Three of the five rules from the Federal Acquisition Regulation Councils that govern the American Recovery and Reinvestment Act were released this week. Final versions of the rules governing GAO/IG access to contractors and their employees, whistleblower protections, and publicizing contract actions now permanently govern Recovery Act contracts.

AGC submitted comments on the GAO/IG Access rule. AGC requested that an IG provide reasonable advance notice to contractors and their employees before a review of contractor transactions, including when and where the review and interviews will occur; the topics to be covered; the employees affected; and the total amount of time required to conduct the review.

The FAR Councils disagreed, and stated that the purpose of the rule is to put contractors on notice that they may need to make their records and employees available in the event a review is requested. The Councils prefer to leave the exact review procedures that the Comptroller General or his authorized representatives use to execute such procedures and not detail them in the FAR. The two remaining rules, governing the reporting requirements and 'Buy American' regulations, have not yet been released in final form.

More progress on the Buy American front this week as yet another agency recognized the complex impact these Recovery Act rules have on projects. The Indian Health Service (IHS) issued a nationwide di minimis waiver for incidental components of sanitation facilities construction projects funded by ARRA.

As with the di minimis waivers in place from EPA and USDA, the waiver covers components that are incorporated into the project, yet cumulatively comprise no more than a total of 5 percent of the total materials used in a project. For many of these incidental components, the country of origin and the availability of alternatives is not always readily or reasonably identifiable prior to procurement in the normal course of business; for other incidental components, the country of origin may be known but the miscellaneous nature of the products in conjunction with their low cost (both individually and procured in bulk) characterize them as incidental to the facility or project.

The majority of the services sanitation facilities projects are in remote locations. The service argued that a disproportionate cost and delay would be imposed on projects if they did not issue this waiver.  IHS said it would be inconsistent with the public interest to apply the Buy American requirement to incidental components.  AGC last year urged agencies like HIS to issue di minimis waivers to avoid costly delays caused by the stimulus' Buy American provisions.

Also on the Buy American front is a pair of new waivers from the EPA. These waivers are unique in that they are retroactive, applying to materials that were already put in place, rather than requesting a waiver for the purposes of moving forward with construction. Waivers for two cities in Washington State, Richland and Bridgeport, were requested under the public interest section of the waiver authority. Neither waiting for domestic suppliers nor pulling out previously installed goods was deemed in the public interest because of unacceptable delays and cost overruns on these projects. AGC supports the waivers and will continue to monitor progress on this front.

Congressional Democrats in the U.S. House continue to work on legislation that restricts the ability of trade associations and corporations to engage in political advocacy. The legislation H.R. 5175, the Democracy is Strengthened by Casting Light on Spending in Elections Act (DISCLOSE Act), places significant and complicated restrictions on speech in the form of political advocacy while ensuring that these restrictions will not be clarified by regulation before the law impacts the 2010 elections. Unlike past changes in campaign finance law (such as McCain Feingold), the Disclose Act is written to take effect immediately upon passage instead of waiting for the next election cycle and for regulations to be written to clarify compliance requirements.

The bill would treat corporations and trade associations differently than labor unions, even though both sides are active in political advocacy. Also, the bill makes significant changes to foreign ownership rules. It gags companies that receive even small government contracts but does not similarly gag unions who represent government employees.

AGC opposes H.R. 5175 because of its restriction on free speech and increased confusion of campaign finance laws. The vote has been designated a Key Vote and will be an indicator of support for issues significant to the construction industry. To read the letter AGC sent to Congress this week click here.

Over the past week, AGC PAC has held a series of conference calls with PAC Regions throughout the country.  The calls have created lively discussion concerning the current state of the PAC, PAC fundraising goals, future plans and requests for AGC PAC disbursements, and the 2010 Election. 

With six of ten conference calls completed, AGC PAC has agreed to invest over $140,000 in candidates - both current members of Congress as well as some challengers.  The PAC budgeted a little over $80,000 in a reserve fund in hopes of raising at least an additional $120,000 for the PAC prior to Election Day.  In an attempt to reach this ambitious goal, AGC PAC has kicked off a new fundraising campaign "$210 in 2010." AGC PAC is encouraging contributors to the PAC to give $210 more dollars in this extremely important election year. Chapter, state and regional PAC Network contacts will receive further information on the campaign in a few weeks.  The PAC will only tap into the reserve funds if that goal is met.  One more conference call will be held this week and three will be held Monday.  A full review of the calls will be available in this newsletter next week.

