On May 6, 2010, Senators Russ Feingold (D-Wis.) and Tom Coburn (R-Okla.) introduced the 2010 Federal Contracting and Oversight Act. The bill is designed to prevent contractors with poor performance records from receiving government contracts and give members of Congress and federal agency contracting officers more information about companies by expanding the reach of the recently enacted Federal Awardee Performance and Integrity Information System (FAPIIS). The legislation would double the length of time contractors' past performance records remain in a government database and broaden the types of information stored from five to ten years.

The bill would condition the award of a federal contract on fulfillment of the reporting requirements for the FAPIIS database. It would also require federal agencies to submit:

• An annual audit of the contract files required under the Clean Contracting Act of 2008 to ensure that federal contracting officials are appropriately consulting and considering the FAPIIS database prior to making contract award decisions.
• An annual report on overlap between companies that have been suspended or debarred and those that are receiving federal contracts.
• An assessment on the need and feasibility of developing a new, more effective system of uniquely identifying federal contractors.
• An assessment of the feasibility and possible approaches to integrating and consolidating the wide range of existing contracting information databases into a single searchable linked network for contracting officers, members of Congress, and appropriate government officials.

The bill would direct the Office of Management and Budget to integrate and consolidate nine government-wide contractor information databases into a single searchable and linked network. Such databases include: USASpending.gov, which tracks all contract spending; Federal Business Opportunities, which lists contracts up for bid; and the Excluded Parties List System, a site of all suspended and debarred firms.

AGC is especially concerned that this legislation would double the length of time such information would be retained in the FAPIIS and expand the database to include information concerning all administrative proceedings against contractors. We are also concerned that the database would be required to track federal-aid contracts as well as federal contracts. AGC will continue meeting with members of Congress and other key procurement leaders to relay these concerns and explain the impact on the construction industry.

Annual Meeting with Major Construction Agencies Makes Major Advances
 

The 2010 AGC Federal Contractors Conference was another major success, highlighting the excellent relationships that AGC maintains with the federal agencies on behalf of its members. The meeting was held April 26-29, 2010, in Washington, D.C. Government representatives from over 20 federal construction agencies participated, including the Army Corps of Engineers, Federal Highway Administration, Naval Facilities Engineering Command, Environmental Protection Agency, General Services Administration and Air Force.

The Conference broke new ground by expanding to three tracks of meeting sessions for contractors based on the type of work procured by the federal government: federal facilities, water infrastructure, and highway and transportation infrastructure. Agencies participating in those sessions included the Federal Highway Administration and the Environmental Protection Agency.

Federal and Heavy Construction Division Chairman Dan Fordice welcomed such honored guests as Lieutenant General Robert Van Antwerp, Commander and Chief of Engineers for the Army Corps of Engineers (USACE); Rear Admiral Greg Shear, NAVFAC Commander and Chief of Civil Engineers; Major General Tim Byers, the Air Force Civil Engineer; and Small Business Assistant Administrator Joseph Jordan. Additional guests included Major General Bo Temple, Deputy Commanding General;  Robert Slockbower, Director of Military Programs, USACE; Joseph Gott, Chief Engineer, NAVFAC; and Assistant Commissioner of Capital Improvements William Guerin of the General Services Administration. Other agencies represented included the Federal Bureau of Prisons, Forest Service, Small Business Administration, Department of Veterans Affairs, Department of Energy, Coast Guard, Agency for International Development, Bureau of Reclamation, Department of Commerce, Environmental Protection Agency, Rural Utilities Services, Federal Transit Administration, Federal Railroad Administration, Federal Highway Administration, Office of Federal Lands Highway, and the Federal Aviation Administration.

The AGC Federal Owners Advisory Council held its annual meeting at the Conference as well. The Council's membership includes key decision makers from 19 federal agencies, as well as AGC Federal and Heavy Division leadership and committee chairs. This year's session featured robust discussions on implementation of the American Recovery and Reinvestment Act, the Obama Administration's final rulemaking on Project Labor Agreements, long-term goals for the use of Building Information Modeling (BIM), and achieving small business participation goals. Additional topics of discussion included developing a consistent process for administrating past performance ratings, and new federal workforce development initiatives.

Conference attendees also received a special address from Lieutenant General Robert Van Antwerp. His presentation was followed by the signing of a new AGC-USACE Partnering Agreement, the first signed since 2001.  AGC president Ted Aadland welcomed LTG Van Antwerp and signed the agreement as well (pictured above). In addition, AGC NAVFAC Committee Chairman Tex Barnhart presented RADM Shear with the Division's Federal Construction Excellence Award, commemorating his distinguished career with NAVFAC and the agency's successful partnering with the AGC.

