Review of contract clauses to address post-pandemic challenges

Abstract

Since the evolution of the Universe from a billion years ago to date, the developing World's history has witnessed several crucial pandemics emerging either in individual continents or globally from time to time. Out of all occasions, a few but deadly plagues have caused socio-economic transitions from good phases to troublesome ones, with their impact on living beings being drastic. Such epidemics occurred within a particular timeline and ended with the HIV epidemic. In addition, the present pandemic, too, the so-called COVID-19 outbreak, did not come to an end but compels the entire globe to find avenues to live together or cooperate with it rather than running away to hide or outfighting. Connolly (2021) predicts 3% to 7% probability for a new pandemic to happen, for which the general population has less or no immunity, causing the disease to spread globally. Simply, it is to noting that from the year 2020 to date, there are still a lot of states at present living together with SARS-CoV-2 (Corona) virus embracing it as normalcy in their day-to-day existence as a nation competing with allied influence rising. Nevertheless, no surety can be expressed that there will not arise any more epidemics or pandemics in the future, as a new or variant similar to those experienced, infectious or fatal with high-end impact compared to the present. As a result of it, the Construction industry, like all other commerce, has been compelled to draft its own strategies to encounter the challenges identified on pandemic grounds as a force majeure event to keep its goals alive. Therefore, the industry experts have become very inquisitive, vigilant & intense to redraft standards, reform common laws, re-texting regulations in finding remedies to form avenues to secure in achieving the predetermined construction objectives; Time, Cost & Quality governed by construction Contracts against damages, disruptions & losses. Standard construction contracts are to serve the parties impartially when and how the economic and environmental phenomena under Force Majeure are to be handled in favor of the party at default on justifiable grounds. When it happens, delay & disruption over the work progress due to enormous reasons beyond any party’s control, the consequences for the end delivery will be compensated in time as per Contract terms. Usually, an extended time period endurable to the responsible party is conventionally granted at zero liability for monies over it. It is a covenant by agreement to waive off the financial liabilities to one party by the default against late completion, with valid proof of the case, subject to Force Majeure. Exercising sole discretion to reject the time extension by the employer himself only implies that the resultant delay in completion under the pandemic is not identified as “concurrent” though either a unique or all parties are being “concurrent victims” within the same time span of that particular force majeure event. Hence, the core issue in this research is: “Can one party claim any delay & disruptions when both parties are truly harmonized in a pandemic at the same time, which is actively in force when the Contract is awarded? As in most recent Contracts signed during the pandemic, the contractors have been compelled to lose their contractual entitlements over force majeure events, especially in pandemics, at the cost of winning the bid with injustice buttered on amended specification clauses. The amended clauses restrict the Contractor from claiming losses already incurred due to pandemic grounds, simply stating that “the bidder should be aware of all disruptions & constraints due to pandemics by the time it signed” as the Contract is offered in a period where the pandemic is still in force, which is beyond the Contractor's control. Therefore, it is totally injustice to intimidate the Contractor since both parties are synchronized in a force majeure event that is equally affected. Therefore, this research aims to find the avenues to defend the Contractor’s interests in Contracts signed during the pandemic, as a force majeure event is in force. The aims & objectives are addressed from the point of Contractor’s view as he is always subjected to losses & damages due to reasons beyond his control, unjustifiably.