the gamut from temperature screenings, limitations on the number of workers and visitors, staggered schedules, frequent sanitation and disinfection, personal protective equipment, and governmental inspection of site conditions. Here are some questions that should be asked:

  1. Will I have access to sufficient labor to complete my work?
  2. How will limitations on the number of allowed workers and visitors affect the volume, timing, progress and sequencing of my work?
  3. Under the government’s guidelines and restrictions, can my work be performed with the same efficiency, and within any new schedule’s requirements?
  4. Who is responsible for complying with the governmental safety and health regulations regarding temperature screenings, sanitation and disinfection of common areas and high traffic areas, handwash stations and what responsibility do I have to enforce compliance?
  5. What change order requests do I need to consider submitting to protect my right to recover cost or additional time resulting from new regulation and restrictions?

Cost and Legal Impact of Project Suspension and Restart

  1. How has the work suspension and the COVID-19 crisis impacted the availability of material and labor required to complete my work?
  2. How has the work suspension and the new guidelines and restrictions in restarting work impacted the schedule?
  3. How does any change in schedule affect my costs to complete my work?
  4. Have I given the required notices of delay or cost impact within the time required under my contract?
  5. What further notice must be given under my contract to preserve a claim for cost or time impact caused by the delay and impact to the schedule?
  6. Does the delay and changes clause language in my contract need to be modified to account for changed conditions and the new guidelines and restrictions affecting my work going forward?
  7. Do I have new legal exposure under the indemnity language in my contract based on risks associated with working under the presence of COVID conditions?

Before re-starting Pennsylvania construction work, an assessment of changed site conditions, cost and time impact due to the work suspension, new guidelines and restrictions, and any changed legal exposure must all be considered. Our construction group at Kaplin Stewart is available to discuss answers to these and other questions that your company may have about re-starting construction work under these unique and unprecedented conditions.