25 Mar COVID-19 Where Do I Get Help?
One of our core principles continues to be
“The answer is always in the solution, never in the problem”
What we find is that people will continuously talk about the Problem and seldom focus on the Solution. Helping clients find solutions has been the hallmark of our success initially at Boyken International and now at DRB Development Solutions.
To aid in that endeavor, our team had been focused on collecting solutions available as it relates to COVID-19, for construction projects and the small business community, placing them on our website (www.ConsultDRB.com) as a collection point with links to the source.
- Contract Relief
- Disaster Loan Program Information
- Economic Injury Disaster Loan Program
- Access to Capital
Each of these topics are articles from others. We are collecting them in one location as a service to our clients and readers. I doubt we have found them all and should you find a helpful article with solutions, please send it to info@ConsultDRB.com and we will add it to the website www.ConsultDRB.com.
Helping our clients with their challenges continues to be our business mission. The COVID-19 challenge will pass and together we can help each other through these corporate and health challenges.
COVID-19 – SMALL BUSINESS ASSISTANCE
During these uncertain times for small business owners, we at DRB want to keep you informed of the programs that our government is offering to help small businesses. We will continue to provide updates as they develop.
Listed below are some programs and relief measures for small business owners.
The contract has been Suspended – Were You Ready? By Stephen P. Katz, Esq. Peckar & Abramson PC
“Effective tomorrow … the City is suspending all regular activity at construction sites in Boston.” This was just one of the surprises that greeted contractors last week. Contractors and owners with projects across the country are scrambling to comply with mandated governmental suspensions. Project participants should begin contingency planning for possible project shutdowns.
Topics for the Article
- Reacting to Suspension
- Planning for a Shutdown
- Force Majeure Clause – Suspension by Government
The Small Business Administration has released the Guidance for Businesses and Employers to Plan and Respond to Coronavirus (“COVID-19”) which includes preliminary information about the Disaster Loan Program.
The Georgia Department of Labor (GDOL) has adopted an emergency Rule 300-2-4-0.5 Partial Claims, effective March 16, 2020. The rule mandates all Georgia employers to file partial claims online on behalf of their employees for any week during which an employee (full-time/part-time) works less than full-time due to a partial or total company shutdown caused by the COVID-19 public health emergency. Any employer found to be in violation of this rule will be required to reimburse GDOL for the full amount of unemployment insurance benefits paid to the employee. Download the How Employers File Partial Claims Desk-Aid found on the GDOL Alert Page and follow the step-by-step instructions.
Filing partial claims results in your employees receiving unemployment insurance (UI) benefit payments faster, usually within 48 hours for claims filed electronically. Employees for whom you file a partial claim are NOT required to report to a Georgia Department of Labor career center, register for employment services, or look for other work.
Please continue to monitor our website at gdol.ga.gov for any updates to these guidelines.
SBA to Provide Disaster Assistance Loans for Small Businesses Impacted by Coronavirus (COVID-19)
Contact: Jennifer.Kelly@sba.gov (202)205-7036
WASHINGTON – SBA Administrator Jovita Carranza issued the following statement today in response to the President’s address to the nation:
“The President took bold, decisive action to make our 30 million small businesses more resilient to Coronavirus-related economic disruptions. Small businesses are vital economic engines in every community and state, and they have helped make our economy the strongest in the world. Our Agency will work directly with state Governors to provide targeted, low-interest disaster recovery loans to small businesses that have been severely impacted by the situation. Additionally, the SBA continues to assist small businesses with counseling and navigating their own preparedness plans through our network of 68 District Offices and numerous Resource Partners located around the country. The SBA will continue to provide every small business with the most effective and customer-focused response possible during these times of uncertainty.”
SBA’s Economic Injury Disaster Loans offer up to $2 million in assistance for a small business. These loans can provide vital economic support to small businesses to help overcome the temporary loss of revenue they are experiencing.
