News

As AGC previously reported, OMB issued new guidance for recipients and sub-recipients of federal grants, loans and financial assistance. AGC is now learning that new interpretations of this guidance may be forthcoming. AGC reported last week that DOT has determined, in conjunction with OMB, that the reporting requirements do not apply, as contractors are interpreted to be vendors rather than sub-recipients.AGC has also learned that EPA interprets the rule similarly to DOT. As EPA interprets the OMB regulation, the Federal Funding Accountability and Transparency Act (FFATA) reporting requirements apply to subawards, as opposed to procurement contracts, made by prime grant recipients (state and local governments). For purposes of EPA's State Revolving Fund (SRF) programs, this means that FFATA reporting would not extend to procurement contracts for construction, engineering and other commercial services executed by either the state SRF capitalization grant recipient or municipalities that receive SRF loans.For more information, contact Scott Berry at (703) 837-5321 or berrys@agc.org

In yet another example of direct-federal contracts rules being applied to federally-assisted work, two new rules came out of the Office of Management that affect contractors who perform work on projects that are federally-assisted (i.e. projects funded in whole or in part through grants, loans, or financial assistance from the federal government such as the EPA's State Revolving Loan Fund, or the DOT's Highway Trust Fund). Under the first new rule, recipients of these grants, loans, or financial assistance (such as State and local governments) must now report every first-tier subaward (such as a prime contract) over $25,000 to usaspending.gov. As part of this reporting, subaward recipients (i.e. contractors) who meet certain triggers will have to report the total compensation of their top five executives. These triggers are: The contractor must have received 80 percent or more of its annual gross revenue in the preceding fiscal year from federal money (grants, loans, financial assistance, or direct-federal contracts) The contractor must have received $25,000,000 or more in annual gross revenues in the preceding fiscal year from federal money (grants, loans, financial assistance, or direct-federal contracts) The contractor does not already have to report compensation information through period reports filed under the Securities Exchange Act or the Internal Revenue CodeAll three conditions must be met to trigger the total compensation reporting requirement. If your company does trigger the requirement, it will have to report to the State or local entity recipient the total compensation of its top five officers, managing partners, or any other employees in management positions.A second rule requires contractors to obtain a Data Universal Numbering System (DUNS) number. This nine-digit number can be obtained from Dun & Bradstreet, Inc. at no cost either by telephone (866-705-5711) or online (by clicking here). While earlier versions of this guidance would have required a contractor to also maintain a current registration in the Central Contractor Registration (CCR) database, OMB has decided not to enact that requirement at this time. If a contractor fails to provide a valid DUNS number, the contractor could be determined to be not qualified to receive a contract award.Read the rule requiring reporting of executive compensation here.Read the rule requiring use of a DUNS Number here.For more information, contact Scott Berry at (703) 837-5321 or berrys@agc.org

AGC has received reports that its members have received a letter from the U.S. EPA directing them to complete a mandatory survey on construction stormwater management practices within 60 days - or face significant fines and penalties of up to $37,500 per day per violation.While EPA claims to have not directed this survey to general contractors, several have received it. If you have received a survey, it is imperative that it be completed and returned before the 60-day deadline to avoid steep penalties. However, most contractors need not continue beyond A5, or the first page of the survey. Unless a contractor has an ownership interest in the properties it builds on, it is unnecessary to complete the detailed financial and technical portions of the survey. For details, visit the definitions page and scroll down to owner/developer questionnaires.EPA has initiated a national rulemaking to reduce stormwater discharges from new development and redevelopment and to strengthen its stormwater program (a.k.a., "post-construction" stormwater rule).  To collect information from entities believed to be owners/developers of residential, non-residential, industrial and commercial sites, EPA mailed out letters (click here for an example) last week to approximately 3,000 companies directing them to complete a lengthy, mandatory questionnaire within 60 days.For more information on AGC's efforts and the new "post-construction" stormwater runoff rule that EPA is working on, click here.For more information, contact Leah Pilconis at (703) 837-5332 or pilconisl@agc.org.

