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On Aug. 15, the U.S. Department of Defense issued a proposed rule, Assessing Contractor Implementation of Cybersecurity Requirements, which seeks to implement contractual requirements for DOD contracts related to the recently proposed Cybersecurity Maturity Model Certification 2.0 Program.
While ABC recognizes and supports the DOD’s need to protect national security through cybersecurity efforts, as currently proposed the rule raises serious concerns regarding a lack of clear definitions and flexibility for federal contractors on DOD projects.
ABC members can take action now by submitting pre-generated comments to DOD through ABC’s Action Center or the ABC Action app, calling on DOD to clarify and streamline CMMC 2.0 regulations. Comments on the proposed rule are due Oct. 15.
Previously, on Dec. 26, 2023, the DOD released a proposed rule and guidance documents to establish CMMC 2.0. As proposed, CMMC 2.0 would require federal contractors and subcontractors competing for DOD contracts to demonstrate continued compliance with a range of cybersecurity measures to maintain eligibility for performing and winning new federal awards. ABC joined coalition comments on that rule, submitted on Feb. 26, 2024, calling for more clarity and urging a flexible implementation of CMMC requirements. This rule has yet to be finalized.
The Aug. 15 proposed rule largely defers to CMMC 2.0 as previously proposed, with a focus on providing guidance to contracting officers as well as standard contracting clauses and solicitation provisions to incorporate CMMC 2.0.
However, the proposed rule includes new provisions of note, including:
For more information on the proposed rule and cybersecurity requirements impacting federal contractors, see Wiley Rein’s legal analysis of the proposal and ABC’s Cybersecurity Resource Guide.
On Sept. 19, Rep. Nick Langworthy, R-NY., introduced the CTE Student Mental Health and Wellness Act. This legislation would make area career and technical education schools eligible for mental health and substance use disorder services grants provided by the Garrett Lee Smith Campus Suicide Prevention grant program. Notably, institutions of higher education already have access to GLS grant dollars, and this bill would expand the list of covered institutions eligible to receive GLS grant dollars to include CTEs. Reps. Glenn Thompson, R-Pa., and Suzanne Bonamici, D-Ore., joined Rep. Langworthy in introducing the legislation.
Rep. Langworthy stated, “Western New York and the Southern Tier are proud to have so many hardworking men and women pursuing a technical career education, but despite them being a vital part of our workforce, too many of these students face mental health challenges without access to the same federal resources available to others—this legislation will change that. I’m proud to lead this bill to ensure our CTE students have the tools they need to navigate mental health and substance abuse challenges, keeping them on track for new careers where they can continue to build their own futures and the future of our nation.”
“ABC is committed to creating a safe and healthy industry for the millions of people who make construction their career. By providing the current and future workforce access to resources to improve total human health, employers and workforce development providers can equip workers with the tools they need to prioritize mental health and protect their emotional well-being. ABC's commitment to advancing total human health is why ABC strongly supports the CTE Student Mental Health and Wellness Act,” said Kristen Swearingen, ABC vice president of legislative & political affairs. “It is vital that CTE schools have access to the same resources as other institutions of higher education to help workers enjoy the abundance life has to offer through their careers and beyond.”
ABC is joined by 13 other organizations in supporting the CTE Student Mental Health and Wellness Act.
ABC recently participated in a White House-sponsored roundtable discussion, “Recovery in the Workplace: Investing to Build the Workforce of Tomorrow,” which convened a dozen leading corporations and business groups to highlight the importance of recovery-ready and recovery-friendly workplaces and share best practices. Greg Sizemore, ABC vice president of health, safety, environment and workforce development, discussed ABC’s Total Human Health Initiative and more at the White House Office of National Drug Control Policy’s National Recovery Month Roundtable.
At the roundtable, ABC committed to a Recovery Friendly Workplace Certification, explored incorporating it into ABC’s industry-leading STEP Safety Management System® and encouraged its 67 chapters and more than 23,000 member companies to also become certified as recovery-friendly workplaces.
“The construction industry has long been influenced by the outdated mentality that workers should simply ‘suck it up,’ creating a barrier for employees to discuss personal challenges while on the job,” said Sizemore. “Additionally, many older construction workers turn to both legal and illegal substances as a means of coping with pain or musculoskeletal injuries accumulated over their careers.
The Biden-Harris administration also released new guidance for employers, through its Recovery-Ready Workplace Toolkit: Guidance and Resources for Private and Public Sector Employers.
ABC congratulates Baker Concrete Construction Inc. of Fort Lauderdale, Florida, a member of the Florida East Coast and several other chapters, and Bald Hill Builders of Walpole, Massachusetts, a member of ABC’s Massachusetts chapter, for earning the Accredited Quality Contractor credential.
