Urges Trump Administration to Repeal and Replace
This week AGC, and others, urged President-elect Trump’s administration to repeal President Obama’s executive order that encourages federal agencies to require project labor agreements (PLAs) on federal construction projects exceeding $25 million, and replace it with a policy that prevents agencies from forcing contractors to enter into a labor agreement as a condition for winning a federal construction contract.  Last year, AGC requested this PLA reform when it shared its federal agency regulatory, compliance and enforcement plan with members of the Trump Presidential Transitional Team.
AGC neither supports nor opposes contractors’ voluntary use of PLAs on government projects, but strongly opposes any government mandate for contractors’ use of PLAs.  AGC strongly believes that the choice of whether to adopt a collective bargaining agreement should be left to the contractor-employers and their employees.  Such a choice should not be imposed as a condition to competing for, or performing on, a publicly funded project.
To view more details on AGC’s Regulatory Road ahead, click here.
To view more details on AGC efforts opposing government mandated PLAs, click here.
For more information, contact Jordan Howard at [email protected] or (703) 837-5368.

Could Help Roll Back Obama Administration Regulations
On Jan. 4, the House passed AGC-backed legislation that would help Congress repeal more Obama administration regulations, as well as future administration’s regulations. The Midnight Rules Relief Act—introduced by Rep. Darrell Issa (R-Calf.)—would enable Congress to include multiple regulations for repeal in one bill under the Congressional Review Act. As it stands, Congress can only include one regulation for repeal in single bill, which is a time-consuming process that severely restricts the number of regulations that could be repealed. To provide context, in 2016, federal agencies issued 3,853 regulations.  This exceeds the number of bills Congress passed by a factor of 18.
Today, the House will also consider legislation that would require regulations with a total cost to the economy of $100 million or more to be approved by Congress before they become effective. In addition to placing a congressional check on such major regulations, the Regulations in Need of Scrutiny (REINS) Act—introduced by Doug Collins (R-Ga.)—would allow Congress to disapprove of non-major regulations below the $100 million threshold. House passage of this bill is expected. Upon passage, the Senate may consider both bills after President-elect Trump is sworn into office. AGC will continue to press for such common sense regulatory reform in the new Congress.
For more information, contact Jimmy Christianson at [email protected] or 703-837-5325.

AGC-Enacted Law Leads to Rule
As a result of past AGC legislative success, the U.S. Small Business Administration (SBA) recently finalized a rule allowing direct-federal large business prime contractors to count lower tier small business subcontractors towards their small business subcontracting goals. Prior to this rule, such prime contractors were only able to count first tier small business subcontractors towards those goals. Although the rule goes “into effect” on Jan. 23, there will be no way for prime contractors to receive credit for small business subcontractors until the Federal Acquisition Regulation (FAR) Council issues a final rule to include this in federal contracts. That FAR rule and a new FAR clause could come in 2017.
In lieu of a FAR rule and clause, direct-federal large business prime contractors interested in taking credit for lower tier small business subcontractors may consider beginning preparations to comply with the SBA rule. To receive such credit, there are some strings attached under the rule. Those include:

• Prime contractors, not federal agencies, establishing two sets of small business subcontracting goals: (1) one goal for the first subcontracting tier; and (2) another for lower tier subcontracts. Ultimately, however, federal agencies will evaluate the prime contractor’s small business subcontracting goal performance based on its combined performance under the first and lower tier goal;


• Prime contractors and their large business subcontractors must assign a specific North American Industry Classification System (NAICS) Code and corresponding size standard that best describes the principal purpose of the subcontract to each small business subcontract;


• Prime contractors and large business subcontractors are responsible for making a good faith effort to meet or exceed the small business subcontracting goals established in their respective subcontracting plans. Failure to make this effort could result in liquidated damages, default termination and negative performance reviews; and


• Prime contractors are ultimately responsible for approving and policing their large business subcontractors’ subcontracting plans.

It should also be noted that the Electronic Subcontracting Reporting System will be the database used to capture lower tier small business subcontractor information, as it is currently used to collect information at the first subcontracting tier. AGC will provide additional information as it further examines this rule and monitors progress of a FAR rule and clause.
For more information, contact Jimmy Christianson at [email protected] or 703-837-5325.

