Review Commission upholds OSHA's multi-employer citation policy

The Occupational Safety and Health Review Commission has upheld OSHA's multi-employer citation policyin a reversal of a decision the Commission made during the previous administration. Under the policy, OSHA inspectors may cite employers on multi-employer worksites for violations that do not expose their own workers to occupational hazards. For example, a general contractor who controls the worksite may be responsible for violations created by a subcontractor whose workers are exposed to safety or health hazards. In reaching its Aug. 19 decision,* the Commission agreed with an earlier decision by the Eighth Circuit Court of Appeals, which had rejected the Commission's previous contrary view that employers are only legally responsible for protecting the safety and health of their own workers. The case under consideration involved Summit Contractors Inc., a general contractor constructing an apartment complex in Lebanon, Pa., in 2005. An OSHA compliance officer cited Summit for a safety violation after observing workers of a subcontractor using electrical equipment that lacked ground fault circuit interrupters and which had been brought onto the worksite by Summit.

For questions and comments, please contact Kevin Cannon at cannonk@agc.org. 

On August 31, 2010, the U.S. Department of Labor’s Occupational Safety and Health Administration published interim final rules that will help protect workers who voice safety, health, and security concerns. The regulations, which establish procedures for handling worker retaliation complaints, allow filing by phone as well as in writing and filing in languages other than English.  To view the complete rule click here Federal Register.

The regulations, which cover workers filing complaints in the railroad, public transit, commercial motor carrier, and consumer product industries, also create greater consistency among various OSHA complaint procedures. The interim final rules establish procedures and time frames for handling complaints under the whistleblower sections of the Implementing Recommendations of the 9/11 Commission Act of 2007 and the Consumer Product Safety Improvement Act of 2008. 

These regulations are effective immediately. Comments must be submitted by Nov. 1, 2010, and can be sent to www.regulations.gov, the Federal eRulemaking Portal, or by mail or fax.

OSHA enforces the whistleblower provisions of the OSH Act and 18 other statutes protecting employees who report violations of various commercial motor carrier, airline, nuclear power, pipeline, environmental, railroad, public transportation, securities, and health care reform laws.  New fact sheets on these statutes and additional information will be available at http://www.whistleblowers.gov.

For questions and comments, please contact Kevin Cannon at cannonk@agc.org.

Solicitations requiring bidders on certain U.S. Army Corps of Engineers (USACE) construction projects to submit an executed project labor agreement (PLA) prompted AGC to write and call agency officials expressing strong concern.  On August 18, the agency called AGC to announce that it was withdrawing the PLA requirement and to thank AGC for educating them on the issue.

On August 12, AGC sent a letter to the USACE's Mobile District demanding information about the agency's justification for including a PLA mandate in a solicitation for the construction of an Air Force Technical Applications Center at Patrick Air Force Base in Florida. The letter questioned how it determined that the conditions listed in President Obama's executive order on PLAs were present. The requirement, along with similar mandates by other contracting agencies and information about pressure from higher in the Administration, also prompted AGC to send a letter calling on President Obama to protect contracting officers from such political pressure, and to send an "unmistakable and public" message that political appointees should not cross the line between politics and procurement.

AGC's letter to the USACE pointed out that the executive order leaves the agency free to refrain from requiring a PLA on the Patrick Air Force Base project and that it permits the agency to require a PLA only if the USACE has determined that all of the following conditions exist:

1. The project will cost the federal government $25 million or more;
2. Use of a PLA on the project will advance the federal government's interest in achieving economy and efficiency in federal procurement;
3. Use of a PLA on the project will advance the federal government's interest in producing labor-management stability;
4. Use of a PLA on the project will advance the federal government's interest in ensuring compliance with laws and regulations governing safety and health, equal employment opportunity, labor and employment standards, and other matters; and
5. Use of a PLA will be consistent with law.

The six-page letter sets out a number of specific issues that the agency should have considered in making its determination and points out the practical implications of government mandates for PLAs.  The letter also points out the possible repercussions of the agency's decision to require all offerors to negotiate and execute a PLA prior to submitting a bid on the project.

AGC raised similar issues in a second August 12 letter sent to high-ranking officials at USACE headquarters.  The letter urges the agency to exercise the broad latitude granted to it by the executive order and its implementing regulations to refrain from imposing any PLA mandates, and to direct its division and district commands to follow suit.  Given the political pressure to consider PLAs, AGC also provided the agency with a recommended approach for conducting a thorough, fact-based analysis of particular criteria for determining the appropriateness of a PLA mandate, demonstrating the many complications inherent in such mandates and the impediments that they present to achieving economy and efficiency in government procurement.

The letters are the latest of AGC's continuing efforts to educate government agencies about PLA issues and implications.  While AGC neither supports nor opposes PLAs in general, AGC strongly opposes government mandates for PLAs on publicly funded construction projects.  AGC is committed to free and open competition in all public construction markets and believes that publicly funded contracts should be awarded without regard to the lawful labor relations policies and practices of the government contractor.

