Navigating Business through a Global Pandemic: More Advice for Contractors

Navigating Business through a Global Pandemic: More Advice for Contractors

By Stuart Detsky and Victor A. Bandiera

 

In our last article we provided advice for contractors in order to minimize the impact of the pandemic on existing projects. In this article, we will provide advice to contractors who are intending to bid new work and/or enter into new contracts for construction or service projects.

Global Pandemic Advice for Contractors

Force Majeure is Not the Answer

While contractors are certainly getting legal advice about force majeure clauses and how they may assist with ongoing projects, these clauses are not going to be very useful for new projects. The main concept that  guides force majeure clauses is that the circumstance that  triggers the  clause is “unforeseen.” Considering the worldwide prevalence of COVID-19 and the many steps governments have taken to combat the spread of the virus, no one will be able to argue that potential future impacts to a construction project are unforeseen or unanticipated. Therefore, contractors must take different steps to protect themselves.

No “Get Out of Jail Free” Card

While open and honest negotiation will result in fair contractual language, contractors should not expect that impacts of the pandemic will allow the contractor to be relieved of their obligations. As stated above, arguments relating to force majeure or related concepts, such as contract frustration, are highly unlikely to be successful for new contracts, based on standard contract language.

There is no one perfect clause that could be inserted into a contract (or into a surety bond) that will discharge the contractor or negate any potential default allegation. Contractors should not expect their lawyers, advisors, brokers, lenders or surety companies to have a simple paragraph that will solve all their potential problems. It is also doubtful an Owner would accept just a one-sided amendment. Only by taking a proactive and comprehensive approach to new contracts can  a contractor best protect itself. To avoid  potential disputes the parties should prepare a project risk matrix, so the parties understand the risks and responsibilities.

Anticipation of Impacts

While some potential impacts of the  pandemic are far-reaching and across the  board (such as the  Quebec government’s three-week shutdown of most non  essential construction projects) many others will be specific to the region the  project is located, the  type of work to be performed, the  labour, material and subcontractors required to complete the  work, the  cashflow required to finance the  work and the  anticipated duration of the  work.  Contractors must review all the  potential impacts when determining their price and proposed schedule for the  work and especially if they will be providing a fixed price (for the  entire project or for unit prices) with set completion dates. Contractors must review the  proposed contract form from the  owner and analyze how such impacts are dealt with in the  language of the  contract. Before a tender closing, it is critical for contractors to ask an owner or its representative the  right questions in order to have clarity on how the  owner and contractor will move forward depending on the impact. Some of these questions might be:

  • What happens to the  project schedule if a government body mandates the  site’s closure? Does the  contractor receive any compensation for this delay and to protect the project site?
  • What happens if required materials are delayed due to manufacturers and/or distributors being unable to produce or deliver?

  • What happens if construction work is allowed to proceed but  only when workers are a certain distance apart, but the  work required for the  project necessitates working in proximity?

  • What happens if too  many people become ill such that  required labour is impossible to procure?

  • How can a contractor provide updated schedules if subcontractors and suppliers are unable to provide the necessary information given the current circumstances?

  • Will owners and owners’ representatives be attending on site as required by the  contractor; and if not, how will that  be addressed?

  • Will the contractor be compensated for the additional project management time to continually re-assess and reschedule the project more than normal?

  • What if proper safety supplies are not available to allow contractors to meet the guidelines established by the local Public Health Units and the applicable Ministry of Labour?

  • What if workers fail to show up to work due to fear of the virus spreading or notice of confirmed case on the project site?

  • What if testing and inspection agencies do not issue proper permits nor come do the required inspections?

  • What if equipment or repairs and parts from dealers or manufacturers are unavailable?

  • What if critical services to the site are interrupted such as cleaning crews and sanitation and waste services?

  • And in the worst-case scenario, what happens if the event of sickness or death of a key project member for any party (owner, contractor or designers)?

The best place for a contractor to protect itself is in the  contract form. A modification to a surety bond alone will not resolve contractual issues and guarantee payment etc. Most contracts have provisions to deal with change that can lead to delays.

