AIA MA Latest News
05.15.20 Contract Issues, Construction Administration and COVID-19
With the onset of COVID-19, architects are facing unforeseen issues arising from the resulting shutdown of most construction sites in Massachusetts. As such, AIA Massachusetts retained legal counsel to prepare a guidance document addressing contracts previously negotiated and signed prior to the pandemic. AIA Massachusetts has also prepared a guidance document for construction phase items to be considered in light of COVID-19. The documents below are intended to work in conjunction and are downloadable.
04.01.20 Governor Updates Essential Service List and Make Changes to Construction Site
On March 31, 2020 Governor Baker updated the provisions of the March 23, 2020 Order Assuring Continued Operation of Essential Services in the Commonwealth, Closing Certain Workplaces, and Prohibiting Gatherings of More than 10 People ("COVID-19 Order No. 13") and extended the Order until May 4, 2020.
The Administration also updated the “COVID-19 Essential Services” list which is based on updated federal guidance. The new list goes into effect on April 1 at noon and changes to Construction-Related Activities are as follows:
Workers such as plumbers, electricians, exterminators, builders, contractors, HVAC Technicians, landscapers, inspectors and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, businesses and buildings such as hospitals, health care facilities, senior living facilities, and any temporary construction required to support COVID-19 response.
Workers – including contracted vendors - who support the operation, inspection, maintenance and repair of essential public works facilities and operations, including roads and bridges, water and sewer, laboratories, fleet maintenance personnel, construction of critical or strategic infrastructure, traffic signal maintenance, emergency location services for buried utilities, and maintenance of digital systems infrastructure supporting public works operations. Critical or strategic infrastructure includes public works construction including construction of public schools, colleges and universities and construction of state facilities, including leased space, managed by the Division of Capital Asset Management; airport operations; water and sewer; gas, electrical, nuclear, oil refining and other critical energy services; roads and highways; public transportation; steam; solid waste and recycling collection and removal; and internet and telecommunications systems (including the provision of essential global, national, and local infrastructure for computing services).
Workers who support infrastructure, such as by road and line clearing and utility relocation, to ensure the availability of and access to needed facilities, transportation, energy and communications.
Workers performing housing construction related activities, including construction of mixed-use projects that include housing, to ensure additional units can be made available to combat the Commonwealth’s existing housing supply shortage.
Workers supporting the construction of housing, including those supporting government functions related to the building and development process, such as inspections, permitting and plan review services that can be modified to protect the public health, including allowing qualified private third-party inspections accountable to government agencies).
03.31.20 COVID-19 New Changes to State/Municipal Permitting Process
On March 30, 2020 the Legislature engrossed HB4598 - An Act to address challenges faced by municipalities and state authorities resulting from COVID-19.
The bill will now go to the Governor and is expected to be signed later this week.
While the bill mainly grants municipalities greater flexibility to conduct business during the ongoing public health emergency, it also establishes a framework for modifications to local permitting regulations.
Firms/individuals should review the list below to determine individual project applicability.
One the bill is signed, these modifications noted below will be retroactively applied as of March 10, 2020
Specifically, the bill does the following:
Defines applications for permits as duly filed and accepted as of the date of the filing if filed with and certified as received by the municipality;
Allows permit granting authorities to deny an applications completeness if otherwise denied or appealed on other grounds;
Allows submission of permit applications and sending of permit application receipts electronically;
Suspends any hearing deadlines otherwise required within a certain timeframe after receipt of an application as of March 10;
Provides for resumption of the deadlines 45 days after the termination of the COVID-19 state of emergency;
Prohibits expiration of any permits and/or tolls deadlines for performance until after the termination of the COVID-19 state of emergency;
Prohibits the constructive granting, denial or expiration of a permit due to a failure to act during the COVID-19 state of emergency;
Requires resumption of activity within 45 days of the termination of the COVID-19 state of emergency;
Extends requirements for recording of permits with the registries of deeds;
Tolls and continues hearings for opened permits to the first hearing date after expiration of the COVID-19 state of emergency.
Authorizes permit granting authorities to revoke or modify permits as otherwise allowed under existing laws or regulations for reasons other than lack of performance during the COVID-19 state of emergency when the work started before March 10, 2020 and stopped due to the state of emergency or other governmental actions;
Extends protection from permit revocation or modification for at least 60 days beyond the termination of the state of emergency;
Entitles a permit holder to further extensions for demonstrated good cause;
Allows the permit granting authority to issue an extension without the presence of a quorum.
Allows permit granting authorities to hold meetings and hearings remotely during the COVID-19 state of emergency;
Further allows permit granting authorities to issue decisions on permit applications submitted and heard;
Additionally allows building commissioners, inspectors of buildings, or other officials to issue permits;
Applies changes related to local permitting authority to all local boards and commissions’ conduct of public meetings, public hearings, or other actions taken in a quasi-judicial capacity.
03.26.20 AIA MA Request to the Governor
On March 26, 2020, AIA Massachusetts sent a letter to the Governor stating that our membership stands ready to assist the Commonwealth in this unprecedented health crisis by citing several specific ways in which architects can be of assistance:
Evaluate vacant or underutilized property for temporary hospitals and testing centers
Assist with documenting and retrofitting the buildings or other facilities identified as viable hospital facilities
Serve as a resource advisor
Further, the letter notes that across the country projects, including critical infrastructure projects, are being delayed, and entire offices are closed or requiring employees to work from home.
