Category: News Line

On Feb. 4, President Biden signed Executive Order 14063, Use of Project Labor Agreements for Federal Construction Projects, which mandates the use of PLAs on federal construction projects of $35 million or more in value.

ABC slammed the order in a statement: “This anti-competitive and costly executive order rewards well-connected special interests at the expense of hardworking taxpayers and small businesses who benefit from fair and open competition on taxpayer-funded construction projects,” said Ben Brubeck, ABC’s vice president of regulatory, labor and state affairs. .

ABC also said that the new policy will exacerbate the construction industry’s skilled workforce shortage, needlessly increase construction costs and reduce opportunities for local contractors and skilled tradespeople.

Here is what you need to know about Executive Order 14063:

• The EO directs federal agencies to require PLAs on “federal construction projects within the United States for which the total estimated cost of the construction contract to the federal government is $35 million or more.”
• Senior federal agency officials may grant an exception to the PLA requirement only under a very narrow set of circumstances.
• The EO will trigger a Federal Acquisition Regulatory Council rulemaking. A proposed rule must be issued within 120 days of publication of the EO in the Federal Register. ABC will comment on the proposed rule and help ABC members do the same. A final rule will be issued after the FAR Council evaluates proposed rule comments from stakeholders and finalizes an effective date.
• Once issued, the final rule will rescind and replace President Obama’s pro-PLA EO 13502 and related FAR Council regulations.
• The order directs the departments of Defense and Labor, along with the Office of Management and Budget, to design “a training strategy for agency contracting officers to enable those officers to effectively implement this order.” In addition, “within 180 days of the date of the publication of proposed regulations,” they “shall provide a report to the Assistant to the President for Economic Policy and Director of the National Economic Council on the contents of the training strategy.”
• ABC anticipates federal contracting officers to be under tremendous pressure to mandate PLAs and the training to limit their ability to rightfully opt out of requiring PLAs.
• The EO does not affect federally assisted projects, although federal agencies like the departments of Transportation, Treasury, Interior and Agriculture have already been pushing PLAs on federally assisted construction projects through grant applications and other tactics independent of this EO, drawing the ire of GOP governors.
• According the text of the order, “This order shall be effective immediately and shall apply to all solicitations for contracts issued on or after the effective date of the final regulations issued by the FAR Council under section 8(a) of this order. For solicitations issued between the date of this order and the effective date of the final regulations issued by the FAR Council under section 8(a) of this order, or solicitations that have already been issued and are outstanding as of the date of this order, agencies are strongly encouraged, to the extent permitted by law, to comply with this order.”

Research has demonstrated that government-mandated PLAs increase construction costs by 12% to 20%, which results in fewer construction projects and improvements to roads, bridges, utilities, schools, affordable housing and clean energy projects. PLAs steer contracts to unionized contractors and workers at the expense of the best-quality nonunion contractors and workers who want to compete at the best price for taxpayers, said ABC. PLA mandates exclude almost 90% of the industry that choose not to join a union from being a part of taxpayer-funded construction.

ABC’s statement was included in national coverage from Fox Business, The Epoch Times, The Washington Times, NewsNation USA, Engineering News-Record, GovExec and Construction Dive, in addition to local coverage generated by chapters. ABC Illinois’s letter to the editor about the impact of the EO was published in The Telegraph, saying, “We cannot effectively rebuild our nation’s crumbling infrastructure, increase accountability, and reduce waste with anti-competitive and costly union-only PLAs. Come election time, voters will remember.”

ABC suspects the EO, at least on paper, is attempting to make it much more difficult to defeat federal PLA threats. Contracting officers can opt out of requiring a PLA only under a very narrow set of circumstances.

However, may take some time until the details and ultimate impact of the Biden administration’s pro-PLA policy harm the federal contracting community and taxpayers.  

“The EO is effective immediately, however, it will take months for a forthcoming rulemaking by the Federal Acquisition Regulatory Council to issue a final rule that will replace the federal government’s existing pro-PLA policy and incorporate the new Biden policy into new federal contracts,” said Brubeck.  “In the interim, it is possible that federal agencies will try to mandate PLAs immediately and ABC will be there to fight them, as we have successfully done on almost 2,000 large-scale federal contracts totaling more than $130 billion since 2009.”

ABC is evaluating legal options to challenge the EO policy and individual PLAs on federal construction contracts.

ABC has already activated a grassroots campaign, including an action alert urging members of the U.S. House and Senate to co-sponsor the Fair and Open Competition Act (H.R. 1284/S. 403), which would prevent the federal government from mandating PLAs as a condition of winning federal or federally assisted construction contracts. ABC members are encouraged to visit the ABC Action Center and urge their members of Congress to support FOCA.

Powered by WPeMatico

On Feb. 7, the Biden administration’s White House Task Force On Worker Organizing And Empowerment issued its report on how to boost union membership in the federal government and public and private sectors.

The new report offers nearly 70 recommendations to promote pro-union policies and practices in the federal government, including the use of project labor agreements, federally registered and union apprenticeship programs and review of Davis-Bacon prevailing wage requirements.