An interim rule was issued that brings many of the reporting requirements first made public in the American Recovery and Reinvestment Act to the broader scope of federal contracting. The rule calls for reporting executive compensation and first-tier subcontract awards if the prime contractor and its subcontractors meet certain thresholds. It is based on the same point of law, the amended Federal Funding Accountability and Transparency Act of 2006 (a product of then-Senator Obama and Senator Tom Coburn [R-Okla.]).

Under this rule, a prime contractor is required to report for disclosure on www.usaspending.gov the names and compensation of their five most highly compensated officers if in the preceding year the contractor received $25 million or more in revenues from federal contracts and subcontracts and 80 percent or more of its annual gross revenues from federal contracts and it does not already file this information with the SEC. All three must be satisfied to trigger the compensation reporting. The prime contractor is also required to collect and report this compensation information for its first-tier subcontractors if the subcontractor meets the three triggers and the subcontract is for $25 thousand or more.

The prime contractor is also required to report to the system every subcontract if the prime contract is $25 thousand or greater. This requirement is phased in however, as follows:

1. Until September 30, 2010, any newly awarded subcontract must be awarded if the prime contract award amount was $20 million or more.
2. From October 1, 2010 until February 28, 2011 any newly awarded subcontract must be reported if the prime contract award was $550 thousand or more.
3. Starting March 1, 2011, any newly awarded subcontract must be reported if the prime contract award amount was $25 thousand or more.

This is an interim rule, and as such it became effective upon publication and will operate unless and until a final rule is enacted. User guides, FAQs, and an online demonstration are available at the Federal Subaward Reporting System website, www.fsrs.gov. AGC will submit comments on the interim rule before the September 7 deadline.

For more information, or to contribute to the comments, contact Marco Giamberardino at giamberm@agc.org or (703) 837-5325; or Scott Berry at berrys@agc.org or (703) 837-5368.

AGC submitted comments this week on an advance notice of proposed rulemaking (ANPR) issued May 13, titled Enhancing Contract Transparency. The rule presupposes that, given the direction the administration is moving with the president's Freedom of Information Act (FOIA) memo, Transparency and Open Government memo, andOpen Government Initiative, as well as the Attorney General's new FOIA Guidelines and the Office of Science and Technology Policy's Open Government Plan, a requirement is likely forthcoming to post the text of contracts, task orders, and delivery orders online.

In order to best be able to execute this future requirement, the rule asks for public comment concerning how best to implement a system of posting these documents online. AGC was pleased that the ANPR was concerned with facilitating the posting without violating statutory and regulatory prohibitions against disclosing protected information (belonging to either contractors or the government), but had serious reservations with the ANPR's conclusion that it may not be practical to apply full FOIA procedures in every case.

AGC requested in its comments that FOIA procedures for protection of information be applied as the minimum standard of protection for disclosure of any text of the documents. AGC also provided a non-exhaustive list of information that the construction contracting community expected to be protected (and the accompanying regulatory citations that guaranteed their protection). AGC will continue to monitor the progression of this rule and fight to protect against the disclosure of sensitive and important contractor information.

For more information, contact Scott Berry at berrys@agc.org or (703) 837-5368.

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.

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

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.

The Department of Veterans Affairs Office of Construction and Facilities Management (CFM) is conducting a series of surveys regarding the use of project labor agreement (PLAs) on various projects.  CFM is asking contractors to respond to the questionnaire for certain projects in Houston, Texas, Palo Alto, Calif., and San Juan, Puerto Rico, by June 4.  AGC encourages interested contractors to complete the survey and provide CFM with a clear idea of the impact that a government-mandated PLA would have on the construction of federal projects.

The survey, which is included with individual job solicitations. asks the following questions:

1. Is your company familiar with Project Labor Agreement (PLA) used on construction projects? Yes/No Comments
2. Would your company likely submit a proposal for the VA construction solicitation that requires the use of a PLA? Yes/No Comments:
3. If VA requires a PLA, would your proposed construction cost likely to increase? Yes/No Comments
4. Does the VA requirement to use of a PLA on a construction project restrict competition? Yes/No Comments
5. Do you expect subcontractor resistance should VA requires the use of a PLA on this construction solicitation? Yes/No Comments
6. Do you have additional comments regarding the use of a PLA for this project?

For talking points on PLAs, click here.  For information on the final rule implementing President Obama's executive order on PLAs, including a link to AGC's comments, click here.

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

An Advance Notice of Proposed Rulemaking (ANPR) was issued May 13 seeking input on how the government can best implement a policy of posting government contracts online. FAR Case 2009-004, Enhancing Contract Transparency, notes that while no policy mandating the online posting of contracts exists yet, the Councils anticipate that one could be coming soon.

They point to the general tone of several of President Obama's memoranda (including the Freedom of Information Act Memorandum and the Transparency and Open Government Memorandum) and other points of executive branch policy and conclude that given the shift to more open government, a requirement to post government contracts online is coming. The ANPR asks for suggestions for how best to revise the FAR to facilitate such posting without violating statutory and regulatory prohibitions against disclosing protected information that belongs to the government or to contractors.

AGC will closely monitor the development of this ANPR and will soon solicit ideas from contractors on how to proceed.

If you would like to submit comments on this rule to AGC, please contact Marco Giamberadino at giamberm@agc.org or (703) 837-5325.

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.

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