Construction Legislative Week in Review
www.agc.org April 12, 2012
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On the Inside
2012 FEDCON PREVIEW
2012 Federal Contractor Conference Federal Legislative Issues
LABOR
Vote Expected on Legislation to Nullify NLRB Quickie Election Rule
AGC Releases White Paper on Impacting Davis-Bacon Wage Determinations
ENVIRONMENT
Waters of the U.S. Update
AGC EVENTS
TCC Fly-In: Join Our Allies in Telling Congress to Pass a Transportation Bill Now
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2012 FEDCON PREVIEW
2012 Federal Contractor Conference Federal Legislative Issues
 

Hundreds of federal construction contractors will descend upon Washington, D.C. next week for AGC’s 50th Federal Contractors Conference with more than 20 federal agencies and a handful of congressional members in attendance. From a legislative standpoint, their timing could not be better. Congress will reconvene after a two week Easter recess and find a number of key construction industry’s legislative priorities on their agenda. Among the issues AGC contractors will learn about and visit Capitol Hill offices concerning are:

Small Business Contracting Reforms

The House Small Business Committee passed a number of small business federal contracting reform bills out of committee on March 22. While one of these bills does address construction contracting bundling, most of these bills do nothing to improve small business contracting for the construction industry.

Specifically, the federal government has long had issues meeting its small business contracting procurement goals. Despite this fact, H.R. 3850, the Government Efficiency through Small Business Contracting Act of 2012, would raise the small business contacting goal from 23 to 25 percent of the total value of all prime contract awards. AGC members will tell their federal representative and senators that Congress should reform the current system to meet the existing goals and truly benefit small business; not raise the goal to an even higher level.  AGC members, additionally, will be voicing their support for H.R. 4081, the Contractor Opportunity Protection Act of 2012. This bill would help reduce contract bundling to increase competition, allowing small businesses to have a better opportunity to participate in the federal procurement market.

Estate Tax on Family Owned Businesses

In 2001, Congress attempted to repeal the estate tax and its harmful effects on family-owned businesses. Unfortunately, the 2001 law created great uncertainty about the future taxation of construction business owners considering a succession plan. Currently, the estate tax rate is 35 percent with a tax exemption of $5 million.  The estate tax is scheduled to be reinstated in 2013 at the higher pre-2001 level (55% top rate and a credit of $1 million). AGC supports permanent reform at the lowest possible rates and highest possible exemption levels (indexed to inflation) to alleviate business uncertainty and allow contractors to use resources that might otherwise go towards estate preparation or to pay the tax on growing their businesses for future generations.  Contractors will descend on Capitol Hill to urge their members of the House to Cosponsor H.R.1259, the Death Tax Repeal Permanency Act of 2011 and the Senate counterpart, S. 2242, the Death Tax Repeal Permanency Act of 2012. 

Wetlands

In April 2011, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) released draft guidance to clarify jurisdiction of waters under the Clean Water Act.  EPA and USACE have now submitted a final version of this guidance to the Office of Management and Budget for federal interagency review. The AGC-opposed Guidance significantly expands the scope of waters to be regulated by EPA and USACE, despite the United States Supreme Court decisions that narrowed the agencies’ authority.  The guidance is inconsistent not only with the procedural requirements of the Administrative Procedure Act but also with the scope of the agencies’ authority under the Clean Water Act and Commerce Clause of the U.S. Constitution.  AGC is asking our members to tell Congress it has a constitutional obligation to check executive branch overreach and ask  their Senators to co-sponsor and support S. 2245 the “Preserve the Waters of the United States Act.”

Federal Facility Infrastructure Investment & “Civilian BRAC”

With the economy remaining in a “slow-growth” pattern and a complex federal budget environment, federal facility infrastructure investment accounts face a difficult appropriations road ahead. However, federal construction contractors have legislative reason for hope.  

Earlier this year, the House of Representatives passed the Civilian Property Realignment Act, H.R. 1734, with bipartisan support. This bill, introduced by Rep. Jeff Denham (R-Calf.), would charge an independent commission to select at least five federal government properties worth $500 million or more for sale within the first 180 days after it is created. The commission’s efforts could raise at least $15 billion from property sales, leading to significant commercial construction redevelopment opportunities. The Senate is still considering its version of the bill.

During the Tuesday Congressional Luncheon, conference attendees will hear from Rep. Jeff Denham on this issue and his bill’s progress, as it makes its way through the legislative process. AGC contractors will also push for the Senate’s passage of the bill, S. 2232, introduced by Sen. Scott Brown (R-Mass.) when they meet with their senators during Wednesday’s congressional office visits.

Military Construction and the Budget Control Act’s Sequestration Process

As a result of last summer’s debt-ceiling deal, Congress enacted the Budget Control Act that includes $1.2 trillion in automatic cuts known as “sequestration,” which will take place in 2013. The cuts will come from defense ($450B), non-defense ($300B) and entitlement programs ($170B) starting in 2013. 

Many defense hawks in Congress continue to work to prevent this significant defense spending cut. However, if their efforts fail, which programs within the defense budget would be cut remain a question.

