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:Until September 30, 2010, any newly awarded subcontract must be awarded if the prime contract award amount was $20 million or more.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.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. 51·çÁ÷ 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.
51·çÁ÷ 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. 51·çÁ÷ 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.51·çÁ÷ 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. 51·çÁ÷ 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). 51·çÁ÷ 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.51·çÁ÷ submitted comments on the GAO/IG Access rule. 51·çÁ÷ 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.  51·çÁ÷ 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. 51·çÁ÷ 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. 51·çÁ÷ 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 Comments2. 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 Comments4. Does the VA requirement to use of a PLA on a construction project restrict competition? Yes/No Comments5. Do you expect subcontractor resistance should VA requires the use of a PLA on this construction solicitation? Yes/No Comments6. 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 51·çÁ÷'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.51·çÁ÷ 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 51·çÁ÷, 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.51·çÁ÷ 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. 51·çÁ÷ 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.
Annual Meeting with Major Construction Agencies Makes Major AdvancesThe 2010 51·çÁ÷ Federal Contractors Conference was another major success, highlighting the excellent relationships that 51·çÁ÷ 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 51·çÁ÷ 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 51·çÁ÷ 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 51·çÁ÷-USACE Partnering Agreement, the first signed since 2001. 51·çÁ÷ president Ted Aadland welcomed LTG Van Antwerp and signed the agreement as well. In addition, 51·çÁ÷ 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 51·çÁ÷.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, 51·çÁ÷ 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.For additional information, contact Marco Giamberardino at (703) 837-5325 or giamberm@agc.org.
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.51·çÁ÷ sent a letter to the Obama Administration which cautioned them to reject calls to impose new contracting rules that would allow for blacklisting of companies based on arbitrary reasons, false accusations and unproven anonymous complaints.The proposed changes, referred to as 'High Road' contracting rules, also have the potential to delay countless federal construction projects by adding new levels of time-consuming and costly bureaucratic reviews.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. 51·çÁ÷ is closely monitoring this situation and evaluating the recommendations of these reports and their potential effect on the federal construction market.To read a copy of the letter, click here.Read 51·çÁ÷'s press release here.For more information, contact Marco Giamberardino at (703) 837-5325 or giamberm@agc.org.
The Federal Acquisition Regulation (FAR) Council has issued a final rule implementing Executive Order 13502on the use of project labor agreements (PLAs) on federal construction projects, giving contracting agencies broad discretion to determine whether to impose a PLA mandate on a project, when the PLA should be executed, and what terms the PLA will contain. The rule implements the executive order's stated policy to "encourage" executive agencies to "consider" requiring the use of project labor agreements in connection with large-scale construction projects, which are defined as projects with a total cost to the federal government of $25 million or more. Mimicking the Executive Order, the rule provides that an agency "may" require that every construction contractor and subcontractor on a particular project agree to negotiate or become a party to a PLA if the agency decides that use of a PLA will (1) advance the government's interest in achieving economy and efficiency in federal procurement, producing labor-management stability, and ensuring compliance with laws and regulations governing safety and health, equal employment opportunity, labor and employment standards, and other matters; and (2) be consistent with the law. The rule adds several other factors that agencies may consider in their project-by-project evaluation of whether a PLA is appropriate, but it neither requires the agencies to consider those factors nor limits their consideration to those factors. The added factors include whether: