Late Tuesday afternoon, MDOT’s Chief Operations Officer, Tony Kratofil, sent the following email message to the industry association partners:
I know there have been lots of questions and confusion regarding the implications of Executive Order 2020-21, “Stay Home. Stay Safe.” The Director and I have spoken with many of you over the course of the last few days, but I wanted to reach out to affirm MDOT’s understanding is that our transportation system is considered critical infrastructure under the EO, and the maintenance and construction of our infrastructure by our employees, contractors, consultants and their employees are allowed to proceed accordingly.
MDOT will not be issuing a press release or further public statement at this time. The state’s coronavirus website should be used as the official source of information.
I specifically refer you to the eighth question and answer under the FAQs for EO 2020-21.
Of course, the COVID-19 pandemic presents a very dynamic situation and things could always change.
Nothing in this message is intended to provide specific direction to any agency or company; it is solely intended to inform you how MDOT will adhere to the direction of the Governor as indicated in her Executive Order 2020-21.
Thank you for your continued cooperation and understanding. Please be safe and encourage all individuals to practice the universal precautions issued by the CDC to protect themselves and slow the spread of COVID-19.”
Although perhaps not as comprehensive or elaborate as some might hope an MDOT directive would be, the message is clear in affirming that the MDOT system is considered critical infrastructure under the EO, and that their maintenance and construction projects are allowed to proceed accordingly.
We do want to remind everyone, however, that not all construction may be deemed “critical”, and therefore several owners (public agencies and private owners) are making the decision to shut their projects down, as the ultimate goal of the EO is to have as many people stay at home as possible.
Over the last 48 hours, the MITA staff has fielded numerous calls from many members on a variety of topics related to the continuation of the MDOT construction projects they are working on. The majority of the questions and concerns heard have been related to potential project delays and other project impacts caused by COVID-19 through staff and labor availability, material and supply availability, workplace safety concerns, and utility locating and relocating delays.
MDOT leadership has informed MITA that all project delays and impacts caused by COVID-19 will be considered and dealt with in accordance with the contract documents and the MDOT Standard Specifications for Construction on a project by project basis. Under the current conditions, MITA does not anticipate MDOT will issue or grant any blanket or global relief across all MDOT projects for delays or impacts due to COVID-19.
It is MITA’s opinion that project delays caused by COVID-19 are “excusable” delays under the terms of subsection 108.08. of the MDOT 2012 Standard Specifications for Construction. Specifically, subsection 108.08.C. lists, “1. Acts of God”, and “5. Fires, floods, and epidemics” as “those unforeseen causes beyond the control and without the fault or negligence of Contractor” for which an extension of time will be granted.
We recommend that all members closely monitor and document the identifiable delays and impacts they are experiencing on MDOT projects that are directly caused by COVID-19 and that you communicate those experiences to the project engineer in accordance with your contract and the MDOT Standard Specifications for Construction.
Since an “excusable” delay is not explicitly or automatically considered a “compensable” delay, and you believe you have incurred additional project costs related to COVID-19 unforeseen impacts, we further recommend that you document and submit those additional costs to the project engineer in accordance with your contract and the MDOT Standard Specifications for Construction.
If you have any questions, please contact Glenn Bukoski, VP of Engineering Services, at email@example.com, or Rachelle VanDeventer, VP of Industry Relations, at firstname.lastname@example.org.