AGC Meets With Caltrans Concerning Disadvantaged Business Enterprise (DBE) Disparity Study – Will the DBE Good Faith Effort Requirements Return?
By Jim Ryan
AGCSD Executive Vice President 

On Friday, representatives of AGC San Diego and AGC California including Tom Shaddox from Hazard Construction along with Baltimore, Maryland attorney John Sullivan met with Olivia Fonseca the Deputy Director of Caltrans, and Robert Padilla, the Caltrans staff member that is responsible for the Caltrans DBE Disparity Study that is currently being conducted.  Sullivan and his partner George La Noue, a professor at the University of Maryland, are considered to be experts in analyzing disparity studies. 

Last May,  Caltrans and all local agencies in California that receive Federal funding for their construction projects either through Caltrans or directly from the Federal government eliminated the Disadvantaged Business Goal Program on these projects and went to a “Race Neutral” program.  This program eliminated the 10-13% DBE goal that had been part of all projects.  It also eliminated the requirement for contractors to include in their bids the paperwork that verified the contractor had made a “good faith effort” to solicit DBE’s to participate on each project.  In the past, if a contractor’s good faith effort was determined by the awarding agency to not be adequate, the contractor was often found to be “non responsive” and their bid was not accepted. 

Since May, the Federal government has still imposed the 10-13% goal on California, but all agencies were required to fulfill this goal in a race neutral manner…..or through outreach and other activities that encouraged DBE certified firms to participate on the projects as opposed to passing the burden on to the construction industry through the project specifications.

This all came about as a result of a Ninth Circuit Court of Appeal’s decision in Western States Paving vs the State of Washington Department of Transportation. In this case, the court held that race conscious goals can be applied only in states in which the affects of discrimination are present.  This means that public entities using federal funds in their projects must have statistical studies that establish that discrimination exists in the construction industry…i.e. a Disparity study….in the past it was just assumed that discrimination was present in the industry and the DBE Goals had been established to eliminate this alleged discrimination……but again….there was no proof of discrimination…..the DBE Program and its predecessors existed simply because our political leaders assumed discrimination had existed.

The Western States Case requires agencies like Caltrans to analyze if discrimination exists through conducting a very complicated disparity study.  The purpose of the meeting in Sacramento on Friday was to question Caltrans concerning the methodology that was being used to conduct the study. The study is on schedule to be completed in 12 months…or sometime in mid summer 2007.  Disparity studies by public entities have a history of being crafted to reach a predetermined conclusion….and as a result, their findings are often the subject of lawsuits. 

We are happy to report that the study being conducted by Caltrans appears that it is following the provisions of the Western States Case. The Study is:

• Analyzing if discrimination has taken place for each separate group presumed to be disadvantaged….i.e. per race, ethnic, and gender specific findings
   

• Analyzing the capacity of each group presumed to be disadvantaged to complete construction contracts….i.e. if the particular group has been discriminated against is the discrimination a result of the fact that the group does not have businesses existing that are able to complete the projects
   

• Analyzing the capacity per geographic area…..in the past it was assumed that if DBE’s were prevalent in the Los Angeles area that they would be willing to travel throughout the state….so the study is required to look at various localities in all areas of the state.

In addition, there are a number of other technical areas that the study appears to be complying with……but the real proof that the study is on track will come in a few weeks when an interim study will be released.  Also, a series of hearings to gather anecdotal evidence of discrimination will also be conducted in March and early April…..how this anecdotal evidence is weighed has been a very controversial part of past disparity studies.

AGC has commissioned John Sullivan to send a letter to Caltrans, making sure we have an understanding of how the more technical aspects of the study are being conducted.

It should be noted that the Caltrans study will have an effect on how each public entity in the state that utilizes federal funding through Caltrans or other agencies conducts their business in the future.  AGC will monitor the situation and keep MMQB readers updated.

 

Ban the Banner Update
By Jim Ryan
AGCSD Executive Vice President

Last week, AGC San Diego attorney Mark Bennett from Marks, Golia, & Finch, LLP sent a letter to Lester Heltzer, the Executive Secretary of the National Relations Board in Washington D.C.  The letter noted that NLRB case # 28-CC-933 – AGC’s Ban the Banner case,  has been fully briefed and pending before the National Labor Relations Board for almost four years.  He asked Mr. Heltzer to communicate to the Board that we are concerned and that we urge the Board to make a decision promptly.

This case involves the issue of whether the banners displayed by the Carpenter’s Union violates the National Labor Relations Act. For several years, the Carpenter’s Union in Southern California and a number of other areas in the United States have been displaying large banners that allege a dispute between an owner of a construction project and the union because the owner’s project has a contractor involved, usually as a subcontractor to the GC.…the banner is designed to pressure the owner into convincing the subcontractor into signing with the union.  There have been hundreds of these banners displayed in the past few years in San Diego and Southern California.

