On March 19, 2020, in response to the difficult, unprecedented, and constantly-evolving COVID-19 national health emergency, Pennsylvania Governor Tom Wolf issued an Executive Order which has shut down the physical locations of all non-life-sustaining businesses in Pennsylvania, including all construction projects, both public and private, except for emergency repairs and projects related to health facilities. The shut down Order was effective March 19, 2020, with enforcement to begin today, March 23, 2020, at 8:00 AM. The shut down Order is subject to a waiver process that might allow certain physical work sites to remain open. Public contractors seeking a waiver of the shut down of their contracting businesses and physical work sites can find information about the waiver process here. Until a waiver is granted, the physical work sites cannot re-open. In addition, various public contractor trade associations are seeking relief from Governor Wolf’s order so that critical public highway and other public infrastructure projects can continue unabated.
The current COVID-19 pandemic and Governor Wolf’s Executive Order seem to fit squarely into the classic definition of “force majeure,” which typically includes “action or inaction by a governmental authority to the extent not caused by Contractor, war, civil riots, floods, natural disasters, fire, orders of any court or public authority having jurisdiction to the extent not caused by Contractor,” and other similar “acts of God” or circumstances beyond either party’s reasonable control.
In addition, public contractors holding contracts with Commonwealth agencies and departments are in a unique position because the public entity stopping their work is the public entity with whom they are contracting. That means the public entity is acting both in police power role and in a contracting party role.
Because this is a complicated area of the law, it is recommended that all public contractors consult with experienced legal counsel to determine whether to invoke and provide notice of force majeure to their public owner counterparts.
If you need assistance on this important public contracting issue, call or email me. I’ll be happy to assist in anyway possible.
Christopher I. McCabe, Esq.