Registration is now open for the 2010 AGC Joint Highway and Utilities Contractors Issues Meeting in Phoenix, Ariz. The meeting is scheduled for November 11-13, 2010 at the Arizona Biltmore hotel. You can register online and also find out more information about the meeting here.This year's meeting will address all of the top issues that impact contractors working in the highway, transportation and utilities market, including:Election 2010: How will the midterm election results impact your market, taxes and business operationsOutlook for transportation reauthorization, SRF reauthorization, and clean water trust fund legislationSelling your company or your project by using social mediaNew OSHA Regulations on Cranes and DerricksCase Studies Using BIM on Transportation and Utility ProjectsCM at Risk - Learn What Works and What Doesn'tIncreasing efficiency in joint highway and utilities projectsOpen-mic Sessions to dialogue with your fellow contractors about conditions across the countrySeparate tracks are again scheduled to address issues unique each of the two market sectors. A speaker from FMI will discuss the latest market outlook for the water and wastewater construction market. Other planned topics include OSHA's forthcoming Confined Space final rule (which is due out in October) and PHMSA's forthcoming proposed rule on Federal Enforcement of State Damage Prevention Programs (which is due out in November).Below is a tentative preliminary meeting schedule:Thursday November 11, 201012:30 - 5:00 PM Ritchie Brothers Golf Tournament5:30 - 7:00 PM Golf Tournament ReceptionFriday November 12, 20107:00 AM - 4:30 PM Highway and Utilities Contractor Issues Meeting Session I6:00 - 7:00 PM Issues Meeting ReceptionSaturday November 13, 20107:00 AM - 12 Noon Highway and Utilities Contractor Issues Meeting Session IIFor more information, contact Scott Berry at (703) 837-5321 or berrys@agc.org.

Despite increased annual appropriations in FY10, and an unprecedented $6 billion investment through the Recovery Act, the Clean Water and Drinking Water State Revolving Loans continue to operate without having been reauthorized in over 20 years, bringing uncertainty to these successful but undercapitalized programs.The Senate bill (S. 1005) authorizes $39.191 billion for EPA water infrastructure programs over the next five years, and includes $20 billion for the Clean Water State Revolving Fund Program, $15 billion for the Drinking Water State Revolving Fund Program and $1.85 billion for Sewer Overflow Grants.The AGC-sponsored WIN Coalition sent a letter to Senate leadership asking for consideration of S. 1005 in the lame duck session of Congress this fall, following the 2010 midterm elections. AGC is hoping for consideration to attempt to break the deadlock on Davis-Bacon provisions based on the passage of H.R. 1262 (the House companion to S. 1005) last year and the overwhelming bipartisan support for the program demonstrated bypassage of H.R. 5320 (the AQUA Act) by voice vote at the end of July. AGC and its WIN Coalition partners hope that this recent vote of confidence in the SRF programs has set the stage for action on the bill after the elections.AGC will continue to monitor action on the bill and push for its consideration by the full Senate. For a copy of the letter sent by the WIN Coalition, click here.For more information, contact Scott Berry at (703) 837-5321 or berrys@agc.org.

The Federal Acquisition Regulation Councils have released the final version of the rule governing the Buy American provisions for direct-federal procurements under the Recovery Act. While this rule does not govern the federally-assisted work done through grants and loans (like those administered by the DOT and the SRFs), it does provide a preview of what to expect from those forthcoming regulations.AGC, in its comments on the interim rule, asked that the federal rule and the federally-assisted rules have the closest possible alignment to minimize the burden on contractors, and the government said "the Councils agree and note that the final rule was developed in close coordination with OMB grant officials." The rule does however concede that the two cannot be completely in sync because the Buy American Act of 1933 (which forms the basis of the rule) does not apply to grants, financial assistance, and loans. Furthermore, trade agreements do not apply uniformly.One clarification that AGC expects to be carried into the OMB guidance is the proclamation that in cases where there are mixed Recovery Act and non-Recovery Act funds, and the Recovery funds are not segregated by line item, the law requires the mixed-fund contracts to be treated as if they were entirely funded by the Recovery Act. AGC will continue to watch for the OMB guidance for federally-assisted work and will analyze and disseminate it when it arrives.Click here to read the final rule for federal contractorsFor more information on the interim rule for federally-assisted work or other AGC analysis on Buy American, visithttp://www.agc.org/buyamerican.For more information, contact Scott Berry at (703) 837-5321 or berrys@agc.org.

