01st April 2020
The Coronavirus pandemic has affected all aspects of our schools. Here we answer some of your most pressing questions relating to estate management and construction contracts.
Q: What should we be doing with our unoccupied buildings?
A: It is unlikely, even in these extraordinary times, that an education building will be completely unoccupied for the long term. Whether a building is fully or partially occupied the duty holders within an organisation still have an obligation to ensure the health, safety and welfare of employees. This means adhering to statutory legislation and guidance on buildings compliance in key areas such as:
In current circumstances, Water safety is a particular risk as water usage drops and promotes the conditions for legionella bacteria to develop. Testing regimes should be maintained and particular attention paid to areas of the building with low usage.
Where sites have lower occupancy rates and occupants are more vulnerable, care should also be taken to ensure fire detection and warning systems are fully operational.
There is also the opportunity to save energy and utilities costs by switching off non-critical appliances or altering building management systems to reflect changes in occupancy.
Deep cleans should be scheduled prior to reoccupation once dates for reopening of sites have been established.
Q: What safeguarding and security measures should be put in place?
A: The DfE published detailed guidance on safeguarding on 27th March 2020 and this was widely circulated.
We note below some specific issues relating to physical safety and site safety within the sphere of estates management.
There are no changes to the requirements for DBS checks but these procedures should be reviewed if changes in staffing arrangements have meant that new or different people are coming into contact with students.
With possible changes to the site’s normal access arrangements, care should be taken to ensure the security of the building and the site perimeters.
With skeleton staffing arrangements widely in place, lone working is more likely and provisions should be put in place to monitor and protect those classified as lone working.
If you have a live building project and works have been suspended due to Coronavirus the Construction Leadership Council (CLC) has published guidance on how sites should be left.
Q: Should building works be continuing at my school?
A: Employers and Contractors should carry out their own risk assessment on each site to determine whether or not it is safe for works to continue.
The formal government position with regard to construction sites being open is that construction work should continue. This was reiterated by Alok Sharma MP, the BEIS Secretary of State in an open letter to the construction industry on 31/03/20
This is also the formal position of the Construction Leadership Council (CLC) with the codicil that sites should operate in accordance with Public Health England (PHE) instructions; without compromising health and safety; and in accordance with the Site Operating Procedures (SOP) issued last week by the CLC.
If it is not possible to work in accordance with the PHE instructions or with regard to the SOP then they should not work.
Law firm Fenwick Elliott have also suggested that Health & Safety legislation overrides government guidance and some construction firms have cited this as a reason for suspending operations.
Q: How will delays related to Coronavirus affect a building contract?
A: It seems likely that the Coronavirus will be treated as a force majeure event, at least in relation to those contracts entered into before the scale of the effect of Coronavirus became apparent.
Within a JCT Contract, force majeure is identified as a ‘relevant event’ but not a ‘relevant matter’ – while the employer takes the ‘time’ risk (and is unable to claim liquidated damages), the contractor incurs the ‘cost’ risk (and cannot claim loss and expense). Accordingly, the risk for a force majeure event is shared between the parties and seen as a ‘cost-neutral’ event under the contract.
What to do now:
The best course of action is for all parties to work together to determine how to proceed, please see the following points for consideration:
• Agreeing that the current events are a Relevant Event, thereby enabling an extension to the Completion Date without the contractor incurring liquidated damages.
• Where possible, continuing work on site for the time being, potentially with alterations in sequencing of work and/or numbers of workers on site in order to adhere to Public Health England’s guidance on distancing and work in accordance with the Site Operating procedures (SOP), published by the Construction Leadership Council which align with the latest guidance from Public Health England.
• Agreeing more frequent valuations and payments both to aid contractor cash flow and to ensure projects are valued up-to-date in the event that sites are forced close.
• Jointly deciding to suspend works and agreeing how to allocate the costs for such suspension.
This is a summary of a more detailed guidance article. Other forms of contract treat force majeure and delay events differently. For more information on this issue, CLICK HERE for the full article by Daniel Bowler MRICS, Chartered Quantity Surveyor at Barker.
This article if for guidance only and does not constitute legal advice. Every building, site and construction contract is different and these unique factors must be taken into account when assessing appropriate actions or determining duties under legislation. The situation surrounding Coronavirus is changing rapidly so this advice could quickly change.
If you require advice relating to the management of your estates or a specific building project, please contact Barker on 01279 647111 for assistance.