Highgate Springs PLA Follow-Up Discussion - Final Slidedeck 043024.pdf

U.S. General Services Administration

RFP 47PB0024R0033, CMc Services, Highgate Springs LPOE, VT - PLA Requirement

April 30, 2024, 9:00 – 11:00 am

Presented by:

Jim Adamo, Director, Acquisition Management Division, GSA PBS Region 1 (New England)

Agenda

• Opening Remarks

– Public Buildings Service (PBS) Commissioner

• Ground Rules

• Highgate Springs Points of Contact (POC)

• Highgate Springs Request for Proposal (RFP) Overview &

Status

• Project Labor Agreement (PLA) Overview

• Executive Order (EO) 14063, Use of Project Labor Agreements for Federal Construction Projects (February 4, 2022)

• Federal Acquisition Regulation (FAR)

– FAR provision 52.222-33, Alt I vs. Alt II

• PLA Benefits

• Frequently Asked Questions (FAQs)

• Resources

Opening Remarks

Elliot Doomes Commissioner

Public Buildings Service

- Became PBS Commissioner in October 2023

- Joined GSA in January 2023 as Regional Administrator for the National Capital Region

- Worked for nearly 20 years as a Professional Staff Member and Chief Counsel for the House Authorizing and Appropriations Committees that oversee GSA’s operations

Ground Rules

• The presentation today is specific to the Highgate Springs Land Port of Entry (LPOE) solicitation; additional PLA specific training will be provided at a future date by GSA;

• The presentation will be approximately one hour;

• Nothing said here today will change the RFP as written. Any and all changes to the RFP will be made via a formal Amendment;

• We will not take any questions during or following this presentation. All questions are to be provided in writing to the Points of Contact (POCs) provided as part of this presentation.

– This is a change to the original www.SAM.gov public notice. Due to the outpouring of interest in attending this session, all questions regarding Highgate must now be submitted in writing;

– Questions specific to PLAs will be considered in developing the upcoming GSA PLA conference.

http://www.sam.gov

Region 1 POCs for RFP 47PB0024R0033

Contracting Officer: Jim Adamo, (617) 565-8619; james.Adamo@gsa.gov;

Alternate Contracting Officer: Michele Valenza, (617) 565-8508;

michele.valenza@gsa.gov;

Project Manager and Contracting Officer’s Representative (COR): Cristina Clow, (857) 276-9495; cristina.clow@gsa.gov

Policy Branch Chief: Tim Davis, (617) 306-7594; timothy.davis@gsa.gov mailto:cristina.clow@gsa.gov mailto:timothy.davis@gsa.gov

Highgate Springs RFP Overview

● Delivery Method: Construction Manager as Constructor (CMc);

● Solicitation Method: Advisory Multi-Step RFP

– Phase I Technical Proposal is due on May 30, 2024, as amended;

– Government evaluation and Advisory Shortlist (exclusion from the advisory shortlist shall not preclude offerors from submitting a Phase II Proposal);

– Phase II RFP will be issued around June/July 2024 with design concept – requires a Phase II Technical Proposal and the Price Proposal;

– A second Pre-Proposal Conference with a site visit will be held prior to the submission of Phase II proposals.

Highgate Springs RFP Status

● Phase I Pre-Proposal Conference was held on 04/10/24;

● Question and Answer (Q&A) Document was issued on 04/26/24;

● Amendment 0001 to the Solicitation was issued on 04/26/24;

● Due Date for Receipt of Phase I Proposals was extended from 05/09/24 to 05/30/24.

What is a Project Labor Agreement?

• Federal Acquisition Regulation (FAR) Subpart 22.5: “a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project and is an agreement described in 29 U. S.C. 158(f).”

• Essential requirements of PLAs (FAR Subpart 22.504) include:

– Provisions that bind all contractors and subcontractors to the agreement;

– Allows competition for contracts and subcontracts without regard to whether they are otherwise parties to collective bargaining agreements;

– No-strike clauses;

– No-lockout clauses;

– Mechanism for labor and management cooperation including work and safety; and

– Grievance/arbitration procedures.

