Prevailing Wage Work Is Coming

In November 2021, President Joe Biden signed into law the Infrastructure Investment and Jobs Act (IIJA), allocating $550 billion for the revitalization of our nation’s infrastructure. These funds encompass a broad spectrum of projects, from road and bridge improvements to climate resilience measures, and many of them fall under the purview of the Davis-Bacon Act, ensuring prevailing wage jobs for workers. However, as of February 28, 2023, a significant portion of these funds remains unspent due to the intricacies of the preconstruction phase. This phase, while crucial, entails a multifaceted process involving project planning, design, risk assessment, and regulatory approvals.

Now, as these preconstruction efforts culminate, we stand on the cusp of a large implementation phase, with $185 billion projected to be spent at the state level in 2023. Simultaneously, the commercial construction sector is witnessing a slowdown, particularly in the office space segment. Click here to read valuable insights into the impending opportunities for prevailing wage contractors, emphasizing key considerations such as bidding on infrastructure projects, prevailing wage requirements, workforce development funding, opportunities for designated businesses, and compliance with environmental and labor standards.

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Government Shutdown Impact on Contractors

The federal government faces a potential shutdown if Congress doesn’t agree on funding by the September 30, 2023 deadline. If no funding plan exists, the shutdown will commence at 12:01 a.m. on October 1, 2023. The shutdown duration is uncertain.

A shutdown is initiated by a deficiency in allocated funding, underscoring the government’s responsibility to adhere to Congress-approved expenditures. The presence of a divided government and ongoing Congressional disputes regarding spending levels increase the likelihood of a shutdown or a sequence of brief continuing resolutions.

While much of the information in the article was provided in a blog in 2019, the impact remains the same. While the news focuses on the implications for federal employees and services such as Social Security checks, airport screening, national parks and museums, and the ability of the IRS to conduct business, the impact on federal contractors is not insignificant.

A helpful resource to better understand federal contracting legal issues when there is a lapse in funding is the Congressional Research Service report titled, Government Procurement in Times of Fiscal Uncertainty, dated April 6, 2012 (R42469). A copy of this report can be viewed at https://fas.org/sgp/crs/misc/R42469.pdf  Below is a summary of critical issues:

• Both contractors and the agency personnel administering contracts are paid with appropriated funds. Generally, if there is a lapse in appropriated funds, this would cause a lapse in the ability to award and manage contracts.
• The federal government generally has broad discretion to cancel a solicitation during a procurement before
• The federal government also has broad discretion regarding exercising an option. Contractors are not entitled to any recovery of lost profits if the government chooses not to exercise an option.
• Funding lapses generally prevent the government from entering new contracts or allocating new funding to cost-reimbursement contracts.
• The government is permitted to make scope reductions, alter the performance period, or terminate contracts.

Please remember that each circumstance is different, so there is no single answer to many of the questions. It is important to note that past government shutdown experience has shown that some agencies are willing to work with contractors and consider equitable adjustments or other tools, such as overtime, to offset lost work. Contractors should document lost hours and the impact on deliverables should this option become available.

Additionally, some unintended contract events occurred due to previous shutdowns, including delays in invoice processing, the shutdown of E-Verify, and the limited functionality of the Civilian Board of Contract Appeals.

This is not a legal opinion of what contractors should do during a shutdown; instead, it’s an effort to direct you toward helpful information.

Preparing for Potential Government Shutdown: Essential Steps for SCA Government Contractors

As the federal government’s fiscal year-end approaches on September 30, 2023, SCA (Service Contract Act) government contractors face the looming specter of a government shutdown. In the current political climate, it’s uncertain whether Congress will reach a budget agreement in time, increasing the risk of a government shutdown that could last for days or even weeks. Such an event would have a significant impact on government contractors, but there are steps you can take to prepare and minimize the potential fallout.

1. Communicate Early and Often:

To appropriately plan for a government shutdown, establish open lines of communication with your contracting officers as early as possible. Regular communication will help you stay informed and better anticipate potential disruptions.

2. Review Your Contracts:

Analyze your existing contracts to understand their funding levels and become familiar with suspension of work, stop-work, and government delay-of-work clauses. Equipping yourself with this knowledge will be crucial in the event of a shutdown.

3. Develop an Internal Action Plan:

Prepare an internal action plan to mitigate financial damage and ensure the continuity of your operations and employee engagement. Planning ahead can help you navigate the uncertainties of a government shutdown effectively.

Why Is Preparation Crucial?

Government shutdowns have occurred before, with significant economic consequences. The shutdown in 2013 resulted in over $24 billion in economic losses, while the one in 2018-2019 cost the American economy at least $11 billion. Government contractors bore a substantial portion of these losses.

During a government shutdown, agencies are restricted by the Antideficiency Act from obligating funds, which means they cannot award new contracts, modify existing ones, or exercise contract options. Additionally, non-essential government personnel are furloughed, affecting contractors who rely on timely decisions and approvals to maintain project momentum.

