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November 1st, 2019 
Volume 21, No. 44


ASA Legislative Fly-In Was a Huge Success!

ASA of Baltimore Chapter Members Warren Quinn (Executive Diretor), Zach Rothfus and
Elizabeth Justis meeting with Rep. Dutch Ruppersberger (D-MD) during ASA’s Fly In reception.
ASA of Mississippi members, along with Mike Oscar, ASA Government Relations Director and Anthony Brooks, ASA President, met with Sen. Roger Wicker (R-MS)
This week, 34 ASA Members participated in a legislative fly-in in Washington, D.C. On Tuesday, October 29th, our members toured the nation’s Capital, participated in a legislative briefing, and attended reception and dinner with invited guests: Reps. Guest (R-MS), Peters (D-CA), Stauber (R-MN), Fitzpatrick (R-PA), and Veasey (D-TX). On Wednesday, October 30th, ASA Members walked the halls of Congress and participated in 50 congressional staff meetings, along with meeting Sens. Boozman (R-AR), Cardin (D-MD), and Wicker (R-MS) and Reps. Guest (R-MS), Hill (R-AR), and Cuellar (D-TX).
ASA of Arkansas members Janet and David Dodge, ASA President Anthony Brooks, Sen. John
Boozman (R-AR), and Robert Abney of ASA of Tennessee.
Rep. French Hill (R-AR) meeting with ASA members David Dodge and Robert Abney
ASA’s 2019 Legislative Priorities include: 

Change Orders: We support H.R. 2344, Small Business Payment for Performance Act of 2019, which would require prompt payment to contractors for change orders. The federal government must do more to address enforcement of prompt payment to subcontractors and suppliers.
Reverse Auction: We support S. 1434, the Construction Consensus Procurement Act of 2019, which would prohibit the use of reverse auctions for design and construction services procurement, and for other purposes. The federal government must ensure that reverse auction methods are prohibited for skilled services that contain a high degree of variability such as construction and design services.
Miller Act: We support H.R. 224, Miller Act Legislation that would exempt certain contracts from periodic adjustments to an acquisition-related dollar threshold. Ultimately, this language underscores the importance of the Miller Act by requiring federal infrastructure projects to be bonded for over 90 years.  We also supported the insertion of H.R. 224’s language into H.R. 2500, the House version of the National Defense Authorization Act (NDAA) and support its inclusion in the NDAA’s conference report.
P3 Bonding Requirements: We support the inclusion of language in S. 2302, the America’s Transportation Infrastructure Act, to clarify that current payment and performance security requirements for federally funded infrastructure projects also apply to Transportation Finance and Innovation Act (TIFIA) financed infrastructure projects, including Public Private Partnerships (P3).
Retainage: We support the reduction of the maximum retainage rate used by the federal government from 10% to 5%. In construction contracts, retainage is a sum of money earned by a contractor or subcontractor for satisfactory work, but held until the contract, or a certain portion of the contract, is complete. Though retainage arguably serves as a type of insurance for owners and prime contractors, it can have the unfortunate effect of requiring contractors and subcontractors to complete work without full payment, in essence financing the job, and making it difficult to timely pay their own creditors. In some cases, contractors and subcontractors are burdened with sizable retainage receivables long after the contract has been performed.
Bid Listing: We support the reintroduction and passage of the Stop Unfair Bid Shopping Act (SUBS Act) to require general contractors on federal construction contracts valued at $1.5 million or more to list the subcontractors proposed to perform work valued at more than $100,000 as part of their bid. This legislation would ensure that companies honor their contract with the federal government by adding a means to eliminate the practice of bid shopping while ensuring taxpayer dollars are not misused.
Repeal of the 40 Percent Excise Tax on “Cadillac Plans”: We support efforts to repeal the Cadillac tax; thereby we support S. 684/H.R. 748, the Middle-Class Health Benefits Tax Repeal Act. On July 17, 2019, the House passed H.R. 748 by a 419-6.
National Infrastructure Investment: We support a robust, well-funded, comprehensive infrastructure funding bill, the streamlining of the project permitting process, and oppose efforts to arbitrarily cut the federal construction accounts.
Our members also advocated for the following ASA supported provisions to be included in the final version of the 2020 National Defense Authorization Act (NDAA):
  • House Sec. 872(d) - Accelerated payments applicable to contracts with certain small business concerns under the Prompt Payment Act.
  • House Sec. 873 - Modifications to small business subcontracting.
  • House Sec. 877 - Exemption of certain contracts from the periodic inflation adjustments to the acquisition-related dollar threshold.
  • House Sec. 828 - Enhanced post-award debriefing rights.
  • House Sec. 829 - Standardizing data collection and reporting on use of source selection procedures by Federal agencies.
  • House Sec. 881 - Permanent authorization and improvement of Department of Defense Mentor-Protege Program.
  • House Sec. 883 - Reporting on expenses incurred for bid and proposal costs.
  • House Sec. 884 -Post award explanations for unsuccessful offerors for certain contracts.
  • House Sec. 899J - Pilot program on payment of costs for denied Government Accountability Office bid protests.
ASA of San Antonio members Tom Freund and Ismael Gonzalez meeting with Rep. Henry
Cuellar (D-TX) off the House floor to discuss federal subcontracting issues. They were joined by ASA
Government Relations Director Mike Oscar, Robert Abney and Chip Mabus.
ASA of Colorado Executive Director Debra Scifo and ASA of Colorado Legislative Advocacy
Council Chairman Scott Deering following their meeting with staff from Sen. Bennet’s (D-CO) office.
On behalf of the ASA Government Relations Team, we thank all of the members who joined us in Washington, D.C. this week to advocate for issues effecting the construction subcontracting industry!

