Monthly Archives

March 2020

March 31, 2020

Massachusetts Issues New Guidance on “Essential” “Construction-Related Activities” — Appears More Narrow

COVID-19, Delay

On March 31, 2020, Massachusetts Governor Baker replaced its prior list of “Essential Services” with a new list available online.

Missing from the new listing of “Essential Services” was the prior bullet point that stated construction workers who support the construction of projects was essential. That language from the March 23, 2020 Order is below:

While construction is mentioned a number of times as supporting other essential services, a new section titled “Construction-Related Activities” was added. This appears to be more narrow than the bullet-point above in that it refers to specific industries as opposed to a blanket “construction project.” The new section is below.

While guidance/explanation is not currently available as to the scope of this change from the Governor, the new policy of “Essential Services” appears to be more narrow than the Exhibit A list of “Essential Services” issued on March 23, 2020. Those industries that fall

March 27, 2020

“Essential” and “Safe” Construction Services During COVID-19 Outbreak

COVID-19

Effective today (March 27, 2020) at midnight, New Hampshire joins various other states in closing non-essential businesses and ordering citizens to stay at home. Governor Sununu issued Executive Order #17 on March 26, 2020.

All businesses that do not provide “Essential Services,” which are listed in Exhibit A to the order, must close their physical workplaces and facilities and stop all in-person operations. The order also requires businesses providing Essential Services to develop procedures for social distancing consistent with guidance from the CDC and Department of Public Health. Employees of essential businesses may continue to cross state borders for work-related travel, including travel to and from work, and to transport products to distribution facilities, etc. All businesses, essential or not, are permitted—and encouraged—to continue their operations through remote means.

Construction services are listed as an “essential service” under the Order. The Exhibit A closely tracks the listing of essential services issued by the Massachusetts Governor earlier this week. As the

March 25, 2020

Mass Governor’s Legal Office’s Letter to Municipalities: Withdraw Conflicting City/Town Policies Suspending Essential Construction Services

COVID-19, Delay, Risk Management

On March 25, 2020, the Massachusetts Governor’s Legal Office issued a letter to Municipal Chief Executive Officers in the Commonwealth that “provides guidance regarding the effect of the Governor’s March 23, 2020 Order ‘Assuring Continued Operation of Essential Services in the Commonwealth, Closing Certain Workplaces, and Prohibiting Gatherings of More than 10 People’ insofar as the Order intersects with municipal efforts to address the COVID-19 crisis.”

The Governor’s order deemed construction services as essential services, but some Cities/Towns have issued temporary suspensions of construction projects in their locale. The letter emphasizes the importance that “public officials avoid conflicting directives and duplication of efforts.” The Chief Legal Counsel stated:

Then, the letter confirms that the Governor’s March 23, 2020 Order included such a superseding provision “to ensure unitary management of this crisis.” The letter concludes, after reciting that constructions services were included as “essential services” in the list of essential services of the March 23 Order,

Accordingly,

March 25, 2020

Project Suspended or Payment Delays? Don’t Lose Your Mechanic’s Lien Rights!

COVID-19, Litigation, RI Mechanic's Lien, Risk Management

While many construction projects are advancing in a safe manner during the COVID-19 pandemic, some have been suspended by governmental order, like the Cities of Boston and Cambridge, or based upon the direction of the Owner and/or general contractor.

In a recent survey by the AGC (March 17-19), 28% of the respondents reported a project delay ordered by owners and/or governmental bodies. Of the delays and disruptions, respondents reported various causes including:

- 16% material/equipment shortage
- 11% labor shortages (including subcontractor laborers)
- 18% labor shortages from authorities having jurisdiction (AHJ) for inspections, permits, certificates of occupancy

(The AGC is proving to be an invaluable resource with a 8 part webinar series on COVID-19 related issues plus excellent e-blasts and an online resource page. Locally, the AGC of Massachusetts and CIM are also on the forefront of COVID-19 related construction industry issues. I encourage you

March 23, 2020

Emergency Rule – Rhode Island Contractors’ Registration and Licensing Board (CRLB)

COVID-19, RI Statute Update

An emergency rule of Rhode Island CRLB went into effect this morning “in response to the State of Emergency issued by the Governor.” The rule seeks “limit in-person contact while continuing to efficiently administer the CRLB statutes, rules, and regulations. This Emergency Rule shall remain in effect until such time as the State of Emergency is lifted.” For more, please see the CRLB website.

In substance, this emergency rule confirms that the CRLB remains open for business. It is accepting applications for new licenses and registrations as well as renewals of the same by mail or deposited in its new, on-site drop boxes at its office. To the extent a new or renewing applicant requires an examination or educational training, which cannot be completed during the RI State of Emergency, the applicant may apply for a temporary waiver for examination or educational training. Note that any registration or license issued with a waiver will expire 90

March 23, 2020

Rhode Island Issues Work from Home Order “If You Can”

COVID-19, Delay, Risk Management

On March 22, 2020, Governor Raimondo issued the Seventh Supplemental Emergency Declaration that ordered “[a]ll business service personnel that can work from home are required to do so.” The order was effective immediately and operates through March 30, 2020.

At the time of preparing this post, Rhode Island has not suspended business activities for “essential businesses.” Based upon this policy, field construction services cannot be performed remotely so they can continue provided the following practices are in place:

Gatherings of ten (10) or more people in public or private spaces in Rhode Island are prohibited. In addition, businesses that remain open must post notices of these policies as noted in paragraph 5 below.