House Armed Services Committee member Rep. Chris Gibson will discuss this process and address its potential impact on military construction, among other construction investment accounts, on Wednesday, April 18 during the conference’s legislative and economic briefing.

Maritime Infrastructure Investment: Fully Funding the Harbor Maintenance Trust Fund

Maritime infrastructure investment is a key component of remaining a globally competitive economy. However, Congress has failed to fully fund harbor maintenance projects since 2002. The problem hasn’t been for a lack of resources. Rather, revenues generated from the Harbor Maintenance Tax (HMT) that pay for such improvement projects have been diverted to a host of other, non-related federal program related needs.

The House of Representatives is poised consider passage of the Realize America’s Maritime Promise Act, introduced by Rep. Charles W. Boustany (R-La.), which has the bipartisan support of 187 cosponsors. This bill would fully invest the $1.3 to $1.6 billion generated annually from the HMT in harbor maintenance projects. Annual expenditures for such projects have averaged less than $800 million over the past five years.

Meanwhile, the Senate version of the bill, S.412, the Harbor Maintenance Act of 2011, introduced by Sen. Carl Levin (D-Mich.) has 35 bipartisan cosponsors. Though the bill itself has not seen much movement in the chamber, a provision in the Senate’s surface transportation reauthorization bill allows for its consideration for inclusion during conference discussions if the House passes a transportation bill.

Congressional Review Act - Stop the NLRB’s Attempt at Backdoor Card Check

 In December 2011 the NLRB issued a final rule on union organizing elections. The critics dubbed the rule the “quickie” or “ambush” election rule because it would effectively expedite the union election process, limit employers’ opportunity to communicate with workers about union representation and deprive employees of the ability to make a fully informed decision. The rule will become effective April 30, 2012 without congressional action.  AGC supports the passage of S.J. Res 36 and H.J. Res 103 which nullify the rule and stop it from being implemented. A vote on the resolution could occur as early as next week in the Senate.

Transportation Reauthorization

With transportation authorization already nearly 940 days late and the highway and transit programs operating under the ninth short term extension- this one until June 30- now is the time for Congress to get serious and pass a bill. These short term extensions undermine states from addressing their transportation needs and impact contractors decisions about keeping their work force on the payroll and purchasing new equipment. That is the message that will be delivered by AGC members participating in the federal Contractors Conference next week.

AGC members will tell their Congressional delegation that they should avoid the need to pass any more short-term extensions by completing action on a longer term authorization now. In particular it will be emphasized that the House needs to move expeditiously to complete action on a multi-year bill that will allow a House–Senate Conference Committee to begin work on the final legislation. Since neither the House nor the Senate bills address the long-term viability of the Highway Trust Fund and in particular the need for an increase in the dedicated revenue source, AGC members will also call for point out that, following completion of work on the highway and transit reform bill, Congress must immediately begin to address the long-term future of the federal transportation programs, and in particular address revenue options that will provide the resources necessary to sustain the Highway Trust Fund.

Current OMB projections indicate that the Highway Trust Fund has insufficient resources to support current funding levels beyond Fiscal Year 2013. Several infusions of revenue from the general fund were necessary to keep the program operating over the past two years. Additional HTF revenue is necessary to maintain this year’s funding level beyond FY 2013.

For more information, please contact Jimmy Christianson at (703) 837-5325 or christiansonj@agc.org. Return to Top

LABOR
Vote Expected on Legislation to Nullify NLRB Quickie Election Rule
 

As early as next week the Senate could consider a resolution providing for disapproval of the National Labor Relations Board (NLRB) rule on representation-case procedures. AGC opposed the NLRB rule which will become go into effect April 30, 2012, unless Congress acts.

AGC opposes the rule because expediting the union representation election cycle to as little as 14 days, the rule denies employers due process and ample time to prepare.  It effectively limits workers’ access to information and an adequate opportunity to consider information, about whether they want to be represented by the union seeking to represent them.  This rule will have a particularly difficult application and detrimental impact on the construction industry due to the complexity of identifying the appropriate bargaining unit and of determining voter eligibility in the industry, and due to the decentralized nature of construction workplaces operated by the same employer.

Additionally, in construction, the rule can directly affect employers with unionized workforces as well as those whose workers are not yet organized, by putting their current pre-hire agreements in jeopardy. Historically, both union contractors and building trade unions have benefitted from the ease, convenience, and flexibility of 8(f), or pre-hire, agreements unique to the construction industry. The quickie election rule would enable unions to more readily convert their 8(f) relationships to 9(a) relationships in order to restrain a union contractor's flexibility or restrain a rival union from taking over its jurisdiction. In addition, a rival union might use the election process to take jurisdiction from a union with an 8(f) relationship.

AGC is concerned that this regulation could have substantial unintended consequences and destabilize an industry that is struggling to recover from depression-like conditions.  The rule is also a change in direction from over 50 years of U.S. labor law where the NLRB has almost never issued regulations and has frequently recognized the unique and complicated aspects of the employer-employee relationship in the construction industry.  Visit AGC’s Legislative Action Center and write to your Senators urging them to vote in favor of the resolution providing for disapproval of the NLRB’s rule.

