Construction Legislative Week in Review
www.agc.org August 14, 2014
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On the Inside
HARDHATS FOR HIGHWAYS
Don’t Stop Now: Our Fight for Long-Term Federal Transportation Funding Continues
LABOR
OFCCP Proposes Rule for New Equal Pay Report
New Executive Order Requires Federal Contractors to Disclose Labor Law Violations, Give Workers Pay Information, and Limit Arbitration
AGC Opposes NAVFAC Mandated-PLA
ENVIRONMENT
AGC Calls for MS4 Systems to be Excluded from “Waters of the United States”
Journalism and Science Groups Outraged at EPA Attempts to Muzzle Scientists
2014 ELECTIONS
Primary Results from Saturday’s and Tuesday’s Elections
HARDHATS FOR HIGHWAYS
Don’t Stop Now: Our Fight for Long-Term Federal Transportation Funding Continues
Still Time to Meet with Your Members of Congress in August
 

First, thanks to those of you who have already participated in the Hardhats for Highways campaign and communicated our message with your members of Congress, either through in-person visits or by sending “e-Hardhat” letters.  Your efforts were part of nearly 12,000 letters sent to nearly 500 Congressional offices in 49 states, which led to the passage of a short-term funding patch through May of 2015.

However, the campaign cannot end here.  We need to continue to push for a long-term, permanent fix for the Highway Trust Fund.  Your Senators and Representative are home for the next few weeks; please contact them and continue to push them to find a long-term solution for our highway funding problems.  

For more information, please visit www.HardhatsforHighways.org or contact Brynn Huneke at (703) 837-5376 or brynn.huneke@agc.org Return to Top

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LABOR
OFCCP Proposes Rule for New Equal Pay Report
 

On Aug. 8, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued a Notice of Proposed Rulemaking that, if implemented, will require federal contractors and subcontractors to submit an annual Equal Pay Report on employee compensation.   The proposed rule is the result of an April 2014 presidential memorandum.

Contractors with more than 100 employees and with a contract, subcontract, or purchase order worth $50,000 or more that covers a period of at least 30 days would be required to comply.  On an annual basis, such contractors would have to submit employee compensation data by sex, race, ethnicity, and specified job categories, as well as other relevant data points that would include hours worked and number of employees on the new Equal Pay Report summary. 

OFCCP plans to use the collected data to help direct its enforcement resources toward federal contractors whose summary data suggests potential pay violations.  OFCCP states that it will also release aggregate summary data on the race and gender pay gap by industry and EEO-1 category to enable contractors to review their pay data using the same metrics as OFCCP and take voluntary compliance measures. 

OFCCP originally published an Advanced Notice of Proposed Rulemaking more than three years ago announcing the desire to create a tool that would require federal contractors and subcontractors to submit summary data on compensation paid to their employees.  AGC provided comments to OFCCP after the 2011 announcement.

AGC will submit comments on the proposal before the Nov. 6 deadline. 

Members interested in providing input to AGC should promptly contact Tamika Carter at cartert@agc.org.   Return to Top

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New Executive Order Requires Federal Contractors to Disclose Labor Law Violations, Give Workers Pay Information, and Limit Arbitration
 

On July 31, President Obama issued the latest, and most far-reaching, executive order imposing new mandates on federal contractors.  The Fair Pay and Safe Workplaces Executive Order (“EO”) purports to help federal agencies “identify and work with contractors with track records of compliance” with labor laws in order to “reduce execution delays and avoid distractions and complications that arise from contracting with contractors with track records of noncompliance.”  It imposes several new obligations on federal contractors and contracting agencies, increasing the burdens and risks for covered contractors.  It does not cover federally-assisted contracts.

Most significantly, the EO establishes a new system for contractor disclosure, and agency consideration, of labor law violations from the past three years before a prospective contractor may be awarded a federal contract with a value over $500,000 starting in 2016.  Contracting agencies must require prospective prime contractors to disclose any administrative merits determination, arbitral award or decision, or civil judgment rendered against the company for violations of any of 14 federal statutes and executive orders, as well as “equivalent” state laws.  Post-award, contractors must update the disclosures every six months.  Contracting agencies must consider the disclosures in determining whether the contractor is a “responsible source” and whether further action is needed.  Further action could include additional remedial measures, compliance assistance, declining to exercise an option on a contract, contract termination, suspension, or debarment.  The EO requires contractors to impose similar requirements on subcontractors with a subcontract worth over $500,000.