Apply Today for ASA Awards -
Deadline is November 1st!

Applications are now being accepted for many of the awards offered by ASA.  Apply today to get in before the November 1st deadline!

The ASA Certificate of Excellence in Ethics recognizes subcontractors for their commitment to ASA values, such quality construction and a safe and healthy work environment. Each applicant is required to respond to questions concerning the firm’s corporate ethics policies and procedures, its construction practices, and its general business practices. Each applicant also is required to submit detailed documentation, including sealed letters of recommendation from a customer, a competitor, and a supplier.

The ASA National Construction Best Practices Awards recognize prime contractors that exemplify the values of subcontractors, treat subcontractors fairly through use of level-playing-field contract terms, and consider subcontractors part of their core project teams. The program’s rigorous criteria include the use of a standard subcontract whose provisions substantially reflect the best practices incorporated into the ASA-endorsed ConsensusDocs 750 Standard Agreement Between Constructor and Subcontractor, as well as highly favorable evaluations from three specialty trade contractors, based on 20 project management factors.

There are many more awards available through ASA, and more information about all of them can be found by clicking here.

All award winners will be recognized during the 2020 SUBExcel conference on March 4-7, 2020, in Las Vegas, Nevada.  We highly encourage all ASA members to get involved in are awards program. These valuable recognition opportunities are only available to ASA members.

OSHA Implements New Weighting System for Workplace Safety Inspections

On September 27, 2019, the U.S. Department of Labor’s Occupational Safety and Health Administration announced that it has recently implemented the OSHA Weighting System (OWS) for fiscal year (FY) 2020. OWS will encourage the appropriate allocation of resources to support OSHA’s balanced approach of promoting safe and healthy workplaces, and continue to develop and support a management system that focuses enforcement activities on critical and strategic areas where the agency’s efforts can have the most impact.

Under the current enforcement weighting system, OSHA weights certain inspections based on the time taken to complete the inspection or, in some cases, the impact of the inspection on workplace safety and health. OWS recognizes that time is not the only factor to assess when considering the potential impact of an inspection. Other factors - such as types of hazards inspected and abated, and effective targeting - also influence the impact on workplace safety and health. The new system adds enforcement initiatives such as the Site-Specific Targeting to the weighting system.

The OWS replaces the current enforcement weighting system initiated in FY 2015. The new system is based on an evaluation of the existing criteria and a working group’s recommendations regarding improvements to the existing weighting system. OSHA has been running the new weighting system currently to confirm data integrity.

The system will continue to weight inspections, but will do so based on other factors, including agency priorities and the impact of inspections, rather than simply on a time-weighted basis. The new OWS approach reinforces OSHA’s balanced approach to occupational safety and health (i.e., strong and fair enforcement, compliance assistance and recognition) and will incorporate the three major work elements performed by the field: enforcement activity, essential enforcement support functions (e.g., severe injury reporting and complaint resolution), and compliance assistance efforts.

OWS will become effective October 1, 2019.

This Week in Congress

The House and Senate are in session with the impeachment inquiry against President Trump taking center stage, along with sanction legislation against Turkey’s incursion into Syria against the Kurds. The Senate voted on a four-bill funding minibus of agriculture, interior-environment, transportation, and commerce-justice-science.  Immediately following the vote, the chamber considered a second funding minibus, which was objected by the Senate Democratic Leadership because of President Trump's plan to divert military funding to fund the border wall.  

Are You Working To Engage Young People in the Trades?  Tell ASA About It!

We want to hear from you!  Tell us how you are working to engage young people and new employees in the trades.  Are you working with programs like Helmets to Hardhats?  Does your company have a partnership with a local community college, university or apprenticeship program??  How do you connect with your local community?

