MALSCE Government Affairs Update - July/August 2021

MALSCE Government Affairs Update - July/August 2021

by Abbie Goodman, MALSCE Chief of External Affairs

See MALSCE Covid-19 Resource Page for current news on Covid-19 Issues.

Engineers and Land Surveyors Virtually at the State House

• In 2021, we are holding this event with small group virtual appointments that will be organized in June and July with your State Representative and your State Senator. This is very different from past years, but it is important for legislators to hear from us.
• More information:  https://engineers.tools.getfused.com/admin/cms/contentEntry/edit?id=3655
  • Citizen advocates are starting to schedule virtual meetings or in-district meetings with their legislators

Issue Briefing Sheets for discussion with your Massachusetts Legislators (as of 5/19/2021):

Dig Safe

Water Infrastructure

Transportation Infrastructure

Maximizing Private Sector Innovation

Wipes Regulations can Save Ratepayers $, Keep Waters Clean

Workforce Participation Goal Requirements:

M.G.L. c. 149, section 44A(2)(G) - workforce goals for design projects

There is an existing law:  M.G.L. c. 149, section 44A(2)(G)  that indicates every contract under Chapter 149 for designers shall include participation goals for minority and women workers. 

ACEC/MA and AIA MA are working together to seek clarifications from the Attorney General’s office and the Secretary of Administration and Finance on the way goals will be implemented and reported to public agencies. ACEC/MA is sharing this information with MALSCE as a courtesy.

Statute: https://malegislature.gov/laws/generallaws/parti/titlexxi/chapter149/section44a

(G) Every contract by a state agency or state assisted contract for design, construction, reconstruction, installation, demolition, maintenance, or repair shall set forth the participation goals of minority and women workers to be employed on each such contract and the processes and procedures to ensure compliance with those workforce participation goals, including reporting and enforcement provisions.

A 2009 bulletin from the Executive Office of Administration & Finance, A&F 14 established the goal of 6.9% for women and 15.3% for minorities. The state did not conduct a disparity study to establish these goals. 

Public construction in Massachusetts generally falls into one of two categories. Any work involving repair, remodeling, reconstructions, or construction of a public building, referred to as "vertical construction," is governed by M.G.L. c. 149. Construction of public works, referred to as "horizontal construction," is governed by M.G.L. c. 30, §39M.

M.G.L. c. 149A, enacted in July 2004, permits Massachusetts awarding authorities to use two alternative delivery methods that differ substantially from the design-bid-build process, subject to specific conditions. For building construction contracts estimated to cost $5 million or more, awarding authorities have the option of using the construction management at-risk (CM at-risk) delivery method. For public works construction contracts estimated to cost $5 million or more, awarding authorities have the option of using the design-build delivery method.

While there is considerable overlap between the Chapter 149 and Chapter 30 projects, there are several important differences. In general, projects that involve public buildings are subject to more rigorous requirements, including statutory designer selection procedures, prequalification requirements, additional advertising requirements, and provisions for filed subbids. Failure to follow the correct statutory requirements can result in a bid dispute or unenforceability of the contract. Confusion often arises over whether a hybrid project falls under the laws for public buildings. Except for some pumping stations, even if a planned building is only a small part of the job that otherwise consists of public works, Chapter 149 controls.

The Massachusetts School Building Authority issued Project Advisory 66, January 2021 establishing their procedures for school projects:

https://www.massschoolbuildings.org/building/advisories/Project_Advisory_66

I will keep MALSCE members informed about developments on this issue.

Federal Infrastructure Bills

Senate Bill: The US Senate voted 69-30 on August 10. 2021 to approve a $1 trillion bipartisan infrastructure bill, a historic piece of legislation that could reshape American lives for decades. The Senate bill includes a five-year authorization of surface transportation programs as well as investments across a range of infrastructure categories. Highlights include:

• $350 billion for highway programs, 
• $107 billion for transit, 
• $66 billion for rail, 
• $25 billion for airports, 
• $65 billion in broadband investment, and 
• $55 billion for water infrastructure.

Fact Sheet on Senate Bill 

Summary 

House Bill Background: On July 3, 2021, the US House passed the $720B INVEST in America Act (H.R. 3684), which includes a five-year $592B surface transportation reauthorization, $54B for clean water infrastructure, and $105B over 10 years for drinking water infrastructure and the replacement of lead service lines.

