Construction Bills: Recent Changes to Construction Laws

• Author: By Asha A. Echeverria and Brian R. Zimmerman
• Pages: 42-44

THE CONSTRUCTION LAWYER42 Summer 2020

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.

CONSTRUCTION BILLS: RECENT CHANGES

TO CONSTRUCTION LAWS

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