b'CONSTRUCTION LAWFORCE MAJEURE,MAJOR FARCE? WHAT TO KNOWA swemoveourwaythroughtheongoingpandemic,similar clause affording you some relief of performance itmaybetimelytoaddressafewissuesrelatingtoas a result of supply chain and/or price volatility issues, force majeure. your contract will likely not give you relief from perfor-1. Force Majeure is not an Independent Concept:mance even if there is a dramatic increase in some of the material or equipment you now need to purchase as In very general terms, a Force Majeure provision in apart of your scope of work. It would be typically very contract allows one or more parties to that contract, reliefdifficult to rely on a Force Majeure provision for these in performance as a result of some unanticipated event,items in the normal course. The better risk management often tied to an Act of God, terrorist act or, pandemic.tool for these eventualities would be a price escalation Thereisnogeneralcontractualinterpretationconceptclauseand/oranextensionoftimeaperformance known as Force Majeure. The availability of the reliefpremised on supply chain issues.typically afforded by a Force Majeure provision will be dependent on the actual words in the contract in ques- 4. Force Majeure Letters: we have had occasion to seetion. As a result, there is typically no implied reading in ofsome letters from suppliers simply suggesting that as a a Force Majeure provision. Moreover, the words forceresult of price volatility and supply chain issues, there majeure need not be specifically used in order to havewill be price escalations and in some instances, price relief from performance for the specified event giving riseescalations on supplies already quoted. Typically, if you to the force majeure. have a quote and have acted on that quote by issuing a 2. Not New: contracts bid upon and made after Marchpurchase order or some other commitment to purchase at that price, unless there is an express provision in your 2020 will likely not include a Force Majeure provision thatcontractual arrangement with that distributor/supplier, would provide relief as a result of the current COVID-19they will be bound to that price and cannot unilaterally pandemic. This interpretation would likely come from theincrease the price, again, unless there is some contractual fact that the current pandemic has been a known eventprovision that permits them to do so. Conversely, letters and not unanticipated since March 2020 and thereforeadvising of price increases on future estimates/quotes, was almost certainly in the reasonable contemplation ofcould be enforceable as that is not a contractual provi-the parties when entering into the contract. As a result,sion but simply providing notice of what is fort coming.if you currently have a Force Majeure provision in your contract or an equivalent, it could be difficult to seek relief from performance tied to the current pandemicThe foregoing is not intended as legal advice nor should it be taken as given that it is not an unknown event. such. Dan Leduc is a partner in the international law firm ofNorton 3. PriceRose Fulbright LLP and practices exclusively in the domain ofconstruc-Volatility and Supply Chain Issues: here again, unless your contract includes a price escalation clause ortion law. He may be reached at dan.leduc@nortonrosefulbright.com. BUILDING ENVELOPE CONTRACTOR SPECIALIZING IN250-374-0154 westernroofi ng.cainfo@westernroofi ng.ca www.rcabc.org l29'