The EO also directs contracting agencies to require contractors subject to the above disclosure mandates to provide workers with certain documentation of their hours and pay each pay period.  The provision covers all individuals who work under a covered contract and for whom the company must maintain wage records under the Fair Labor Standards Act (“FLSA”), Davis-Bacon Act, Service Contract, or “equivalent” state laws. 

The EO tasks the General Services Administration with developing a single website for contractors to meet all of their reporting requirements (those arising under the present EO and otherwise).  It also directs the Federal Acquisition Regulatory (“FAR”) Council to issue implementing regulations and the Department of Labor to issue guidance.  No time frame is specified.  The EO takes effect immediately, but applies only to solicitations for contracts specified in the FAR Council’s regulations.  AGC is closely monitoring developments and exploring ways to prevent any negative impact on AGC members.

For more information, please contact Denise Gold at (703) 837-5326 or goldd@agc.org or Jimmy Christianson at 703-837-5325 or christiansonj@agc.org. Return to Top

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AGC Opposes NAVFAC Mandated-PLA
 

Recently, AGC sent a letter opposing the possible use of a project labor agreement (PLA) mandate posted by the Naval Facilities Engineering Command Southwest for a design-build construction project to decentralize the steam heating system at Naval Base San Diego, Calif.

AGC has sent over 80 letters to federal agencies opposing PLA mandates and bid preferences during the Obama Administration, most in response to agency announcements that a PLA mandate or preference was under consideration for a particular project or an anticipated set of projects in a particular area. Of those, only one PLA mandate has been issued to date.

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 is committed to free and open competition for publicly funded work, and believes that the lawful labor relations policies and practices of private construction contractors should not be a factor in a government agency’s selection process. To view AGC efforts opposing government mandated PLAs, click here.

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

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ENVIRONMENT
AGC Calls for MS4 Systems to be Excluded from “Waters of the United States”
Joins Real Estate and Development Groups in Submitting Comments
 

AGC and 11 other groups active in the real estate development, construction, and management fields called on the Environmental Protection Agency (EPA) and the US Army Corps of Engineers (Corps) to categorically exclude municipal separate storm sewer systems (MS4s) from being considered “waters of the U.S.” (WOTUS) in official comments submitted to the agencies’ proposed rulemaking.

The proposed rule, published for comment in April, redefines “waters of the U.S.” and for the first time includes a definition for tributary, characterizing it by “the presence of a bed and banks and ordinary high water mark” and stating specifically “a tributary … can be a natural, man-altered, or man-made water and includes waters such as rivers, streams, lakes, ponds, impoundments, canals, and ditches…” With this categorical inclusion of ditches, many that discharge stormwater into MS4s (which themselves are already regulated under different parts of the Clean Water Act) are left wondering if they face the double regulation of both what goes in to an MS4 as well as what comes out of one.

The groups point out in their comments that “nowhere does EPA specifically address ditches that are components in permitted MS4s” and states “to the extent that ditches (and other system components) are mapped and identified as part of an MS4, and subject to an NPDES permit governing the MS4 of which they are a part, then such ditches (and components) should not be WOTUS.”

While these comments do not represent the totality of the points the groups, including AGC, wish to raise about the WOTUS rulemaking, it is nevertheless an important enough singular ask that the groups felt comfortable submitting separate comments on this issue specifically. AGC and the members of the Waters Advocacy Coalition will be submitting extensive comments on the entirety of the rule – highlighting the significant process, regulatory, scientific, and economic problems the groups find with the proposed rule. AGC will also be preparing its own set of comments specific to the construction industry. You can easily submit individual comments through AGC’s Regulatory Action Center.

For more information, please contact Scott Berry at berrys@agc.org or Leah Pilconis at pilconisl@agc.org. Return to Top

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Journalism and Science Groups Outraged at EPA Attempts to Muzzle Scientists
 

U.S. EPA is blocking its science advisers from speaking freely to the public and the press, according to a letter sent to EPA chief Gina McCarthy by journalism and scientific advocacy groups. At a recent closed-door meeting of the EPA’s Science Advisory Board, the entity that EPA convenes to independently review the scientific underpinnings of many of the agency’s rulemakings, EPA issued a memorandum outlining the policy for EPA advisers to handle inquiries from the press and the public. Science advisers are directed to refer those requests to EPA employees so that the Office of External Affairs can determine the agency's response.