For Rhode Island news and updates about COVID-19, visit https://health.ri.gov/diseases/ncov2019/.

March 23, 2020

Massachusetts Closes In-Person Non-Essential Businesses Effective March 24 — Construction Designated Essential

COVID-19, Delay, Risk Management

Effective March 24th at 12:00 noon, Massachusetts is closing all non-essential businesses “physical workplaces and facilities (“brick-and-mortar premises”) through April 7, 2020. See COVID-19 Order No. 13.

As an update to my post from Friday on Non-Essential Businesses, Massachusetts did not adopt the CISA Guidelines, but appears to have followed the structure of them.

The essential services list for Massachusetts can be found HERE. Construction services is included as “essential” servcies as follows:

All indication is that MassDOT, MBTA, and MassPort projects are continuing (as noted by the above-referenced public works inclusion as an essential service. During a board meeting of MassDOT, the Commissioner stated that the work is continuing but each project will be reviewed on a case-by-case basis. Below is a letter Construction Industries of Massachusetts received from MassDOT on March 23, 2020 stating

March 20, 2020

Current Guidance on Whether Construction Services Are “Essential” or “Life-Sustaining” Businesses Under Governmental Business Suspensions

COVID-19, Risk Management

State governments are issuing orders suspending the full or partial operations of “non-essential” or “non-life-sustaining” businesses. At the time of writing this post, these states include Nevada, Pennsylvania (Order of PA Secretary of Health), New York (50% no later than 8pm today – March 20th). Some cities, such as Los Angeles are issuing similar orders. Other states and local municipalities are considering such measures and it appears inevitable that more will come today and through next few days.

To what extent will construction companies qualify to continue operations as “essential” or “life-sustaining” businesses? What is the current guidance?

New York’s guidance provides for construction “skilled trades such as electricians, plumbers” and “other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes.” “Essential infrastructure” includes:

- utilities including power

March 19, 2020

Construction Projects Suspended in Cambridge MA Until Further Notice

COVID-19, Delay

On March 18, 2020, the City of Cambridge announced a Temporary Emergency Construction Moratorium “Moratorium”) “on all construction activity on both public and private property until further notice” The City explained that it was done to mitigate the impact of COVID-19 and protect the health of the construction workers and members of the public.

All construction activities are prohibited after Saturday March 21, 2020. By March 26, 2020, all make-safe measures must be in place and sites must be safe and secure.

“Essential Construction Work” may continue as determined exclusively by the Commissioner of Inspectional Services or the Commissioner of Public Works. Exceptions will be granted only if they are essential for public safety and comply with the following guidelines on a case-by-case basis:

There is a carve-out to permit the public authorities to deem certain work as essential even if not listed above. In addition, construction of 1-3 family residential structures already permitted by March

March 19, 2020

Signing a Construction Contract in the Middle of the Coronavirus Pandemic . . . Two Contract Clauses to Consider

ADR, Contract Documents, COVID-19, Risk Management

There is rightfully a lot of buzz in the construction industry about force majeure clauses. Authors are writing about how far and how much they protect contracting parties from unforeseen and uncontrollable events that cause delay.

While the standard AIA, ConsensusDocs, or other industry form contract time extension and/or force majeure clauses will likely provide some relief as to time extensions in appropriate situations, contracting parties may be best served to acknowledge the uncertainties our industry is confronting by crafting specific language for delays and increased costs resulting from the COVID-19 pandemic.

Sample language for consideration:

Notwithstanding the requirements and obligations set forth in the Contract Documents and this Agreement, Contractor shall be entitled to an extension of the Contract Time and an equitable adjustment of the Contract Price, due to labor shortages, material escalation, or otherwise, for the performance of Subcontractor’s Work due to events and conditions beyond Contractor’s control, including the present

Our blog focuses on providing practical information and guidance relating to construction risk management and dispute resolution. We intend to highlight and summarize relevant state and federal cases, construction industry developments, newly published construction law publications to provide a meaningful resource to assist our in-house counsel, risk manager, or outside counsel readers to avoid, mitigate, or efficiently resolve disputes relating to the construction industry.

While many of our topics will have a national focus, specialized attention will be devoted to state-specific topics and developments in the jurisdictions in which our construction attorneys practice: Massachusetts, Rhode Island, Maine, and New Hampshire.

Monthly Archives

Massachusetts Issues New Guidance on “Essential” “Construction-Related Activities” — Appears More Narrow

“Essential” and “Safe” Construction Services During COVID-19 Outbreak

Mass Governor’s Legal Office’s Letter to Municipalities: Withdraw Conflicting City/Town Policies Suspending Essential Construction Services

Project Suspended or Payment Delays? Don’t Lose Your Mechanic’s Lien Rights!

Emergency Rule – Rhode Island Contractors’ Registration and Licensing Board (CRLB)

Rhode Island Issues Work from Home Order “If You Can”

Massachusetts Closes In-Person Non-Essential Businesses Effective March 24 — Construction Designated Essential

Current Guidance on Whether Construction Services Are “Essential” or “Life-Sustaining” Businesses Under Governmental Business Suspensions

Construction Projects Suspended in Cambridge MA Until Further Notice

Signing a Construction Contract in the Middle of the Coronavirus Pandemic . . . Two Contract Clauses to Consider

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