This Christmas time, more than many we’ve had before, we need to take stock, relax and give ourselves a huge pat on the back for making it through this unprecedented time relatively unscathed. Despite us wanting, nay needing, this time to rest, our work, projects and the obligations on consultants don’t and won’t really let us stop.

It is a time of increased staff absences for sickness, celebrations and holidays we have been unable to take. A time for contracts to be hurriedly signed before the end of the year, contractual and legislative deadlines around this period, and for mischievous unexpected claims to arise, with the potential to cause stress, confusion and potentially financial loss.

So, as the festive season quickly approaches, it is important to put down that glass of bubbles and make sure that you have made appropriate arrangements not only for your practice and staff, but for your contracts and projects too. If you are planning a Christmas shutdown period, remember that there is no official industry “shut down” period during this time (despite what the construction industry thinks) other than the public holidays. In NSW those dates are:

• Monday, 27 December 2021;
• Tuesday, 28 December 2021; and
• Monday, 3 January 2022.

With respect to on-going projects, if your contract allows, you should make any extension of time requests or claims for the shutdown period during this time to avoid delays and any potential, additional costs. If your contract does not provide for the Christmas shutdown period and it becomes apparent that your services and the works will be ongoing over this period, you should make sure that extension of time claims are given promptly and in accordance with your contractual timeframes.

For any new contracts, it’s important to give these contracts a proper and thorough review of the terms to make sure that you are not agreeing to obligations and liabilities that are not in your best interests purely on the basis of winning the work before Christmas. Also consider and take into account any anticipated issues or delays as a result of the shutdown and negotiate these with your client noting what days are considered “business days” under the contract as these may differ for each project. Also keep in mind that it is not grounds to not comply with and be held liable to a signed contract, and its terms, that you were rushed to “get the contract signed” and didn’t properly consider its terms.

You will also need to consider the elephant in the room… COVID-19 (and its variants) and how your project, contracts and your own employee relationship respond to this pandemic. The impact of the COVID-19 pandemic and the related (variable) government directives can impact on the work program for the project. It is therefore vital to look closer at any COVID-19 provisions within your contracts and any extensions of time necessary given that this may be coupled with Christmas shutdowns as well. Make sure to have a plan should COVID-19 impact on your own practice and how you will manage projects during this time and communicate and negotiate with your client as to what will be needed or occur in the case that COVID19 impacts on the project and how you will be responding.

For those consultants in the role of superintendent of construction contracts, the festive holiday season is also a time to be aware of legislative timeframes and obligations such as payment claims under the security of payment regime within Australia, made with the specific aim of taking you off guard and with potentially severe consequences if you fail to respond within the required timeframe. Importantly under the various security of payment legislation for each state and territory, there are mandatory timeframes for the service of payment claims, payment schedules, adjudication applications and adjudication responses. These timeframes are stated in business days. If you serve a document too late (or in some instances too early) the relevant document may be considered invalid.

In NSW, there is some relief given by the Building and Construction Security of Payment Act 1999 NSW (“Act”), being that, in addition to Saturdays, Sundays and public holidays not being classified “business days” under the Act, the 27th, 28th, 29th, 30th and 31st of December are also not considered business days either, meaning no business days arise between Christmas and Monday 3 January 2022. However, come Tuesday 4 January 2022 – it’s game on and as claimants often serve payment claims in the lead up to Christmas to take advantage of reduced staff levels with all the festive events, school holidays and travel as well as office closures, your “business day” count will start up again. As each state and territory security of payment legislation varies, it is important to make sure that you check your own relevant legislation and determine the claims procedure and definition of “business day”.

In order to make this holiday season as stress free as possible, you might wish to consider some of our risk management survival tips:

• Carefully consider any new contracts you are agreeing to, including those clauses with dates and deadlines that may arise during or around the Christmas shutdown period.
• Discuss any COVID-19 events during this time with your client and how these will be addressed to avoid any confusion or potential delays to the project.
• Review the status of projects and consider whether there are any potential issues over the Christmas shutdown period and action these (turning your mind to any variations, extensions of time, inspections and progress claims that might need to be made by you and from any sub-consultants).
• Ensure project representatives who go on leave direct their emails to a nominated person who is able to check them regularly.
• Don’t rush through designs or advice to get them out before the Christmas shutdown period. Your duty of care remains the same regardless of the time of year.
• Make sure that you have an adequate number of staff with the appropriate experience still available to work on current projects during December and January.
• Properly manage documents for files produced during this time (we all tend to get a little lazy at this around the end of the year) as contemporaneous documents, designs and file notes are always important to have to hand and on file.
• If you become reasonably aware that a claim relating to a project may be made, be sure to promptly notify your insurer.
• Pass on any contracts for insurance reviews by Informed by Planned Cover (noting that our contract review service is unavailable for a brief period from 27 December to 3 January) or legal reviews by our related company informed Lawyers Pty Ltd (ACN 635 862 145)

Lastly, and most importantly, have an absolutely brilliant break, stay healthy and we look forward to seeing you in 2022!

Felicity Dixon
Risk Manager

This article is only general advice in respect of risk management. It is not tailored to your individual needs or those of your business, nor is it intended to be relied upon as legal or insurance advice. For such assistance you should approach your legal and/or insurance advisors.