The Dotted Line: COVID-19 force majeure clauses are losing their punch
By: Joe Bousquin Senior Reporter - constructiondive.com
Two years into the pandemic, owners are pushing back against contracts and bids that cite COVID-19 as an excusable delay.
“I would not allow a force majeure clause to include COVID anymore,” said attorney Deborah Cazan, a partner in the Atlanta office of Alston & Bird, who typically represents project owners. “A force majeure event is something that’s not foreseeable. At this point, COVID is out there, and everybody knows it.”
Other construction law professionals agree.
“Simply claiming ‘COVID’ as justification for a delay claim will not pass muster,” said William Thomas, an attorney and member of the construction law and litigation committee of the Chicago-based International Association of Defense Counsel, who represents both owners and contractors. “I’ve seen clients prepare robust force majeure clauses for pandemic-related impacts that were completely redlined out by owners.”
Taking more of the power out of COVID-19 force majeure claims is the recent decision by GAO that the Army Corps of Engineers properly deemed a bid from Boulder, Colorado-based American Mine Services (AMS) as nonresponsive because it included a COVID-19 force majeure clause.
