With new ESDC Guidance, and Governor Cuomo’s recent executive order addressing non-essential construction in New York state, municipalities with construction projects underway have questions and matters for clarification. Below are a few highlights to share:
Essential nature: Private not-for-profit and for-profit construction companies are subject to the Governor’s 100% in-person workforce restrictions. However, local governments are exempt from these restrictions. This has created some confusion in the industry as to the obligations of construction companies engaged by a local government for a construction project. The recent directives from the State – although leaving the question open in some respects – indicate that “essential” construction projects for local governments are exempt from the Governor’s in-person workforce restrictions. In an email to an industry leader, an ESDC representative defined “essential projects” as those connected to health and safety of the building occupants or to support the broader essential services that are required to fulfill the critical operations of government or the emergency response to the COVID-19 public health crisis. The Governor’s new Executive Order makes clear that ESDC has decision making authority as to the “essential” nature of a project. We suggest you secure a letter or other documentation to confirm the essential nature of the project. Local governments should shut down all non-essential construction except emergency construction (e.g., a project necessary to protect health and safety of the occupants, or to continue a project if it would be unsafe to allow to remain undone until it is safe to shut the site); and only proceed with essential projects when they can implement appropriate social distancing and cleaning/disinfecting protocols. Even for private owners in essential industries, the recommendation is to shut down these projects, securing the site after health and safety issues are dealt with. One worker on-site is permitted.
Social distancing: All projects need to follow social distancing guidelines, which includes maintaining a minimum of six feet between workers or those on-site.
Delay Claims: Read your contracts, follow the notice requirements and prepare documentation of the related costs and issues.
Public bidding: No new guidance has been provided. However, since public owners appear to be largely exempt from this order, we should expect that bidding will continue unless we are notified otherwise.
Time frame: As of now, the new order is in effect through April 28, 2020.