In the coming months the House and the Senate will have to work out the differences between the two bills. Stay tuned.

PPP / FAR Credits Clause Issue and Federal Infrastructure Bills

ACEC supports a simple fix in the major US infrastructure bill outlined above to clarify that the FAR credits clause will not apply to PPP loans: Principal amounts of qualifying loans forgiven pursuant to the provisions of Section 1106 of the Coronavirus Aid, Relief, and Economic Security Act (Pub. L. 116-136) shall not be considered income, a rebate, allowance, or other credit received by or accruing to a contractor under 48 CFR 31.201-5.

The PPP / FAR  is an important issue for some MALSCE Members from firms that needed PPP loans in 2020 during dire times. This issue impacts engineering and land surveying firms with PPP loans that are seeking loan forgiveness if they work on projects for MassDOT, MBTA, Massport, MWRA and certain municipalities, depending on their funding sources. ACEC/MA continues to share this information as a courtesy and encourages impacted MALSCE members to advocate to their members of Congress.

Update as of 8/9/21: Like many other important amendments, the provision address PPP loan forgiveness and FAR credits was not able to move forward in the Senate version of the bill that passed on August 10, 2021.  ACEC continues to stress the following in advocating for a Congressional fix to this issue:

• First and foremost, the PPP program was an extraordinary response to a national emergency that was created to save jobs.  It doesn’t fit in the FAR, and the decision to apply it to PPP loans without consulting Congress or giving stakeholders the chance to comment is flawed;
• Some US Senators view this as double-dipping. It’s also unfair to apply a double-dipping standard to one industry while other businesses working on the very same infrastructure projects – such as construction contractors and other firms – are allowed to keep their loans;
• The Senate Homeland Security and Government Affairs Committee (HSGAC) asked for modifications to the amendment to narrow the waiver of FAR credits clause to situations where the PPP loan was used to save jobs, while not waiving the clause for other PPP-allowable expenses like rent and utilities.  This is a fair compromise that ACEC supports and ensures that the waiver only applies to the most important part of PPP, which was to keep people employed;
• Finally, the federal government cannot guarantee fair treatment for engineering firms, which run the very real risk of losing more than what they took in PPP loans if this policy is allowed to proceed.  Many engineering and land surveying firms work for multiple State DOTs and local agencies that use the FAR rate, where firms will be required to lower their rates for each contract with each agency client to “credit” back the value of the PPP loan.  There is no requirement or mechanism in place to ensure coordination among DOTs to prevent firms from crediting more than what is appropriate, nor is FHWA equipped to oversee and manage this process to ensure that firms aren’t harmed. 

House Bill Background: In the House, ACEC won a partial fix to the PPP/FAR credits clause issue in the bill, limiting the FAR credit to federal dollars in contract payments and thereby preventing state DOTs from applying the FAR provision to state-funded contracts. Click here to learn how you can take action on the credits clause.

The amendment sponsors are already thinking about next steps on alternative legislative vehicles for the PPP fix, and there may even be an opportunity on this legislation in the House.  ACEC will keep us informed as this campaign continues.

Division of Professional Licensure: Board of Registration of Professional Engineers and Professional Land Surveyors

The next Board of Registration  meeting will be on August 26, 2021 on Teams, now that the Governor and Legislature have extended the law allowing virtual public meetings like this to continue through April 1, 2022, . To connect to the meeting, go to this page  and scroll down to the meeting listing  to download the agenda with connection instructions.

July 22, 2021 Meeting: these are not minutes, but a summary, but a summary of what I heard during the meeting:

• COVID Update/Return to Office: Licensing staff are back at 1000 Washington St. Other DPL staff are still mostly remote.  DPL is not ready for hybrid board meetings, so meetings will continue to be virtual or in person only for now.
• LP-JP subcommittee (making the PLS Jurisprudence exam a computer-based test) is still investigating the issue.  It seems that it might cost $10,000 to convert the existing written JP exam for Massachusetts to CBT, but the participants would not be able to have open book, but only use a limited set of reference materials.
• Board Counsel Sheila York is away, so there were no updates on continuing education requirements, the Town of Swansea (and Seekonk) issue related to local licensing for a fee, or the update to the Joint Practice document.
• ENG Board Executive Director Report:
  • NCEES Enforcement Exchange  - discussing chart of issues in other states
  • Case Status Report, Notification of Discipline

​- Meeting ended at 9:30 AM - 

Legislature

The COVID-19 state of emergency lifted on June 16 ending most of the executive orders Gov. Charlie Baker put in place to force restrictions and special allowances during the 15-month-long crisis. Chapter 20 of the Acts of 2021: This new law, passed by the legislature and signed by the Governor in mid-June, allows remote meetings of public bodies until April 20, 2022.