• Project Labor Agreements (PLAs)1 are (DOL):

– A type of collective bargaining agreement unique to the construction industry;2

– A pre-hire collective bargaining agreement negotiated between one or more construction unions and one or more construction employers (contractors/project owners) that establish the terms and conditions of employment for a specific construction project.3

NOTE: Footnotes are links to source documents.

https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot1 https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot2 https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot3

What is a Project Labor Agreement (cont.)? - DOL

• Usually, PLAs also specify the wages and fringe benefits for all workers on a project and generally require contractors to hire workers for the project through a union hiring hall that is responsible for supplying skilled labor.6

• PLAs may also include clauses—

– Outlining goals for hiring local community members on projects;

– Incorporating equity plans;

– Detailing strategic recruitment policies for workers from underserved communities;

– Requiring participation of small businesses; and 7

– Incorporating any number of unique terms to help parties achieve their desired results.

https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot6 https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot7

Executive Order (EO) 14063 and FAR Subpart 22.5

• Executive Order (EO) 14063, Use of Project Labor Agreements for Federal Construction Projects, was issued on February 4, 2022. EO 14063 mandates Federal Government agencies require the use of PLAs for large-scale Federal construction projects, where the total estimated cost to the Government is $35 million or more, unless an exception applies.

• FAR Subpart 22.5 Use of Project Labor Agreements for Federal Construction Projects

– Definition of large-scale construction project means a Federal construction project within the United States for which the total estimated cost of the construction contract to the Federal Government is $35 million or more.

– Effective Date: January 22, 2024

– What is required;

• FAR Provision 52.222-33 - solicitation

• FAR Clause 52.222-34 - contracts https://www.federalregister.gov/documents/2022/02/09/2022-02869/use-of-project-labor-agreements-for-federal-construction-projects

FAR Provision 52.222-33

FAR Provision 52.222-33 Notice of Requirement for Project Labor Agreement (Jan 2024) Alternate I (Jan 2024) - This Provision is included in the Highgate Springs RFP.

(a) Definitions. As used in this provision, the following terms are defined in clause 52.222-34, Project Labor Agreement, of this solicitation “construction,” “labor organization,” “large-scale construction project,” and “project labor agreement.”

(b) The apparent successful offeror shall—

(1) Negotiate or become a party to a project labor agreement with one or more labor organizations for the term of the resulting construction contract; and

(2) Require its subcontractors to become a party to the resulting project labor agreement.

(c) The project labor agreement reached pursuant to this provision shall-

(1) Bind the Offeror and subcontractors engaged in construction on the construction project to comply with the project labor agreement;

(2) Allow the Offeror and all subcontractors to compete for contracts and subcontracts without regard to whether they are otherwise parties to collective bargaining agreements;

(3) Contain guarantees against strikes, lockouts, and similar job disruptions;

(4) Set forth effective, prompt, and mutually binding procedures for resolving labor disputes arising during the term of the project labor agreement;

(5) Provide other mechanisms for labor-management cooperation on matters of mutual interest and concern, including productivity, quality of work, safety, and health; and

(6) Fully conform to all statutes, regulations, Executive orders, and agency requirements.

https://www.acquisition.gov/far/part-52#FAR_52_222_34

FAR Provision 52.222-33 (cont.)

(d) Any project labor agreement reached pursuant to this provision does not change the terms of the resulting contract or provide for any price adjustment by the Government.

(e) The apparent successful offeror shall submit to the Contracting Officer a copy of the project labor agreement prior to contract award.

GSA Agency Supplement to FAR 52.222-33:

(a) The project labor agreement reached pursuant to FAR 52.222-33 Alt I shall supersede the terms of any other collective bargaining agreement that conflict with the terms of such project labor agreement;

(b) If, for any reason, the apparent successful offeror fails to furnish such project labor agreement within the time stated above, the Government may, in its sole discretion, eliminate the proposal from consideration.

FAR Provision 52.222-33 (cont.)

FAR Provision 52.222-33, Alternate II, states as follows:

Substitute the following paragraph (b) in lieu of paragraphs (b) through (e) of the basic provision:

(b) If awarded the contract, the Offeror shall—

(1) Negotiate or become a party to a project labor agreement with one or more labor organizations for the term of the resulting construction contract; and

(2) Require its subcontractors to become a party to the resulting project labor agreement.

Question to potential offerors - Should we amend the Highgate solicitation to replace Provision Alternate I with Provision Alternate II?

FAR Clause 52.222-34

Federal Acquisition Regulation (FAR) Clause 52.222-34 Project Labor Agreement (Jan 2024) Alternate I (Jan 2024) - This Clause is included in the Highgate Springs RFP.

