COVID-19, Data, and Disputes
Resolving any dispute comes down to quantifying real data, particularly in today’s environment where a pandemic creates unforeseen conditions and an uncertain future. We’ve found that projects that are vertically oriented (such as high-rise buildings) are more susceptible to COVID-19-related impacts from social distancing requirements than horizontal projects. For example, the transporting of workers vertically at the start/end of shifts and throughout the day is impacted by limitations on allowable headcount per transport car. Studies are currently underway to quantify labor and cost impacts related to such impacts.
Parties to a construction contract should strive to estimate the impact costs. In addition to impacts from working through COVID-19, there are also time and cost impacts for projects that experience a mandated work suspension, both during and following the suspension. Parties to a construction contract should strive to estimate the impact costs that would have been paid to various contractors during the suspension, as well as the ramp-up duration and related costs, and the “burn rate” following suspension (e.g., headcount, productivity, progress) to comply with new health and safety protocols.
In all cases, the key is to quantify impacts with real data and compare the results to a typical productive day minus the COVID-19 impacts.