ARPA Funding: The legislature and the Baker-Polito Administration continued work on the process for allocating nearly $5.2 billion in American Rescue Plan Act (ARPA) funding, as the legislature overrode the Governor's veto on 6/22 to sweep most of the money into the Legislature's COVID-19 Relief Fund while giving Baker "some latitude around $200 million" and "a lot of latitude in things that need immediate need." ... More >

Separately, municipalities are receiving some funding directly: Map Displays Municipal ARPA Breakdown    

You can see how much federal aid is being distributed to Massachusetts municipalities through an interactive map the Baker administration launched June 23. The map displays the breakdown of the $3.4B  in aid that the American Rescue Plan Act provided to local cities, towns, and counties through the new Coronavirus Local Fiscal Recovery Fund. The website hosting the map also includes information on the distribution process and the authorized uses of the ARPA money. Included within the $3.4B for local governments is $2B specifically for municipalities -- $1.7B of which is being provided directly to 38 cities based on the federal government's "metropolitan city" designation. The remaining 313 smaller cities and towns will get a piece of $385M in aid to be distributed by the Executive Office of Administration and Finance based on population. The Baker administration received the first half of that money on May 28 and opened the process for municipalities to obtain their shares on June 1. Each city or town's money will be distributed by the Department of Revenue's Division of Local Services through the same process used for local aid from the state. (Source: State House News Service)

FY2022 Budget

VICTORY: Legislature approved the FY2022 budget late on Friday, July 9. We had advocated for the Legislature to accept the House’s FY22 Funding Recommendation for the Contract Assistance Line-Item (1599-0093) for the Massachusetts Clean Water Trust – and they did! This line item will be level-funded for FY2022 at $63,383,680.

Governor Charlie Baker signed a $261.1M FY2021 supplemental budget bill H3973 that establishes a new MBTA Board of Directors: Governor Charlie Baker signed a $261.1M fiscal 2021 supplemental budget bill on July 29, 2021, that revives mail-in and expanded in-person early voting through Dec. 15 and establishes a new MBTA board of directors. Baker signed the bill (H 3973) in full, approving all spending items and outside sections in the budget sent to him last Wednesday. While the bottom line includes spending that will be reimbursed by the federal government, the bill carries a net cost of $64 million to the state and includes $29 million for COVID-19 response expenses, such as the call-up of the National Guard, and appropriations tied to the 2020 policing reform law. Five million dollars will go toward funding the new Peace Officer Standards and Training Commission, and an additional $12.5 million will go toward implementing policing reforms in fiscal 2021 and fiscal 2022. The new seven-member MBTA board replaces the defunct Fiscal and Management Control Board. It will be composed of the MassDOT secretary, an appointee of the T advisory board who has municipal government experience, and five appointees named by the governor -- one with safety experience, one from a transit operations background, one with experience in the finance world, one T rider from an environmental justice population, and a selection from a Massachusetts AFL-CIO shortlist. Baker's approval of the mail-in voting extension means that voters in municipal elections this summer and fall, including Boston's mayoral race, will be able to utilize the coronavirus-era election reforms.

Opportunities to Serve on Boards and Commissions -Gubernatorial appointment requests:

• Department of Housing and Community Development seeks two PEs to fill two-year terms for the DHCD Designer Selection Committee (DSC) beginning as soon as possible  through the end of June 30, 2022, with the possibility to serve another 2-year term beyond that.  All DSC members are eligible to serve two consecutive 2-year terms. In the past, we have been very helpful to DHCD in identifying qualified candidates to serve on the committee.  NOTE: While serving on the DSC, this contractor is unable to do work for the DHCD.   More: https://www.engineers.org/about/news/department-of-housing-and-community-development-dhcd-seeks-2-engineers-for-designer-selection-committee-3781