In response to a request for comments from the U.S. Department of Labor’s Wage and Hour Division, on Dec. 19, AGC notified the agency that improvements are needed to the way it collects wage data from construction contractors.  The Wage and Hour Division is responsible for setting the prevailing wage rate for federal and federally assisted construction projects covered by the Davis-Bacon Act and currently uses wage surveys to collect wage data from contractors.  The agency’s request for comments is a required part of the regulatory process as the agency seeks to extend the use of its current wage survey form (Form WD-10), which expires in 2017.
In its comments, AGC expressed that it understands the difficulty involved with getting contractors to voluntarily submit wage data to the government – particularly to the same agency that is authorized to take enforcement action against them.  Additionally, AGC explained that the twenty-minute time estimate to accurately complete the survey is grossly underestimated, particularly when there are multiple classifications, sub-classifications, and fringe benefits to include.  To ease the burden of submitting such data, help the agency fulfill its need to collect wage data to set prevailing wage rates, and improve the wage collection process overall, AGC made the following recommendations

• WHD should consider using third-party wage survey specialists with specific knowledge of the construction industry that already collect wage data from construction contractors;


• WHD should collect construction contractor wage data more frequently to more accurately reflect the current conditions of the market (currently, the maximum is once every three years);


• WHD must ensure that wages are solicited and incorporated by both public and private contractors to reflect the totality of the market; and


• WHD should allow the adoption of state prevailing wage rates when the method for setting such wages meets WHD’s requirements.

To learn more about how the WHD determines Davis-Bacon prevailing wages and how contractors can influence those wages, read AGC’s whitepaper, Impacting Davis-Bacon Wage Determinations: A Guide for Contributing to the Accuracy of Published Prevailing Wage Rates in Construction.
For more information, contact Tamika Carter at [email protected] or 703-837-5382.

This week, AGC shared its federal agency regulatory, compliance and enforcement plan with members of the Trump Presidential Transitional Team. Entitled “Make Federal Agencies Responsible Again,” the document calls for the repeal of dozens of unnecessary and overly burdensome executive orders, presidential memoranda, and federal regulations that have made it more difficult for construction contractors to safely, efficiently and effectively build the nation’s civil and social infrastructure.
In addition to charting a regulatory reform path forward, AGC calls for the Trump Administration to implement a critical paradigm shift within federal agencies. Specifically, the association calls for construction contractors to be treated as industry partners and not “industry opponents;” a term that can categorize the attitude many agencies have taken with the construction industry.  To do so, AGC calls for agency enforcement initiatives to focus on bad actors, rather than lumping innocent contractors in with bad actors. Additionally, AGC recommends a return to federal agencies helping construction contractors comply with the law through reestablishing industry partnership programs and developing educational materials.
For more information, contact Jimmy Christianson at [email protected] or 703-837-5325.

On Dec. 19, the Occupational Safety and Health Administration (OSHA) published a final rule to revise existing language in the recordkeeping regulation to emphasize an employer’s responsibility to make and maintain accurate OSHA 300 Logs and all related incident reports.  The new rule drastically expands on the existing regulatory language and in some cases added new provisions.  While the newly published rule does make clear OSHA’s expectations involving the maintenance of injury and illness records, the true impetus for the rulemaking is to drastically expand the agency’s statute of limitation granted by the OSH Act. The OSH Act clearly states that “no citations may be issued after the expiration of six months following the occurrence of any violation.” However, this new rule will allow contractors to be cited for honest mistakes, or inaccuracies, related to recordkeeping dating back as far as five-and-a-half years.  OSHA’s justification is that an omission of an injury or illness from the OSHA 300 Log constitutes an ongoing occurrence until corrected during the five-year retention period under the recordkeeping regulation.
AGC submitted comments opposing this rulemaking as part of the Coalition for Workplace Safety in 2015. On Nov. 22, 2016, AGC staff met with the White House Office of Information and Regulatory Affairs to raise concerns while the rule was under their review.  OSHA’s false interpretation of their statute of limitation, and subsequent justification, not only raised concerns among the regulated community but also members of the U.S. House of Representatives Committee on Education and the Workforce who recently sent a letter to the White House demanding they reject the rulemaking.
Unfortunately, none of the efforts were successful.  AGC encourages all of its contractor members to be extra diligent in investigating and documenting all facts related to reported injuries and illnesses to determine if they meet the recording criteria for entry on the OSHA 300 Log.  The final rule becomes effective on Jan. 18, 2017.
For more information, contact Kevin Cannon at [email protected] or (703) 837-5410.

