Construction Law Blog
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Minimum Wage Increases in 20 States: On January 1, 2015, employers in 20 states and the District of Columbia, as well as those who perform work on federal contracts and subcontracts, will see an increase in the minimum wage. In nine states which make adjustments to keep up with rising inflation (i.e. Washington), the increase is automatic. In 11 other states and the District of Columbia, the minimum wage is being raised as a result of new laws approved by the legislatures or by vote of referendum. To assist you in determining which states have raised the minimum wage and what the minimum wage is in those states, the U.S. Department of Labor provides an interactive map and state-by-state report (available here), which employers can use to determine the applicable minimum wage in a state. Also, as previously reported in this blog (available here), the new minimum wage for federal contractors and subcontractors is $10.10 as a result of an interim final rule issued on December 15, 2014.
OSHA Reporting Requirements: Beginning January 1, 2015, employers covered by the Occupational Safety and Health Administration ("OSHA") are required to report all work-related fatalities within eight hours, and all inpatient hospitalizations, amputations and losses of an eye within 24 hours. Previously, employers were required to report all workplace fatalities and when three or more workers were hospitalized in the same incident. Employers may report these serious incidents to OSHA by calling the nearest OSHA area office during normal business hours (list available here); calling the 24-hour OSHA hotline at 1-800-321-OSHA (6742); or reporting online here.
Construction contractors and subcontractors with contracts covered by the Wage Rate Requirements (Construction) Statute (formerly known as the Davis-Bacon Act) will be required to pay employees no less than $10.10 per hour. The Federal Acquisition Regulatory Council on December 15, 2014 published an Interim Final Rule and request for comments on a proposed rule to implement Executive Order 13658, which President Obama issued on February 12, 2014. The Rule establishes a new minimum wage covering services in construction contracts of $10.10 per hour, which will be adjusted annually by the Department of Labor. The Rule does not excuse a contractor’s non-compliance with any applicable federal or state prevailing law or any applicable or municipal ordinance establishing a minimum wage higher than the minimum wage established by the Executive Order.
This is the second installment of a two-part blog on bid shopping in public contracts. Part I introduced the Subcontractor Listing Statute, RCW 39.30.060, which requires all general contractors bidding on public works projects of $1 million or more must submit the names of the plumbing, electrical, and HVAC (heating, ventilating, and air conditioning) subcontractors, with whom the prime contractor will contract. Part II discusses actions arising out of the Subcontractor Listing Statute in more detail.
This is a two-part blog on bid shopping in public contracts. Part I of this blog series explores bid shopping in general, including what it means to bid shop, bid peddle, and the consequences of bid shopping, and Washington's anti-bid shopping laws. Part II discusses actions arising out of the Subcontractor Listing Statute in more detail.
On October 2, 2014, the United States Department of Transportation (USDOT) issued a final rule impacting USDOT’s Disadvantaged Business Enterprise (DBE) regulations that has been in the works for over two years. The rule, first proposed on September 6, 2012, makes several changes to both the administration and the implementation of the DBE program regulations. Given the number of changes, this post will be broken up into two parts. Part one will focus on the new application forms as well as the changes related to economic disadvantage and size standards:
The separation of powers principle is an important cornerstone of American political governance. America's tripartite version of this principle - memorialized in the U.S. Constitution - allocates certain governing responsibilities among three branches: the legislative branch, which makes the laws; the judicial branch, which interprets the laws; and the executive branch, which enforces the laws. In theory, the system allows for the effective administration of government without centralizing too much power in a single body. In practice, government branches sometimes step on one another's toes when confronting cross-jurisdictional issues.
On July 29, 2014, the Senate passed the Highway and Transportation Funding Act of 2014, following the House of Representatives' passage two weeks earlier. The Act was signed by the President on August 8, 2014.
Small Business Administration Updates Small Business Standards - Increasing the Definition of “Small”
If your company participates in any small business, federal government procurement program, or certain state procurement programs such as the Federal Disadvantaged Business Enterprise (DBE) Program, the 8(a) Program of the Small Business Administration (SBA), or Washington State’s Minority or Women-Owned Business Enterprise (M/WBE) Programs, your size status may have changed on July 14, 2014, as a result of an update to the SBA’s small business standards. The majority of these small business procurement programs utilize SBA’s “Table of Small Business Standards” to define the government’s limits for what constitutes a small business. As the definition of “small” varies by industry and scope of work, this Table is based on the 2012 North American Industry Classification System (NAICS), which assigns six-digit codes to businesses based on their primary activity. In turn, each NAICS code is assigned either a revenue limit (based on average annual receipts) or average employment (number of employees). For example, for the past few years (since 2008), the NAICS code for framing contractors is 238130, and provided for a $14.1 million average revenue limit. Thus, any framing business with an average revenue (over the past three years) of less than $14.1 million met the definition of a “small business.”
President Obama, on Thursday, July 31, 2014, signed an Executive Order that requires contractors bidding on federal government work to disclose labor law violations and gives screening assistance to federal agencies awarding contracts. Termed the “Fair Pay and Safe Work Places Executive Order” will apply to companies pursuing federal contracts worth more than $500,000 and becomes effective in 2016. Government statistics indicate this executive order will affect roughly 24,000 businesses that employ 28 million workers on federal contracts. According to a White House fact sheet: “The Executive Order will ensure that the worst actors, who repeatedly violate the rights of their workers and put them in danger don’t get contracts and thus, can’t delay important projects and waste taxpayer money.”
Most public works construction projects in Washington require public agencies to withhold a certain percentage of each progress payment as retainage until the completion of the project. In Washington, retainage of 5% is established as a trust fund for the protection of potential claimants, including subcontractors, suppliers, and laborers. Once a retainage bond is submitted in lieu of the public agency withholding retainage, any retainage previously withheld is released, and any future payments are for the full amount.