Construction Bills: Recent Changes to Construction Laws

AuthorBy Asha A. Echeverria and Brian R. Zimmerman
Published in The Construction Lawyer, Volume 40, Number 3 Summer2020. © 2020 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
By Asha A. Echeverria and Brian R. Zimmerman
Asha A. Echeverria is a shareholder at Bernstein Shur in
Portland, Maine. Brian R. Zimmerman is a shareholder
at Hurtado Zimmerman S.C. in Milwaukee, Wisconsin.
Managing Federal Contract Performance Issues Associated
with the Novel Coronavirus (COVID-19)
On March 20, 2020, the Ofce of Management and Bud-
get (OMB) issued Memorandum No. M-20-18, titled
“Managing Federal Contract Performance Issues Asso-
ciated with the Novel Coronavirus (COVID-19),” and a
related Frequently Asked Questions (FAQs) attachment.
The memorandum’s purpose is to identify specic actions
for executive departments and federal agencies to con-
tinue performance of government contracts, if possible,
and consistent with the precautions issued by the Centers
for Disease Control and Prevention (CDC). The OMB’s
memorandum is applicable to all government contracts,
including construction contracts held by executive depart-
ments and federal agencies.
Telework and In-Person Activity
Applicability of telework to construction projects may be
limited, but as a foremost strategy, the OMB encouraged
departments and agencies to evaluate and maximize telework
for contractor employees, whenever possible. The OMB
acknowledged that COVID-19 was affecting contractor-
access to federal worksites due to building and workplace
closures, quarantines, or implementation of social distanc-
ing practices. The OMB urges agencies to work with their
contractors because “[t]elework is an important tool for
enabling continued contract performance in a manner that
can meet health and safety guidelines from the CDC and
State and local public health authorities.”
As to construction, the FAQs specically address whether
repairs of a federal building, like a museum, should be halted
until the building is reopened. OMB states that this should
be handled on a case-by-case basis, in consideration of the
health and safety of all involved. In addition, a decision
should only be made after discussions regarding the guid-
ance from CDC and local public health ofcials to determine
if the risk warrants stoppage of work and, if work continues,
steps that should be taken to protect the health and safety
of workers and government employees.
As to acquisition-related activities that are typically per-
formed in person, such as site walks and inspections, again
the OMB instructs agencies to determine actions on a case-
by-case basis, taking into consideration CDC guidance and
directives of state and local public health authorities. For
in-person events deemed essential, at minimum, all individu-
als should practice appropriate social distancing and follow
other CDC guidance for such interactions. Overall, much
like all businesses during this time, agencies should consider
virtual and innovative activities, such as online bidder meet-
ings and video proposals.
Extensions to Performance Dates and Contract Flexibility
“Equally important” to promoting telework, but probably the
most relevant to the construction industry, the OMB encour-
ages departments and agencies to be exible on contract
performance. Specically, the OMB endorses departments
providing extensions to performance dates if a contractor
cannot perform in a timely manner due to quarantining,
social distancing, or other COVID-19-related interruptions,
when telework or other exible work solutions, such as vir-
tual work environments, are not practical.
In the FAQs, the OMB empowers agencies to be as
exible as possible to nd solutions. It notes that govern-
ment contracts provide for excusable delays, which it states
may extend to quarantine restrictions due to exposure to
COVID-19.1 Contracting ofcers are encouraged to dis-
cuss the present conditions with contractors to determine
the best course of action, including other options related
to performance. Excusable delays that result in adjustments
to the performance period would not negatively impact a
contractor’s performance ratings. If continued performance
of the existing contractor is not feasible or other options
for performance could be available elsewhere, the OMB
suggests the possibility of a government termination for
convenience (applying the relevant convenience termination
clause or through a no-cost settlement) and re-procurement
through another contractor. Any such termination would
Asha A. Echeverria Brian R. Zimmerman

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