COVID-19 Guidance Memorandum for FIDIC Standard Forms of Works Contracts Users In April 2020, the International Federation of Consulting Engineers (FIDIC) issued the FIDIC COVID-19 Guidance Memorandum for Users of FIDIC Standard Forms of Work Contract. FIDIC explains that the main purpose of the Guidance Memorandum is to help parties to a FIDIC contract to consider mutually satisfactory solutions and avoid disputes arising between them. The Guidance Memorandum identifies the provisions in FIDIC’s various general conditions of contract for works that may be relevant to the current COVID-19 pandemic situation. Key terms include those relating to health and safety, change in laws, force majeure/exceptional event, unforeseeable shortage in personnel and in the supply chain, variation, delays caused by authorities, extension of time for completion, and claims and disputes. The Guidance Memorandum then goes on to consider seven possible scenarios, in each case referring to the applicable provisions in the FIDIC contract and providing possible solutions. However, FIDIC is careful to state that the Guidance Memorandum is not specific advice. Parties must assess their circumstances individually and take into account the contract law of their jurisdiction, recommendations from their local government authorities, their social responsibilities and their long-term versus short-term strategies. A copy of the Guidance Memorandum can be found on the FIDIC website here.
Design and Building Practitioners Act 2020 (NSW) On 11 June 2020, the New South Wales Government enacted the Design and Building Practitioners Act 2020 (NSW) (the Act) to address the growing public concern regarding the building defects within the state. This Act forms part of the NSW Government’s response to the Shergold Weir Building Confidence Report released in 2018, which considered the effectiveness of compliance and enforcement systems for the building industry. The Act aims to promote accountability and transparency within the building and construction industry and to ensure that all key participants are properly regulated. Key changes of the Act include: • Duty of care: a statutory duty of care is owed to landowners by people carrying out “construction work” to exercise reasonable care to avoid economic loss caused by defects. This duty of care is non-delegable, and can be applied retrospectively to work carried out up to 10 years prior to the commencement of the Act on 11 June 2020. • Registration of practitioners: designers, engineers, and other specialist practitioners (those who carry out “professional engineering services” or “specialist work”) must be named on a publicly available register of registered practitioners as part of the mandatory registration regime. • Compliance declarations: design and building practitioners must provide declarations that building works comply with the requirements of the Building Code of Australia before an occupation certificate can be issued. • Investigation: the Secretary of the Department of Customer Service has grounds to take disciplinary action against a registered practitioner, including imposing fines or suspending registration. • Enforcement: authorised officers will be able to undertake investigations and issue stop work orders where appropriate. The Act is not fully in force yet. The statutory duty of care has come into effect on 11 June 2020, but the remaining provisions will come into effect on 1 July 2021. You can find a copy of the Act here.