The American Subcontractors Association is currently working to gather all of your amazing ideas to be able to share with other ASA chapters around the country.  Let us know how you reach out to young, new talent, as well as your best practices in each initiative.

Have something exciting to share?  Email us your ideas at  We can't wait to hear from you!

Vaping and Lung Injuries

Federal health officials said the outbreak of lung injuries tied to vaping may be slowing, but cautioned it was too soon to be certain and could be due to a reporting lag. As of October 22, 2019, the CDC reported 1,604 confirmed and probable cases, an increase of 125 cases from the previous week, but a smaller increase than increases in previous weeks.  Deputy CDC Director Anne Schuchat cautioned that the pattern may or may not hold, but was hopeful that warnings against vaping both marijuana and nicotine might be having an effect. Health officials still do not know the exact cause of the illnesses, though most of the sick and the 34, who died reported THC use.  Lawmakers and public health advocates are growing impatient over a Trump administration proposal to stop the sales of flavored nicotine for e-cigarettes. 
The proposed ban was first announced on September 11th and at that time, FDA officials said it would be a matter of weeks for them to issue guidance to industry on halting sales. The delay is fueling speculation that the Trump administration may consider back-tracking from its plan to include mint and menthol flavors in its ban.  Senator Durbin is cautiously optimistic that a ban including menthol and mint would be in place by year's end after a phone call with HHS Secretary Azar.  "I appreciate Secretary Azar's personal commitment and I'm still hopeful that by the end of this year these addictive, kid-friendly flavors will be off the shelf," Durbin said.

The FY20 Deficit

The federal government's deficit for FY19 increased 26%, to $984 billion dollars. This is the fourth year in a row of deficit increases.  The increase is attributed to a 8.2% spending increased, coupled with the impacts of the GOP's tax cut. CBO estimates that for FY20, the deficit will reach $1 trillion. 

Help Defend Our Future by Supporting the Subcontractors Legal Defense Fund

ASA underwrites the legal costs of filing "friend-of-the-court" briefs to inform the Court regarding the broader impact of relevant cases throughout the country. We have won dozens of these cases since 1997, vindicating subcontractor rights today and into the future!

Each year, courts across the country hand down hundreds of decisions on federal and state laws, as well as court-made or "case"law, that apply to subcontractors' businesses. Many of the decisions impacting subcontractors interpret the contract provisions of subcontract agreements—provisions like pay-if-paid, hold harmless, duty-to-defend, and no-damages-for-delay. Some of these decisions are precedent-setting and carry significance for subcontractors across state lines.

ASA's Subcontractors Legal Defense Fund supports ASA's critical legal activities in precedent-setting cases to protect the interests of all subcontractors. ASA taps the SLDF to fund amicus curiae, or  friend-of-the-court," briefs in appellate-level cases that would have a significant impact on subcontractor rights.

U.S./China Trade Deal

The U.S. and China each released statements claiming that they are close to finalizing portions of the limited trade agreement that President Trump and Chinese President Xi Jinping are aiming to sign at the Asia-Pacific Economic Cooperation summit on November 16-17th in Chile.  Last Friday, U.S. Trade Representative (USTR) Robert Lighthizer and Treasury Secretary Steven Mnuchin spoke with Chinese Vice Premier Liu He.  Per the USTR, the three officials "made headway on specific issues and the two sides are close to finalizing some sections of the agreement." Deputy-level discussions will continue with another high-level call expected "in the near future." The two sides have reached consensus on U.S. imports of Chinese cooked poultry; a supervision system for catfish products; and lifting the Chinese ban on U.S. poultry, among other areas of agreement.

Rest in Peace: Former Rep. Conyers

On Sunday, the former Democratic Congressman John Conyers from Michigan passed away.  He was 90 years old. Conyers had been the longest-serving African American member of Congress in US history. First elected to the House in 1964, he joined a handful of other African American House members.  He spent decades promoting civil rights issues. He helped co-found the Congressional Black Caucus in 1971 and pushed to establish Martin Luther King Jr Day as a national holiday. In 2017, he resigned amid sexual harassment accusations.

Upcoming Events

November 12, 2019

Understanding OSHA’s Multi-Employer Worksite Doctrine and the Unforeseeable Employee Misconduct Defense
by Philip J. Siegel, Hendrick, Phillips, Salzman & Siegel

December 10th, 2019

DOL Issues New Salary Threshold Requirements,
Effective January 2020

by Bill Ford, SESCO Management Consultants

January 7th, 2020

Payment Clauses: What to Watch For and How to Negotiate Them
by James Yand and Brian Esler


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*This is a sponsored article.
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