Every week we see a multitude of press and commentary on the current global materials shortage. One common thread is that while no one seems to think this will be a permanent long-term problem, similarly no-one seems to see much improvement in the short to medium term. Although most of the commentary extolls the virtues of pro-actively managing the shortages, early notification and considerations of alternatives until recently few have suggested contractually addressing the issue.
Many standard forms of construction contract have provisions addressing volatility, for example the JCT's Fluctuation Provisions. However, given that pre pandemic (and Brexit!) supply chains have been largely stable for many years these are more often than not deleted. Given the current climate is it time to reconsider their use? and while such clauses may assist regarding increase in cost how is delay to be addressed?
As with COVID risk in 2020 the market will no doubt come to a settled position as to how this risk for time and money should be borne and when it does this should be reflected contractually. In so doing Employers should also be wary about how this risk may be addressed in any related property and funding documents to ensure there is no misalignment.
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