AGC San Diego filed an unfair labor practice against the Carpenters 4 years ago…and on May 5^th, 2003 the NLRB agreed that the banners constituted illegal secondary activity….i.e. it is a violation of the law to pressure a third party  i.e. owners into attempting to coerce a firm into signing a union contract.  The Carpenters appealed the decision to the full NLRB Board in Washington and the Board has failed to act.

Attorney Bennet’s letter noted that recently the United States Court of Appeals in the District of Columbia ordered the NLRB to issue a decision on another important decision that it has been “sitting on “ for a number of years.  The NLRB agreed to issue the decision.

The latest Carpenter’s banner in San Diego has been directed at the Port of San Diego. The Carpenters were able to keep displaying the banners because Judge Overstreet, a local San Diego judge, decided that there was not enough “evidence” and would not issue an injunction.

The NLRB has had 4 years to make a decision…that is enough time!

 

AGC’s President Tells State Senate Committee to “Send us the Money” for Construction Tech

Last Wednesday, AGC’s 2007 President Tom Anderson, Bergelectric, joined a number of state and local officials, educators, and business partners at a hearing of the California Senate Select Committee on Schools and Community that focused on the current state of Career Technical Education (CTE) and the barriers and opportunities to improve and enhance such programs.  The hearing, chaired by Senator Tom Torlakson (Contra Costa County) and Senator Mark Wyland (North San Diego / South Orange Counties), was held at Construction Tech Academy at Kearny High School, and approximately 100 guests were in attendance. 

Former San Diego City Schools Superintendent Alan Bersin (now the Chairman of the San Diego County Regional Airport Authority) attended the hearing and was asked to say a few words of welcome to the Select Committee.  He quickly set the tone by recollecting the numerous meetings between AGC and the Building Trades that were required to get Construction Tech off the ground and the School District’s 5-0 Board vote to approve the program (most votes at that time were 3-2!).

The Select Committee then heard from three panels of individuals who spoke about the structure of Career Tech, the importance of a qualify workforce, and various ideas for pushing California forward.  Two Construction Tech students spoke about their experiences at the school – the enthusiasm was quite evident, as one of them expressed her initial desire to be a doctor before she went through the program…how she wants to be a civil or bio-med engineer!

Tom Anderson was on the last panel, and after expressing his own experiences with workforce development - “we need people”, emphasizing the importance of internships and summer jobs – he looked Senators Torlakson and Wyland right in the eyes and asked them to return to Sacramento and get the funding voters asked for to improve Career Tech facilities throughout California (up to $500,000,000 in Proposition 1D funds).  He specifically asked for funds to renovate an old auto body and machine shop that is now being used by Construction Tech.  The drawings have been submitted to the State’s Division of the State Architect, which is the last stop in the design approval process.

AGC’s President made his point!  Now it’s time to make ours….we need those funds, so we will continue to press our local legislators, and the State’s Department of Education and Office of Public School Construction to “send us the money” for Construction Tech!

 

Resolution Near to Fully Fund Fiscal Year ’07 Federal Highway Program

Last week, an agreement was reached by the United States Senate and House Appropriations Committees to fully fund the federal highway program for Fiscal Year 2007.  Included in the agreement is $39.1 billion for the highway program, a $3.5 billion increase over the FY 2006 level. Transit is also fully funded at $8.97 billion, an increase of $470 million over the FY 2006 level. 

This agreement represents a major victory for AGC and our transportation allies.  The House voted on the measure last week, and the Senate will take up the measure this week.  While efforts to amend the measure will be discouraged by the House and Senate Democratic leadership, AGC will alert you if any additional contacts are necessary.

AGC and our transportation partners, including the Transportation Construction Coalition (TCC), Americans for Transportation Mobility (ATM), and AASHTO worked together with key allies in the Senate and House to generate support for this funding.  AGC members responded quickly and vocally in contacting their elected representatives.  Over 900 letters were generated through AGC of America’s Legislative Action Center over a two week period, in addition to the hundreds of individual contacts made directly by AGC members.  

With this victory in hand, AGC will now focus its attention on the President's budget request for FY 2008 which will be delivered the first week in February.  Recent Congressional Budget Office projections indicate that there will be a shortfall in Highway Trust Fund revenue, so AGC will be looking for ways to increase this revenue to cover this projected shortfall.

 

Ground Breaking Ceremony for San Diego Precast Concrete

San Diego Precast Concrete, Inc. announces a ground breaking ceremony on Tuesday, February 6 of a new production facility in San Diego.  The company, which is a subsidiary of U.S. Concrete Inc., has been in existence for over 30 years in San Diego County.  The new facility will be a “state of the art” indoor manufacturing facility (75,000 Sq. Ft.) on approx 11.5 acres.

