The D.C. Download, March 2022

March 16 2022

Government, Legislative Affairs, TAUC News

Lawmakers recently finalized the fiscal year 2022 omnibus appropriations bill, which President Biden will likely sign into law early next week. The measure includes approximately $1.5 trillion for defense and non-defense discretionary outlays, including Department of Transportation appropriations to ensure the entire amount of surface transportation infrastructure investments provided in the Infrastructure Investment and Jobs Act (IIJA) will be available in FY 2022.

The rush to finalize the appropriations bill, coupled with the Russia-Ukraine conflict, has temporarily pushed discussion of another spending bill – the Build Back Better Act (BBBA) – to the back burner. The $2.2-trillion piece of legislation passed the House last November but faces steep opposition in the Senate. However, Senator Joe Manchin (D-WV) – one of the BBBA’s harshest critics — recently listed several provisions of the House-passed measure that he is willing to support, including clean energy technology investments. This potentially sets the stage for future negotiations with the White House and Democratic caucus.

Here is an exclusive update from TAUC on the policy and regulatory issues of vital interest to contractors and the union construction and maintenance industry in Washington, DC.

DOL Proposed Rule to Update Davis-Bacon Act

The U.S. Department of Labor (DOL) on March 11 announced a notice of proposed rulemaking (NPRM) to update and modernize federal prevailing wage protections on federal and federally assisted construction projects under the Davis-Bacon and Related Acts (DBA). The NPRM would be the first comprehensive review of the DBA regulations in over 40 years and is intended to speed up prevailing wage updates, create several efficiencies in the current system and ensuring prevailing wage rates keep up with actual wages paid.

This proposed rule is designed to address the substantial erosion to the DBA’s regulatory framework that has occurred over the past 40 years, which has undermined the Act’s intent of providing wage protections for workers and a level playing field for contractors.

“Federal dollars should be used to create good jobs in local communities all across our country,” said Secretary of Labor Marty Walsh. “These proposed regulations are good for workers, good for building high-quality infrastructure and for ensuring we have a strong construction industry, as we rebuild America.”

The NPRM’s proposed changes include:

• Creating efficiencies in the prevailing wage update system to ensure wage rates reflect actual wages paid to workers on Federal construction projects.
• Restore the original definition of “prevailing wage” used from 1935 to 1983 to ensure prevailing wages reflect actual wages paid to workers in the local community. This would restore what is known as the “Three-Step Rule” for calculating wage rates, which will more accurately reflect the actual wage rate for each job classification that most frequently appears in a county.
• Periodically updating prevailing wage rates to address out-of-date wage determinations.
• Providing broader authority to adopt state or local wage determinations when certain criteria are met.
• Issuing supplemental rates for key job classifications when no survey data exists.
• Updating the regulatory language to better reflect modern construction practices.
• Strengthening and clarifying debarment and anti-retaliation provisions to promote consistent enforcement of prevailing wage standards.

The proposed changes to the regulations are likely to face strong pushback from the ABC and other groups, as well as many Congressional Republicans who argue that prevailing wage laws increase the cost of federal construction projects. 

TAUC, along with the other union contractor association members of the Construction Employers of America (CEA), issued a press release welcoming the NPRM and expressing appreciation for the DOL’s  efforts. “While CEA looks forward to reviewing and commenting on this proposed rule, it is long past time that federal prevailing wage protections be revised to reflect the significant changes that have occurred in the economy and the construction industry over the past four decades,” the group said.

Comments on the NPRM are due by mid-May.

Republican Senators Oppose PLA Executive Order

42 Republican senators signed onto a letter from Senator Todd Young (R-IN) opposing President Biden’s recent Executive Order (EO) requiring large infrastructure projects of more than $35 million in value built through direct federal procurement to use project labor agreements (PLAs). They argue the EO prohibits competitive bidding and wastes taxpayer dollars. “Mandating PLAs will prevent qualified contractors from fairly competing for contracts on taxpayer-funded projects. These mandates will also deny critical construction jobs to local workers and small businesses and increase construction costs,” they said in the letter. Senator Young has also sponsored legislation — S.403: the FOCA Act — which would ban federally mandated PLAs. Despite widespread Republican opposition to the EO, the White House continues to roll it out and express support for PLAs.

President Biden Expresses Support for Infrastructure and the PRO Act

On March 1st, President Biden delivered his inaugural State of the Union Address. He focused on robust post-pandemic economic growth and discussed his commitment to work with Congress to alleviate rising inflation. Biden also highlighted the importance of the IIJA, using the applause line, “We’re done talking about infrastructure weeks. We’re going to have an infrastructure decade.” He discussed how investments in physical infrastructure are critical to American economic competitiveness in the coming decades.

Biden also used the address to highlight his support for passage of the PRO Act, which stalled in the Senate.

Departments of Transportation and Energy Announce Electric Vehicle Funding

The Department of Transportation and Energy (DOT) and Department of Energy (DOE) announced the availability of approximately $5 billion through the National Electric Vehicle Infrastructure (NEVI) Formula Program established by the IIJA. The NEVI will provide nearly $5 billion over five years to help states create a network of EV charging stations along designated Alternative Fuel Corridors, especially throughout the Interstate Highway System. A second competitive grant program to increase EV charging access in locations throughout the country, including rural and underserved communities, will be announced later this year.

The IIJA included billions of dollars of funding to finance physical investments, including EV charging infrastructure. EV charging infrastructure remains critical to the Biden administration’s goal of transitioning the American fleet from internal combustion engines to EVs.

DOL, DOJ Sign MOU to Protect Workers

The DOL and the DOJ recently signed a memorandum of understanding (MOU) to strengthen the collaboration between the two agencies in enforcing compliance with federal labor laws, protecting workers from employer collusion and promoting competitive labor markets. Under the MOU, DOL and DOJ will share enforcement information, collaborate on new policies to ensure workers are protected from collusion and unlawful employer behavior.