Save for essential construction projects, construction sites in Ireland have been closed since 28 March 2020. Phase 1 of the Government's Roadmap for the Reopening of Society and Business (the "Roadmap") was given the green light last week and construction sites were permitted to resume activities from Monday 18 May, subject to compliance with the Return to Work Safely Protocol (the "Protocol').
On 14 April 2020, the Office for Government Procurement ("OGP") issued guidance clarifying how parties to the Public Works Contracts should proceed where works have been delayed or stopped as a result of Covid-19 (the "Guidance"). Please see our note here for a summary of that Guidance. The Guidance was updated by the OGP on 8 May to address the extension of the site closures from 5 May to 18 May.
On 14 May 2020 the OGP published further guidance for parties to the Public Work Contracts in relation to the impending return to work. In a note entitled "Note and Template Checklist for the Re-opening of Sites Closed due to the Covid-19 Response Measures", the OGP state that it is a Contractor's responsibility to determine safety to start work, but the Employer must be satisfied that a Contractor can fulfil the Protocol and their contractual obligations. Employers are advised to engage on a 'without prejudice' basis with Contractors to discuss pre-start preparations. Without prejudice discussions are provided for in the Public Works Contracts but both parties must agree to proceed on that basis.
The OGP has provided a checklist of the matters to be discussed between the parties. The checklist is not exhaustive and may be tailored to the specifics of the project.
Checklist items 1-4 deal with the capacity of the Contractor to manage a Protocol compliant return to work and a failure to satisfactorily answer these items may draw the Contractor's capacity into question. Item 5 deals with the Contractor's engagement with resources and supply chain.
The OGP state that the key purpose of the pre-start engagement is to ascertain the capacity of the Contractor to re-commence work from 18 May – it is the start of an ongoing process.
Further guidance is expected from the OGP with respect to the management of the site closures and related delays under the Public Works Contracts.
Originally published 19 May 2020
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