The Department of Labor (DOL) has issued a proposed rule that would expand the Davis-Bacon Act to cover surveyors, and ACEC is working with the National Society of Professional Surveyors to push back against this change.
The Davis-Bacon Act requires that laborers and mechanics on federally funded or assisted construction projects must be paid prevailing wages and fringe benefits. The regulations include an exemption for learned professionals that explicitly covers engineers and architects.
ACEC argued in its comment letter that, as licensed professionals, surveyors should fall under the learned professionals exemption. This would align the Davis-Bacon regulations with the Brooks Act definition of architectural and engineering services.
The DOL is expected to finalize the rule later this year.
ACEC led an effort with the construction industry to urge the House and Senate Appropriations Committees to revise their reprogramming policy, specifically related to Military Construction (MILCON) and family housing construction accounts.
Congress provides the Department of Defense (DoD) limited authority to obligate funds for purposes other than originally approved. These authorities allow the DoD to reprogram funds, which involves shifting money within the same account. When the requested reprogramming exceeds the threshold prescribed in law, the department is required to provide written notice to the defense authorization and appropriations committees for their approval, which affords them the flexibility to respond to unanticipated budgetary conditions.
Currently, the reprogramming limit for MILCON projects is the lesser of 25 percent of the project funded amount or $2 million, and this has remained unchanged since 1982. We believe it is important to provide the military services with an appropriate level of flexibility to proceed with construction contracts without disruption or delay, especially in our current inflationary environment. In addition to cost-estimating challenges, it is not uncommon in the private or public sector to encounter unanticipated environmental issues during construction; thus, we also support the flexibility Congress has provided for paying for unanticipated environmental hazard remediation issues that may arise.
The Council was joined by the American Subcontractors Association, Associated General Contractors of America, Construction Management Association of America, Design-Build Institute of America, International Institute of Building Enclosure Consultants, National Association of Surety Bond Producers, National Electrical Contractors Association, National Society of Professional Surveyors, Sheet Metal and Air Conditioning Contractors National Association, and the Surety & Fidelity Association of America.
The Infrastructure Investment and Jobs Act includes new Build America, Buy America Act (BABAA) domestic preference requirements for iron, steel, manufactured goods, and construction materials used in infrastructure projects receiving federal financial assistance. The new rules took effect on May 14, and the Office of Management and Budget issued preliminary implementation guidance to federal agencies concerning project and program waivers based on cost, availability, and public interest. The Council is engaging with implementation actions by several key federal agencies.
ACEC has informed policymakers that the engineering industry supports efforts to strengthen the domestic manufacturing base, including through domestic sourcing requirements on federally funded projects. However, there are many situations where particular materials or technologies essential for certain infrastructure projects are not available in the United States, and the BABAA waiver process ought to be efficient and reasonable to avoid project disruptions.
For water infrastructure, the EPA is soliciting information from affected manufacturers, suppliers and distributors, engineers, contractors, and owners and operators. Based on public interest in avoiding delays, increased costs, and public health, the EPA proposed—and ACEC supported—a waiver of BABAA requirements for projects financed under the Water Infrastructure Financing and Innovation Act (WIFIA) program that initiated project design planning prior to May 14. The EPA is considering additional waivers for Clean Water and Drinking Water State Revolving Fund projects and other programs. ACEC will continue to collaborate with the water utility industry in support of reasonable waivers.
For transportation, the U.S. DOT issued a temporary public interest waiver for construction materials for a period of 180 days, beginning on May 14. During the time of the transitional waiver, “DOT expects states, industry, and other partners to begin the compliance process,” according to the notice. “DOT, using feedback from this proposed waiver and continued engagement through the waiver period, will work to ensure the creation of robust enforcement and compliance mechanisms.” ACEC is working with member firms, suppliers, and other stakeholders to inform DOT about the domestic availability of certain categories of construction materials and the potential impact on highway, transit, and other projects funded through the Infrastructure Investment and Jobs Act.