The AQC program recognizes and honors construction firms that document their commitment to excellence in key areas of corporate responsibility: quality, safety, craft and management education, talent management and community relations. A company that meets the criteria set forth in the program and has earned Gold, Platinum or Diamond status in ABC’s STEP Safety Management System® is formally designated an Accredited Quality Contractor.
As an AQC, you have the opportunity to:
If you would like to see your company achieve this value, visit abc.org/aqcapp for more information and to get started. The application window for 2024 closes Wednesday, Oct. 23.
On Sept. 4, ABC joined industry partners in filing an amicus brief with the U.S. Supreme Court in the case Seven County Infrastructure Coalition v. Eagle County, Colorado, as the court considers whether the National Environmental Policy Act requires that agencies consider environmental impacts beyond the immediate effects of their regulatory decision.
The petitioner in the case, the Seven County Infrastructure Coalition in Utah, is before the court concerning approval of construction of a new rail line by the Surface Transportation Board. At issue is whether the Board must consider distant environmental effects such as increased oil drilling and refining activities facilitated by the rail line. Seven County argues that the Board should instead be limited to considering the direct effects of approving or denying a permit for the rail line.
ABC’s brief supports the petitioner, arguing that consideration of environmental factors not directly related to the permit would improperly expand NEPA reviews beyond congressional intent.
A favorable outcome in the case could help preserve a more reasonable scope for NEPA reviews, ensuring that federal agencies properly consider important environmental protections without causing unnecessary delays and increased costs for critical infrastructure projects.
On Sept. 3, Associated Builders and Contractors joined 150 members of the Small Business & Entrepreneurship Council in a letter of support for H.R.9278, introduced by Rep. Zach Nunn, R-Iowa. This legislation would provide small businesses with an additional year to file the beneficial ownership information required by the U.S. Department of Treasury’s Financial Crimes Enforcement Network’s Corporate Transparency Act implementing regulation.
The CTA requires millions of small businesses, including nearly every employer with 20 or fewer employees, to report personal information of their beneficial owners and update that information periodically throughout the life of the business. Failure to comply with the onerous reporting requirements could subject small business owners and employees to potential fines and jail time.
“Although filing under the CTA began at the start of this year, FinCEN reports it has received just 10% of required submissions. This compliance rate can be attributed directly to the general lack of awareness among the small business community when it comes to the new rules. Given this massive education gap, it is clear additional time is needed for regulators and other stakeholders to continue their outreach to affected small businesses,” the letter stated.
In the letter, ABC and the SBE Council urged Speaker Johnson to bring H.R. 9278 to the U.S. House of Representatives floor for a vote to provide business owners and employees with more time to comply with the CTA.
A similar bipartisan bill to H.R.9278, sponsored by Reps. Nunn and Joyce Beatty, D-Ohio, passed the House late last year, 420-1. However, U.S. Senate Banking Committee Chair Sherrod Brown, D-Ohio, stalled the legislation, putting small businesses at risk.
For more on the CTA Beneficial Ownership Requirements, see ABC’s Compliance Update published on Aug. 5. ABC encourages members and small business owners to discuss FinCEN’s BOI reporting requirements with counsel.
On Sept. 6, President Joe Biden signed Executive Order 14126 on Investing in America and Investing in American Workers, a new effort by the Biden-Harris administration to utilize federal policy to favor unions that is likely to undermine competition to build taxpayer-funded infrastructure projects.
In response to the White House EO fact sheet released Friday morning prior to Biden signing the EO at a union hall in Michigan, ABC immediately issued a press release condemning the EO and its impact on fair and open competition that was picked up in multiple media outlets, stating in part:
“This gift to unions is discouraging for the overwhelming majority of the U.S. construction industry workforce—nearly 90%—that works for nonunion employers,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “It also will hurt taxpayers and the overall construction industry, as both benefit from inclusive, win-win policies that welcome all contractors and workers to rebuild America, even if they decide not to affiliate with labor unions.
“The executive order will undermine the efficient and economical delivery of taxpayer-funded infrastructure, clean energy and manufacturing projects and is consistent with the Biden-Harris administration’s politically motivated policy schemes,” said Brubeck. “These policies steer taxpayer-funded infrastructure contracts to unionized businesses and create jobs exclusively for union members at the expense of everyone else and the rule of law.”
The EO, which claims to be an effort to promote high-quality jobs on federally funded construction projects, steers contracts to unionized firms and creates unions jobs by directing agencies to prioritize the distribution of federal financial assistance to applicants that (among other provisions listed in Section 3 of the EO):
The EO directs agencies to implement this prioritization through application evaluation criteria on notices of funding opportunity. Already, ABC has identified over $271 billion in federal funding since President Biden took office subject to language and policies promoting PLA mandates and preferences that will increase costs and reduce competition on federally assisted construction projects.
The EO establishes a new Investing in Good Jobs Task Force within the Executive Office of the President, co-chaired by the secretary of labor and the director of the National Economic Council, with the responsibility of ensuring the EO is implemented across the federal government.
