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The U.S. Occupational Safety and Health Administration (OSHA) has just issued an emergency temporary standard (ETS) to require employers to ensure their workers are fully vaccinated against COVID-19 or tested on at least a weekly basis. The legal and contractual implications will wreak havoc on existing and prospective construction contracts. The OSHA ETS applies to employers with 100 or more employees to either be vaccinated or test regularly and it will apply to both private and public construction contracts. Provisions in ConsensusDocs standard contract documents provide advantages in both substance and stylistic clarity as compared to other standard contract documents, including those by the American Institute of Architects (AIA), such as the AIA A201 Terms and General Conditions document.

BY BRIAN PERLBERG, EXECUTIVE DIRECTOR OF CONSENSUSDOCS AND �鶹��ý’S SENIOR COUNSEL FOR CONSTRUCTION LAW

Apply by Wednesday, October 20, 2021!

�鶹��ý warns could result in significant delays for infrastructure project delivery

On June 1, President Biden called for an “all-of-government effort to expand contracting opportunities for underserved small businesses across the country.” Among other initiatives, the goal is to increase the share of contracts going to small, disadvantaged businesses (SDB) by 50 percent by 2026, which the administration calculates as an additional $100 billion to SDBs over the five-year period. SDBs include 8(a) participants and other small businesses that are at least 51% owned and controlled by socially or economically disadvantaged individuals or groups. The Administration is silent about the other small business subcategories such as Women-Owned Small Businesses, HUBZone Small Businesses, and Service-Disabled Veteran Owned Small Businesses. According to a recent Congressional Research Service report that analyzed federal contracts in FY2019, SBD contractors received 8.69% of all federal contracts and 10.13% of all small business eligible federal contracts.

On May 10, �鶹��ý filed a Freedom of Information Act request in response to SBA’s delayed decision-making process of the Paycheck Protection Program (PPP) loans as �鶹��ý members report they have already waited many months for SBA to act on forgiveness applications for loans over $2 million. SBA continues to hide the difference in the time it requires to process applications for the forgiveness of loans over and under $2M. �鶹��ý has learned that SBA has a third-party vendor playing an apparently significant but uncertain role in the processing these applications. While SBA has clarified that it will base its decisions on a “multi-factor analysis” of the “totality of [each] borrower’s circumstances,” the agency has yet to publicly disclose the particulars of that analysis, such as the factors that it weighs, or how it weighs them. As �鶹��ý waits for SBA’s response, the association will continue to talk to the agency about the potential for a settlement of its lawsuit filed last December.

On April 7, �鶹��ý of America CEO Stephen Sandherr, Contractors Association of West Virginia Executive Director Mike Clowser and members of �鶹��ý Chapter-CAWV met in Charleston, West Virginia with Senator Joe Manchin on the PRO Act—the greatest threat to open shop and union construction firms—and President Biden’s Infrastructure Plan, on which you can find a comprehensive �鶹��ý analysis here. Sen. Manchin is one of five Democrats who has not pledged support for the PRO Act. He is also a pivotal player in the Biden’s administration’s plans for enacting any infrastructure legislation through the partisan reconciliation process that would only require 51—instead of 60—votes to pass in the Senate. �鶹��ý and its members in West Virginia and around the country will continue to oppose efforts to enact the PRO Act and to support significant investments in our nation’s transportation, building and utility infrastructure.

We are proud to report that we have had a strong year in 2020 as the contents of our Annual Report - The Power of Engagement - make clear. The digital report catalogues the many accomplishments of �鶹��ý of America. In our catalogue of some of the association’s most significant accomplishments, you will see how we work to support the entire construction industry as The Construction Association.

Senate Leader Chuck Schumer (D-N.Y.) told AFL-CIO leader Richard Trumka that the PRO Act would receive a vote in the U.S. Senate if 50 senators pledge to support it. Currently, 45 Democratic senators have pledged their support for the PRO Act. The only Democratic senators to not yet lend their names to the PRO Act are Mark Kelly (Ariz.), Joe Manchin (W.Va.), Krysten Sinema (Ariz.), and Mark Warner (Va.); Independent Sen. Angus King (Maine) who caucuses with the Democrats is also on this list. Reading between the lines, Sen. Schumer is letting Mr. Trumka know that he will need to pressure these senators into joining their 45 colleagues in support of the PRO Act. Special interest groups are insisting Senate Democratic leaders immediately gut the filibuster. If successful, the PRO Act could pass on a simple majority vote with Vice President Harris representing the fifty-first vote. �鶹��ý continues to oppose effort to pass the PRO Act in the Senate. Learn more about the PRO Act at agc.org/PROAct.