Essential Work - Construction in New South Wales
In respect of the current NSW Health Orders, AIQS has received the following advice from HWL Ebsworth.
- The public health order is that construction sites must close. There is no exception for Quantity Surveying services. However, Quantity Surveying services might not fall within that order if the services were not performed on a construction site and could not be performed from home. However, it would be prudent for AIQS members to assume the restrictions apply.
- With respect to undertaking site inspections for progress claim purposes, Quantity Surveying services are not a basis for which the Contractor could be on site. The only permissible reasons for a person being on a construction site are:
- to ensure the safety or security of the construction site,
- to deal with environmental risks,
- to maintain critical plant or equipment that would otherwise deteriorate,
- to receive deliveries of supplies that would otherwise deteriorate,
- to maintain public utilities,
- to ensure the safe operation of existing transport infrastructure,
- by or on behalf of NSW Health in response to the COVID-19 pandemic,
- because of an emergency.
- In relation to the contractual implications where Quantity Surveyors cannot undertake progress claim inspections in accordance with the terms of their engagement, this will depend on the wording of the contract. If there is a legislative change clause it will be covered by that. It might be a suspension under the contract or a contract change or variation as member contractors cannot be provided with access (the QS is not at fault). It may be (but usually isn't) a force majeure event if the contract has such provisions.
AIQS members should also review extension of time provisions and dates for completion if these are affected and the provisions in contracts for notices required for such circumstances (which could be a bar to a time claim in some circumstances).
It should also be noted that advice may be able to be obtained regarding exemptions from NSW Services/NSW Health and if any AIQS members do feel they need to attend a site an exemption should be sought with an exemption notice being obtained prior in case there is a COVID event relating to the site.
Some contracts have a clause that allows a Contractor a variation if there is a change in legislation - usually after the date of the contract. Depending on the drafting of the contract the Orders may be considered as such a change. The contract result or allowance given to the Contractor in such circumstances can vary and include suspension of time (i.e. the clock on completion time stops running for the suspended period), a price variation and/or a change to the completion date.
If you have any questions, please email firstname.lastname@example.org.