Roddy Cormack

The construction industry is facing a real uphill struggle. Although some restrictions are lifting, further increasing the work that can be carried out on sites, working practices are going to be drastically different for the foreseeable future as a result of social distancing.  This means the prices agreed for work prior to the pandemic will no longer reflect actual costs in most cases.

The number of workers that can be on-site at any one time is now likely to be substantially lower than before the social distancing requirement. Therefore a quote that was originally based on ten men completing a job, for example, may no longer be enough if only five men can carry out the work – it may take longer and could lead to discrepancies in costs.

We could find ourselves in a situation where contractors simply cannot afford to complete projects, and clients may need to pay extra and won’t necessarily have the funds to do so. Whoever has the best negotiating position will come out on top. If those who are in the stronger position are allowed to take full advantage of the situation, they’ll be the ones who survive.

Statutory government intervention could be a way of levelling the playing field and ensuring more contractors and construction professionals are able to weather the storm.

There are a few routes the government could take in my opinion. One option could be to impose a mechanism for dealing with loss and expense claims. A formula for how claims should be dealt with and valued could be imposed on contracts.

Of course, some people may lose out and some may profit from this, but if it’s set at the right level it could do a lot to help even things out, and bring some kind of stability.

Another option could be offering grants or loans to employers to fund the additional expenses being added to contract sums. Employers could choose whether to take up the funding, but would still be free to argue the liability for the additional costs if they consider the contractor’s claim to be unfair.

Finally, the regime for payment could be made even more rigid and uniform, so the scope to delay or avoid payment is restricted and any dispute about the amount due is more quickly identified.

We can’t expect the government to solve all the problems created by coronavirus, and such schemes could cost billions, but a lack of intervention could put the construction sector in Scotland on its knees, which would be far more damaging in the long term. There’s no easy solution, but it’s evident we need to find a way forward that is sustainable for all parties.”

Roddy Cormack is an accredited specialist in construction law at Wright, Johnston & Mackenzie LLP

• Read all of our articles relating to COVID-19 here.