It is unclear when the Task Force recommendations will be released for public review, whether there will be a public notice and comment period for any new regulations or if this will be done administratively with no public input.
Of note, it is unclear if this new policy is something that a Harris or Trump White House would support, eliminate or modify.
it is more likely that a Trump White House would eliminate additional red tape undermining taxpayer investments in infrastructure, as the Trump administration previously repealed an Obama administration rule imposing a controversial pro-labor blacklisting regulation on federal construction projects that is similar in nature to the Good Jobs EO.
On Sept. 10, Brubeck joined Labor Relations Radio to discuss the new EO in greater detail.
ABC will continue to oppose and monitor this issue and forthcoming Task Force recommendations, policies and rulemakings.
In a win for ABC members, on Aug. 20, the U.S. District Court for the Northern District of Texas blocked the Federal Trade Commission from implementing its rule to ban noncompete agreements. The court found that the FTC lacked statutory authority to promulgate the rule and that the rule is arbitrary and capricious. This means the rule will not be enforced or otherwise take effect on Sept. 4, 2024. According to media reports, the FTC is considering appealing the decision. To learn more about the decision, read ABC’s general counsel Littler Mendelson’s analysis.
ABC is extremely pleased with the court’s decision and has consistently stated that ABC members have valid business justifications for utilizing noncompete agreements, such as protecting confidential information and intellectual property. The new rule would have had a harmful effect on member companies as well as their employees, forcing employers to rework their compensation and talent strategies.
On July 3, the same Texas court issued a limited preliminary injunction and stay of the FTC’s rule. On May 14, ABC joined a broad group of trade associations in filing an amicus brief in support of the plaintiffs’ request for injunctive relief against the FTC’s final rule to ban noncompete clauses.
Following the FTC’s vote on April 23 to finalize the ban on noncompetes rule, ABC issued a release opposing the rule, stating, “The final rule to ban all noncompete agreements nationwide—except existing noncompetes for senior executives—is a radical departure from hundreds of years of legal precedent. Ultimately, this vastly overbroad rule will invalidate millions of reasonable contracts—including construction project contracts—around the country that are beneficial for both businesses and employees.”
In April 2023, ABC submitted comments in opposition to the FTC’s unprecedented proposal to ban noncompetes. ABC also joined the U.S. Chamber of Commerce and 280 business groups in submitting comments urging the FTC to rescind the proposed rule.
Continue to monitor ABC’s Newsline for further updates.
On Aug. 15, the U.S. Department of Defense issued a proposed rule, Assessing Contractor Implementation of Cybersecurity Requirements, which seeks to implement contractual requirements for DOD contracts related to the recently proposed Cybersecurity Maturity Model Certification 2.0 Program. Comments on the proposed rule are due Oct. 15.
Previously, on Dec. 26, 2023, the DOD released a proposed rule and guidance documents to establish CMMC 2.0. As proposed, CMMC 2.0 would require federal contractors and subcontractors competing for DOD contracts to demonstrate continued compliance with a range of cybersecurity measures to maintain eligibility for performing and winning new federal awards. ABC joined coalition comments on that rule, calling for more clarity and urging a flexible implementation of CMMC requirements. This rule has yet to be finalized.
The Aug. 15 rule largely defers to CMMC 2.0 as previously proposed, with a focus on providing guidance to contracting officers as well as standard contracting clauses and solicitation provisions to incorporate CMMC 2.0.
On Aug. 1, the Senate Health, Education, Labor, and Pensions Committee voted to advance two nominees to the National Labor Relations Board. Democrat Lauren McFerran's nomination to serve another term as chair passed in a party-line vote, 11-10. The nomination of Republican Josh Ditelberg passed with a bipartisan vote of 18-3. A full Senate vote on these two nominations is not yet scheduled.
The ABC-led Coalition for a Democratic Workplace issued a statement on the vote, saying:
“Chair Sanders chose to hold this vote without providing his colleagues any opportunity to publicly question Lauren McFerran about her troubling record. Her tenure on the Board has included condemnations from federal courts, OIG reports criticizing the NLRB for ‘gross mismanagement’ under her watch and bipartisan rejection of her policies by Congress.
“Moreover, this nomination is an attempt by the Biden administration to control the Board’s agenda for years into the next administration, regardless of who wins the election.
“The Board’s mismanagement and malfeasance under McFerran’s leadership should disqualify her from confirmation. CDW strongly urges the full Senate to reject her nomination.”
CDW sent letters to the HELP Committee in and urging members to reject McFerran's nomination due to the Board's mismanagement and malfeasance under her leadership, her extreme policy agenda, and the decision by comittee chair Sen. Bernie Sanders, I-Vt., to break with long-standing precedent and not hold a confirmation hearing on her nomination.
CDW will continue to reach out to Senate offices to educate them about McFerran's record on the Board and urge them to reject her nomination.