Trent Cotney, Cotney Construction Law, LLP
We are currently at the peak of the 2019 hurricane season, and if the record-setting Dorian is any indication of what's to come, contractors should be prepared for an influx of repair requests. The powerful winds and torrential rainfall that accompany hurricanes can lead to extensive roof damage. Category 5 hurricanes like Dorian can easily destroy roof systems.
Although not every hurricane arrives on U.S. soil with the force and tenacity of Hurricane Dorian, roofing contractors should be able to triage customers in need of roof repairs. The easiest way to accomplish this task is to first tarp the roof to stop water intrusion and get customers in queue for roof replacement or repair. Roofers should consider proposals and contracts that are based on the tarping or providing the "blue roof" to customers prior to repairs. This helps the customer get some immediate relief while allowing the roofing contractor to potentially have the rights to do the roof repairs down the road.
Under the Thomas T. Stafford Disaster Relief and Emergency Assistance Act, when a natural disaster has occurred or is imminent, Congress must direct funds to the affected areas to "accelerate federal assistance where it is necessary to save lives or prevent severe damage." The Stafford Act works together with Operation Blue Roof, a FEMA and U.S. Army Corps of Engineers initiative that provides federal funding to homeowners to secure temporary "blue roofs" prior to or directly following a natural disaster. FEMA is required to provide contract opportunities to businesses located in the area if it is deemed practical, which means all of your local competitors.
Since state and local government agencies handle most disaster response activities, contracting opportunities are often dealt with through these offices. Disaster relief is extremely time sensitive. In the event of a catastrophic hurricane, government agencies may first seek the help of existing contracts. Therefore, those roofing contractors that have established contacts and secured customer contracts in advance may benefit for purposes of working with local, state and federal government agencies.
When determining who to issue these contracts to, the FEMA guidelines take into consideration the "contractor's ability to comply with the required delivery or performance schedule," as well as "its ability to obtain the required resources." If your contracts are ready to go, you will be at the front of the line and can circumvent some of the chaos to ensure that your customers are protected from further damage after the storm.
If you receive a contract for a temporary blue roof through FEMA's Operation Blue Roof initiative, there are certain legal requirements that must be followed to ensure you receive funding. Generally, only primary residences with standard shingled roofs are eligible for funding under this program. While metal roofs, flat roofs and roofs containing asbestos are generally ineligible, they may be awarded federal funding on an individual case-by-case basis. Ensure the homeowner has already been given funding from FEMA if you encounter these situations. Roofs with greater than 50 percent structural damage prior to the blue roof installation are not eligible for federal funding. If entering into a contract to install a temporary blue roof with a renter, you must receive written permission from the owner of the property.
When bidding for a large government contract for temporary roofing services, it is important to familiarize yourself with the Buy American-Supplies clause located in FAR 25.1101 and to draft your contracts to comply with these provisions. Based on the price of the contract, there may be a requirement that you purchase all your materials from U.S. manufacturers. For example, if you enter into a government contract that is more than $10,000, you must utilize American-made materials unless the materials sought fall under an exception located in FAR 25.202 or you receive a waiver from the department who hired you. At the conclusion of the project, you may be required to submit an itemized accounting to FEMA showing the source of the materials used on the project. One company contracted by FEMA to provide tarps in the wake of Hurricane Maria in 2017 is now under investigation for fraud.
On a related topic, be sure that you are buying from reputable manufacturers and are charging fair prices for materials and labor. The Florida Attorney General has been cracking down on cases of price gouging in the aftermath of storms. Florida Statute 501.610 provides that, in a state of emergency, any sale or rental of a commodity (which includes lumber, materials and roofing equipment) that "grossly exceeds" the average price, is prohibited and will be punished. While it is understood that there are costs associated with performing jobs on a tighter schedule and under pressured conditions, a gross exaggeration of these cost increases will be prosecuted by the State of Florida. This serves as more of a reason to be careful and compliant when entering into contracts for roofing jobs during hurricane season.
In any temporary roofing project, it is important to remind your customers that the roof is strictly temporary. You should remove all warranties from these contracts that would purport to provide a permanent solution to the customer's roofing needs. You should add specific disclaimers and warnings in the contract that future roofing work is necessary and should be performed as soon as practicable. Providing these warnings not only gives notice to the customer that future work will have to be performed, but also provides you the opportunity to bundle the temporary job with a contract for the future re-roof or repair. You can provide discounts if the customer will hire you to perform both services. If you draft these contracts properly and in compliance with applicable laws, this can be a win-win for both you and the customer.
OSHA is aware of the particularly dangerous conditions that arise when installing temporary blue roofs and has issued a safety fact sheet for contractors engaged in temporary roofing repair (https://www.osha.gov/Publications/OSHA3926.pdf). Of particular importance here is being aware of electrical hazards resulting from wind and falling debris and ensuring you are utilizing the proper fall protection system for the specific roof system.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.
Trent Cotney is an advocate for the roofing industry, General Counsel of FRSA and a Florida Bar Board Certified Construction Lawyer. For more information, contact the author at 866-303-5868 or go to www.cotneycl.com.
Previous Article