Suspension of Construction Site Activities
LAST UPDATED APRIL 3
While types of construction projects have been re-defined in the essential service list on April 4, 2020, many project sites have suspended their activities during the COVID-19 pandemic. Members must be diligent in recording discussions at this time, with decisions only made after obtaining advice of their own lawyers based on the specifics of the situation and contractual obligations. Performing effective risk management, as well as managing expectations of stakeholders, is critical.
Given that this pandemic is both unprecedented and rapidly evolving by the day, architectural practices should consider reviewing the following questions in relation to any project where construction site activities are being suspended. This is not intended to be an all-inclusive list, but is offered to generate discussion.
Client/Architect Agreement Administration
- Have you reviewed your agreement (both base contract and supplementary conditions) with your lawyer, looking for clarity on all applicable clauses, including those dealing with time being of the essence, delays, force majeure, and suspension of projects or services?
- Do any notice requirements apply? Have they been met?
- Have you communicated with your client and the contractor to understand their anticipated actions and to evaluate their approach to the situation? Is there already a cooperative effort at this stage?
- Will suspension lead to either party being in a position to terminate the contract? Can you renegotiate such provisions at this time?
- Does the contract require you to provide copies of the instruments of service or other documents to the client if services are suspended?
- Does the client want any extra services from you? Have you clarified with them what is in your contract and what will be extra?
- Of the services included in the contract, have you alerted the client to those billed on an hourly basis?
- Will any of the actions the contractor is proposing result in extra work for you and a request for extra fees? Are you following the correct process established in the contract to enable you to claim extra fees?
- Will any of your actions result in a request for extra fees? (If so, are you following the correct process established in the contract to enable you to claim them?
Construction Administration: Office
- Have you reviewed the suspension terms to determine whether it is initiated by client, contractor, or the government?
- Have you reviewed your contract and other documents for clauses about site closure and stopping work?
- Have you reviewed the current status of the project with the client and the contractor? (This includes discussing the valuation of work at the time of shutdown to create a clear baseline for the project team. See the “Construction Administration: Site” section below.)
- Are you keeping records, paperwork, and correspondence relating to the site closure?
- Have you discussed remobilization strategies with the client, contractors, and consultants, including the possible extra costs (e.g. mothballing and change in duration of services)?
- It is unlikely that the provisions in the specifications, contract or supplementary conditions fully anticipated the current evolving situation. Neither the client nor the general contractor will have allowed for the potential extra costs that will be incurred. Where the contract provisions are unclear or inadequate, how are the questions about who bears the extra costs being addressed?
- Are the parties willing to negotiate changes to the contract now to avoid disputes later?
- Have you advised the authority having jurisdiction (AHJ) of the closure in writing?
- Is the contractor’s billing to the client—as well as any issuance certificate of payment, etc.—up to date?
- Will a special field review be required and certificate for payment need to be issued for the period of time up to suspension?
- Have you returned reviewed shop drawings or construction administration-related paperwork? Did you update your tracking documents for such documents?
- Have you alerted the client, contractor, and consultants of any paperwork in their possession that needs to be processed before suspension of services?
- Have you reviewed any services that need to be maintained during the shutdown, such as heat, hydro, and security?
- Have you reviewed with the client, contractor, and consultants any construction activities that cannot stop immediately, such as (but not limited to) concrete curing or de-watering?
- Is there time limitation for authorities for approvals or permits? Can these be extended?
- Have the conditions of any bonds and insurance policies been reviewed by the client, contractor, and their legal representatives with respect to suspension of construction?
- Have the bonding companies and sureties been properly notified?
- Have the implications or the changed conditions been reviewed with the surety and insurers?
- Have the conditions of any bonds and insurance policies been met?
- Is there an requirement for the extension of the bonding or insurances?
- Have the discussions with Sureties and Insurers been documented in writing?
- Have you reviewed with client, contractor and consultants the responsibility for providing and arrangements for funding any unanticipated services or expenses that arise during the suspension of the work? Have you suggested to the client and contractor that they provide updates to the project team over the course of the site closure?