For more information, please contact Jim Young at (202) 547-0133 or youngj@agc.org. Return to Top

AGC Releases White Paper on Impacting Davis-Bacon Wage Determinations
 

AGC of America has released a white paper discussing the impact federal and nonfederal contractors, as well as other interested parties, can have on the accuracy of Davis-Bacon wage determinations.  The white paper, titled "Impacting Davis-Bacon Wage Determinations:  A Guide for Contributing to the Accuracy of Published Prevailing Wage Rates in Construction", is available for download on the AGC website.

AGC created the white paper due to an influx of questions from AGC chapters and members regarding Davis-Bacon wage determinations.  Some of the questions, which are addressed in the white paper, include how DOL establishes Davis-Bacon wage and fringe benefit rates, how to make a difference in the outcome of Davis-Bacon wage surveys, and how to challenge a Davis-Bacon wage determination once it has been published. 

The white paper includes a web link to AGC’s NEW Construction Contractors Guide to Completing a Davis-Bacon Wage Survey: Why YOU Participate & How.  This pamphlet explains the importance of contractor participation in Davis-Bacon wage survey process, whether or not the contractor performs work that is covered by the Davis-Bacon Act.  It also explains how Davis-Bacon wage survey data are used and provides detailed instruction for completing the wage survey form.

For additional information, please contact Tamika C. Carter, PHR, at cartert@agc.org. Return to Top

ENVIRONMENT
Waters of the U.S. Update
 

In May 2011, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) issued draft guidance on “Identifying Waters Protected by the Clean Water Act.”  As this guidance document moved from proposed to final form, the concerns, including those raised in AGC’s comments, were not addressed.  The guidance document, which was sent in final form to the Office of Management and Budget (OMB) on Feb. 21, 2012, significantly changes and expands what water features are considered protected under the Clean Water Act. The guidance also ignores the fundamental premise in the Act that there are waters subject to the exclusive regulatory jurisdiction of the states. The final guidance is overly broad and expands federal jurisdiction well beyond the intent of Congress and the limitations recognized in recent Supreme Court decisions. This increase in jurisdiction could increase construction costs and project delays with expensive permits that take years to obtain. There is already an extensive backlog of these Section 404 permits, and this will likely add to it.

In Congress, Senators Barrasso (R-Wy.), Inhofe (R-Okla.), Heller (R-Nev.) and Sessions (R-Ala.), along with 26 of their colleagues, have introduced legislation to stop EPA and USACE from implementing the guidance. AGC members will be asking their members of Congress for support and additional cosponsors next week during the annual Federal Contractors Conference and Fly-in.

As OMB’s Office of Information and Regulatory Affairs (OIRA) considers the approval of this final guidance, it will be considering the Supreme Court opinions on this issue, including the most recent decision in Sackett v. EPA where the court scolded EPA for its overreach and said that setting clear and reasonable jurisdictional limits would halt the uncertainty among industry. Also being considered is industry’s opposition to the guidance (see the Waters Advocacy Coalition’s letter to OMB). AGC will be joining other members of the Waters Advocacy Coalition in a meeting with OMB to lay out the construction industry’s opposition to the guidance.

For more info, please contact Scott Berry at (703) 837-5321 or berrys@agc.orgor Leah Pilconis at (703) 837-5332 or pilconisl@agc.org. Return to Top

AGC EVENTS
TCC Fly-In: Join Our Allies in Telling Congress to Pass a Transportation Bill Now
 

Following the 2012 AGC Federal Contractors Conference, the next opportunity to tell Congress to “Make Transportation Job #1” is at the Transportation Construction Coalition’s 2012 Legislative fly-In.  As is apparent from the inability of Congress to complete action on longer term transportation reauthorization legislation, the transportation construction industry must continue to make the case that the time to act is now. Come to Washington and tell your elected officials that now is the time to complete action on this legislation. Join your industry allies in Washington, D.C. on May 30-31, 2012 for the Transportation Construction Coalition’s 2012 Legislative Fly-In.

Schedule:

Wednesday May 30

11:00 AM to 2:15 PM | AGC Legislative Briefing & Luncheon – AGC members will gather for lunch and a briefing from Hill staff.

2:30 PM to 5:00 PM | Legislative Briefing- Key note speakers and Members of Congress will prepare you for visiting with your Representatives.

6:00 PM | Capitol Hill Reception

Thursday May 31

7:00 AM to 7:45 AM | Continental Breakfast

8:00 AM to 5:00 PM | Congressional Visits

Hotel Reservations:

The Marriott Metro Center is the home for this year’s TCC Fly-In events. Please make your reservation early as the hotel is sure to sell out. Please make your room reservations directly with the Marriott Metro Center by calling: Call 1-800-228-9290. Ask for the TCC Fly-In rate at $274 per night. Rooms at this rate are available until April 30, 2012.

Registration:

A registration fee of $175 per person will help defray the cost of the briefing, reception and breakfast.

Register on-line: http://www.BlueSkyz.com/tcc2012

More details and to register by fax or mail please see the TCC Fly-In brochure. https://images.magnetmail.net/images/clients/agca/attach/AGC_DCFly12_B1.pdf Return to Top

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