Pricing the Work

Even if a contractor gets answers to all the questions above, it should not assume that cost increases due to the impacts of the pandemic will be provided by others. Therefore, contractors should be considering:

  • Cashflow needs of the project considering that certain receivables (e.g. holdback receivables in Ontario) may be delayed for payment

  • Extended duration of projects will lead to increased overhead including construction loan financing, insurance and surety bond premiums, and other general project costs, including potential climactic condition work that the original construction schedule (including sequencing and delays) did not anticipate

  • Site security and project protection costs if site is shutdown

  • Labour costs may increase due to scarcity of qualified people

  • Material costs may increase due to increased shipping costs, manufacturing reductions/backlogs and raw material unavailability

  • Subcontractors and key suppliers might be more likely to default so consider the performance security measures

  • Health and safety costs will surely be elevated

During the Work

As mentioned in our last article, good communication between all parties is essential to minimize impacts, which is always true, but  especially relevant now. Other items to think about are:

  • Organizing and documenting such communication as well as the status of the  project constantly including project schedule updates will be extremely important

  • Any verbal discussions should be confirmed contemporaneously in e-mails. Contractors should consider adding an additional project-specific e-mail address (with access by key employees) to copy correspondence sent by individuals in order to document chronologically and manage the challenge of people working remotely

  • Photographs and videos of site conditions should be produced regularly and especially as issues arise (including potential lack of productivity due to the limits of social distancing). Ensure they are dated, include proper description for future reference and saved to company server that is backed regularly

  • Remote project surveillance is something becoming more available for live feeds of the  site and to document the status of work over  its duration

  • Site personnel must be diligent at maintaining a project site diary daily given the  circumstances. Entries should be made multiple times during the day so the multitude of issues arising daily do not get missed

  • Project schedules should be updated more regularly and even informally (such as using two-week look-ahead by work area), but  should still tie back to the overall master schedule to support future impact claims. If necessary, engage the  services of external consultant to aid with the additional workload and anticipation of future claim preparation

  • Contractors must also consider heightened health and safety protocols as recommended by the relevant authorities (which will likely include additional cleaning staff and supplies)

  • Back up of project records and ensure not stored on stand alone company computers or home computers

  • Consider using document sharing services to collaborate on issues

There is a lot of essential work to be done and all the parties to a construction project must work together to meet the challenges that  COVID-19 might add to the already challenging construction environment. The parties that recognize this and openly discuss the  existing and potential future challenges and reasonably deal with the potential impact costs fairly amongst each other will likely forge relationships that will last a lifetime.

Please continue to reach out to your Trisura contacts for any further questions or concerns.

Trisura’s COVID-19 Update – April 1, 2020

Trisura’s COVID-19 Update – April 1, 2020

April 1, 2020

With the continuing need for social distancing and work-from-home declarations from governments across Canada, we wanted to address questions that we have been fielding from our broker partners:

Property and Casualty Solutions

As businesses across various industry sectors focus on implementing work-from-home measures in compliance with increasingly strict governmental stay-at-home mandates, there will be a need for them to have significant operations off-site of their principal business locations for the foreseeable future. Trisura recognizes that the insurance needs of our insureds may be impacted by this and are implementing the following supportive measures during this difficult time:

Mobile Communication Equipment Coverage

This extension is already included under our “Commercial Property Extensions of Coverage”. Effective immediately, we will increase the current Mobile Communication Equipment limit provided under the Automatic Extensions of Coverage on all of our Property policies by $10,000 per occurrence at no additional premium. The terms and conditions of this endorsement can be reviewed here: COVID-19 Mobile Communication Equipment Extension Endorsement. If higher limits are required, please contact a member of the Property and Casualty Solutions Team.

Unoccupied Insured Locations

Where a state of emergency declaration has been made by a Canadian public authority, Trisura will not consider locations unoccupied or shut down if they still contain sufficient insured property to conduct normal business operations and as long as the insured is visiting the covered premises a minimum of every seven days (when possible) and exhibits a proactively prudent level of care, control, and maintenance of the property. This includes ensuring doors and windows are locked and adequately maintaining security systems and utilities. This extension does not apply to vacant buildings. A building will be considered vacant when it does not contain sufficient insured property to conduct normal business operations. This coverage extension may be subject to adjustment in the event Canadian public authority declarations are changed or updated.

The Trisura Property and Casualty Solutions Team

Specialty Insurance Solutions

Legal Helpline with HR Assist

Your clients may have legal questions arise as they navigate this challenging business landscape. With our complimentary Legal Helpline, all Trisura Specialty Insurance policyholders have unlimited access to legal information and general assistance for any legal question, regardless of the area of law. The Legal Helpline now features HR Assist, where policyholders can consult with a certified Human Resources specialist to help them effectively manage their HR issues.