Process for Accessing SBA’s Coronavirus (COVID-19) Disaster Relief Lending
- The U.S. Small Business Administration is offering designated states and territories low-interest federal disaster loans for working capital to small businesses suffering substantial economic injury as a result of the Coronavirus (COVID-19). Upon a request received from a state’s or territory’s Governor, SBA will issue under its own authority, as provided by the Coronavirus Preparedness and Response Supplemental Appropriations Act that was recently signed by the President, an Economic Injury Disaster Loan declaration.
- Any such Economic Injury Disaster Loan assistance declaration issued by the SBA makes loans available to small businesses and private, non-profit organizations in designated areas of a state or territory to help alleviate economic injury caused by the Coronavirus (COVID-19).
- SBA’s Office of Disaster Assistance will coordinate with the state’s or territory’s Governor to submit the request for Economic Injury Disaster Loan assistance.
- Once a declaration is made for designated areas within a state, the information on the application process for Economic Injury Disaster Loan assistance will be made available to all affected communities.
- These loans may be used to pay fixed debts, payroll, accounts payable and other bills that can’t be paid because of the disaster’s impact. The interest rate is 3.75% for small businesses without credit available elsewhere; businesses with credit available elsewhere are not eligible. The interest rate for non-profits is 2.75%.
- SBA offers loans with long-term repayments in order to keep payments affordable, up to a maximum of 30 years. Terms are determined on a case-by-case basis, based upon each borrower’s ability to repay.
- SBA’s Economic Injury Disaster Loans are just one piece of the expanded focus of the federal government’s coordinated response, and the SBA is strongly committed to providing the most effective and customer-focused response possible.
For additional information, please contact the SBA disaster assistance customer service center. Call 1-800-659-2955 (TTY: 1-800-877-8339) or e-mail firstname.lastname@example.org(link sends e-mail).
Small business owners in the following designated states are currently eligible to apply for a low-interest loan due to Coronavirus (COVID-19):
California, Connecticut, Delaware, the District of Columbia, Florida, Georgia, Indiana, Maine, Massachusetts, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Rhode Island, Utah, and Washington. Click here to apply.
Find more information on the SBA’s Economic Injury Disaster Loans at: SBA.gov/Disaster.
The SBA will work directly with state Governors to provide targeted, low-interest loans to small businesses and non-profits that have been severely impacted by the Coronavirus (COVID-19). The SBA’s Economic Injury Disaster Loan program provides small businesses with working capital loans of up to $2 million that can provide vital economic support to small businesses to help overcome the temporary loss of revenue they are experiencing.
Guidance for Businesses and Employers
The Centers for Disease Control and Prevention (CDC) offers the most up-to-date information on COVID-19. This interim guidance is based on what is currently known about the coronavirus disease 2019 (COVID-19). For updates from CDC, please see the following:
- Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19)
- Preventing Stigma Related to COVID-19
- Share Facts about COVID-19
- CDC Coronavirus Disease 2019 (COVID-19) Web page
- Information on Coronavirus Disease 2019 (COVID-19) Prevention, Symptoms and FAQ
The following interim guidance may help prevent workplace exposure to acute respiratory illnesses, including COVID-19, in non-healthcare settings. The guidance also provides planning considerations if there are more widespread, community outbreaks of COVID-19.
To prevent stigma and discrimination in the workplace, use the guidance described below and on the CDC’s Guidance for Businesses and Employers web page.
Below are recommended strategies for employers to use now. In-depth guidance is available on the CDC’s Guidance for Businesses and Employers web page:
- Actively encourage sick employees to stay home
- Separate sick employees
- Emphasize staying home when sick, respiratory etiquette and hand hygiene by all employees
- Perform routine environmental cleaning
- Advise employees before traveling to take certain steps
- Check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country to which you will travel. Specific travel information for travelers going to and returning from designated countries with risk of community spread of Coronavirus, and information for aircrew, can be found on the CDC website.
