What should I do when dealing with a business or customer that is using COVID as an excuse when COVID was not a factor on the job or even for their business
May 22, 2020
The first step when dealing with the customer should be to refer back to the contract to determine your rights and theirs. Then, once it's clear what rights are on the table, your desired outcome should guide your next steps (further discussion on that in the next section of this answer).
Asking the owners what they want to do will help, and so will asking them to lay out their specific concerns with moving forward. If they can't provide any specific reasoning, that'd point toward them just wanting to get out of the contract - and it'd be valuable information to have on hand if a dispute raised.
Or, if the owner does have specific concerns, then those could potentially be mitigated. Plus, offering to work with the owner to reduce their fear and the risk of spreading Covid could help to get the project back on track. Or, if a dispute arises, it'd be extremely valuable if you could show you did what you could to accommodate the owner.
How to proceed when an owner is delaying the project due to coronavirus concerns
If you want to move forward with the job, then you may be able to use your rights under the contract as leverage to make that happen. If the owner would be in breach or if they'd owe additional costs or damages for delaying the work, then notifying them of those potential penalties may convince them to continue forward.
If you're willing to go ahead and terminate the agreement, you could make an offer to the owner to cancel the contract. And, asking for them to pay any costs you've already incurred would be perfectly reasonable. Asking for some additional costs on top of that may make sense too. When negotiating a termination - both parties are perfectly capable of proposing the terms of that termination.
If you're willing put the project on hold, then asking for some hold fee or retainer might make sense. That way, if the owner really is scared about the potential for coronavirus spread, then that'd provide them an option for potentially moving forward and it'd let you keep the job. Though, obviously, scheduling would be a hassle down the line - and that should be accounted for.
Ultimately, if the owner doesn't want to go forward with the project, then that's their prerogative. Having the contract in place won't force them into actually making those changes to their property. But, if the owner does want to terminate the contract - they won't get off scot-free. They'll be responsible for making you whole. It's important to approach the situation with that in mind. And, getting creative with potential solutions during negotiations could create a situation where everyone is happy.
For help reviewing your contract and with coming up with potential solutions - it'd be useful to consult a local construction attorney. They'll be able to review all relevant documentation and communications, then give advice on the best path for moving forward.
Finally, I think these resources will be useful to you:
- How a Termination Clause Works in a Construction Contract- Wrongful Termination | When is Termination Considered Wrongful?