Exclusive for policyholders, the Legal Helpline with HR Assist provides invaluable assistance with navigating the legal system, helping individuals avoid unexpected legal expenses. It is available 24 hours a day, seven days a week in both English and French.

To learn more about this service, click here, or contact your Trisura Specialty Insurance underwriter.

Surety

Trisura’s Online e-bond platform

In the current landscape of social distancing and self isolation, people have been wondering how working remotely every day might impact business processes. When it comes to processing bonds, business can continue as usual thanks to smart digital platforms. In fact, the Surety Association of Canada also promotes digital or e-bonds as a way to replace traditional paper bonds.

Unlike the paper alternative, e-bonds can be issued any time, anywhere. If security of the bonds are a concern, fret not: the bond is a completely secure document with a unique fingerprint that can be verified online.

Our e-bond FAQ can help you get started, click here to learn more or contact your Surety underwriter.

All of our staff will continue to be available. We will be monitoring COVID-19 developments and will provide updates via email and on our web-site at www.trisura.com. You can also contact any member of our team if you have additional questions.

Trisura’s COVID-19 Update – April 1, 2020

Trisura’s COVID-19 Update – March 23, 2020

March 23, 2020

With COVID-19 impacting all regions of Canada, we wanted to provide an update on the status of operations at Trisura and to address questions that we have been fielding over the past week from our broker partners.

Status of Trisura’s Operations

Trisura instituted a work-at-home policy for all 135 staff across our five offices in Canada on March 16. All staff are available via email and all direct dial phone numbers have been redirected to their mobile phones. We are open for business and we are here to help you.

Insured Coverage in the Event of an Emergency Declaration

In the event an emergency declaration is made by a Canadian public authority, Trisura will extend in force insurance policies that expire during the period of the Emergency Declaration if you are unable to get in contact with your clients. The terms and conditions of this extension for those insureds who are impacted by the emergency declaration can be reviewed in the following endorsements:

Fidelity and Media liability policies will have endorsements with similar language read into them.

Payment of Premiums

Premium payments to Trisura are not due until 60 days following the end of the month a policy/bond becomes effective. If you are having difficulty collecting premium from your client, please be assured that Trisura will not cancel an insurance policy for non-payment of premium as per the Emergency Declaration coverage noted above. If you have specific concerns on a file, please contact your Trisura underwriter.

Remittance of Premium to Trisura

Trisura accepts payments from our broker partners via Electronic Funds Transfer (EFT) or Wire Transfer. For further information regarding electronic payments, please contact Teresa Galati in our Finance Department at teresa.galati@trisura.com.

Policies That Have Been Paid via a Premium Financing Company

When an insured finances their insurance policy, they provide the premium finance company with a power of attorney which allows them to cancel the policy in the event of default by the insured. As a result, Trisura has an obligation to cancel policies upon instruction from a premium finance company. We recommend that you contact premium financing companies to make arrangements in order to assist any of your clients in need of repayment relief during this time. This would be a proactive measure and may help avoid the premium financing company canceling policies for non-payment.

Issuing Surety Bonds

As many of you have made alternative workplace arrangements, we want to ensure that you can continue to issue Trisura surety bonds. Trisura has the following options available to assist:

  • Trisura e-Bond: Trisura is the only surety company in Canada to offer a proprietary e-Bond platform for all types of surety bonds. Bonds can be issued digitally, with an e-seal and e-signatures, by logging into the broker section of www.trisura.com and clicking on the e-Bonds tab.

  • Taking seals home: If needed, you can designate individuals with existing power-of-attorney to take a Trisura seal to their home and ensure that the seal is safeguarded while out of the brokerage office. Please take care in diarizing who is in possession of the seal at a given time and continuing your practice of recording issued bonds.

  • Requesting additional seals: If you think it would be prudent to have an additional Trisura seal available to you during this time, please request one by contacting Sarah Mainella at sarah.mainella@trisura.com.

Surety Indemnity Agreements

Effective immediately, Trisura will only require a scanned copy of an indemnity agreement in order to finalize surety facilities and issue bonds. We request that the original indemnity agreements continue to be sent to the local Trisura office as soon as possible, in order to complete the file.

Underwriting Continuity

Trisura prides itself on being expert underwriters in the lines of business that we underwrite. We do not anticipate any change in our underwriting appetite or in the products we offer.

Return Premiums Due to Exposure Changes

Trisura does not underwrite using retrospective rating methods for our products. During the renewal process, we will be underwriting the account based on the actual revenue figures, with the premium being commensurate with the risk.