Immediately following the issuance of the report, ABC issued a statement:

“Today’s report from the White House task force is of great concern, especially for Americans who expect the government to create and support policies ensuring fair and open competition on taxpayer-funded federal and federally assisted construction projects,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “The report’s recommendations to expand the use of anti-competitive and costly project labor agreements will increase infrastructure project costs by 12% to 20%, reduce competition from the best quality public works contractors and exacerbate the construction industry’s skilled labor shortage by discriminating against the nearly 9 out of 10 members of the construction workforce who choose to be union-free.”

As the U.S. Department of Labor announced the release of the report, the agency indicated it would work across agencies to implement the task force’s recommendations, including the following:

• Ensuring workers know their organizing and bargaining rights.
• Protecting workers who face illegal retaliation when they organize and stand up for workplace rights.
• Establishing a resource center on unions and collective bargaining.
• Shedding light on employers’ use of anti-union consultants.
• Collecting and reporting more information on unions and their role in the U.S. economy.
• Advancing equity across underserved communities by supporting worker organizing and collective bargaining.

The task force was initiated in response to President Biden’s April 26 Executive Order on Worker Organizing and Empowerment.

ABC will continue to urge members of Congress and the Biden administration to promote inclusive, win-win policies that will increase accountability and competition while reducing waste and favoritism in the procurement of public works projects. ABC wants everyone in the construction industry to have the opportunity to rebuild our nation’s crumbling infrastructure. It will take the entire construction workforce to realize the full potential of the recently passed Infrastructure Investment and Jobs Act.

To learn more about the White House union report, register for this Feb. 10 webinar, “Learn What the New Biden PLA Executive Order Means for ABC Federal Contractors.” Listen to Ben Brubeck, ABC vice president of regulatory, local and state affairs, discuss this report and President Biden’s executive order mandating PLAs on federal projects valued at $35 million or more on an episode of the podcast LaborUnionNews.com.

Powered by WPeMatico

On Jan. 28, ABC submitted comments to the Federal Highway Administration on behalf of member contractors who install and perform work related to electric vehicle charging stations and other alternative clean energy fuel stations. ABC said needlessly excluding all contractors and workers who do not participate in the Electric Vehicle Infrastructure Training Program and/or government-registered apprenticeship programs from building EV charging station and alternative fuel projects could be problematic.

ABC member contractors comprise a crucial segment of the construction industry’s federal contracting base. Failing to encourage an inclusive policy will ultimately undermine the Biden administration’s goal of increasing the number of EV charging stations across America from 48,000 to 500,000 by 2030 and building America’s new clean energy infrastructure.

The comments were in response to a Nov. 29, 2021, request for information by the U.S. Department of Transportation’s FHA, seeking feedback on the Development of Guidance for Electric Vehicle Charging Infrastructure.

The new infrastructure bill directs the DOT to develop guidance for states and localities to strategically deploy EV charging infrastructure through the National Electric Vehicle Formula Program. The law also provides funding to states to deploy EV charging infrastructure and to establish an interconnected network to facilitate data collection, access and reliability. In addition, the law establishes a discretionary grant program for charging and fueling infrastructure.

ABC’s comments urged regulators to avoid any language in the forthcoming guidance or additional regulatory actions that might limit experienced and quality contractors and skilled construction workers that already build EV charging stations and related alternative fuel infrastructure, as well as stakeholders interested in pursuing EV charging stations and alternative clean energy fuel infrastructure opportunities to win contracts.

ABC is concerned that future guidance and regulations might needlessly increase costs, reduce competition from contractors and artificially shrink the pool of qualified construction labor needed to build EV charging stations and alternative clean energy projects, undermining the Biden administration’s clean energy goals.

Powered by WPeMatico

Republican governors are pushing back on Biden administration actions steering federal dollars for infrastructure projects to state and local governments prioritizing pro-labor policies.

The $1.2 trillion Infrastructure Investment and Jobs Act, signed into law on Nov. 15, 2021, provides $550 billion in new funding to invest in America’s roads, bridges, utilities and other needs on top of baseline government infrastructure spending via existing programs and annual appropriations. Much of this funding will be distributed to states and localities and other stakeholders through discretionary grant programs that GOP governors fear will disproportionately send federal money to governments that embrace and promote progressive policy goals.

“Excessive consideration of equity, union memberships or climate as lenses to view suitable projects would be counterproductive,” 16 Republican governors wrote in a letter to President Biden on Jan. 19. “Your administration should not attempt to push a social agenda through hard infrastructure investments and instead should consider economically sound principles that align with state priorities.”

Of note, while the infrastructure bill does expand the application of Davis-Bacon regulations onto new projects, it does not explicitly require the use of union labor or stipulate that taxpayer-funded contracts to build infrastructure projects must be awarded to contractors via project labor agreement mandates championed by construction unions.

