New York’s Prompt Pay Act, which sets the standards that govern private commercial construction contracts exceeding $150,000, was amended effective November 17, 2023. The Amendment known as Senate Bill 3539 provides two significant changes which advance the timing of payments from the owner to the contractor. First, Section 756-a now permits a contractor to submit
Comments on DOT Proposed Rulemaking for DBE and ACDBE Programs Extended to October 31, 2022
The Department of Transportation (DOT) recently published a notice in the Federal Register of proposed rulemaking (NPRM) to amend the Disadvantaged Business Enterprise (DBE) and the Airport Concession Disadvantaged Business Enterprise (ACDBE) regulations. 87 Fed. Reg. 43620 (July 21, 2022). This proposal is the first NPRM update since 2014. While the DOT was originally scheduled
DBE Gross Receipts Cap Adjusted for Inflation
In December 2020, the United States Department of Transportation (DOT) amended the small business size limit under the Disadvantaged Business Enterprise (DBE) program (section 1101(b) of the Fixing America’s Surface Transportation (FAST) Act (Pub. L. 114-94, Dec. 4, 2015). The rule, which goes into effect on January 13, 2021, increases the DBE gross receipts cap (averaged over the firm’s previous three fiscal years) to $26,290,000 for Federal Highway Administration (FHWA) and Federal Transit Administration (FTA) related work. This inflationary-based adjustment is an increase over the prior gross receipts cap of $23,980,000 enacted in 2015. The effect of this rule, which is “not considered a significant economic impact on a substantial number of size entities”, is to allow “some small businesses to continue to participate in the DBE programs by adjusting for inflation.” This adjustment should provide relief for some DBEs that were close to exceeding the limits from 2018-2020.
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Robinson+Cole Hosts Roundtable on Diversity & Inclusion
Robinson+Cole’s Construction Law Group hosted its first industry-wide, virtual roundtable on the topic of diversity and inclusion (“D&I”) on September 17, 2020. The program grew out of an earlier Roundtable conversation and focused specifically on strategies and techniques to promote diversity and inclusion in the construction industry. Recognized diversity & inclusion program leaders across the northeast area from government agencies, construction industry organizations, contractor and sub-contractor firms, suppliers, and architectural and engineering firms joined the closed-panel, working-group discussion.
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OSHA’s COVID-19 Guidelines for the Construction Industry are Generally Consistent with New York State’s and New York City’s Existing Guidelines
This post was co-authored with Jonathan Schaefer, who is a member of Robinson+Cole’s Environmental, Energy + Telecommunications Group. Jon focuses his practice on environmental compliance counseling, occupational health and safety, permitting, site remediation, and litigation related to federal and state regulatory programs.
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New York Empire State Development Issues Guidance for Construction Staging Activities
In anticipation of reopening all construction activities statewide, on May 22, 2020, Governor Cuomo announced that construction staging activities would be allowed to commence before the Regions officially reopen. On May 31, 2020, the New York Empire State Development (“ESD”) updated its Guidance on Executive Order 202.6 (“NY Guidelines”) to provide specifications regarding construction staging. With most Regions currently in Phase One or Phase Two, the staging guidance is most applicable to New York City which is currently restricted to conducting only essential construction until it is cleared for a Phase One reopening. The allowed activities include the following:
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New York’s Multi-Faceted Approach to Reopening “Non-Essential” Construction
COVID-19’s impact in New York has been particularly region-specific. To address the disparity, Governor Cuomo created a four-phase reopening plan to be implemented where geographic regions meet their required “health metrics.”
Each phase correlates with a group of industries in which their non-essential businesses may permit the return of their in-person workforce – under certain conditions – in qualifying regions. (As of the date of this publication, the regions that have qualified based on their health metrics are the Capital Region, Central New York, Finger Lakes, Mohawk Valley, North Country, Southern Tier and Western New York.) Construction is one of the industries comprising “Phase One.”
Construction companies within an eligible region may reopen so long as they satisfy the specific construction industry health and safety guidelines in four categories: physical distancing, protective equipment, cleaning and hygiene, and communication. The guidelines outline the mandatory requirements and provide additional recommended “best practices,” as follows:
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New York Clarifies “Emergency” and “Essential” Construction
Following Governor Cuomo’s order and the Empire State Development (ESD) guidance on March 27, 2020, which provided that all “non-essential construction” except “emergency construction” must shut down, this week the Commissioner of the New York City Department of Buildings issued clarification about the terms “emergency” and “essential” construction (the “Bulletin”).
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New York Construction Building Owners Assume New Roles and Responsibilities in Wake of Construction Shutdowns
With many New York City construction projects deemed non-essential, owners find themselves with partially completed work coupled with legal obligations to maintain the safety of the property. The temporary shutdown shifts responsibilities (and liability) for maintaining the safety of the property and the public to the owner. From maintaining permits to weekly inspections and weather protection, owners are now tasked with numerous roles and responsibilities more typical of those of a general contractor. Failure to understand and address these requirements places the owner at risk of noncompliance and potential delays when work is ready to resume if for example, permits have lapsed or areas of the site are no longer code compliant. The full New York City Building Department bulletin (the Bulletin) issued last week provides guidance to owners and contractors regarding the minimum requirements for maintaining construction and demolition sites when operations are suspended.
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Much of New York Construction is Now Also “on PAUSE”
Although Governor Cuomo put “New York State on PAUSE” a week ago, at that time, “construction” was not specifically exempted from his Executive Order and the Empire State Development’s (ESD) guidance on what businesses were subject to the 100 percent workforce reduction. Yet, pursuant to a further directive from the Governor, on March 27, 2020,