On June 4, 2020, the White House issued an Executive Order (“EO”), tied to the COVID-19 National Emergency, directing that “Agencies, including executive departments, should take all appropriate steps to use their lawful emergency authorities and other authorities to respond to the national emergency and . . . should take all reasonable measures to speed infrastructure investments.”  The effect of the EO is two-fold.  First, the EO directs various specific agencies to, within thirty (30) days of the EO, submit a list of infrastructure-related projects that will be expedited.  The following agencies and types of projects are singled out in the EO:

• Transportation Infrastructure Projects, including “highway and other infrastructure projects that are within the authority of the Secretary [of Transportation] to perform”
• Civil Works projects within the purview of the Army Corps of Engineers
• Projects on Federal lands subject to the authority of the Secretaries of Defense, the Interior, and Agriculture

As to each of the agencies mentioned, the EO directs that the agency “shall use all relevant emergency and other authorities to expedite work on, and completion of, all authorized and appropriated” projects.  This seems to indicate that the EO’s purpose is not only to accelerate the commencement of new projects, but also to expedite work on ongoing projects.  Thus, contractors already working on Federal projects subject to this EO should be aware of the directive to expedite and should be cognizant of any impact on project schedules and timelines the directive may cause.

The second effect of the EO is, in general, to employ emergency-based regulatory review procedures applicable to such projects pursuant to the National Environmental Policy Act (“NEPA”), Endangered Species Act, Clean Water Act, and other similar statutes.  In a general sense, the EO directs all agencies to identify potential infrastructure projects subject to these laws and to use emergency-based review procedures wherever possible, including specifically “the emergency Army Corps permitting provisions.”  Regarding NEPA, the EO’s direction is for agencies to rely upon “emergency procedures, statutory exemptions, categorical exclusions, analyses that have already been completed, and concise and focused analyses, consistent with NEPA.” 

Clearly, the goal of the EO is to increase the speed and number at which infrastructure-related projects are commenced and carried out by directing expediting and emergency review procedures.  With Congress likely to pass another COVID-19 stimulus bill sometime soon, if that bill contains an infrastructure stimulus component as is widely predicted, it is probable that there will be an uptick in federal construction projects in the coming months.  Despite the optimism behind the EO, however, the pace of projects should not theoretically be affected, since executive orders do not override state permitting procedures.  Nevertheless, Contractors should be aware that if the EO is implemented as planned, new projects enter the pipeline at a faster pace and should consider that in both performing current projects and bidding on future projects. 

The full Executive Order can be accessed here:  https://www.whitehouse.gov/presidential-actions/eo-accelerating-nations-economic-recovery-covid-19-emergency-expediting-infrastructure-investments-activities/

The General Services Administration has issued a Class Deviation in response to the COVID-19 pandemic amending certain requirements in the Federal Acquisition Regulation (“FAR”), effective March 30, 2020, and the General Services Acquisition Regulation (“GSAR”), effective February 19, 2020, regarding the signing/sealing of surety bonds.  Prior to the change, FAR 28.106-1, identified forms and instructions for when a bid bond, performance bond, or payment bond is required. These result in the requirement of a raised or adhesive seal on the bond.  Further, GSAR 528.202 required corporate surety bonds to have a manual signature and an affixed corporate seal in addition to the contracting officer (CO) manually verifying acceptability of the bond with a signature.  These clauses did not allow for any deviation from the above requirements.

In view of the COVID-19 pandemic, the GSA has issued a deviation from FAR 28.002, with the amended version now providing “electronic, mechanically-applied and printed signatures, seals and dates may be used and shall be considered original signatures, seals and dates, without regard to the order in which they were affixed.”  In addition, the deviation amends FAR 28.106-1, which now states “the bond forms shall be used as indicated in the instruction portion of each form​, except that a seal is not required​.”  Thus, any requirement that a payment, performance, or bid bond be manually signed and contain either a adhered or raised seal is suspended under the deviation.  Finally, the deviation removes GSAR 528.202, which required a manual signature and physical seal on corporate surety bonds, as well as GSAR 528.202-70, which required the Contracting Officer to verify the acceptability of the bond and include a signature.  Class Deviation CD-2020-05 is effective until rescinded by the GSA or permanently incorporated into the FAR and GSA.  Thus, any contracts or solicitations incorporating the above clauses after the effective dates above are affected by this deviation.

In light of this deviation, contractors should be aware that for existing awards, sureties do not need to provide manual signatures and physical seals on payment and performance bonds.  For current or future solicitations, contractors should further be aware, and ensure sureties are aware, that bid bonds similarly do not require physical signatures or seals.  The full memorandum from the GSA regarding this class deviation can be found here:
https://www.acquisition.gov/sites/default/files/page_file_uploads/CD-2020-05_0.pdf

New Jersey Supreme Court rules on March 10, 2015 that New Jersey’s Trial Court’s are now responsible for determining how many homes should be made available to low and moderate income residents in municipalities. The Trial Courts will make affordable housing determinations on a case by case basis opening the door to challenges by low and moderate income residents as well as developers against municipalities to determine whether the municipalities are in compliance with its fair share obligations. The Supreme Court took this drastic step as a result of COAH’s failure to meet two separate deadlines to establish new rules that were imposed by the Court.