The new video from AGC's media event last week on the costs of traffic congestion includes comments from Caterpillar Global Paving's Jim McReynolds, member Gary Sauer of Tiller Corporation, Dave Semerad of AGC of Minnesota and Steve Sandherr. 

AGC's release of the new congestion cost figures garnered significant media attention, with the news covered by the MinnPost and the local Channel 12 News (start at 5:27), as well as the Portland Tribune, New Orleans City Business and NJ Biz, among others.

Click here to watch the video.

The U.S. Senate rejected 47 to 53 a motion to proceed to a resolution that would block the U.S. Environmental Protection Agency (EPA) from regulating greenhouse gases under the Clean Air Act.  Six Democrats joined their Republican colleagues in support of the motion.

S. J. Res. 26 was introduced by Senator Lisa Murkowski (R-Alaska) in response to EPA's effort to regulate greenhouse gases from motor vehicles that then trigger requirements for emission controls from all other sources, including commercial buildings, industrial facilities, and more.

Senators debated over six hours on the resolution with opponents asserting that a vote for the resolution is a vote undermining the science behind climate change and EPA's finding that greenhouse gas emissions endanger public health and the environment, as well as EPA's recent rule to establish motor vehicle fuel economy standards.  Several Senators speaking against the resolution also argued that the resolution is a step backwards in reducing pollution and the country's dependence on oil, and creating "clean energy" jobs envisioned under a carbon constrained economy.

AGC is concerned that the Clean Air Act is the wrong tool to regulate greenhouse gas emissions and that to allow EPA to move forward with that approach would delay or stop construction projects nationwide.  AGC sent a letter to all Senators to urge them to support the Murkowski resolution.

EPA regulation under the Clean Air Act means more pre-construction permits, operating permits and costly technology control installation requirements for building projects, and puts approval and federal funding for highway and bridge projects at risk.  It also means higher energy costs for businesses and consumers that will affect demand for construction services nationwide, especially in a down economy.

The Senate may vote on additional attempts to limit EPA's authority to regulate greenhouse gas emissions.  As an inducement for Democrats to vote against the motion, Senate leaders offered a vote on a proposal to delay EPA regulations by two years.  In addition, efforts may be made to amend EPA's annual spending bill.  Should any future effort pass the Senate, the president would likely threaten any attempt to limit the EPA's authority over this issue in the absence of broader climate change legislation to regulate U.S. greenhouse gas emissions.

To see how your Senator voted on the motion to proceed to S.J.Res. 26, click here.

For more information, contact Karen Lapsevic at (202) 547-4733 or lapsevick@agc.org.

The U.S. Senate rejected 47 to 53 a motion to proceed to a resolution that would block the U.S. Environmental Protection Agency (EPA) from regulating greenhouse gases under the Clean Air Act.  Six Democrats joined their Republican colleagues in support of the motion.

S. J. Res. 26 was introduced by Senator Lisa Murkowski (R-Alaska) in response to EPA's effort to regulate greenhouse gases from motor vehicles that then trigger requirements for emission controls from all other sources, including commercial buildings, industrial facilities, and more.   

Senators debated over six hours on the resolution with opponents asserting that a vote for the resolution is a vote undermining the science behind climate change and EPA's finding that greenhouse gas emissions endanger public health and the environment, as well as EPA's recent rule to establish motor vehicle fuel economy standards.  Several Senators speaking against the resolution also argued that the resolution is a step backwards in reducing pollution and the country's dependence on oil, and creating "clean energy" jobs envisioned under a carbon constrained economy.

AGC is concerned that the Clean Air Act is the wrong tool to regulate greenhouse gas emissions and that to allow EPA to move forward with that approach would delay or stop construction projects nationwide.  AGC sent a letter to all Senators to urge them to support the Murkowski resolution. 

EPA regulation under the Clean Air Act means more pre-construction permits, operating permits and costly technology control installation requirements for building projects, and puts approval and federal funding for highway and bridge projects at risk.  It also means higher energy costs for businesses and consumers that will affect demand for construction services nationwide, especially in a down economy. 

The Senate may vote on additional attempts to limit EPA's authority to regulate greenhouse gas emissions.  As an inducement for Democrats to vote against the motion, Senate leaders offered a vote on a proposal to delay EPA regulations by two years.  In addition, efforts may be made to amend EPA's annual spending bill.  Should any future effort pass the Senate, the president would likely threaten any attempt to limit the EPA's authority over this issue in the absence of broader climate change legislation to regulate U.S. greenhouse gas emissions. 

