The coronavirus crisis has made life difficult for Americans on both a personal and work-related level. While concern about personal health is paramount, the health of the economy cannot be ignored. The recently enacted stimulus package brings vital short-term relief, but the long-term health of the economy will be driven by how quickly people can get back to work.
The construction industry has, in some cases, been exempted from “stay at home” rules because construction projects are frequently regarded as essential activities. That being said, many state and local projects are being delayed as reported by the Associated General Contractors of America (AGC) as shown on its excellent interactive map. In federal construction, however, the government seems to be doing its best to keep projects moving, although that could become impossible if the pandemic worsens.
In federal construction, there are many legal issues that arise during a time of crisis. These include the negotiation of emergency contracts and subcontracts, emergency change orders, delays, suspensions of work, and terminations (both for convenience and default). There are issues involving the inclusion of appropriate contract clauses specified in the FAR, the insertion of flow-down clauses in subcontracts, the reservation of rights when releases are being negotiated, the determination of whether delays are excusable and compensable, together with the possibility of bid protests and claims.
It is fortunate that these legal issues can all be addressed remotely and by email, conference calls, and videoconferencing. We are finding that government agencies are either open or working remotely, and there has been no difficulty contacting government attorneys and contracting officers. Because all of our client files are available on the firm’s servers, and because all legal research is performed online, it is not difficult to practice government contract law in a virtual world. In fact, we welcome the opportunity to serve as virtual in-house counsel and co-counsel to provide advice on government contracting matters.
