b'CONSTRUCTION CONTRACTS want to ensure that there is clarity among thebyCOVID-19thatremainunknownand categories of delay impacts to avoid confusionlikely unquantifiable. Parties should therefore as to what relief is available for each of them. consider a specific section of their contract to Parties should alsoAs an illustration, in GC 6.5.2 of CCDC 2,manage the allocation of these risks. A good the contractor gets both an extension of timeCOVID-19clauseshouldincludeprovi-consider an enhancedand monetary compensation for delays aris- sionsdealingwithnotice,suspensionand ing from public authority stop work orders,termination rights, mitigation, and the cal-contingency allowancewhile under GC 6.5.3, the contractor getsculation and allocation of unforeseen costs. onlyextensionsoftimeforforcemajeurePartiesshouldalsoconsideranenhanced that covers COVID-19- events. Where a stop work order is issued duecontingency allowance that covers COVID-to COVID-19, the question remains: how19-related costs. related costs.shouldCOVID-19costsbetreatedgiven that it was the force majeure event of theConclusionpandemic which triggered the public author- These are some of the main considerations itystopworkorder? Theneedforclaritythat parties will want to take into account majeure events represents what most believedis apparent.as they continue to allocate risk and struc-was an equitable sharing of the risk for delaysA COVID-19 Clause turebetterrelationshipsinthecontractual that were the fault of neither party. However,environment in our post-COVID-19 world. COVID-19 has caused parties to reconsiderMuch of the foregoing discussion centeredThe important thing is that they make the the wisdom of this risk allocation. In manyaround force majeure events, but it is import- effort to do so. cases,thepandemicsubstantiallyincreasedant to note that the COVID-19 event itself the contractors costs of performance, includ- maynolongerfallintothatcategoryining costs due to loss of productivity, disrup- the absence of it being explicitly identified.Jason J. Annibale is the National Co-Chair, tions in the supply chain and indirect costsCOVID-19 is now a foreseeable risk.ConstructionattheMcMillanLLP.Geza of schedule extensions. While such costs mayWhile COVID-19 is known, there remainsBanfaiisSeniorConstructionCounselat be absorbed over one or two contracts, theypotential for delay and cost impacts causedMcMillan LLP.couldrepresentasubstantialthreattothe contractors viability when encountered over numerous contracts. Parties might consider whether some monet-arycompensationshouldbeavailablefor a force majeure delay and, if so, the kind andextentofsuchcompensation.This benefitsownersaswell,sincenoowner wishes to risk the disruption caused by an insolvent contractor. Another potential route to recovery of addi-tional compensation for a force majeure delay may be found in GC 10.2.7 of the CCDC 2, whereby contractors are entitled to claim additional costs for changes made to applic-able laws, ordinances, rules, regulations, or codes of authorities having jurisdiction which affect the cost of the work that occur sub-sequent to bid closing. Note, however, that withCOVID-19areality,andregulations implementing enhanced site safety measures now in place, it may not be possible to rely on this provision since the change in law may have predated the date of the bid. Force Majeure Versus Public Authority Stop Work Orders Contractorsoftenprovidevaryingforms of relief for different delay impacts, such as owner-causeddelays,publicauthoritystop work orders and force majeure. Parties will Ontario Electrical Contractor19'