The fifth event in FIDIC’s Covid-19 2021 webinar series took place on 11 May 2021 with an event looking at change and its effects on project delivery and the construction and infrastructure industry, writes FIDIC communications advisor Andy Walker.
The webinar, “Dealing with change in uncertain times”, was attended by 530+ people and looked at some of the current events which have made change more likely and potentially more costly and highlighted how FIDIC contracts deal with change requests and the effects of unplanned and unscheduled changes.
The webinar was moderated by FIDIC chief executive Nelson Ogunshakin. The speakers included Luigi Mula, legal director at DLA Piper in Italy, Jeremy Glover, a partner at Fenwick Elliott in the UK, Husam Gawish, a partner at HKA in Qatar and Buro Happold Engineering partner Emily McDonald from the UK. As ever, FIDIC president Bill Howard was also on hand to introduce the event.
Fenwick Elliott partner Jeremy Glover said that dialogue and communications was absolutely key when dealing with uncertainty and change. “Address the issues as the project goes along and deal with the project in its entirety,” he said. “Make sure that you talk to all the stakeholders on a contract and deal with them openly and honestly as that is key to airing issues and problems,” Glover said. He also said it was important to keep in mind the effects of change on the project supply chain as this could easily have a negative effect. Given that many of the government initiatives to support firms through the pandemic were about to end, firms could be more vulnerable than usual, said Glover. He also advised people to think carefully about using force majeure on contracts as this might give you what you need. It was important to consider other aspects of the contract when looking to deal with changes, he said.
Buro Happold Engineering partner Emily McDonald outlined some of the “real world, messy” issues that she and her company have had to deal with on projects over the past year. “Change is not new but the scale of the changes we are facing is new,” she said. During the pandemic, the speed of change has been unprecedented, said McDonald, who said that in truth her organisation had been only partly ready for what they had to face. “We have been on a rapid learning curve and we have had to learn to work with new digital tools. A big plus has been the reduction in our travel and the carbon footprint and this should be celebrated and hopefully it will continue,” she said. McDonald made the point taht6 she had started projects with new teams during the pandemic without meeting clients and other project partners in the flesh. “Having been forced not to be in the room together with everybody we have learned that you can still bond and work together as a team when working remotely. You don’t have to get on a plane to work globally,” McDonald said.
Luigi Mula, legal director at DLA Piper in Italy, highlighted that due to the pandemic many M&A agreements in progress have been put on hold, while other deals that have been signed but not closed were currently in dispute. “Uncertainty is still here and is here to stay but things are different from a year ago,” said Mula. “What we see is that purchasers are trying to negotiate a new set of arrangements from a financial point of view or even a way out of deals. Different jurisdictions and governments are taking a different approach to force majeure and this is forcing commercial organisations to carefully assess their contractual commitments,” he said.
Husam Gawish, a partner at HKA in Qatar, said that he genuinely felt that people had been more willing to find solutions than ever before, due to the pandemic giving rise to a ‘we are all in it together’ approach. “I really believe that we have seen more of this approach during the past year and it obviously needs to continue,” he said. Gawish also said that in his view contractors had become better at mitigating risks during the pandemic and had worked well with the Covid restrictions they have had to work with. “We have seen toolbox talks at sites and encouraging staff to work at home and the sourcing of materials more locally as a way of dealing with the impact of the Covid changes,” he said. Of course, measures like the above were not without cost but they had enabled projects to continue and for change to be better dealt with, he said. Gawish also made the point that not everything was down to Covid and it was important to be fair and honest when dealing with changes when they arise. Highlighting the need for constructive dialogue and good communications when dealing with project changes and challenges, he said: “If there is no will there is no way” – sound advice indeed from the HKA partner!
There was much discussion in the webinar chat and questions from attendees about a range of issues, contractual and non-contractual. These included: Whether the cost for Covid PCR tests can be stipulated in the contract? Will amendments to the dispute resolution rules and procedures be made to expressly cater for online meetings and hearings? Will Covid-19 have a lasting impact on the crafting of contracts for the construction sector? What measures can be taken to address the challenge of holding up the morale of employees and team members? These and many more questions were addressed by the panellists and the webinar can be watched again on the FIDIC You Tube channel – click on the link at the end of this report for details of how to access a recording of the event.
Summing up the event, FIDIC president Bill Howard said that he hoped that the experience of the pandemic would lead to the industry working more collaboratively towards a more win-win approach in future rather than win-lose. It was heartening to see the increase in dialogue and collaboration reported by the panellists, said Howard, who hoped that this would continue well into the future.
Many of the issues that were discussed at the webinar will be addressed at the upcoming Official FIDIC Contract Users’ Conference (North America, Latin America and Caribbean time zone event). The conference will offer comprehensive guidance on selecting, using and managing FIDIC contracts, including Covid-related challenges. Make sure to book your place for this event at the link below.
Click on the link below to watch the video recording of “Dealing with change in uncertain times”.
