February 3, 2021

Touchdown! – The Construction Industry’s Winning Audible to the COVID Blitz

By: Bill Shaughnessy Partner, Jones Walker, LLP.

COVID-19 has changed the way we live, work, play football, and build. As with all of society (and our football leagues and teams), the construction industry was impacted over the last year through the implementation of new safety protocols in response to COVID-19. While some construction projects were delayed or put on hold, much of the construction industry was fortunate to continue to build throughout the pandemic. Building under COVID-19 safety protocols led contractors to “call an audible” in order to make up for lost time and to save costs. In doing so, many contractors started incorporating or expanding the use of under-utilized tools, resources, capabilities, and technology such as pre-fabrication, and modular construction, while at the same time reexamining planning methods, monitoring critical schedule activities, and ways to better execute construction.

In many ways, the effects of COVID-19 safety protocols and measures implemented by contractors in the past year have led to more efficient and cheaper construction projects now and for the future. So, it is not surprising as we turn our calendars to 2021 that contractors can expect these tools, resources, and technologies to be utilized more in the years ahead, even once the pandemic subsides. This article highlights some of the “positive” effects of COVID-19 on projects and highlights several ways contractors attempted to increase efficiency and reduce costs in response to the pandemic.

TECHNOLOGY

 With stay-at-home orders and social distancing requirements implemented across states and projects, the industry not surprisingly turned to technology as an effective means to communicate, design, and inspect projects. Virtual meetings and inspections, design modeling, and enhanced project management systems are a few examples of how the industry has used technology to keep projects progressing forward in 2020:

  • Virtual meetings, via Zoom, Webex, or Microsoft Teams for example, have been an effective method for hosting remote meetings by avoiding different parties and disciplines having to meet in person, while also eliminating wasteful travel costs. Benefits of virtual meetings have been realized by onsite workers in helping project managers oversee, communicate, and coordinate daily construction activities between different crafts and disciplines. Whereas pre-pandemic, it was typical for different trades to meet in a project trailer to discuss planned construction activities for a given day, now contractors have realized it can be just as efficient, if not more so, to coordinate virtually between different trades for planning, organizing, and coordinating daily activities.
  • Enhanced imaging, including drone technology or BIM has been increasingly used to review construction progress, conduct jobsite inspections, construction and safety training, as well as progress virtual design. Drones have shown to be an effective means of capturing field, interior, or aerial photos while avoiding in person contact. Also, virtual inspections for building departments have been frequently implemented to meet social distancing rules, and because the technology has shown to be effective in relaying images and audio in real time to multiple parties. Similar technology can be used for remote training and technical assistance issues on projects.
  • Thermal imaging and wearables for construction workers have been utilized to encourage physical distancing and to automate contact tracing between workers.

PRE-FABRICATION AND MODULAR CONSTRUCTION

Scheduling restrictions and impacts to supply chain distributions have increased off-site coordination efforts and planning through the use of pre-fabrication and modular construction:

  • Pre-fabricated Construction – Contractors have had to examine what construction work, such as manufacturing and installation, can be performed off-site and ahead of schedule. Pre-fabrication construction in a climate-controlled environment can reduce time in the field for workers, reduce complexity of labor and material congestion, and lead to cost savings and efficiency.
  • Modular Construction – As a design alternative to conventional on-site construction, developers and contractors have increasingly utilized modular construction in response to COVID-19 protocols and in responding to increased needs for testing sites, sanitized spaces, pods, and other medical needs. In addition to addressing the practical health needs of COVID-19, modular construction can offer quicker turnaround, better quality control, reduce waste, and safer environments for all forms of construction projects and therefore will likely continue to be utilized in new forms and methods for years to come. 

SCHEDULING AND DOCUMENTATION

Many of these newly implemented protocols required by COVID-19 have unexpectedly improved day-to-day construction activities and led to more efficient construction practices. For example, staggered start and break times have resulted in less congestion and improved organization of construction sites thereby making it easier to monitor work and productivity. Heightened concerns about potentially insidious delays, impacts, and liability caused by COVID-19 have required greater scrutiny and changed how contractors are managing schedules and contract documentation:

  • Detailed and Accurate Scheduling – Contractors have had to revisit how to more accurately develop, evaluate, and maintain project schedules in order to mitigate delays, including rethinking procurement strategies (no longer relying on a single supplier), accounting for potential resource delays (supply chain disruption and labor shortages), and identifying opportunities for acceleration. Contractors have been looking closer at the critical path, identifying activities that could be pushed later in the schedule, and determining causation and attributable delays in real time to avoid confusion at the end of the project about what delays are attributable to COVID-19.
  • Documentation – With the increased likelihood of unanticipated delays, Contractors should be properly documenting the status of a project for schedule interruptions or impacts, implementing a risk management plan, and keeping an accurate and detailed account of events and costs incurred during the impact period. To better understand the impact COVID-19 may be having on construction, some owners and contractors have gone as far as requiring contractors or subcontractors to submit COVID-19 specific forms in order to better understand, track, and identify the date, time, impact, and cause of a COVID-19 delay (i.e., positive test, labor shortage, or supply chain disruption), similar to how a contractor might identify a weather delay or force majeure event to recover cost or time in the form of a change order.
  • Contract Drafting – With the uncertainties of how COVID-19 impacts will be handled in a dispute between the parties, contractors have been and should be including COVID-19 specific clauses in their contracts (similar to generic force majeure or “catch-all” delay clauses) to address liability, schedule relief, and recovery of costs in the event of a re-emergence of COVID-19 or a similar public health crisis in the future.

As highlighted above, contractors have realized efficiency and costs savings on projects even through the COVID-19 pandemic. It should be clear why these tools, resources, and design capabilities, even if present and available before the pandemic, will be increasingly utilized by contractors in 2021 and beyond.

“The Construction Industry Team at Jones Walker LLP is one of the most highly regarded and award-winning construction law practices in the nation. Our experienced construction attorneys understand the complex dynamics between — and the unique priorities of — project participants and can craft effective solutions that minimize disputes, manage risks, and help keep projects moving from conception to completion.”

The  views expressed in this article are not necessarily those of ConsensusDocs. Readers should not take or refrain from taking any action based on any information without first seeking legal advice.