Construction Administration: Site
- Have you and the consultants recorded the status of the overall work on the site and the status of each trade working with the consultants?
- Are the consultants preparing reports that outline activities that must be done in order to suspend construction activities?
- Have you considered issuing a “a suspension of construction activities” status report, co-signed by the contractor, to the owner and the municipality?
- Have you discussed with the contractor a realistic timeline for suspension of construction site activities? This may include:
o critical work to be completed (e.g. concrete curing, building envelope, electrical safety, and mechanical safety);
o securing of site and construction materials;
o site safety;
o clearing/cleaning site; and
o site deliveries.
- Are building materials properly stored and waterproofed?
- If the contract administrator is located on site, are all site files, samples, and drawings secured?
- Have you identified the status of the AHJ regarding permitting?
- Have you identified potential problems/risks with the site closure?
- Will the contractor provide regular status updates to parties during the closure?
- Is the project/site ready to recommence work ASAP?
- What temporary work is required (e.g. shoring and bracing)?
- What health and safety protocols should be in place to avoid/minimize COVID-19 impacts in the future, both on the site and in offices?
Provided they can be performed safely in compliance with appropriate health and safety measures, here are some examples of work (both office and site) that may be able to continue during a construction shutdown:
- any work related to marketing or client-keeping;
- work related to new projects, including:
o site surveys of buildings;
o retention and coordination of consultants; and
o preparation of drawings and reports for submission to AHJs (e.g. committee of adjustment and site plan agreements);
- processing of applications for payment, and preparation of certificates for payment;
- review of options related to deferral of work and the calculation of substantial performance;
- completion of field reports;
- coordination with consultants;
- electronic receipt and review of shop drawings;
- receipt and review of material samples;
- receipt of and responses to RFIs;
- preparation and processing of Supplemental Instructions (SIs) and change documents;
- review of material submitted as close-out documents (e.g. warranties and operation & maintenance manuals);
- review of as-built drawing submissions;
- preparation of record drawings;
- construction coordination meetings with owner, architect, consultants, and contractor (to review existing ongoing items or future conditions that may required for pre-planning or coordination); and
- Archiving of project material.
Firms should anticipate issues related, but not limited, to:
- financial hardships;
- contract amendments;
- requirements for value engineering;
- supply chain issues and availability of materials;
- time and weather impacts on the site and the work completed prior to closure; and
- delays due to equipment access or getting qualified staff.
Keeping detailed records prior to, during, and after the closure will be critical for every firm.
Here are some suggested items to consider prior to remobilization. This list is not exhaustive as every project is different:
- Remobilization strategies should be discussed at the time of the site closure and agreed-to approaches documented for the client/contractor/architect-consultant team. This may help expedite the restarting of the work, bearing in mind the approaches may need to be reviewed depending on the length of the suspension
- Any project start-up checklist you use should be reviewed and modified as needed to suit remobilization.
- All permits and authorizations should be reviewed to determine if any have lapsed.
- Should there be changes to the scope or sequence of work so that delays to the project schedule can be mitigated?
- A remobilization planning session will help determine whether trades are available, the timing for remobilization, and the accessibility of products and materials.
- Post-suspension, the remobilization kick-off meeting should involve talking to the client, contractor, and consultant team about procedures and priorities.
- Doing a site visit prior to remobilizing will help assess impacts (e.g. weather damage, vandalism) that may require issuing changes or directives to bring the site back to pre-suspension status.
- Reconnecting with the AHJ to advise the project is restarting will allow you to confirm the permit is still valid, inspections are available, etc.
- Revise project milestones and get an updated construction schedule to help with staffing and work plan for key team members.
- Formal disputes are likely to arise from COVID-19-related delays or suspensions. The architect should prepare or organize material required to defend or to assist in such dispute.
- The architect-client agreement should be reviewed and amended as appropriate.
Other Sources: For additional guidance, review the Canadian Handbook of Practice (CHOP), the OAA’s Mastering The Business of Architecture (MBA), the OAA’s COVID-19 Updates page, or other sources on the