As noted in our posts on March 24 (see original and update posts) and notwithstanding advisories by certain trade groups and law firms promoting broad interpretation of Governor Inslee’s “Stay Safe-Stay Home” Order to allow most construction projects to proceed, we recommended a more conservative interpretation of that Order pending clarification from the Governor. At approximately 5:30pm on March 25, 2020, Governor Inslee issued the attached Memorandum providing that clarification. Governor Inslee’s Memorandum states, in part:
This clarification supports a more restrictive interpretation of the Order, particularly in light of the language stating that “In general, commercial and residential construction is not authorized under the Proclamation because construction is not considered to be an essential activity.” The Order (and its clarification) authorize expressly exempted activities, including projects supporting healthcare, emergency services sectors, food and agriculture, energy, water and wastewater, transportation and logistics, communications and information technology, and other essential functions described in the Order. In addition, per the Clarification, activities that fall under category (c) above, to prevent spoliation, avoid damage or unsafe conditions and to address emergency repairs are exempted on all construction projects.
Both AGC and ABC have issued advisories regarding the Governor’s Clarification at the following advisories as well:
|MARCH 25, 2020|
|Much of construction is shut down in recent Governor’s order |
Click here to see new guidance released this evening by the Governor.
Based on this new guidance regarding construction, what we know is this:
WSDOT will suspend most of its operations, effective end of day tomorrow, based on a telecon we just held with WSDOT officials. The few exceptions are fish passages, per the Supreme Court’s injunction, and projects needed for safety matters (determined on project by project basis). WSDOT will be sending or has sent a memorandum to its contractors with additional information. This is contrary to information AGC sent out yesterday; WSDOT was planning to proceed with all projects, but apparently this was subsequently overruled by the Governor.
Local governments (and this appears to include school districts) will have the authority to make determinations about the public infrastructure construction within their jurisdictions. Before this new guidance from the Governor, we had contacted many local governments, and most indicated they are proceeding with construction work. This new guidance does not seem to give them any reasons to change their minds, but at this point we can’t be definitive with regard to what individual jurisdictions will do – please be in contact with your local government clients.
Commercial construction is largely shut down, except to support essential services such as IT infrastructure. As best we understand it, for example, data centers would be allowed to proceed, but not necessarily an office building being constructed by a tech company. There may still be some gray area here, but the main point is that construction can proceed if it supports an essential function of an essential industry, not simply any function. Please be in contact with your clients.
Residential construction (except for publicly funded low-income housing) will not be allowed except as it relates to emergency repairs and projects that ensure structural integrity, and any residential construction that may be related to the provision of other essential services.
This guidance will be in effect for the duration of the Governor’s Stay Home, Stay Healthy proclamation, currently slated to end Apr. 6, although the Governor has stated he may extend it if circumstances warrant.
AGC has worked hard with many partners over the last few days to urge the Governor to keep construction going as long as it can be done safely, and we worked hard to provide safety guidance and information to help ensure that it can be. We are disappointed in the Governor’s decision, but we also realize that the health of citizens and our workforce is paramount.
In the meantime, we will continue to work with the Governor’s office to help get construction going as soon as possible.
We will continue to refine COVID-19 safety guidance.
We will continue to provide members with as much information as we can regarding important programs such as unemployment insurance and business loans.
We will answer your questions as best as we can, and we urge you to visit our COVID-19 Contractors’ Resource page.
Executive Vice President
AGC of Washington
We anticipate that there will still be many questions regarding what all of this means. We are here to help. If a project owner or contractor desires clarification as to whether a project or scope of work is exempted, it can seek an exemption or clarification at the following state portal: https://app.smartsheet.com/b/form/d4c155fa930f4b848f95774d610c9708. This will take you to the following page for Essential Business Inquiries.
We have already assisted clients with clarification requests and our lawyers can assist anyone seeking further clarification of the Governor’s Order or submitting exemption and/or clarification requests from the State. Please contact our lawyers with questions regarding the Governor’s Order or to provide assistance with submitting exemption or clarification requests.
Author’s Note: Special thanks to many of the lawyers at ACS for providing updates over the past few days, and Brett Hill in particular for being on top of the latest information and distributing the Governor’s Clarification immediately after it was issued.