This policy "undermines EPA's efforts to increase transparency" and "reinforces any perception that the agency prioritizes message control over the ability of scientists who advise the agency to share their expertise with the public," the letter said. The EPA Science Advisory Board was set up by Congress to review the quality and relevance of science being used by EPA and review agency research programs, with members including university professors, corporate scientists, medical doctors and other experts. They are not employees of EPA.

This comes on the heels of Congressional outrage at the EPA’s attempts to similarly interfere with communications between the House Science Committee and the Science Advisory Board on the board’s review of the Connectivity Report that ostensibly represents the scientific basis for the agency’s rulemaking redefining “waters of the U.S.” At a recent hearing, Science Committee members expressed frustration and dismay that EPA would intercept communications and suggested questions for the board to consider as it reviews the science and the rule.

For more information, contact Scott Berry at (703) 837-5321 or berrys@agc.org. Return to Top

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2014 ELECTIONS
Primary Results from Saturday’s and Tuesday’s Elections
 

Connecticut

Not much competitive action in the Connecticut primary, as none of the five House incumbents faced a challenger.  In the Governor's race, former U.S. Ambassador Tom Foley (R), scored a 56-44 percent Republican primary victory over state Senate Minority Leader John McKinney.  The latter is the son of the late former U.S. Rep. Stewart McKinney (R-CT-4). 

Hawaii

Though polling in the U.S. Senate race suggested that neither appointed Sen. Brian Schatz or Rep. Colleen Hanabusa (D-HI-1) held substantial leads heading into Saturday's Democratic primary, the campaign finished much differently than predicted.  

Hurricane Iselle struck the islands just days before the polls opened, causing a delay – which could last up to a couple weeks – in declaring winners of the primary elections.  Though Sen. Schatz has a 1,659 vote lead, two precincts on the Big Island of Hawaii remain to be counted.  His small lead, however, will likely hold up. 

The other interesting Hawaii Democratic primary story is Gov. Neil Abercrombie's defeat.  Pearl Harbor area state Sen. David Ige, who had been leading in virtually every poll, went on to complete his improbable primary victory with a margin that exceeded 2:1.  The unofficial final tally gives Ige a 67-31 percent landslide win.  He now faces Republican former Lt. Gov. Duke Aiona and ex-Honolulu Mayor Mufi Hannemann, a former Democrat with a long history of battling Abercrombie, now running as an Independent.  The three-way contest actually makes Aiona a viable choice even in heavily Democratic Hawaii.  Abercrombie becomes the first Hawaiin Governor since 1962 to lose re-election, and the first ever in Aloha State politics to be denied re-nomination. 

Minnesota

In the Senate race, as expected, finance executive Mike McFadden cruised to a landslide victory in the Republican primary, defeating four Republican opponents, including state Rep. Jim Abeler, with an impressive 72 percent of the vote.  McFadden now faces first-term Sen. Al Franken (D).

Since the nomination process is finally over, the race can now begin to take shape.  Many on the Republican side believe the Minnesota Senate campaign is a sleeper race and could become competitive as we approach Election Day.  If the Republicans catch a national wave, this seat could conceivably move toward the GOP.  Sen. Franken, however, is the decided favorite and any such wave will have to be substantial in order to carry this challenger to victory.

In the open 6th District, also as expected, former gubernatorial nominee and Republican ex-state legislator Tom Emmer cruised to a 73 percent GOP nomination victory for the right to succeed retiring Rep. Michele Bachmann (R).  The seat had played relatively competitively during Bachmann's tenure, but that likely has more to do with the incumbent's controversial nature than with the district's voting patterns. 

No surprises were found in the other House races. 

Wisconsin

Results were also quiet in Wisconsin, with only one race worth watching.  Retiring Rep. Tom Petri (R-WI-6) leaves a seat he has held since winning a special election in 1979 and now will likely be replaced by state Sen. Glenn Grothman. 

The Senator defeated his legislative colleague Joe Leibham and state Assemblyman Duey Stroebel, and a minor fourth candidate by a 38-30-28-4 percent margin.  Grothman has the inside track against the consensus Democratic candidate, Winnebago County Executive Mark Harris.  The 6th District seat is reliably Republican, but Democrats maintain hope that Harris can become a competitive candidate.

The other races, including what should be a hot battle for Governor between incumbent Scott Walker and Democratic challenger Mary Burke, were anything but competitive in Tuesday’s primary.

For more information, please contact David Ashinoff at (202) 547-5013 or ashinoffd@agc.org Return to Top

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