To ensure that essential projects continue to move forward during construction and to assure a pipeline of future development, AIA MA has requested that the Administration designate architecture as an essential business under certain limited circumstances. This will allow architects to continue protecting public health, safety, and welfare in the built environment.
A copy of the letter is available HERE.
Please feel free to pass this letter along to your state Representative and Senator with a request that they contact the Baker Administration with the same request.
03.25.20 COVID-19 Guidelines and Procedures for All Construction Sites and Workers at All Public Work
To keep construction moving, on March 25, 2020, the Baker Administration issued the following guideline, "COVID-19 Guidelines and Procedures For All Construction Sites and Workers at All Public Work".
If you are a firm with an active construction project, please distribute this guidance to any firm member who intends to visit a job site anytime within the foreseeable future. Also, please distribute to any of the consultants you are working with who plan to make site visits. Lastly, please distribute to your Site Superintendent with a request that he/she distribute it to all their subcontractors.
Eugene M. Novak, Jr., CBO, District State Building Inspector for the Department of Professional Licensure has asked that firms educate their employees about this guidance within the next week, and notes that the state will specifically require documentation of compliance with the "Safety Stand-Down Day" requirements.
Concerning these health and safety practices, Inspector Novak further noted that local building commissioners and inspectors would specifically be looking for compliance with these new policies and procedures when visiting your construction site in the days ahead.
If you have any questions, please do not hesitate to contact Inspector Novak.
Eugene M. Novak, Jr., CBO
District State Building Inspector
Department of Professional Licensure
Office of Public Safety & Inspections
A copy of the guidance is available HERE.
AIA MA February 2020 News
02.07.2020 New 2018 IECC with MA Amendment Now in Effect and Available
On Tuesday, January 14, 2020, the Board of Building f Regulations and Standards (BBRS) held their monthly meeting. The agenda included an update regarding the implementation date for the 2018 IECC with MA amendments. BBRS staff reported that paperwork was submitted to the Secretary of State’s (SoS) office, and February 7, 2020 has been assigned as the effective date. In addition, the BBRS confirmed that August 7, 2020 will mark the end of the concurrency period.
Other changes to the 9th edition 780 CMR state building code pertaining to Chapter 12: Interior Environments (Micro Units); Chapter 26: Plastics; Adoption of the 2018 International Residential Code Appendix Q – Tiny Houses; Chapter 110: Special Regulations and Chapter 110 R.3: Approving Manufactured Buildings are still awaiting final approval from the Baker Administration to move to final promulgation.
A copy of the newly effective MA amendments is available HERE.
02.05.2020 White House Orders Return to Federal Architecture
The AIA is aware that there is a draft executive order circulating for consideration by White House officials that would officially designate “classical” architecture as the preferred style for the following building types: federal courthouses, all federal public buildings in the Capital region, and all other federal public buildings whose cost exceed $50 million dollars. AIA has been actively addressing this. The AIA strongly and unequivocally opposes this change in policy to promote any style of architecture over another for these types of federal buildings across the country.
The draft executive order defines “classical architectural style” to mean architectural features derived from classical Greek and Roman architecture. There are some allowances for “traditional architectural style” which is defined to mean classical architecture along with Gothic, Romanesque, and Spanish colonial. The draft executive order specifically prohibits the use of Brutalist architecture, or its derivatives.
Except for Brutalism, there is some language in the draft executive order that would allow for other architectural styles to be used in cases where it could be conclusively proven that a different style is necessary. However, the high bar required to satisfy the process described within the executive order would all but restrict the ability to design the federal buildings under this order in anything but the preferred style. The process would include a personal written justification from the Administrator, which cannot be delegated to staff, and which is still subject to review by the White House.
The AIA strongly condemns the move to enforce a top-down directive on architectural style. All architectural styles have value and all communities have the right to weigh in on the government buildings meant to serve them.
The AIA has been communicating with White House staff on this issue. We urge you to add your voice to reiterate our fervent belief that design decisions should be left to the designer and the community, not bureaucrats in Washington, DC. Click here to email President Trump
02.01.2020 MA Supreme Judicial Court supports position taken by AIA MA
AIA MA is pleased to report that the Supreme Judicial Court has found in support of the position taken by AIA MA in Rawan v Continental Casualty Company, a recent professional liability case with important implications for professional architects and engineers.
The case involved a structural engineer who was sued by its client over designs that resulted in additional costs to the client. The errors & omissions insurer proposed a settlement with the client that the engineer opposed. The engineer maintained that the settlement, although deemed fair by both the client and the insurance company, would negatively affect its reputation. Both AIA MA and the ACEC (American Council of Engineering Companies) took the position that the insured engineer had a right to review and approve any settlement even though it was the insurance company which was making the financial offer. On behalf of ACEC and AIA MA the legal firm Donovan Hatem prepare an amicus brief on the matter.
The SJC supported our position that the E&O policy explicitly stated that the insured professional had a right to “consent to settle” a claim. The court found that consent to settle provisions “are both significant safeguards for insureds to defend their professional reputations and important incentives for the purchase of such insurance.”
This important outcome maintains our right to have a say in settlement decisions. It’s important to note that this is not a right independent of the language of an insurance contract, however. We encourage our members to ask about this important provision. It may be the difference between an E&O policy that you want, and one that you want to pass on.
Attached is a more detailed summary prepared by Donovan Hatem attorney Jon Cowan, Esq., with links to the full amicus brief and SJC decision.