Finally, Federal & Heavy Construction Division Members launched an all out offensive on the legislative front during the meeting. As part of a series of organized Capitol Hill visits, AGC members participated in providing information on a range of issues, including comprehensive immigration reform, reauthorization of the Water Resources Development Act, legislation to repeal the imposition of the three percent withholding tax on government contractors, legislation authorizing the creation of a Clean Water Trust Fund, and passage of a new transportation authorization bill.

Presentations from the conference will be available online soon.

U.S. House of Representatives Committee on Transportation and Infrastructure Chairman Jim Oberstar (D-Minn.) Wednesday introduced the "America's Commitment to Clean Water Act" (H.R. 5088) to "clarify" federal jurisdiction over waters and wetlands under the Clean Water Act.  The bill would remove the term "navigable" from the Act and replace it with the phrase "waters of the United States." 

The bill is a revision to previously-introduced legislation, the "Clean Water Restoration Act."  Oberstar said during a press conference Wednesday that the legislation would ensure that the Clean Water Act covers the same waters it did prior to two U.S. Supreme Court rulings in 2001 and 2006, which placed limits on the reach of federal jurisdiction regulatory agencies were asserting at that time.

AGC, along with the broad-based Waters Advocacy Coalition (WAC), has opposed the "Clean Water Restoration Act" and is concerned that the new proposal does not address concerns that the legislation would subject all waters and wet areas, however remote or intermittent, to federal regulations and permitting under the Clean Water Act and delay the construction of buildings and infrastructure nationwide.

On April 6, 2009 President Obama issued a new memorandum calling for federal agencies to further intensify their efforts to improved reporting compliance by prime recipients of Recovery Act funds. The memo directs those agencies to take appropriate action by terminating awards; pursuing measures such as suspension and debarment; reclaiming funds; and considering, initiating, and implementing punitive actions.

The Recovery Act requires contractors, grantees and loan recipients to submit to FederalReporting.gov quarterly information on how they are spending the funds. During the most recent quarter — the final three months of 2009 — more than 1,000 recipients failed to file the reports. More than 300 of those recipients made the board's "repeat offender" list for also neglecting to file during the initial reporting cycle last October.

According to the memo, OMB Director Peter Orszag will, within the next 30 days, review and update the administration's Recovery Act reporting guidance to include additional agency actions and oversight strategies.

The current reporting period began on April 1 and ends April 10. Recipients will have until April 29 to make corrections to their reports. The third batch of recipient data will be published on Recovery.gov on April 30.

The Obama Administration is currently reviewing a proposal supported by the Center for American Progress and the National Employment Law Project, which claims that the federal contracting market is financing millions of poverty wage jobs across our economy, and supporting employers that are significant or repeat violators of workplace, tax and other laws. To address these allegations, these organizations are calling on the administration to establish a range of "responsible contractor" policies to ensure that federal contracting promotes the creation of good jobs by offering bid preferences to businesses that engage in "responsible" employment practices.

The recommendations of these organizations specifically call for the following changes to the federal procurement system:

• Institute more rigorous responsibility screening of prospective bidders to ensure that federal contracts are not awarded to employers that are significant or repeat violators of workplace, tax or other laws.
• Establish a preference for employers that provide good jobs in the contractor selection process, prioritizing firms that provide "living wages," health benefits and paid sick days.
• Quickly bring on-line, expand and improve the newly authorized national contractor misconduct database mandated by the 2008 National Defense Authorization Act.
• Strengthen monitoring and enforcement of contractors' compliance with existing and new workplace standards.

If the White House chooses to move towards implementing these recommendations, it is very likely it will be done through Executive Order and then a change to the Federal Acquisition Regulation. AGC is closely monitoring this situation and evaluating the recommendations of these reports and their potential effect on the federal construction market.

Today the Senate Small Business and Entrepreneurship Committee approved legislation, S.2989, designed to address contract bundling. This topic has become an area of growing interest for AGC members as the government is increasingly relying on this procurement method for the bidding of federal contracts. Unfortunately, AGC found that the legislation as proposed did not do enough to address bundling concerns and sent a letter to the Committee to state those concerns.

This bill looks to address contracting bundling as follows: (1) accountability of senior agency management for all incidents of bundling; (2) timely and accurate reporting of contract bundling information by all federal agencies; and (3) improved oversight of bundling regulation compliance by the Small Business Administration (SBA).  The bill, however, does not address how bundling directly affects the construction industry.

