Recent Executive Orders as Related to New Jersey Construction Projects
On March 16, 2020 Governor Murphy set forth in Executive Order 104 a number of measures instituted to combat the Coronavirus (COVID-19). The most notable aspect of this Executive Order for public owners and construction industry professionals and contractors, is that construction sites are excluded from the ban on gatherings of 50 or more people. Thus, construction projects are permitted to continue. The Executive Order does not differentiate between ground-up/new-build construction projects and additions and renovations to pre-existing structures. Accordingly, at this point, neither type of construction project should be negatively impacted by the Executive Order. Notably, students are out of schools, as directed by that same Executive Order.
Assuming this status continues, owners, contractors and professionals should be aware that projects may face labor or material shortages and delays. Accordingly, issues of force majeure, suspension for convenience, delay damages, and related contract provisions will come into play.
Additionally, the New Jersey General Assembly is considering a number of emergent bills similarly intended to address the impact of COVID-19. Specifically, two of these bills (A3839 and A3850) should be of particular interest to Public Owners. Assembly Bill A3839 would make a supplemental appropriation of up to $20 Million available from the General Fund to the Department of Education to support school cleaning and sanitizing. These cleaning activities will have to be coordinated with construction projects, but this should be manageable.
Notably, at present, public owners can continue to hold meetings under the Open Public Meetings Act, albeit having to observe restrictions related to attendance size (50 or less) and social distancing. The law already allows for electronic participation during a state of emergency and legislation was just passed to expand this capability for public lenders and meeting attendees. So, transactions that a public owner must act upon related to construction projects, i.e. awards, payment and change order approvals, etc. can still take place.
We will continue to monitor proposed and enacted legislation and will send timely updates. Our firm remains open for business and is committed to providing you with the same uninterrupted level of attention and service for your legal needs during this difficult time. If you have any questions, please reach out to the Construction Department at any time.
The content of this post is for informational purposes only and should not be construed as legal advice or legal opinion. You should consult a lawyer concerning your specific situation and any specific legal question you may have.