By Jordan R. Pavlus, Esq.,  Byrne Costello & Pickard, P.C.

When the COVID-19 pandemic hit, we all got a stark refresher in force majeure clauses, which prior thereto were rarely invoked. Force majeure clauses typically excuse contractual performance for some identified reason outside the control of the contracting party, like an act of god, war, labor strikes, etc. When the pandemic shut down construction projects, many subcontractors combed their subcontracts to determine whether they could obtain any relief via a force majeure clause. Inasmuch as many force majeure clauses did not explicitly reference pandemics, it was usually not a perfect fit, and it has been a mixed bag for subcontractors regarding whether they could obtain relief via these clauses. Unfortunately, for many subcontractors, they had to work with what was already in their subcontracts, many of which are for a lump sum price.

Look Back. Learn. Look Ahead

One of the positives to come out of this situation is that subcontractors can learn from it and recognize the potential project impacts from a global pandemic and its effect on their supply chain. This will allow subcontractors to anticipate potential impacts and negotiate to address them on the front end of a project, rather than relying on a force majeure clause which is not a perfect fit for the situation.

One of those issues which should be addressed by subcontractors on the front end of a project is the potential for construction material price escalations. The construction industry continues to deal with extreme price volatility in the material supply sector. The price of many materials have more than doubled within the last several months, much of which can be attributed to the COVID-19 pandemic. Even if price escalations are more modest, any material price escalation can turn what could have been a profitable project into a money pit. The good news is that a subcontractor can protect itself from being forced to proceed with a project without an equitable mechanism by which it can seek relief from material price escalations.

Price (De)Escalation Clause?

Ideally, a subcontractor would negotiate language into its subcontract prior to commencing work on the project which allows for an equitable adjustment in the contract price due to material price escalations which meet an agreed upon threshold. 

Any such material price escalation clause requires that the subcontractor keep records of material prices used to formulate its contract price so that they can be contrasted with later price escalations. 

It is no easy task to negotiate a material price escalation clause into a subcontract because the upstream parties are looking for certainty in cost. The typical construction bid is a gamble based on certain assumptions in material price, schedule, labor costs, sequence of the work, etc. If the subcontractor made the right gamble, it will be a profitable project. If not, the project will be a loss. Most owners and general contractors will take this position. 

If a subcontractor is successful in negotiating for a material price increase clause, it should be anticipated that the upstream parties will likewise seek a material price decrease clause. In other words, if the price of materials goes down, they pay less. If it goes up, they pay more.

Subcontractors should also make careful note that they must comply with applicable contractual notice provisions when it comes to material price escalation clauses. If the subcontract requires notice of any changes in price within seven days, the subcontractor must ensure to notify the contractor within seven days of each discovery of material price escalations. This means that every time the subcontractor gets notice from a supplier of a material price increase, the subcontractor must in turn notify the contractor.

It Pays to be Overly Cautious

Here is a recent cautionary tale which is illustrative: the owner on a government construction project issues a stop work order at the start of the pandemic. At this point, no one knows when the project will re-commence, if ever. For over one year during the pandemic shut down, the subcontractor receives periodic notices from its material supplier of price increases. The subcontractor does not provide these notices to the contractor or owner because it does not know if/when the project will re-commence. When the project is finally re-commenced, the price of materials has sky-rocketed. The subcontractor submits its request for a material price adjustment when the project is re-commenced. The owner denies the claim because contractual notice was not provided within fifteen days of discovery of the price increases (as required by contract).

Do not be a cautionary tale. Negotiating for a material price escalation clause at the front end of a project is a critical aspect of a successful project and notification requirements must be observed at all times.

About the Author

Jordan Pavlus focuses his practice primarily on all facets of construction law, including contract review, contract and addendum drafting, terms and conditions review and drafting, litigation, arbitration and mediation. He regularly advises clients on the nuances associated with construction law, including bond claims, lien law, prompt payment law, and a broad variety of issues faced in the commercial construction field. Jordan has served as solo trial counsel in numerous matters and has also been lead attorney on multi-week arbitrations with damages in seven figures.  He is a frequent lecturer on construction related issues. For more information on Jordan Pavlus and Byne, Costello, & Pickard, P.C., visit http://bcplegal.com/