The new plant, being developed by Hamann Construction, is necessary to fulfill the needed capacity of this rapidly expanding local precast concrete manufacturing company. San Diego Precast Concrete is an active and long time affiliate member of the San Diego AGC. 

 

Web Link

Interested in having a web link on the AGC’s website? It is only $60 /year to have your company’s website linked directly on AGC’s website and listed under “Member Listings.”  Start off 2007 with an easy and simple way to get more “hits” on your website. – Click here for registration form: http://www.agcsd.org/members/membership.htm

 

Get Ready for the First AGC Mixer for 2007

The AGC Affiliate Council is proud to announce and host the first AGC mixer of the year! As in previous years, the Mixer will be held at Dave & Buster’s in Mission Valley located at 2931 Camino del Rio North, San Diego, CA  92108 (619) 280-7155, TUESDAY, FEBRUARY 27, 2007, 5:00 PM – 7:00 PM.

The Platinum Sponsors for this event are: ABD Insurance, Hawthorne Machinery Company, KPS Insurance Services, Marks Golia & Finch, LLP and San Diego Precast.  The attached registration form also lists our additional sponsors. 

All sponsors will receive:

·         Their company name prominently displayed on a banner in the Showroom

·         Company can display brochures, product samples, promotional materials, etc.  Platinum
level sponsors will be given choice table placement by the entrance and bar areas.

·         Sponsors will have the opportunity to incorporate their company logos into a running visual presentation slideshow. 

To become a sponsor for this event, please complete the attached sponsor form.  There are different levels of sponsorship available.  Typically, the first mixer has the largest attendance, so this will be a great opportunity to mingle for all who attend.  As in the past, the Affiliate’s Mixer will be held at Dave & Buster’s in Mission Valley. To ensure we do not exceed the maximum room capacity, members must pre-register by completing the attached form! For additional information, contact Rae Krushensky at 858-731-8175.

 

AGC Committee Sign-ups

Members may still sign up to join any of the AGC committees. Please click on the following link, which will take you directly to the registration page on our website:  http://www.agcsd.org/aboutagc/committeevolunteer.php. 

If you have any questions or need additional information please contact Brad Barnum at 858-558-7444 (ext 103) or at bbarnum@agcsd.org.
 
 

"AGC Education & Training….Building a solid Foundation”

Register on Line
For Education classes click on the following link: http://www.agcsd.org/calendar/calendar.htm
For Safety Training classes click on the link: http://www.agcsd.org/calendar/safetytraining.htm

February classes        
Construction Education
Feb. 8 – STP- 7 AM
Feb 8/9 – EM 385-1 – 7 AM - see attached
Feb. 13/14 – Sure Trak Manager – 7:30 AM
Feb. 15 - STP- 7 AM
Feb. 15 - Project Management – 3:00 PM
Feb. 20 – Intro to Basic Computers – 8 AM - see attached
Feb. 21 – CPM Scheduling – 8 AM
Feb. 21 – Fails Management Institute presents: Understanding How to Lead and Develop the Next Generation” by Ron Magnus

Safety Training
Feb 14 – OSHA Record Keeping – 9:00 AM – see attached
Feb 21 – Trenching & Excavating – 7 AM – see attached
Feb. 28 – SWPPP – 7:30 AM
Feb. 28 – CPR/First Aid – 8 AM

Please Note: AGC Office Closed for President’s Day – Feb. 19th

Coming in March, 2007…
March 8 and March 9 – AGC of America and OSHA present “Focus Four Hazards in the Construction Industry” - Only 50 spots available each day.

Go to our website http://www.agcsd.org/calendar/safetytraining.htm for a registration. (Please note: AGC of America in Virginia is handling the registrations)

 

February Meetings – Dates subject to change
Feb 5 – Port Liaison @ Port – 11:30 AM
Feb. 7 – Government Relations @ AGC – 8:30 AM
Feb. 7 – Safety Committee @ AGC – 7 AM
Feb. 12 – City of San Diego Liaison @ AGC – 1PM
Feb. 14 – Public Building @ AGC – 7 AM
Feb. 15 – Specialty Contractors’ Council @ AGC – 11 AM
Feb. 16 – Builders’ Exchange  @ AGC – 7 AM
Feb. 21 – County Liaison @ AGC – 1:00 PM
Feb. 22 – Affiliate Members Council @ AGC – 12PM
Feb. 26 – Airport Authority @ Airport – 11AM

 

February 8-11, 2007 – Winter Conference in Lake Tahoe
February 27 – AGC Mixer at Dave & Busters- 5:00 PM