Best Practices Construction Law : Construction Lawyer & Attorney : Matthew DeVries : Stites & Harbison Law Firm : Green Building & LEED Litigation

A portion of my construction practice involves employment issues.  You can imagine the types of employment-related questions that arise on the project site:

• Hiring, firing and layoffs
• Harassment and discrimination
• Wage payment and commission claims
• Employee policies, including computer use and social media
• On-the-job injuries and fatalities
• State and Federal OSHA requirements
• Prevailing wage laws, including Davis-Bacon Act
• ... and the list goes on!

If you are a contractor who received Federal monies under the Stimulus Act, then you should be aware of your obligation to comply with affirmative action and equal opportunity laws.

According to this Business Record article, the Federal Stimulus Act "has contractors looking over their shoulders when it comes to hiring workers."  Reporting requirements mandate that contractors track employee information, including race, gender and veteran status. In addition, contractors must show that their tracking efforts are working in the hiring process. Ultimately, the contractor will have to demonstrate a diverse workforce.  The Office of Federal Contract Compliance Programs announced late last year that it would step up enforcement efforts.

What can you do to ensure success?  Here are a few tips:

1. Identify whether your project requires compliance.  You would be surprised to learn how few contractors actually know whether their project is subject to review of OFCCP auditors.  If the project used $1 of Federal monies, then the job falls under US Department of Labor oversight.
2. Maintain good documentation.  If you are tracking your hiring efforts electronically, then it will be easy to maintain this information in the event of an audit.  The more problematic scenario arises when you do not have a written protocol for hiring practices and you do not keep records maintained in an organized fashion.
3. Cast a wide net in your hiring endeavors.  Job outreach efforts should include religious groups, nonprofits and other organizations.  Contractors need to seek out ways to spread the word about available jobs to as wide a population as possible.

The lesson is not about who you hire ... it's about how you hire.

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In a new federal report released last week entitled "An Economic Analysis of Infrastructure Investment"(pdf), the Department of the Treasury, Council of Economic Advisers outlined why now is an optimal time to increase investment in transportation infrastructure.

The short twenty-five page report is, according to AGC, "a sobering reminder of the tremendous economic costs of years of under investment in the nation's transportation infrastructure." Some of these sobering facts include:

• America ranks 25 out of 32 OECD nations when asked about public satisfaction with the public transit systems in the world
• America ranks 17 out of 32 with respect to satisfaction with our roads and highways
• Almost 19 out of 20 Americans are concerned about America's infrastructure
• 84% of Americans support greater investment to address infrastructure problems

But the report is more than just an analysis of public support for infrastructure investment. The report notes that the United States is investing less in infrastructure than other nations. Significantly, we spend approximately 2% of GDP on infrastructure, a 50% decline from 1960. Other nations such as China and Europe, by contrast, spend close to 9% of GDP on infrastructure.

According to the report, now is the time to increase the nation's investment in transportation infrastructure based upon the economic impact of transportation investment (or under investment as the case may be) as indicated. 

So long as the Administration is committed to making a significant investment in rebuilding the nation's infrastructure, there is good reason to support a plan recommending more investment.  There are plenty of critics, as noted in this feature by Atlantic Wire, questioning: Is Now the Time For  an Infrastructure Overhaul?   However, in the end, the debate is largely a political one ... and commentary will remain just that ... commentary. 

Image: squeaks2569 on Flickr

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This morning I read Brad Heath's article in USA Today, suggesting that the stimulus funding for road repairs has detoured and by-passed large metro areas with significant road problems.

According to the USA Today study, half of the nation’s worst roads will receive only about 20% of the stimulus money allocated for street repairs. The reason—the roads were not shovel ready and were in too bad shape:

“The problem is a byproduct of a stimulus package designed to spend as fast as possible to revive the economy. Many roads are in such bad shape that repairs would take too long and cost too much to qualify for funds, says John Barton, head of engineering for Texas' Department of Transportation.