- Additional Measures in Response to Currently Occurring
Sporadic Importations of the COVID-19:
- Employees who are well but who have a sick family member at home with COVID-19 should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
- If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). Employees exposed to a co-worker with confirmed COVID-19 should refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
Common Issues Small Businesses May Encounter:
- Capital Access – Incidents can strain a small business’s financial capacity to make payroll, maintain inventory and respond to market fluctuations (both sudden drops and surges in demand). Businesses should prepare by exploring and testing their capital access options so they have what they need when they need it. See SBA’s capital access resources.
- Workforce Capacity – Incidents have just as much impact on your workers as they do your clientele. It’s critical to ensure they have the ability to fulfill their duties while protected.
- Inventory and Supply Chain Shortfalls – While the possibility could be remote, it is a prudent preparedness measure to ensure you have either adequate supplies of inventory for a sustained period and/or diversify your distributor sources in the event one supplier cannot meet an order request.
- Facility Remediation/Clean-up Costs – Depending on the incident, there may be a need to enhance the protection of customers and staff by increasing the frequency and intensity by which your business conducts cleaning of surfaces frequently touched by occupants and visitors. Check your maintenance contracts and supplies of cleaning materials to ensure they can meet increases in demand.
- Insurance Coverage Issues – Many businesses have business interruption insurance; Now is the time to contact your insurance agent to review your policy to understand precisely what you are and are not covered for in the event of an extended incident.
- Changing Market Demand – Depending on the incident, there may be access controls or movement restrictions established which can impede your customers from reaching your business. Additionally, there may be public concerns about public exposure to an incident and they may decide not to go to your business out of concern of exposing themselves to greater risk. SBA’s Resources Partners and District Offices have trained experts who can help you craft a plan specific to your situation to help navigate any rapid changes in demand.
- Marketing – It’s critical to communicate openly with your customers about the status of your operations, what protective measures you’ve implemented, and how they (as customers) will be protected when they visit your business. Promotions may also help incentivize customers who may be reluctant to patronize your business.
- Plan – As a business, bring your staff together and prepare a plan for what you will do if the incident worsens or improves. It’s also helpful to conduct a tabletop exercise to simulate potential scenarios and how your business management and staff might respond to the hypothetical scenario in the exercise. For examples of tabletop exercises, visit FEMA’s website at: https://www.fema.gov/emergency-planning-exercises
SBA provides several loan resources for small businesses to utilize when operating their business. For more information on loans or how to connect with a lender, visit: www.sba.gov/funding-programs/loans.
How to get access to lending partners? SBA has developed Lender Match, a free online referral tool that connects small businesses with participating SBA-approved lenders within 48 hours.
- 7(a) program offers loan amounts up to $5,000,000 and is an all-inclusive loan program deployed by lending partners for eligible small businesses within the U.S. States and its territories. The uses of proceeds include: working capital; expansion/renovation; new construction; purchase of land or buildings; purchase of equipment, fixtures; leasehold improvements; refinancing debt for compelling reasons; seasonal line of credit; inventory; or starting a business.
- Express loan program provides loans up to $350,000 for no more than 7 years with an option to revolve. There is a turnaround time of 36 hours for approval or denial of a completed application. The uses of proceeds are the same as the standard 7(a) loan.
- Community Advantage loan pilot program allows mission-based lenders to assist small businesses in underserved markets with a maximum loan size of $250,000. The uses of proceeds are the same as the standard 7(a) loan.
- 504 loan program is designed to foster economic development and job creation and/or retention. The eligible use of proceeds is limited to the acquisition or eligible refinance of fixed assets.
- Microloan program involves making loans through nonprofit lending organizations to underserved markets. Authorized use of loan proceeds includes working capital, supplies, machinery & equipment, and fixtures (does not include real estate). The maximum loan amount is $50,000 with the average loan size of $14,000.
Reacting to Suspension
Your legal rights and remedies will be largely determined by your contract and the laws applicable to it. But some basic principles will be applicable depending on the source of the suspension.
Suspension by the Owner: An owner work suspension suggests review of the contract’s suspension of work clause. Federal contractors would look to the FAR Suspension of Work clause, FAR 52.242-14, but that is applicable if the suspension is by the Contracting Officer; the US would argue that a systemic suspension was a sovereign act and outside the FAR clause.