Navigating the Shutdown:

During a shutdown, performance delays can be explicit or implicit. Contractors might receive a formal suspension of work or stop-work orders, which can last up to 90 days. Proper documentation of cost and schedule impacts during these periods is critical for equitable adjustment claims.

Even without explicit orders, government inaction can lead to unexpected monetary delays. Understanding clauses like the Government Delay of Work and Changes clauses can help contractors seek relief for additional costs and performance time required due to government inaction.

What Contractors Can Do to Minimize Impact –

Before the Shutdown:

Maintain regular communication with contracting officers to obtain approvals and create action plans.

Train personnel on suspension of work and stop-work orders and develop systems for immediate communication within your organization.

Develop contingency plans for re-assigning personnel and resources, preparing for furloughs, and negotiating contingency plans with supply chain partners.

During the Shutdown:

If directed to stop work, implement contingency plans and accurately track delays and costs.

If no formal stop-work order is issued but delays occur due to government inaction, discreetly track reasons for the delays and associated costs.

Document all relevant facts and time impacts to maximize potential recovery.

In summary, preparing for a potential government shutdown is essential for SCA government contractors. By taking proactive steps and developing a comprehensive plan, you can minimize the impact and navigate the uncertainties that may lie ahead.

SIMPLE Plans Don’t Work For Prevailing Wage Contractors

Did you know that SIMPLE plans cannot be used effectively when work is performed on prevailing wage jobs? Employers with SIMPLE IRA or SIMPLE 401(k) plans are unable to take full advantage of the savings that can be realized from prevailing wage retirement contributions.

Unless changes are made by November 1st, employers will be stuck with their SIMPLE plan through the next year. Written notice of intent to discontinue a SIMPLE plan must be provided to employees at least 60 days prior to the beginning of the calendar year so keep that in mind when considering making a switch.

Here’s the Deal: Prevailing wage contributions made to a qualified retirement plan, e.g. Profit Sharing, 401(k), reduce payroll overhead and can be leveraged in other ways to save company owners money and allow them to contribute more to their own retirement accounts.  Some contractors set up SIMPLE plans because there is no requirement for annual reporting and nondiscrimination testing but they quickly discover that a SIMPLE IRA plan is not a good fit for prevailing wage jobs. While they are relatively easy to set up, their lack of flexibility can cost you winning bids.

Top 4 reasons that SIMPLE plans don’t work for prevailing wage contractors:

1. Contribution amounts must be identical. Contribution amounts cannot vary by project, job site, or job category. The contribution rate must be the same for all employees.
2. Employers are prohibited from using any other type of qualified retirement plan with a SIMPLE plan. Employers who use a SIMPLE plan can only use the SIMPLE plan. Contractors who have existing retirement plans may want to set up a second retirement plan specifically for prevailing wage contributions. With a SIMPLE retirement plan, this is not allowed.
3. Contributions are limited with a SIMPLE plan. For 2023 standard 401(k) plans allow annual deferrals up to $22,500 with an additional $7,500 allowed for employees aged 50 and over. With a SIMPLE plan in 2023, the annual deferral limit is $15,500 with an additional “catch-up’ of $3,500 allowed for employees aged 50 and over.
4. SIMPLE plans cannot help you maximize your tax savings. Since this type of plan requires contributions for all employees to be the same, employers are often prevented from contributing the entire fringe portion of the prevailing wage for job classifications with higher wage determinations. This means companies cannot take full advantage of the potential savings on payroll burden that they would receive when allocating the entire fringe benefit amount to bona fide benefit plans.

Transitioning from a SIMPLE Plan to a 401(k) Plan

As noted, the deadline for employers to provide notification to employees that they intend to discontinue their SIMPLE plans is November 1st.   Employers should also contact their current SIMPLE plan administrator to notify them that contributions will not be made to the plan next year.

What Type of Retirement Plan is Best?

For assistance in determining what type of plan will provide maximum benefits for you and your company, consult a qualified retirement plan provider with experience helping prevailing wage contractors. Here at The Contractors Plan, we are the leading experts in prevailing wage benefits.

For more information on prevailing wage benefit plans, please contact us at info@thecontractorsplan.com or 866-670-7442.

DOL Announces Final Rule Updating DBRA and Accompanying Seminars

On August 23, 2023, the Department of Labor (DOL) published the final rule, “Updating the Davis-Bacon and Related Acts Regulation,” to update regulations for the Davis-Bacon Act and Related Acts (DBRA). The regulations intend to provide explicit guidance and more effective wage rate enforcement on federal projects.

To assist with implementation, the DOL will offer online compliance seminars in September to educate contracting agencies, contractors, unions, workers, and others about the recent updates to regulations concerning employment practices for federally funded contracts.