The result is that counties with the worst roads won't get much more repair money than counties with better roads. The 74 counties with half of the nation's bad roads will split $1.9 billion, records show; counties with no major roads in bad shape will split about $1.5 billion.”

Data compiled and reviewed by USA Today showed that many of the roughest roads needing repair were … let’s say … not ready for repair.  For example, state officials acknowledged that “Detroit's roads are in dire need of work, but say they didn't have enough ready-to-go projects there.”

According to Kent Starwalt, Executive Vice-President of the Tennessee Road Builders Association, the important question is not whether transportation projects are shovel ready, but rather, why weren’t these projects shovel ready?

“It would seem that if a jurisdiction’s roads are in really poor condition, they would have the necessary steps done to be able to move on projects when and if they did receive money. [Tennessee Department of Transportation] and many other state DOTs were well prepared for such a scenario. The cities were even given more time than the states in the stimulus bill to obligate any money they were to receive.”

This is more than just an issue of timing and money. One measure of the House transportation re-authorization bill includes the transfer of control from state departments to city and metropolitan planning organizations. However, Starwalt warns: “It should be obvious to everyone involved that the cities are not as efficient in getting projects out the door as state DOTs.”

This debate is interesting to those of us who follow the federal stimulus funds with the hopes that the funds actually impact the construction industry, the workers and employees involved in the projects and the local economies.

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I was listening to Nashville Public Radio yesterday morning about a new competition brewing on the Internet.  This battle was not as fierce as the one to become the greenest state in the South.  It was more like a friendly exchange of "we're not in competition with each other because we offer similar, but different services" battle.

The NPR story featured the two primary websites that assist in tracking stimulus dollars: www.recovery.gov and www.recovery.com.  (There is actually a third URL at www.recovery.org, which is the real face of the Dot-Com website.)  The Dot-Com and Dot-Org websites are owned by Onvia, a company that provides various public procurement and reporting services to business and governments.  Through its public spokesperson Erika Lindsay, Onvia responded to my inquiry about its stimulus tracking information: 

Recovery spending is a small subset of overall government spending that we already track. Each day we capture the [American Recovery and Reinvestment Act of 2009] funded project level events from all levels of government and from all geographies and present them real-time on www.recovery.org . This includes details on projects that have dollars committed but have not yet started (Allocated), formal bid requests and RFPs (Advertised) and contract award notices (Awarded).

The Obama Administration's version of the stimulus-tracking database is maintained at www.recovery.gov, which was officially established as part of the American Recovery and Reinvestment Act of 2009:

The [Recovery Accountability and Transparency] Board shall establish and maintain...a user-friendly, public-facing website to foster greater accountability and transparency in the use of covered funds. The website...shall be a portal or gateway to key information relating to the Act and provide connections to other government websites with related information.

First, what's the real difference between these two sites? The real difference appears to be the timeliness of the information that is publicly available for viewing.  The Dot-Com site is updated in real time as data is received about public lettings, awards and receipt of information about project spending ... whereas the Dot-Gov site ... well, is not so quick.  According to the NPR article, the commercial website "has spending information that the government won't have until October."  The other major difference?  Onvia allows public comment on particular projects, which tends to generate a lot of buzz about the use of funds for certain projects.

Why is this important for the construction industry?

• Setting aside the Dot-Com v. Dot-Gov distinction, both of these sites provide useful information on the status of stimulus funded projects. 
• Although there appears to be more money in the pipeline for construction work (...which was supposed to lead to job creation...), the data that is available illustrates that the stimulus money is slow to reach the market.
• Finally, information released on the sites actually supports the trend that is being reported about "lower bids" throughout the industry.  In other words, public contract awards are "coming in 16 percent lower than usual" according to www.recovery.com figures. 

The best part about the NPR story ... one project that has already been awarded is an $18 million contract for a complete redesign of www.recovery.gov. 

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