In emergency situations such as the challenge of COVID-19 and natural disasters like earthquakes, hurricanes, and tornadoes, design ﬁrms and those involved in the design and construction industry face many challenges. Among those challenges are keeping staﬀ safe and meeting professional and contractual obligations.
Communication is always important but even more so during emergency situations.
With Your Staﬀ
- Keep staﬀ informed regarding steps the ﬁrm is taking to best ensure their safety.
- Remind staﬀ that, to the extent that it is reasonably possible and safe, the goal is to continue to meet the ﬁrm’s professional and contractual obligations.
- Inform staﬀ regarding procedures and tools, including options for working remotely, that will allow them to carry out their responsibilities on behalf of the ﬁrm.
- Schedule regular staﬀ meetings and provide access and an opportunity for staﬀ to express concerns, share challenges and share solutions. In an emergency, circumstances are constantly changing, and they may change quickly. It is important that all members of the ﬁrm are aware of these changes and how the ﬁrm is responding.
With Your Client
- As soon as possible, contact your clients and inform them of your status, commitment and the reasonable steps the ﬁrm is taking to meet the ﬁrm’s professional and contractual obligations. It is important to communicate with your clients often, particularly if the situation changes.
- Ask your clients how they want you to proceed. Some clients may want the ﬁrm to suspend services for a period of time. Others may want the ﬁrm to continue with the ﬁrm’s professional and contractual obligations. If a client wishes to suspend services be sure to follow the procedures outlined in your contract.
- You may reach a point when, despite reasonable eﬀorts, it is impractical, impossible or unsafe to meet your professional and contractual obligations. For example, you may not be able to ﬁle for a permit because government oﬃces are closed. Or perhaps, you may not be able to conduct a construction site visit because travel restrictions are in place. The list of events that may prevent you from fulﬁlling your professional and contractual obligations, despite reasonable eﬀorts, is substantial.
- If you ﬁnd yourself unable to meet some or all of your professional and contractual obligations, it is vital that you contact your client immediately and explain the situation and the reasonable steps you have taken. Cite the oﬃcial communications and regulations from government and health agencies that are impacting your ability to fulﬁll your professional and contractual obligations. Be sure to document that conversation with your client.
- If your client still insists that you fulﬁll your professional and contractual obligations despite the impracticability, impossibility or safety of the situation, consult with your legal advisor as to how best to proceed. Formal termination of services may be required, refer to your contract for speciﬁc language.
With Your Consultants and Other Project Stakeholders
- If you have retained consultants or if you are working closely with other project stakeholders, inform them of the steps the ﬁrm is taking to meet the ﬁrm’s professional and contractual obligations. This may include how to communicate with staﬀ that may be working remotely, changes in core business hours or a change in key personnel to contact.
- Depending on the scale of the emergency, there could be disruption to construction as well as suppliers and manufacturers. Knowledge and scope of disruption or, possibly, shut down can help you and your client make informed decisions.
- Ask your consultants and other project stakeholders to share what they are doing to meet their professional and contractual obligations. Be sure to document those conversations as well.
- Remember that your consultants and other project stakeholders are facing the same challenges you are. Some may be better prepared and equipped than others to respond and adapt. The goal is to work together to ﬁnd reasonable solutions that will allow the team to safely meet its professional and contractual obligations.
There is no “magic” or “boilerplate” contract provision that will protect your ﬁrm from all claims. Each situation is unique, and you should consult with your legal advisor about the appropriate contact language for your situation.
However, your contract is very important and a vital communication and risk management tool that can be used to justify your ﬁrm’s actions or to mitigate potential damages. In emergency situations, executed contracts provide guidance regarding expectations and how to proceed in certain situations. All contractual provisions are important, but during emergency situations design ﬁrms should familiarize themselves with certain clauses for both executed and new or renegotiated contracts. Applicable clauses may include:
- Force Majeure or “Acts of God” Provisions
- These provisions outline what situations allow excusable delays. A delay in delivery or completion of professional services and construction is one of the major risks in an emergency. Force Majeure or Acts of God provisions are intended to address this risk. However, each clause and the courts’ interpretation of these
clauses is unique just as each emergency itself is unique. You should consult your legal advisor as to how these clauses may or may not apply to your situation.
- It is risky to view these clauses as an excuse not to take reasonable steps to meet your professional and contractual obligations. Instead, think of these clauses as a potential defense for a future claim of delay damages due to professional negligence.
- Termination or Suspension of Services
- As stated above, your client may want to suspend or even terminate services. If so, it is important to follow the procedures outlined in your contract.
New or Renegotiated Contracts
In addition to the contract provisions discussed above, there are some provisions that may need special attention in new or renegotiated contracts. These are some of the contractual provisions that may take on a higher level of urgency for your client, but even in non-emergency situations, these clauses should be reviewed carefully by you and your legal advisor.
- Warranties and Guarantees:
- Avoid provisions that create a warranty or guarantee. Remember that phases such as “represent” and “assure” may be interpreted as a warranty or guarantee. In emergency situations you may be asked to warrant your services or to complete them within a certain time frame. Remember, as a design professional, you cannot warrant your professional services.
- In emergency situations, your client may expect and may contractually require you to provide certain certiﬁcations. Any certiﬁcations should be limited to your professional opinion, based on your direct knowledge or information supplied to you, and limited to the scope of services you provide.
- Scope of Services
- During emergency situations you may be asked to provide services that may fall outside the scope of your expertise and experience. You may want to be helpful in times of emergency but providing services beyond your experience and expertise may put your ﬁrm, your client and the public at risk.
- Avoid “time is of the essence” clauses.
- Avoid project schedules that are “aggressive” or “unrealistic” and that do not allow for adjustment as the emergency evolves and changes.
- Standard of Care
- Even in emergency situations the standard of care is still what other similar professionals would have done under the same or similar situations at the time the services were provided. Avoid language that expands this standard. Remember that your obligation to meet the standard of care exists even if it is not included in the contact.
As stated earlier, during an emergency, events are constantly changing and may change quickly which may impact the
ﬁrm’s ability to meet its professional and contractual obligations. It is vital to keep up with the latest information related to
COVID-19 from federal and state governments, public health entities, as well as the professional societies.
REMAIN SAFE AND USE RESOURCES AVAILABLE TO YOU
Any emergency can be a stressful time personally and professionally. But there are resources available to you. Along with your legal, insurance, business, government, health and other advisors, Travelers is committed to providing information to help you identify, understand, and manage the risk you may face.