After almost a year of dealing with Covid-19 related shutdowns and disruptions, public sector tenders and contracts do not include any clauses that deal with the pandemic. This is according to construction and technology law experts, MDA Attorneys, following a recent review of the contract conditions of several tender packages posted for public sector work.
“Clearly the pandemic can no longer be unforeseen and treated as a force majeure event, which is the provision most claims have relied upon during the significant disruptions of the past year. The ramifications are not only foreseeable (such as levels of lockdown which restrict movement) but they can now be provided for in contracts and tenders. Covid-19 is likely to continue to wreak havoc on South Africa’s construction sector for at least another year and parties need to be agile and prepared for further possible repercussions,” says Natalie Reyneke, Director at MDA Attorneys. Areas of impact The most common matters dealt with by MDA’s clients were identified and relevant clauses to deal with these issues were added to public sector tenders and contracts:- Works on site were suspended or completely halted.
- Border closures affected the supply chain, materials and goods delivery.
- The restriction of movement meant demobilising workers from sites and necessitated additional travel arrangements.
- Health and safety measures had procedural and cost implications.
What can be done?
In view of the uncertainty surrounding the pandemic, parties who commission work (employers) may be faced with time and additional money claims from contractors. “Since Covid-19 and its potential impacts on the time and cost of a project have not been factored into the tender documents, we are advising our clients to include them as early as possible. A key issue to be agreed is whether pandemic-related issues should be a shared risk between both parties,” says Reyneke. The clauses of a contract that should be amended are now much simpler to identify. They include:- delays and/or other events preventing performance, which will entitle a claim for extension of time with related costs,
- access, mobilisation, demobilisation to and from site,
- health and safety,
- price adjustment, escalation in supplier costs,
- types of insurances to be considered for proper cover relating to certain unforeseen events and the impact, as a result as well as
- termination of the contract.