CONTRACTORS UNABLE to access sites due to foot and mouth disease restrictions were left in the dark this week by contract experts unable to advise whether they will be liable for costs.
Members of the industry wide Conditions of Contract Standing Committee were unable to reassure contractors facing bankruptcy despite trawling through the ICE and Engineering Construction Contracts (NCE 29 March).
'We admit our contracts do not take foot and mouth into account, ' said Drick Vernon of the committee, which includes members from the ICE, Civil Engineering Contractors Association and the Association of Civil Engineers. 'The problem so much depends on circumstances, ' he added.
Vernon said that the only strong case for a claim identified by the CSJC was one of an extension of time to the contract. But as the epidemic continues to prevent contractors from accessing sites, forcing them to abandon plant on site, the CSJC called for contractors and clients to work together towards sharing costs caused by the delays.
However, the CSJC's advice was rejected this week by Kirk & Jackson construction legal expert Ken Salmon. He said that contractors had a strong case to call for a suspension of works under Clause 13 of the ICE conditions. This assumes work has become legally or physically impossible.
Contractors may also be able to call for a suspension under Clause 42, because the client is unable to give the contractor access to the site.
If delays continue, contractors may also be able to claim for frustration, as the job becomes impossible: 'This may be if a job has to be done during the summer months and if it couldn't wait until next summer, ' said Salmon.
As clients are unlikely to agree to claims that would make them liable for all delay costs, a glut of arbitration was likely, he added.
As well as jobs delayed on site, many contracts are being delayed at tender stage as clients wait to see what happens. Construction intelligence firm Glenigan has identified over 30 contracts with delayed start dates.