Contractors for private work and state or municipal work may have contractual suspension of work clauses. At least some suspension clauses provide relief for time and money.
For example, AIA A201, §14.3.2 provides for adjustment “of the cost and time caused by suspension.” §14.1.1 of the A201 allows the contractor to terminate if the project has been suspended for more than 30 days for various reasons, including governmental order.
Suspension by Government: A contract suspended by governmental order may present a different situation entirely. The first step is to understand the nature of the order. These may muddy your rights and remedies with ambiguities that occur in hastily drafted government directives which do not consider the unique requirements of a construction project.
After you understand the order and have evaluated whether the shutdown is authorized by law, consult the project owner. Do the parties agree on the scope and effect of the order? Document the owner’s acknowledgment of the suspension. That conversation affords a chance to discuss security and the costs and benefits of protective work before or during the shutdown.
We have seen much written recently about the doctrines of force majeure and impossibility of performance. Keep in mind that these doctrines may only allow relief in the form of a time extension.
Suspension by the Contractor: Depending on the contract terms, there may be unusual circumstances in which a contractor thinks that the work should be suspended. Your contract may provide that right. The AIA’s “Emergencies” provision (§10.4 of the A201) allows the contractor to act at its discretion “in an emergency affecting safety of persons or property.” It also allows for the possibility of compensation along with a time extension but think carefully before exercising such an option.
Planning for Shutdown
We don’t know how much time you’ll have. Contractors in San Francisco had less than a day. The Boston order allowed a week to secure the site, and “skeleton crews” could remain to ensure safety. In either case, contractors would have been better prepared if they did some contingency planning. Here are some considerations for your planning.
Notice: A contractor should immediately give notice to the owner reserving the right to additional time and money. Be careful that the notice is not so narrow as to focus on clauses or theories of relief that provide time without compensation. The notice should also include a suggestion of planning for mitigation of damages in line with the planning points discussed below. Contractors should use this notice as an opportunity to educate owners on the risks of suspension. Warranties may be voided. Damage can occur to the work during the suspension requiring expensive remediation.
Contractors will also need to notify subcontractors and vendors about the suspension. If there is time and the opportunity to take protective actions, each trade should be consulted about their contribution and their suggestions.
Securing the Site: Review the relevant provisions of your contract governing suspensions of the work (whether by the owner, contractor or government entity). Take reasonable steps under the circumstances to secure the site and protect and preserve stored materials, equipment and work-in-place. Review insurance policies and consult with your insurance advisors to confirm that any materials, equipment, etc., are stored and secured in conformance with all insurance requirements. Plan how construction equipment might be quickly removed from the site and consider whether stored materials might be better protected on the site or elsewhere.
Protecting the Work in Place and the Project: Consider presenting the owner with a mitigation plan that will show how areas of work might be protected. Protection done at suspension may lessen restoration dollars spent when construction resumes and may assist in preserving warranty rights. The risk mitigation plan should lead to an agreement as to responsibility for security at the site during the shutdown, as well as maintenance of protection at the site. Can compensable work be done off-site during the suspension to mitigate delays to the project schedule? Will you get paid for that off-site work?
Document: Contractors know how to document the costs of a shutdown, including idle equipment and extended job site costs. But don’t forget that comprehensive documentation of the project’s status before a shutdown, including photographs, also provides several benefits. It benchmarks the security of the project and stored materials, confirms your efforts to protect the site itself, and supports your interim application for payment when a normal progress inspection may be impractical or illegal.
As Yogi Berra said, “the future just ain’t what it used to be.” In these uncertain times, construction participants would be well served to spend some time planning for the contingency of a project shutdown. That planning may serve to avoid or at least limit the costs of one.
The information provided in this Alert does not, nor is it intended to, constitute legal advice. Readers should not take or refrain from taking any action based on any information contained in this Alert without first seeking legal advice.
Stephen P. Katz, Esq.
Chairman, Corporate Practice
Peckar & Abramson PC