The RFP requires a further amendment to incorporate the referenced FAR Clause with its Alternate I (Jan 2024).

(b) The Contractor shall—

(1) Negotiate or become a party to a project labor agreement with one or more labor organizations for the term of this construction contract; and

(2) Submit an executed copy of the project labor agreement to the Contracting Officer as required in the solicitation.

Benefits of a Project Labor Agreement (DOL)

● PLAs organize complex construction projects and ensure their efficient and timely completion.8

● Because PLAs (almost universally) contain no-strike, no-lock-out clauses they eliminate delays associated with labor unrest.9

● PLAs are known for streamlining the administration of large projects by requiring all parties to enter into one agreement, that contains universal terms that govern the work.10

● On a complex project contractors may end up working with multiple trades unions (laborers, electricians, operating engineers, painters, and plumbers, etc.) with varying work rules and individual collective bargaining agreements. Without one universal agreement contractors might end up negotiating individual collective bargaining agreements with each trade union.11

● Those individual agreements might stipulate different start times, methods for determining overtime, break times, holidays, and dispute resolution processes that make project administration costly, complex, and inefficient.12

● PLAs eliminate these issues through harmonization and coordination. In fact, the use of a PLA by the New York City School Construction Authority from 2005–2009 to facilitate the rehabilitation and renovation of schools led to a savings of $221 million dollars over their five-year plan period because of the standardization of shifts across all trades of construction worker.13 https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot8 https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot9 https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot10 https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot11 https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot12 https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot13

Benefits of a Project Labor Agreement (DOL) (cont.)

● PLAs provide skilled workers for projects and support programs that maintain and grow a diverse skilled workforce.14

● Most PLAs will include provisions requiring contractors to hire workers through union hiring halls,15 ensuring that all referred workers are qualified (like journey-workers who have graduated from Registered Apprenticeship Programs certified by the Department of Labor).

● PLAs can also contain clauses stating that apprentices must accompany journey-workers on projects (sometimes there are specific ratios listed)—providing critical opportunities for entrants into the trades to gain necessary skills.16

● PLAs might also contain provisions related to pre-apprentices (developing workers, often from underserved communities,17 who are preparing to enter Registered Apprenticeship Programs), guaranteeing their exposure to construction work.

● PLAs may also fund Registered Apprenticeship Programs via joint labor-management partnerships where both unions and employers invest in the development of skilled workers.

● Lastly, PLAs lead to improved worker safety and health.19 PLAs often contain specific provisions laying out required safety trainings 20 and improve workers’ awareness and exercise of their right to accompany an OSHA inspector who is conducting an OSHA inspection.21 https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot14 https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot15 https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot16 https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot17 https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot18 https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot20 https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot21

Frequently Asked Questions (FAQs)

Are Project Labor Agreements legal in Right-to-Work states? (DOL)

Yes

PLAs are legal in Right-to-Work States. States with Right-to-Work laws allow workers covered under collective bargaining agreements (receiving services from unions) to forgo paying agency fees for the costs of those services.28 Right-to-work laws do not make PLAs illegal or impossible. There are many examples of PLAs in Right-to-Work states.

https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot28

How are Project Labor Agreements enforced? (DOL)

PLAs are enforced through binding arbitration 29 or by the National Labor Relations Board (NLRB)30 and federal courts. PLAs are legally binding agreements between construction contractors/project owners and construction unions that generally require all parties to resolve disputes over provisions in the PLA via grievance/arbitration procedures negotiated and agreed to by the parties.31 Workers on projects covered by PLAs may also grieve and arbitrate (via construction unions) issues governed by the PLA related to the terms and conditions of work (e.g., wages, benefits, etc.). In situations where issues are not subject to resolution through the negotiated grievance and arbitration process, the NLRB will review, assess, and enforce—as necessary. Finally, in some cases an issue handled by the NLRB may be appealed to a federal court that will resolve the matter.

https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot29 https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot30 https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot31

How will GSA evaluate or rate the Project Labor Agreement? (GSA)

Highgate Springs uses the CMc delivery method. In light of the project delivery method, remote location, and timing, GSA is considering amending the solicitation to use an alternative version of the PLA clause which would not require a contractor to submit the PLA until after award. As we said earlier, we're looking for your thoughts on such a change, and if so, how long after the award should the PLA be due.

