AGC has made the decision not to hold the 2020 Federal Contractors Conference in-person due to safety concerns related to COVID-19 for our conference attendees. We are excited to announce that AGC will be hosting “Virtual FedCon” beginning June 8, the originally scheduled start date, and ending June 12.

 

 

On April 22, AGC, along with four other organizations, was invited by the Senate Environment and Public Works (EPW) Committee to submit a written statement on two water-related discussion drafts released. America’s Water Infrastructure Act of 2020 would invest the nation’s water resources infrastructure and clean water infrastructure and the Drinking Water Infrastructure Act of 2020 would invest in the nation’s drinking water infrastructure. As part of its legislative process, EPW is soliciting feedback from stakeholders on the discussion drafts through May 1, 2020. Information on how to submit feedback can be found here. AGC is continuing to review the discussion drafts and encourages chapters and members to share their feedback on them. For more information or to share feedback, contact Jordan Howard at jordan.howard@agc.org and Allen Gray at allen.gray@agc.org.

 

On April 16, the Department of Labor’s Occupational Safety and Health Administration (OSHA) issued interim guidance to advise compliance safety and health officers to evaluate an employer’s good faith efforts to comply with safety and health standards during the coronavirus pandemic. This guidance takes effect immediately and remains in effect until further notice. It is time-limited interim guidance in effect due to the current public health crisis.

 

On April 21, the Environmental Protection Agency (EPA) and the Army Corps of Engineers’ Navigable Waters Protection Rule: Definition of “Waters of the United States” was published in the Federal Register. This final rule establishes the scope of federal regulatory authority under the Clean Water Act. After a multi-year process, AGC applauded the rule when the agencies signed the final version in January 2020. The Navigable Waters Protection Rule includes four simple categories of jurisdictional waters and provides specific exclusions for many water features that traditionally have not been regulated. The final rule will become effective on June 22, 2020. AGC provided a brief summary of the rule in January. Additional information about the rule can be found on the U.S. EPA website. For more information, contact Melinda Tomaino at melinda.tomaino@agc.org. 

New guidance from the U.S. Small Business Administration (SBA) and Department of the Treasury puts Paycheck Protection Program (PPP) borrowers and potential borrowers on notice that they should be able to prove in “good faith” that “[c]urrent economic uncertainty makes this loan request necessary to support [their] ongoing operations” to be eligible for the loan. The guidance specifically uses the example that it would be “unlikely that a public company with substantial market value and access to capital markets will be able to make the required certification in good faith, and such a company should be prepared to demonstrate [emphasis added] to SBA, upon request, the basis for its certification.” This appears to be a warning to PPP borrowers of the possibility of federal audits and investigations to come. The guidance goes on to state that any “borrower that applied for a PPP loan prior to the issuance of this guidance and repays the loan in full by May 7, 2020 will be deemed by SBA to have made the required certification in good faith.” For more information, see question #31 of the guidance found here.

On April 8, the Department of Defense (DOD) issued a Class Deviation allowing for contracting officers to reimburse defense contractors for certain paid leave requirements related to the COVID-19 outbreak. On April 17, the Office of Management and Budget (OMB) issued similar guidance to federal agencies. While AGC called on Congress to support compensation for all federal contractors during the COVID-19 outbreak, the CARES Act only included a provision to reimburse for “applicable contract billing rates.” As most construction contracts are generally fixed, AGC sought clarification from DOD on this provision and has confirmed that the Class Deviation will apply to all defense contracts, including fixed price contracts. AGC will continue to work with federal agencies as they issue further guidance on this matter. For more information, contact Jordan Howard at jordan.howard@agc.org or (703) 837-5368.

 

A large share of construction firms promptly received loan funds under the new Paycheck Protection Program, enabling many of them to hire or retain employees despite a surge in project cancellations, according to a survey released recently by AGC of America. Association officials said the job-saving measure appeared to be working but cautioned that longer term recovery measures, like new infrastructure funding and establishing a recovery fund, are needed.

 

In this episode, two partners in one of Washington’s most prominent law firms, Crowell & Morning, put the new guidance of the Paycheck Protection Program loans into context and explain how borrowers should respond to it, including the potentially severe consequences of not assembling the documentation they might need. This information is significant as AGC’s chief economist reports that a large share of construction firms have received loan funds, allowing contractors to add and retain employees, as evidenced by AGC’s latest survey results.