The bill also attempts to address subcontracting. The bill: (1) provides guidelines and procedures for reviewing and evaluating subcontractor participation in prime contracts and (2) provides for oversight to ensure speedier payments to small business subcontractors who have successfully completed work on behalf of the prime contractor. AGC expressed concerns that the bill does not address an obvious subcontracting issue, the counting of total subcontractor participation at all tiers.

AGC has called on Congress to address concerns over the fact that construction contracts currently cannot be reviewed for contract bundling. Senate leaders have indicated they would like to work with AGC to help address our concerns on this issue, and well as other issues concerning small business contracting issues that Congress will consider in the coming weeks.

Yesterday, President Obama issued a presidential memorandum that directs federal agencies to block government contractors delinquent in their taxes from receiving new contracts.  In addition, the memorandum would require the Commissioner of Internal Revenue to conduct a review of the accuracy of certifications of non-delinquency in taxes that companies bidding for federal contracts are required to submit.  The President's goal is to ensure that tax delinquent contractors are not awarded further federal contracts.

The President is also calling on Congress to ensure that tax dollars are not used to boost the profits of companies who refuse to pay their taxes. The presidential memorandum is part of a larger strategy of streamlining the federal contracting process which includes evaluating contract type feasibility, eliminating no-bid and sole source contracts where possible, scrutinizing payments and strengthening the federal workforce.

The text of the memorandum is available here.
The text of President Obama's prepared remarks is available here.
The text of a White House press release on the subject is available here.

On December 3, 2009, the White House Council on Environmental Quality (CEQ) submitted a proposal for review to the National Academy of Sciences (NAS) that would significantly change the principles and guidelines that govern federal water-resource planning.

The proposal would require that all projects improve the economic well-being of the nation, better protect communities from the effects of floods and storms, help communities and individuals make better choices about where to build based on an understanding of the risk, and protect and restore the environment. AGC is currently reviewing the draft.

For details on the proposal, click here.

For more information, please contact Marco Giamberardino at (703) 837-5325 or giamberm@agc.org.

The Water Resources and Environment Subcommittee of the House Transportation and Infrastructure Committee held a hearing on November 18 to receive testimony from Members of Congress on issues and proposals for consideration of a Water Resources Development Act of 2010, which authorizes infrastructure projects from the Army Corps of Engineers. AGC laid out its priorities for a WRDA 2010 in a letter sent to all Members of the full Transportation and Infrastructure Committee.

The first step in a Corps water resources development project is a study on the feasibility of the project. If the Corps has conducted a study in the area before, a new study can be authorized by a resolution by either the House Transportation and Infrastructure Committee or the Senate Environment and Public Works Committee. If the area has not been previously studied by the Corps, then an Act of Congress is necessary to authorize the study. The majority of studies are authorized by Committee resolution. After a feasibility study is completed, the results and recommendations of the study are submitted to Congress, usually in the form of a report of the Chief of Engineers. If such results and recommendations are favorable, the next step is authorization. Project authorizations are contained in water resources development acts, which are traditionally enacted on a biennial schedule. After a project is authorized, it would still require an appropriation of Federal funds to proceed to construction.

A key issue AGC has raised over the past several years was discussed during the hearing yesterday when Rep. Charles Boustany, Jr. (R-La.) strongly advocated the need to firewall user fees collected from the Harbor Maintenance Tax and ensure 100 percent of the funds are spent for the purpose of funding dredging projects. In 2008, less than half the funds collected were spent out of the Harbor Maintenance Trust Fund.

House members have until Dec. 3 to submit their projects to the committee for consideration in the bill.

AGC will continue to press for passage of a WRDA 2010 bill during the 111^th Congress.

For more information, contact Marco Giamberardino at (703) 837-5325 or giamberm@agc.org.

December 3, 2009 | December 8, 2009 | December 10, 2009, 2:00 PM - 3:30 PM ET

With the downturn in the availability of commercial work, many construction contractors are bidding on federal and federally-assisted work, and having to comply with the Davis Bacon and Related Acts for the first time. The application of the Davis-Bacon and Related Acts to all projects funded under the stimulus is leaving many contractors uncertain about the requirements of federal prevailing wage laws and the consequences of non-compliance.

Industry experts, including the head of enforcement for the U.S. Department of Labor's Wage & Hour Division (WHD) and the head of the Davis-Bacon Wage Determinations division of WHD, will provide the information necessary to understand the specific requirements of the Davis-Bacon and Related Acts in a contractor-friendly manner. 

• December 3: Introduction to the Davis Bacon Act and Wage Determinations
• December 8: Compliance Principles
• December 10: Reporting Requirements & Enforcement

Register today at www.agc.org/DBWebinar.  Please see this webinar flyer for more information.