“ABC’s government affairs team worked extremely hard to successfully defeat efforts to include government-mandated PLA schemes and other anti-competitive and costly policies unions wanted in the infrastructure bill’s legislative text,” said ABC Vice President of Regulatory, Labor and State Affairs Ben Brubeck. “However, we have always been concerned that federal agencies would find creative ways to push states and localities competing for federal dollars to require PLAs and steer work to unionized contractors and union labor, given their consistent rhetoric in support of the union agenda.”

The White House has repeatedly touted the infrastructure package as an opportunity to “create good-paying union jobs repairing our roads and bridges, replacing lead pipes, and building energy transmission lines.”

A White House guidebook on the infrastructure law for state and local funding partners recently published in coordination with the launch of a new Biden administration website, build.gov, touts similar sentiments.

A grant application issued by the U.S. Department of Transportation on Jan. 28 gives greater consideration and additional credit to state and local grant applicants who commit to building infrastructure projects with PLAs and other policies promoted by labor.

At a recent National Governors Association meeting in Washington, D.C., Republican governors expressed concerns to Transportation Secretary Pete Buttigieg about the administration’s efforts to attach liberal strings to infrastructure dollars available to state and local governments.

Secretary Buttigieg defended the administration’s use of infrastructure dollars to advance a number of progressive policy goals, calling the administration “very proudly pro-worker” and active in “advancing policies within the parameters set forth by the law.”

“One of the reasons ABC took a neutral position on the IIJA is because there were no strong legislative guardrails put in place to ensure federal infrastructure dollars would go to projects procured by states and localities via fair and open competition,” said Brubeck. “GOP governors have good cause to be concerned with the Biden administration’s actions so far.”

The administration’s promotion of pro-labor policies tied to IIJA dollars comes on the heels of controversial regulations recently issued by the U.S. Department of the Treasury tied to $350 billion worth of federal funding for state and local fiscal recovery via the March 11, 2021, American Rescue Plan Act. The Department of the Treasury is encouraging states and localities competing for money to fund certain water, sewer and broadband infrastructure projects to “use strong labor standards, including project labor agreements and community benefits agreements that offer wages at or above the prevailing rate and include local hire provisions, not only to promote effective and efficient delivery of high-quality infrastructure projects but also to support the economic recovery through strong employment opportunities for workers.”

In addition, on Feb. 17, 2021, the DOT announced that applications for the FY2021 Infrastructure for Rebuilding America (INFRA) discretionary grant program via the Build America Bureau would be treated favorably if they include plans “related to PLAs and inclusive local participation goals.”

ABC members and chapters concerned about strings attached to federal investments in infrastructure in their communities should be prepared to monitor government grant applications and related contracting opportunities for anti-competitive language and notify appropriate stakeholders.

“The 24 states that have pro-taxpayer Fair and Open Competition Act laws prohibiting government-mandated PLAs and preferences on state and local construction projects are likely to have some level of protection against PLA encouragements or mandates tied to federal dollars when projects are funded by multiple government sources,” said Brubeck. “However, states that have not passed FOCA, or have laws encouraging the use of PLAs and other anti-competitive policies, may see more quality local contractors and workers being discouraged from competing for federally funded infrastructure projects than normal.”

As the Biden administration begins to implement the IIJA, ABC will continue to support H.R. 1284/S. 403, the Fair and Open Competition Act, which would prevent the federal government from mandating PLAs as a condition of winning federal or federally assisted construction contracts. ABC members are encouraged to visit the ABC Action Center and urge their members of Congress to support FOCA.

ABC members should continue to monitor these developments in Newsline and the Beltway Blueprint.

Powered by WPeMatico

Powered by WPeMatico

Powered by WPeMatico

On Jan. 26, the U.S. Department of Labor’s Occupational Safety and Health Administration announced it is withdrawing its COVID-19 Vaccination and Testing Emergency Temporary Standard, which applied to employers with 100 or more employees. The withdrawal is effective Jan. 26.

Although OSHA is withdrawing the ETS as an enforceable emergency temporary standard, the agency has left the door open to consider issuance of a new standard conforming to the Supreme Court’s ruling, following receipt of recent comments. No timetable for any such action has been set, and no OSHA standard applicable to COVID-19 in construction is imminent.

On Jan. 19, ABC submitted comments to OSHA on the ETS stating, “It is clear to ABC, based upon the Supreme Court’s decision, that the ETS cannot be enforced in its present form and should therefore be withdrawn. Any attempt by OSHA to proceed with the ETS or to develop a new standard following notice and comment that does not satisfy the Supreme Court’s criteria will again be challenged in the courts by ABC.”

ABC, as a steering committee member, also joined the Construction Industry Safety Coalition’s comment letter to OSHA. 

On Jan. 13, ABC applauded the U.S. Supreme Court for reinstating the stay on the OSHA ETS. On behalf of the construction industry, ABC filed one of the emergency appeals to the Supreme Court leading to this successful outcome.

ABC members should continue to monitor these developments in Newsline and the Beltway Blueprint.    

Powered by WPeMatico

Powered by WPeMatico

Powered by WPeMatico

Powered by WPeMatico