The Common Ground Alliance has released its report on the 2009 information gathered through the Damage Information Reporting Tool (DIRT) concerning damage to underground utility facilities. Estimated damages and DIRT events have decreased, but for the first time the Data Reporting and Evaluation Committee at CGA is looking at how these decreases may have been affected by the overall decrease in construction activity.Unfortunately the report indicates that the root cause "Excavation Practices Not Sufficient" now makes up the largest group in the data set. However, the report does concede that Natural Gas and Telecommunications stakeholders submit the majority of data, so the resulting data set favors the causes they submit. Among excavators, the root cause most submitted is "Locating Practices Not Sufficient."  In contrast, locators report a low percentage of events involving "Locating Practices Not Sufficient," and a high percentage involving "Excavation Practices Not Sufficient." The report also identifies other reporting stakeholders that select "Locating Practices Not Sufficient," but are overshadowed in the overall dataset, such as Public Works, Private Water, Engineering, Road Builder, Railroad and One Call.Read the report here.For more information, contact Scott Berry at (703) 837-5321 or berrys@agc.org.

August 11, or 8/11, serves as a reminder to everyone of the importance of the 811 "Call Before You Dig" message.  Excavation must be performed safely every time, as striking a buried utility line can have serious, even fatal, consequences.
August 11, or 8/11, serves as an important reminder to everyone of the importance of the 811 "Call Before You Dig" message.  A recent report released by the Common Ground Alliance (CGA), the leading association dedicated to protecting underground utility lines and the safety of the people who dig near them, indicated an underground utility line is damaged during digging projects once every three minutes in the United States. That same report found that 34 percent of underground utility lines are damaged because the free 811 phone call was never made, resulting in more than 60,000 unintentional hits annually.Excavation safety is first and foremost a safety concern, and striking a buried utility line can have serious, even fatal, safety consequences. One free call to 811 can help protect excavators as well as save contractors and their customers time and money. Striking a single line can cause injury, repair costs, fines and inconvenient outages. Every digging project, no matter how large or small, warrants a call to 811. Installing a mailbox, building a deck and planting a tree are all examples of digging projects that need a call to 811 before starting. When calling 811, homeowners and contractors are connected to their local one-call center, which notifies the appropriate utility companies of their intent to dig. Professional locators are then sent to the requested digging site to mark the approximate locations of underground lines with flags, spray paint, or both. The depth of utility lines can vary for a number of reasons, such as erosion, previous digging projects and uneven surfaces. Even when digging only a few inches, the risk of striking an underground utility line still exists.AGC and its stakeholder partners within the Common Ground Alliance have been on the forefront of promoting the Call 811 campaign and its message of excavation safety and underground damage prevention. AGC will continue to set the bar high for all involved in this effort.For more information about 811 or your one-call center, click here.For more information, contact Scott Berry at (703) 837-5368 or berrys@agc.org

The enormous investment gap in water infrastructure has caused many in the private sector and Congress to re-evaluate traditional funding and seek out infrastructure financing alternatives. A recent EPA Clean Water Infrastructure surveyverified EPA estimates exceeding $600 billion over twenty years for clean water and drinking water combined.  AGC of America and the WIN Coalition have been steadfast supporters of the "Trust Fund" concept in H.R. 3202, the "Water Protection and Reinvestment Act of 2009," because it would provide deficit neutral dedicated and sustainable revenues for water infrastructure while continuing to capitalize state SRF programs.  Other legislative efforts, such as removing the cap on Private Activity Bonds, have also been promoted by AGC and others as a way bridge the gap by providing more access to private capital.The GAO recently issued a report to the House Transportation and Infrastructure Committee titled "Wastewater Infrastructure Financing: Stakeholder Views on a National Infrastructure Bank and Public-Private Partnerships." AGC was one of 23 national organizations surveyed for the report, which is inconclusive regarding alternative project financing, but demonstrative of the varying views in the water infrastructure community. While the study does not make any specific policy recommendations it is another insightful look at additional water infrastructure financing options.To view the reports please visit http://www.gao.gov/products/GAO-10-728. For more information, contact Scott Berry at (703) 837-5368 or berrys@agc.org.