Days after the World Health Organization declared the COVID-19 outbreak a global pandemic, governments from around the world scrambled to enact measures aimed at mitigating the spread of the virus. In the United States, cities and states have enacted travel restrictions, issued shelter-in-place orders, and directed nonessential businesses to shutter. While all aimed at mitigating the spread of the virus, these measures will have an immense disruptive impact on businesses and industries around the world — the construction sector included.

As notices concerning force majeure, changes in law, and change orders swirl, parties should prepare themselves for how these disputes will be managed and resolved. The COVID-19 outbreak will rapidly reshape how the construction sector does business. This article offers our insight into just once facet of the construction industry: alternative dispute resolution and how the COVID-19 outbreak has and will affect construction disputes going forward.
Continue Reading ADR for Construction Disputes During COVID-19: How to Manage Dispute Resolution Before and After the Dust Settles

Much has been written about whether and how COVID-19 qualifies as a force majeure event, and some additional information can be found here. But typical force majeure provisions entitle contractors to only schedule relief. While force majeure clauses may limit exposure to liquidated or consequential damages for delays, contractors who incur increased costs resulting from COVID-19 related delays should carefully evaluate the entirety of their contractual rights to not only an extension of time, but also recover prolongation costs. To assist in this endeavor, this article looks beyond force majeure to other potentially relevant contractual provisions. Potential remedies under the various contractual clauses discussed below will depend on the specific contractual language and project-specific facts.
Continue Reading COVID-19 and the Construction Industry: Looking Beyond Force Majeure to Recover Time and Costs for Delay

S&B/BIBB Hines PB3 Joint Venture v. Progress Energy Florida, Inc.
2010 U.S. App. LEXIS 2875 (11th Cir. Feb. 11, 2010)

S&B/BIBB Hines PB3 Joint Venture, S&B Engineers and Contractors, LTD (“S&B) agreed to perform engineering, procurement and construction on a fixed-price basis (the “Contract”) for two electric generating plants in Polk County for the project owner and defendant, Project Energy Florida, Inc. (“Project Energy”). During the course of construction, four hurricanes struck Polk County resulting in a shortage of labor and materials and a corresponding increase in the cost of construction for S&B. S&B sought approximately $40 million in additional compensation as a result of this extraordinary event. S&B’s claim for additional compensation was denied by Project Energy and S&B filed suit. The district court dismissed the majority of S&B’s breach of contract and other claims on a Rule 12(b)(6) motion holding that the fixed price Contract precluded additional compensation beyond the Contract price.
Continue Reading U.S. Court of Appeals for 11th Circuit Upholds Dismissal of EPC Contractor’s Claim for Damages Caused by Four Hurricanes, Concluding That Terms of Force Majeure Clause Barred Recovery of Increased Costs