Cancellations of Policies Mid-Term

If an insured requests cancellation of their coverage mid-term, Trisura will calculate any return premiums on a pro-rata basis. Minimum retained premiums on policies will also be waived until the Emergency Declaration has passed. With respect to claims-made policies, we recommend that you discuss with your client the impact of cancelling coverage as they will have no coverage on a going-forward basis once the policy has been cancelled, in terms of both their ongoing operations or services and for the reporting of any actual or potential claims.

Claims Services

Trisura’s claims services can be reached by contacting the following:

Insurance Claims: claims@trisura.com

Surety Claims: suretyclaims@trisura.com

Claim Payments

Trisura’s claims and finance departments are working together to ensure that claim payments continue to be made in a timely manner.

We are Open for Business

All of our staff continue to be available and we are open for business as always. Our appetite for business has not changed and we are here to help you in any way we can. We recognize and applaud how hard the brokerage community is working to provide information, advice, and seamless service to your clients. We appreciate your efforts and we thank you for your understanding and support during these difficult times. We are confident that Trisura will continue to deliver service that is “A Step Above”.

We will be monitoring COVID-19 developments and will provide updates via email and on our web-site at www.trisura.com. You can also contact any member of our team if you have additional questions.

Navigating Business through a Global Pandemic: Advice for Contractors

Navigating Business through a Global Pandemic: Advice for Contractors

By Stuart Detsky

 

The COVID-19 virus has been declared a pandemic by the World Health Organization. Everyone in the world has been affected in some way by the virus, be it the restrictions on travel, requirements for self-isolation, cancellation of events or disruption of normal business operations. The construction industry is not immune to the potential ramifications of this pandemic. Although there is still much uncertainty about the progression and effects of the pandemic, there are steps that your contractor clients can take to minimize the impact of this event.

Global Pandemic Advice for Contractors

Communication & Information Gathering:

Contractors should contact all of their employees, sub-contractors and suppliers in order to determine how each are modifying their normal workflow due to the pandemic. Will employees be coming into the office or attending at a job site as normal? Can employees still perform their duties remotely? Do any employees need to travel in order to perform their duties and can that still be done? Contractors should be asking their sub-contractors many of these same questions in order to gauge their ability to continue to perform their sub-contracts. Are suppliers able to make deliveries as scheduled? These questions should not just be asked once, but continually throughout the next few weeks or months as plans can change drastically based on a number of factors.

Schedule:

Once a contractor has gathered the above information, it should work to update its own schedules for all projects being undertaken as well as those which were supposed to commence over the next several months. Be realistic with these schedules and maintain appropriate buffers for unforeseen events. Communicate these schedules with all relevant parties, including owners and their consultants.

Review the Contracts – Notice of Delay & Force Majeure:

Construction contracts are not consistent in how they deal with schedule changes. Most contracts will require a contractor to provide timely notice to the owner in the event of delays. For example, both the CCDC 2 and DCC DCL 250 contain requirements (in section 6.5) for notice in writing of delay. Force Majeure clauses, which are contractual provisions which provide for time extensions due to factors beyond the contractor’s control, are also inconsistent in their wording and applicability. Many contracts do not contain a force majeure clause (such as the CCDC and DCC contracts mentioned above) and even those that do may not have specific language which would be triggered by an event such as COVID-19. Although owners and consultants may be more lenient in their attitude in the near future, it is always good practice to follow the language of the contract.

Utilize Advisors:

Most construction lawyers have been writing articles, reviewing contracts and preparing action plans for their clients due to the pandemic. Nothing is simple and certain in these difficult times, and therefore it is crucial that contractors utilize their construction lawyers (or retain one if they have not used one before) for timely advice and guidance.

 

Utilizing the above best practices may take effort and resources, but will undoubtably provide value in the coming days and for the future. If you or your clients have further questions, please reach out to your surety contacts at Trisura.

 

Trisura’s COVID-19 Update – April 1, 2020

Trisura’s COVID-19 Update

March 16, 2020

Yesterday, our Business Continuity Response Committee met and we have enacted further changes in response to the evolving COVID-19 situation. As of March 16, 2020 we have:

  • Suspended all business travel
  • Suspended in-person meetings
  • Instituted a mandatory work-from-home policy

All of our staff will continue to be available as always. We will be monitoring COVID-19 developments and will provide updates via email and on our web-site at www.trisura.com. You can also contact any member of our team if you have additional questions.

Thank you for your understanding during these difficult times. We are confident that Trisura will continue to deliver service that is “A Step Above.”