Solid Foundation: A Construction Law Blog

March 23, 2020

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

COVID-19, RI Statute Update

Authors:

Katharine E. Kohm

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

Authors:

R. Thomas Dunn

Practice area:

Construction

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

Authors:

R. Thomas Dunn

Practice area:

Construction

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

Authors:

R. Thomas Dunn

Practice area:

Construction

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

Authors:

R. Thomas Dunn

Practice area:

Construction

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

Authors:

R. Thomas Dunn

Practice area:

Construction

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

March 19, 2020

Steps to Take if You Receive a Subcontractor’s COVID-19 Work Suspension Notice

COVID-19, Delay, Risk Management

Authors:

R. Thomas Dunn

Practice area:

Construction

There are increasing reports that some subcontractors have decided to suspend operations during the COVID-19 outbreak. The subcontractors made this difficult decision even though the construction projects for which the general contractor has a continuing performance obligation remain ongoing with CDC health and safety measures in place.

What should a general contractor do if it receives such a notice (assuming the project is still moving forward)? My thoughts are below recognizing that our present environment changes from day to day based upon news reports and governmental orders.

1. Reply to the subcontractor. Confirm receipt of the notice and inquire about the subcontractor’s reasons for suspension and corporate policies regarding COVID-19 if not clear from the notice letter. If not already established, provide a contact person for the subcontractor to provide updates as to the subcontractor’s policies and work plan schedule. Include a reservation of rights so that it is clear that you are preserving claims arising from the suspension and state that

March 17, 2020

Contractors: Its Time to Send Your COVID-19 Notice

COVID-19, Delay, Risk Management

Authors:

R. Thomas Dunn

Practice area:

Construction

The day-to-day professional and personal impact of the COVID-19 pandemic is substantial. The global event will have dozens of common legal implications that we will address in this blog over the coming days, but for now I wanted to start with the basic starting point for any event of delay and/or additional cost on a construction project — THE NOTICE!

The time is now to send your notice.

This is not an adversarial notice. Your contracting party will understand the impacts experienced and should appreciate the proactive approach in communicating the COVID-19 impacts. If discussions have occurred between with your contracting party, I would still send a formal notice as to avoid further legal defenses down the line. Also, providing the formal notice creates a structure that is helpful in creating a productive communication pathway regarding the delays/costs incurred and ways to mitigate them.

No matter what the legal theory, the COVID-19

March 17, 2020

City of Boston’s Press Release on Suspending Construction in Boston Effective March 17th

COVID-19, Delay, Risk Management

Authors:

R. Thomas Dunn

Practice area:

Construction

Below is the City of Boston’s Press Release suspending all regular activity at construction sites in Boston as of today – March 17, 2020. Sites need to be made safe by March 23, 2020. Policy will be revisited in two weeks.

CONSTRUCTION SITES

Effective tomorrow, Tuesday, March 17, 2020, the City is suspending all regular activity at construction sites in Boston. Employers should maintain the necessary crews to keep their sites safe and secure, keep any materials from blowing away, and prevent trespassing. This work needs to be completed in the next week, by Monday, March 23, 2020. After sites have been secured, skeleton crews will be permitted for the remainder of this suspension to ensure safety. The only work that will be permitted moving forward will be emergency work, which will need to be approved by the City of Boston’s Inspectional Services Department.

That essential work includes:

emergency utility, road or building work, such as

December 13, 2019

Claims against RIDOT – Important Judicial Decisions in 2019

Litigation, RI Case Law Update

Authors:

Cheryl L. Allen-Ricciardi

Practice area:

The Rhode Island Superior Court came down with a few interesting decisions this year concerning Rhode Island General Law Section 37-13.1-1. That statute deals with actions against the State of Rhode Island on Highway and Public Works contracts. The statute provides in part:

37-13.1-1. Suits allowed – Jurisdiction – Statute of limitations – Procedure. (a) Any person, firm, or corporation which is awarded a contract subsequent to July 1, 1977, with the state of Rhode Island, acting through any of its departments, commissions, or other agencies, for the design, construction, repair, or alteration of any state highway, bridge, or public works other than those contracts which are covered by the public works arbitration act may, in the event of any disputed claims under the contract, bring an action against the state of Rhode Island in the superior court for Providence county for the purpose of having the claims determined, provided notice of the general nature of the claims shall have been given

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.

Solid Foundation: A Construction Law Blog is edited by Tom Dunn, a partner at Pierce Atwood LLP. You can follow Tom Dunn on LinkedIn and Twitter.

Additional contributors are members of Pierce Atwood’s Construction Group, including Christopher Little, John Bulman, Christopher Whitney, Gavin McCarthy, Katie Kohm, and Cheryl Allen-Ricciardi. We will post articles written by Pierce Atwood attorneys with our Energy Infrastructure Practice Group, Environmental Practice Group, and Real Estate Practice Group.

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

Steps to Take if You Receive a Subcontractor’s COVID-19 Work Suspension Notice

Contractors: Its Time to Send Your COVID-19 Notice

City of Boston’s Press Release on Suspending Construction in Boston Effective March 17th

Claims against RIDOT – Important Judicial Decisions in 2019

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