From the SA Executive Director – COVID-19 considerations for the design and construction sector

COVID-19 – Considerations for the design and construction sector

 

Architects, like many other professionals and business, are feeling the impact of COVID-19 pandemic, and the recent escalation in the global response prompting an earnest consideration of how architects should respond.

The ACA has undertaken a survey to assess the impact being experienced by architectural practices. The Institute has and continues to provide HR advice, and in that context is asking members to advise us of issues and concerns as they arise, so that we can develop resources and support the profession.

Working from home is not a straight-forward solution for architects, who rely heavily on digital technology which may not be easily relocated from the office to staff residences. Architectural practice is also characterised by a high degree of collaboration and on-site activities. While meetings with consultants, clients and other stakeholders may be able to be held via phone/video conference where appropriate technology is available, on site activities to monitor construction are not able to be substituted for remote access options. There would be too much risk associated with a virtual inspection, where the architects would be completely reliant on the contractor to provide them with a comprehensive and objective understanding of the extent, quality and compliance of the construction.

The impact of the COVID-19 pandemic also extends to the ability of contractors and sub-contractors to continue with activity on site. Supply of materials – especially those sourced offshore – is already being impacted. Availability of skilled tradespeople to attend site is also likely to be impacted with the increase of cases identified in Australia and the increasing government requirements being introduced to contain the spread of COVID-19.

From a contractual perspective, there would appear to be three (3) categories of projects to be considered:

  1. Projects which commenced prior to COVID-19 being identified

Architectural projects often take a long time to complete, so it is expected that all practices will have projects in this category.

If the project commenced prior to COVD-19 being identified, clauses relating to a force majeure event may apply, however the breadth of the clause is clearly a relevant factor. Architects working on projects which do not have provision for force majeure events, could certainly be at risk.

Architects should review their services contracts and seek legal advice. In addition, Architects should also familiarise themselves with provisions for extension of time within the construction contracts for their on-site projects. (NOTE: ABIC SW Contracts do not specifically provide for force majeure events. Clause L2.1(b) provides for extension of time without costs in the event of circumstances not listed in Item 21 or Schedule 2)

  1. Projects commenced after COVID-19 was identified but before it was declared a pandemic by the WHO

These projects are likely to have defined program parameters and be in the design/documentation phase, but are less likely to have been tendered for construction.

There is a risk that force majeure provisions will not apply for projects in this category, as COVID-19 was known and arguably a risk that could have been addressed. Counter to that, it could be argued that the impact and reach of COVID-19 was not fully understood and is still unclear.

Architects should review their Client/Architect Contracts and familiarise themselves with the provisions for amendment to the agreed program. Architects should inform their client of the cause and likely duration of any anticipated delay in writing. If unsure, seek legal advice.

  1. Projects commenced after COVID-19 was declared a pandemic by the WHO

Given the rapidly changing conditions and responses to COVID-19 it would be prudent for architects to inform clients/prospective clients that they are unable to specify a construction start date or duration of construction at the current time, as they will be subject to conditions beyond architects’ control. Design and documentation can presumably be progressed in the interim, unless things deteriorate dramatically. Qualification regarding program should be clearly stated in architects’ services submissions and in contracts.

Given the level of uncertainty that COVID-19 is causing, the Institute recommends that architects maintain clear and regular communication with clients and stakeholders. It is our experience that good communication is instrumental in minimising disputes. The aim should be to collectively develop a response to the current situation that recognises the known risks and provides flexibility for unknown future events.

For example, it would be prudent for the client and architect, and where applicable the contractor, to discuss the relative impacts of delaying the commencement of construction until the pandemic is resolved as compared with commencing construction and potentially having to close the site down prior to completion. Potential risks with having to suspend construction mid-build include damage to the structure on site due to weather or vandalism and the costs associated with demobilising and remobilising.

Architects may also review the documentation to substitute imported materials with local materials. Before proceeding they should discuss the impact on the design and budget with the client and negotiate revised fees for the additional scope of service. They should also consider whether this will be effective in minimising the risk of delays to construction, which may also result from restricted access to tradespeople to undertake the works.

The risk is that in informing clients that construction may be delayed, that projects will be put on hold, resulting in loss of income to the practice. This will cause some architects to follow a business as usual approach, which will leave them at risk of breach of contract. It’s a catch 22!

The Institute will continue to monitor the situation and provide updates where relevant. The ACA and SA Chapter are developing a collective response to DPTI to clarify how government will respond to the current situation.

We encourage members to call (8402 5900) or email (sa@architecture.com.au) the SA Chapter with any queries or concerns that they may have. This will enable us to better understand the situation and the issues being experienced. It will also allow us to more effectively liaise with other design and construction stakeholders. A coordinated and reasonable approach is required to minimise the impact of COVID-19 on our profession, the construction sector, the economy and the broader community.

Awards entrants and site visits

In light of the current COVID-19 situation the Institute have decided that it is no longer appropriate to co-ordinate physical site visits for the next judging round of the SA Architecture Awards 2020.

How the next stage of judging will be coordinated and when it will commence is still in discussion,  we will keep you up to date with further information as it becomes available. We are working closely with the National team to achieve consistency across all Chapters.

We are entering unchartered territory so we appreciate your understanding and patience as we navigate through this. Please update your clients that we are acting as quickly as possible to find a solution to move forward and will be in touch in due course.

Institute meetings

Please note that all face-to-face Institute events planned from now until 29 May 2020 will not take place in their current form. These include CPD, education courses, member events, Chapter Council meetings and other committee meetings. Where possible, these will be replaced by Zoom (a video conferencing tool), which is the Institute’s preferred option, or other online services if required. As information is constantly being reviewed and updated, if unsure members should refer to our website or call the Institute for clarification. Stay in good health.

Nicolette Di Lernia
SA Chapter Executive Director

This is general advice only and has been reviewed by FBR Law https://www.fbrlaw.com.au/

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