To see how your Senator voted on the motion to proceed to S.J.Res. 26, click here.

On June 9, AGC and its coalition partners sent a letter to Senator John Kerry (D-Mass.) and Senator Joseph Lieberman (I-Conn.), as well as the rest of the Senate, expressing concerns over a provision in the American Power Act encouraging the use of Project Labor Agreements (PLAs).

The letter states that the undersigned organizations are committed to free and open competition in all public construction markets and believe that publicly financed contracts should be awarded without regard to the labor relations policy of the government contractor. Neither a public owner nor its representative should mandate the use of a PLA that would compel any firm to change its labor policy or practice in order to compete for or perform work on a publicly financed project. The letter also said that it should be up to the contractor to negotiate a PLA on a voluntary basis if the contractor believes it would benefit a particular project. To view a copy of the letter click here.

On Tuesday, voters in Arkansas, California, Georgia's 9th congressional district, Iowa, Maine, Montana, Nevada, New Jersey, North Dakota, South Carolina and Virginia all went to the polls. The day was highlighted by several high profile Senate primaries as voters continue to be unpredictable and their support for "Washington insiders" dwindles. On June 22, voters return to the polls for runoffs in Mississippi, North Carolina and South Carolina. AGC compiled a recap of several races that could have consequences for the construction industry.

Arkansas
Voters in the Razorback state went back to the polls in a runoff election for the Democrat nomination to face Representative John Boozman (R) in November's Senate Election. The Democratic incumbent, Sen. Blanche Lincoln surprised many pundits in Arkansas and Washington by defeating Lieutenant Governor Bill Halter (D). Halter had the backing of labor organizations who contributed $10 million to defeat Lincoln. Lincoln was targeted because she was one of the only Democrats willing to oppose the Employee Free Choice Act and Card Check, and the election is a defeat for organized labor. Boozman has an 89 percent AGC vote record and Lincoln has a 70 percent record.

California
Former CEO of Hewlett Packard Carly Fiorina (R) won the Republican nomination and will face Senator Barbara Boxer (D). Boxer has a 40 percent AGC vote record and is the chairman of the Senate Environment and Public Works Committee. The committee will play a large role in the development of climate change and transportation funding legislation. Boxer is in her 3rd term and will likely face the toughest election of her career.

There were no surprises in the state's House primaries, but California did host one of the most prominent gubernatorial contests with Former E-Bay CEO Meg Whitman (R) earning the Republican nomination. She will face former governor and California Attorney General Jerry Brown (D) in November.

Nevada
In the home state of Senate Majority Leader Harry Reid (D), the Republicans nominated former assemblywoman and tea party-supported candidate Sharron Angle (R) to face Reid in November. Despite the intra-party squabbles, Angle may be able to mount a serious challenge to Reid. During Reid's four terms, he has amassed a 44 percent AGC vote record.

South Carolina
South Carolina hosted a high profile primary election for the Republican nomination for governor. Forced into a runoff, voters will have to return to the polls on June 22 to choose between state legislator Nikki Haley (R) and Representative Gresham Barrett (R). Haley is the favorite. Representative Bob Inglis (R) faced an intra-party challenge and was also forced into a runoff in the 4th congressional district. Four incumbents have lost primaries so far this year.

Georgia
In the 9th congressional district voters went to the polls in a special election for the seat that was vacated early this year by Nathan Deal (R), who left to concentrate on his bid for governor. Former State Representative Tom Graves (R) defeated former State Senator Lee Hawkins. Graves will serve the remainder of Deal's term and will run for reelection in November.

The House of Representatives is planning to rush through legislation in the next two weeks that will significantly restrict the ability of trade associations and companies to engage in political advocacy. The bill H.R. 5175 is being labeled a disclosure bill in response to the Citizens United Supreme Court ruling, but it is really focused on keeping government contractors, TARP recipients and companies with more than 20 percent foreign ownership out of the political process. In addition, it seeks to silence trade associations and businesses that plan to publicly announce that they are critical of legislation supported by candidates for federal office.

Unlike past changes in campaign finance law (such as McCain Feingold) the Disclose Act is written to take effect immediately upon passage instead of waiting for the next election cycle and for regulations to be written and it treats labor unions differently than it does corporations.

The legislation makes changes to the definitions in the Federal Election Law in a way that will have a chilling effect on issue advocacy that is in any way critical of members of Congress. The Senate is gearing up to consider identical legislation.