February 2019

Reintroduction: Discussion Draft Change Orders Legislation

ASA has partnered with the Construction Industry Procurement Coalition (CIPC) in drafting a discussion draft “change orders” legislation that would amend the government-wide Federal Acquisition Regulation (FAR) to provide prospective construction contractors with the following:

• Information on bid proposals and the administration of construction contracts;
• Improvement on payment protections for subcontractors; and
• It would prohibit the use of reverse auctions for design and construction services.

Ultimately, this discussion draft will include three sections that will be very important to the ASA membership, and they are:

• Equitable adjustments to construction contracts;
• Provide certainty regarding claims under federal construction contracts; and
• Pre-bid transparency of federal construction services.

More specifically, on the Equitable Adjustments to Construction Contracts Section, ASA anticipates the draft language will mirror legislation introduced by Rep. Fitzpatrick (R-PA) in the 115^th Congress, which would do the following:

• Require agencies to report during the solicitation process when it is the agency’s policy or procedure to bundle change orders for approval and payment at the end of the job, long after the contractor has completed the work.
• Require an agency to pay for 50 percent of the actual (incurred or committed) cost to perform change order work.

As the draft discussion legislation continues to matriculate through the drafting process in anticipation of a formal introduction within the next few weeks, ASA Government Relations Director Michael Oscar will keep members posted.  Finally, ASA’s collaboration with the CIPC on this important legislation will be paramount. The CIPC involves:

• American Council of Engineering Companies
• American Institute of Architects
• American Society of Civil Engineers
• American Subcontractors Association
• Associated General Contractors of America
• Construction Management Association of America
• Council on Federal Procurement of Architectural and Engineering Services
• Design-Build Institute of America
• Independent Electrical Contractors
• Management Association for Private Photogrammetric Surveyors
• National Association of Surety Bond Producers
• National Electrical Contractors Association
• National Society of Professional Surveyors
• Sheet Metal and Air Conditioning Contractors National Association
• The Surety & Fidelity Association of America

Committee Chairs in the 116^th Congress

As the rollout of the 116^th Congress continues, please review the assigned committee chairs below to see if your member of Congress serves as a chair or ranking member to a committee that could impact our priorities at ASA.

U.S. House

U.S. Senate

Gap Between Work Fatality Rates at Small and Large Contractors Widens, CPWR Reports

A new Center for Construction Research and Training Quarterly Data Report reveals a disturbing trend: the gap between worker fatality rates at small and large contractors has steadily widened during the construction recovery.

Between 2008 and 2016, according to the report, construction establishments with 20 or more employees experienced a 30 percent drop in their fatality rate, while small construction employers (those with fewer than 20 employees) saw their rate of fatal injuries increase by 57 percent.

In 2016, these small construction establishments employed 37 percent of the construction workforce, but accounted for more than two-thirds (67.2 percent) of fatalities. CPWR provides an online tool designed to help small construction contractors self-assess their safety management programs and identify ways to improve them.

The free and anonymous Safety Climate Assessment Tool for Small Contractors (S-CAT ^SC) is available on the CPWR Web site. CPWR is dedicated to reducing occupational injuries, illnesses and fatalities in the construction industry. Through research, training, and service programs, CPWR serves the industry in cooperation with key federal and construction industry partners nationwide.

OSHA Launches Program to Target High Injury and Illness Rates

The U.S. Department of Labor’s Occupational Safety and Health Administration is initiating the Site-Specific Targeting 2016 (SST-16) Program using injury and illness information electronically submitted by employers for calendar year calendar year 2016. The program will target high injury rate establishments in both the manufacturing and non-manufacturing sectors for inspection.

Under this program, the agency will perform inspections of employers the agency believes should have provided 300A data, but did not for the CY 2016 injury and illness data collection. For CY 2016, OSHA required employers to electronically submit Form 300A data by Dec. 15, 2017. The CY 2017 deadline was July 1, 2018; however, employers may still provide this information to the database. Going forward, establishments with 250 or more employees that are currently required to keep OSHA injury and illness records, and establishments with 20 to 249 employees that are classified in specific industries with historically high rates of occupational injuries and illnesses will be required to provide this information each year by March 2.

OSHA’s On-site Consultation Program offers employers with up to 250 workers with free, confidential safety and health advice on complying with OSHA standards, and establishing and improving safety and health programs. Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance.

For more information, visit osha.gov.

OSHA Issues Final Rule on Crane Operator Certification Requirements

The U.S. Department of Labor’s Occupational Safety and Health Administration published a final rule that clarifies certification requirements for crane operators and maintains the employer’s duty to ensure that crane operators can safely operate the equipment. The final rule will maintain safety and health protections for workers while reducing compliance burdens.

Under the final rule, employers are required to train operators as needed to perform assigned crane activities, evaluate them, and document successful completion of the evaluations. Employers who have evaluated operators prior to Dec. 9, 2018, will not have to conduct those evaluations again, but will only have to document when those evaluations were completed. The rule also requires crane operators to be certified or licensed and receive ongoing training as necessary to operate new equipment. Operators can be certified based on the crane’s type and capacity, or type only, which ensures that more accredited testing organizations are eligible to meet OSHA’s certification program requirements.

The final rule revises a 2010 requirement that crane operator certification must specify the rated lifting capacity of cranes for which the operator is certified. Compliant certifications that were already issued by type and capacity are still acceptable under this final rule. The final rule, with the exception of the evaluation and documentation requirements, became effective on Dec. 9, 2018. The evaluation and documentation requirements became effective on Feb. 7, 2019.

For more information, visit www.osha.gov.

EEOC Provides Workplace Harassment Prevention Guidance

The U.S. Equal Employment Opportunity Commission’s Promising Practices for Preventing Harassment contains harassment prevention recommendations for employers in four broad categories:

• Leadership and accountability.
• Harassment policies.
• Harassment complaint systems.
• Harassment training.

For each category, the publication lists actions employers can take. For example:

• Allocating sufficient resources for effective harassment prevention strategies.
• Crafting an unequivocal statement that harassment based on, at a minimum, any legally protected characteristic, is prohibited.
• Conducting regular, interactive, and comprehensive harassment prevention training for all employees.

The document states that while the practices it discusses are not legal requirements under federal employment discrimination laws, they may enhance compliance efforts.

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