Talking Points Can be Found at www.HardhatsforHighways.org
While Members of Congress are back home for the remainder of the year, the AGC co-chaired Transportation Construction Coalition (TCC) is urging our members to contact their Members of Congress – either in person or via email – and encourage them to permanently fix for the Highway Trust Fund.  A new Congress and administration could provide the opportunity to fix the trust fund either through tax reform and/or an infrastructure package (as promised by President-Elect Trump).
If you do contact your members of Congress over the next couple of weeks, talking points and background material can be found on the Hardhats for Highways webpage.
For more information, contact Sean O’Neill at [email protected] or (202) 547-8892.

$8 Billion in Federal Real Property Up for Consideration 
Last week, the President signed into law the AGC-supported Federal Assets Sale and Transfer Act. This bipartisan law will shrink the federal footprint and streamline the disposal of excess or underutilized federal buildings. AGC has long been involved in pushing for federal real property reform and strongly supports these efforts.
The disposal of unneeded federal real property could allow for millions and potentially billions of dollars in private and federal construction work throughout the nation, as excess federal buildings exist in every state. According to the most recent Federal Real Property Summary, the government owns more than 254,000 buildings, comprising 2.5 billion square feet of space, costing the taxpayer $14.4 billion annually. Recent estimates show 77,000 buildings are underutilized, costing $1.7 billion annually.
For more information, contact Jordan Howard at [email protected] or 703-837-5325.

FAR Council Addresses Many of AGC’s Concerns
On Dec. 20, the Federal Acquisition Regulation (FAR) Council issued a final rule requiring a prime contractor to notify federal contracting officers if (1) the prime contractor makes a reduced payment to a small business subcontractor or (2) if the prime contractor’s payment to a small business subcontractor is more than 90 days past due. The rule goes into effect on Jan. 19. The FAR Council did not withdraw the proposal as AGC recommended based on a myriad of existing small business subcontractor payment legal protections. However, it did take into account many of AGC’s concerns with the proposed rule.
For example, the FAR Council at AGC’s recommendation included:

• Examples where a prime contractor need not report reduced or late prime contractor payments to small business subcontractors, including subcontract performance disputes, administrative mistakes and late performance by such subcontractors.


• Clarification that the rule does not flow down beyond the first tier of subcontracting. The rule only applies to prime contractor payments to small business subcontractors at the first subcontracting tier. Therefore, any small business subcontractor below the first tier does not receive the benefit of this rule and prime contractors are not responsible for monitoring any flow down conditions.

Compliance with the rule will be considered in the small business past performance evaluation factor for prime contractors. It should be noted, however, that prime contractors may receive an exceptional rating where they “did not have a history of three or more unjustified reduced or untimely payments to small business subcontractors within a 12-month period.”
AGC also called upon the FAR Council to address the greatest problem facing contractor payment: government agency-caused payment delays. The FAR Council noted that “the FAR already contains adequate policy on Government-caused delays and changes to contract terms and conditions.” AGC disagrees. As such, AGC is already working with Congress on ways to address government-caused payment delays in the context of change orders. A hearing in the House of Representatives on the topic will likely occur in the first quarter of 2017.
For more information, contact Jimmy Christianson at [email protected] or 703-837-5325.

Last week the Senate (78–21) and the House of Representatives (360–61) voted overwhelmingly to pass the Water Infrastructure Improvements for the Nation (WIIN) Act. Thanks to those of you who wrote to your members of Congress, urging them to support passing this important legislation.
The WIIN Act includes provisions from the House and Senate Water Resource Development Act (WRDA) bills, which passed in September and authorizes the Army Corps of Engineers Chief's Reports submitted to Congress since WRDA 2014. The WIIN Act also includes the Water and Waste Act of 2016, which makes changes to the Safe Drinking Water Act and Solid Waste Disposal Act. WIIN also authorizes the EPA-approved state coal ash disposal programs.
AGC will continue to monitor the progress of the WIIN Act as it heads to the president's desk to be signed into law.
For more information, contact Scott Berry at [email protected] or (703) 837-5321.