If we do make that change, to be eligible to receive an award, a contractor will have to commit to establishing a PLA. We would address the PLA during contract administration.

The required elements to include in the PLA are listed in the PLA clause. GSA has not added any additional elements.

WHO CAN SUBMIT PROPOSALS?

Are non-union contractors prohibited from bidding on construction projects when PLAs are required or incentivized?

(DOL)

No

Non-union contractors can choose to bid on projects where PLAs are required or incentivized.26 Non-union contractors who choose to enter PLAs can do so without becoming a union employer for other projects.27 PLAs are project-specific—they run for the length of the project.

https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot26 https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot27

Does the contractor need to be a signatory on the Project Labor Agreement? (FAR)

No

In accordance with FAR 52.222-33 and FAR 52.222-34, the offeror/contractor must negotiate or become a party to a project labor agreement with one or more labor organizations for the term of the resulting construction contract; and require its subcontractors to become a party to the resulting project labor agreement.

https://www.acquisition.gov/far/52.222-33 https://www.acquisition.gov/far/52.222-34

EMPLOYMENT/HIRING

Will the contractor's employees have to become a union member to be covered by a Project Labor Agreement? (DOL)

No

Workers covered under PLAs do not have to join unions to work on construction sites or to get referred to construction jobs via hiring halls.22 And it is illegal for unions to discriminate against non-union workers when making hiring hall referrals.23 However, non-union workers covered under PLAs may have to pay agency fees to cover costs 24 associated with the duty of unions to fairly represent all workers (union and non-union) in the administration of collective bargaining agreements.25 https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot22 https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot23 https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot24 https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide#foot25

Who decides on the number of workers needed? (GSA)

Generally, the contractor (or subcontractor) decides on the number of workers needed and the means and methods of work.

What happens if I have or receive complaints that the union hiring halls are only referring union members? (GSA)

The contractor should notify the contracting officer listed on the solicitation and if desired can contact the local National Labor Relations Board (NLRB) office (click here for a map of offices) to speak with an information officer.

https://www.nlrb.gov/about-nlrb/who-we-are/regional-offices

Does a non-union contractor/employee working under a Project Labor Agreement automatically become a union member? (GSA) No

Non-union members must follow procedures for joining the union if they want to become members. It is important to note that under the National Labor Relations Act (NRLA), a union has a duty of fair representation to all employees, regardless of whether they are union members or not.

Contractors are encouraged to contact their local National Labor Relations Board (NLRB) office (click here for a map of offices) to speak with an information officer to ensure there have been no changes to this practice.

Resources

Executive Order 14063 of February 4, 2022

FAR Subpart 22.5 - Use of Project Labor Agreements for Federal Construction Projects

The Department of Labor’s (DOL) Good Jobs Initiative website

M-24-06 - MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS

AND AGENCIES

Fact Sheet: Biden- Harris Administration Announces Action to Support Economic and Efficient Construction Projects While Creating Good-Paying and Union Jobs

Federal Acquisition Institute (FAI) - Use of Project Labor Agreements (PLAs) on Federal Construction Projects

Final FAR rule https://www.federalregister.gov/documents/2022/02/09/2022-02869/use-of-project-labor-agreements-for-federal-construction-projects https://www.acquisition.gov/far/subpart-22.5 https://www.dol.gov/general/good-jobs/project-labor-agreement-resource-guide https://www.whitehouse.gov/wp-content/uploads/2023/12/M-24-06.pdf https://www.whitehouse.gov/wp-content/uploads/2023/12/M-24-06.pdf https://www.whitehouse.gov/omb/briefing-room/2023/12/18/fact-sheet-biden-harris-administration-announces-action-to-support-economic-and-efficient-construction-projects-while-creating-good-paying-and-union-jobs/ https://www.whitehouse.gov/omb/briefing-room/2023/12/18/fact-sheet-biden-harris-administration-announces-action-to-support-economic-and-efficient-construction-projects-while-creating-good-paying-and-union-jobs/ https://www.fai.gov/sites/fai/files/2024-02/1.PLA_Training_Slides_Final_0.pdf https://www.fai.gov/sites/fai/files/2024-02/1.PLA_Training_Slides_Final_0.pdf https://www.federalregister.gov/documents/2023/12/22/2023-27736/federal-acquisition-regulation-use-of-project-labor-agreements-for-federal-construction-projects