The final rule announcement follows a Notice of Proposed Rulemaking from March 18, 2022, which received input from the construction industry and labor stakeholders to inform the updates. These updates are the most comprehensive in decades. Some of the rule’s highlights include

• An update to the methods used by DOL to develop wage and fringe rates, as well as the conformance process
• Changes, additional guidance, and clarifications affecting various fringe benefits and their administration
• Changes to recordkeeping and records retention requirements
• Greater prime contractor responsibilities for violations committed by subs
• Expanding the definition of “site of work” and increasing the coverage of truck drivers and material handlers

The seminars, which require registration, aim to clarify these changes and promote compliance with federal prevailing wage requirements. The workshops will be held on September 13 and 14, 2023, covering various updates, including the definition of “prevailing wage,” periodic rate updates, adoption of state or local wage determinations, and enforcement changes.

The updated regulations are the first significant revision in almost 40 years. Fringe Benefit Group will continue to monitor these changes, seek clarifications from the DOL, and inform you about changes that need to be made. The final rule will be effective 60 days after publication in the Federal Register.

The Department of Labor’s Wage and Hour Division Announces the 2023 SCA Health and Welfare Fringe Rate

Per 29 C.F.R. subsection 4.52, the prevailing wage health and welfare fringe benefit rates will be increased under the McNamara-O’Hara Service Contract Act effective June 27, 2023.

Any contracts awarded before January 1st, 2017, will have a new fringe rate of $4.98 per hour.

Any contracts awarded after January 1st, 2017, that have to comply with EO13706, will have a new fringe rate of $4.57 per hour.

*Due to the Hawaii Prepaid Health Care Act, Hawaii may have a different rate, so please check the All-Agency Memorandum for additional information.

You can view the entire Memorandum Number 243 by clicking here.

US DOL to Host Online Seminars for Federal Contractors on Prevailing Wage Requirements

This week the Wage and Hour Division (WHD) announced that they would be hosting online seminars to educate current and prospective federal contractors on the requirements for paying prevailing wages on federally funded construction and service contracts. The WHD seeks to increase awareness and improve compliance regarding prevailing wage laws with these seminars.

The seminars will include recorded training videos on various Service Contract Acts and the Davis-Bacon Act topics that participants can view on demand. The division will then offer live Q&A sessions with DOL subject matter experts to provide additional information on compliance issues and will be on the following dates:

• Davis-Bacon Act: June 27 and Sept. 13, 2023
• Service Contract Act: June 28 and Sept. 14, 2023

While seminar attendance is free, registration is required. Additional information will be provided to participants after registration.

April 2023 Construction Spending

The U.S. Census Bureau announced construction spending for April 2023 was at a seasonally adjusted annual rate of $1,908 billion, 1.2% above the revised estimate of $1,885 billion in March. Compared to the same period last year, construction spending was up 7.2 %. For the first four months of the year, spending amounted to $567 billion, up 6.1% above that same period in 2022.

While private construction spending in April was $1,501 billion, up 1.3% from the revised March estimate of $1,482 billion, public construction spending was $407 billion, 1.1% above the revised March estimate of $403 billion. Additionally, public construction spending is up 16.5% from April 2022 compared to last year. A leading contributor, highway construction was robust in April at $125 billion, 1.3% above the previous month and up 21.6% from last year.

More information may be found at: https://www.census.gov/construction/c30/pdf/release.pdf

UPDATES REGARDING THE END OF COVID HEALTH EMERGENCIES

The federal government announced in January that both national emergencies addressing COVID-19 will end on May 11^th, 2023.

Effective May 12^th, 2023, when most medical and pharmacy plans will no longer be subject to federal coverage requirements for COVID-19 testing, vaccinations, and treatment coverage, The Contractors Plan will remain unaffected until a first renewal following May 11^th, 2023. At that point, COVID-19 medical and pharmacy claims will be treated as any other illness.

For questions regarding the end of COVID health emergencies please contact your Contractors Plan Account Manager.

WHD Publishes Opinion Letter Clarifying How Holidays Count Against an Employee’s FMLA Leave

The Wage and Hour Division (WHD) published the opinion letter FMLA2023-2-A, “Whether Holidays Count Against an Employee’s FMLA Leave Entitlement and Determination of the Amount of Leave Taken.” The letter responds to a request for clarification concerning calculating the amount of leave used when an employee takes leave under the Family and Medical Leave Act (FMLA) during a week with a holiday.

In this letter, WHD explains that, under the Family and Medical Leave Act, the employee’s standard workweek is the basis of the employee’s leave entitlement. Therefore, if a holiday occurs during an employee’s workweek, and the employee works for part of the week and uses FMLA leave for part of the week, the holiday does not reduce the amount of the employee’s FMLA leave entitlement unless the employee was required to report for work on the holiday.

In sum, if the employee was not expected or scheduled to work on the holiday, the fraction of the workweek of leave used would be the amount of FMLA leave taken (which would not include the holiday) divided by the total workweek (which would consist of the holiday).

This is a link to the opinion letter; https://www.dol.gov/sites/dolgov/files/WHD/opinion-letters/FMLA/2023_05_30_02_FMLA.pdf