EPA’s Construction Industry Rule Has Liability Implications

February 21, 2017

By Theresa Pugh, Theresa Pugh Consulting, LLC

theresa-pugh-of-theresa-pugh-consulting-llcEPA and Construction Industry’s Jan. 19th, Construction General Permit Rule Needs Correction:

Last summer I wrote about EPA’s proposed rule on Construction General Permit (CGP) and the ridiculous requirements about testing for PCBs from caulk in all demolition debris.  The EPA had, perhaps with good intention, over-reached, because PCB in demolition debris is really quite rare. The CGP is a rule designed to address stormwater protection. EPA has legitimate authority and duty to address stormwater.

I commend EPA staff for correcting that misstep in the final regulation by fixing the PCB in demolition debris language. Their correction did no harm to the rule. They have focused the attention where it should be focused. However, there is still a serious flaw with the rule. The flaw has nothing to do with EPA’s environmental standard—which I don’t question. We need to regulate industries responsibly to protect streams.

The problem with the EPA’s Jan. 19, 2017 rule (literally the last day of the Obama Administration) is that it now applies joint and several liability to those in the industry for those engaged in virtually all earth moving activities. This EPA final rule is a big change from the 2008 and 2012 permit language that limits each operator’s liability to that portion of the site over which he/she had control. I think EPA went way too far in placing joint and several liability into the construction industry that often has many dozens of contractors and businesses in development projects. With joint and several liability, who would want to be the “last in” in the construction industry to build a home or building in a project that is adjacent to other construction projects. A construction company, doing no harm and following the new stormwater protection regulations perfectly, could possibly be liable for another company’s errors (intentional or unintentional) for up to $52,500 per day. It could also ruin a home builder’s reputation if he/she had to pay fines for someone else’s bad judgment. Joint and several liability will surely send a chill through the construction industry—at the very time we need more jobs. Most home builders are small businesses. Imagine the problems for many small businesses trying to get financing if joint and several liability applied to the company.

Just think of the comparable impacts if this was a remodeling regulation in your own community on homeowners. Would you want to be financially responsible for remodeling your own home if you were also held responsible for a neighbor’s home remodel if that neighbor didn’t follow all appropriate code? You don’t have the right to enter that neighbor’s home before you decide to remodel your house. You’d have no clue what they did or didn’t do in their home remodel. I think the comparison fits for development projects with many adjacent separate companies engaged in earth moving and building.

The Trump Administration presumably has an opportunity to further refine the stormwater regulation or CGP rule. I hope they will do so very soon. The new CGP permit took effect last week—on Feb. 16, 2017.  It is my hope that they will apply the Priebus Memo, take a look at the CGP, and fix the joint and several liability portion of the CGP rule. Unfortunately, for now, the rule is not listed on the Priebus Memo for the delay.

There is a commonsense solution that limits liability to bad actors and encourages construction projects to continue. We need both—more jobs and continued stormwater protection by EPA. Reasonable steps by EPA can ensure both.


Linda E. McMahon Confirmed as SBA Administrator

February 14, 2017

The U.S. Senate on Tuesday, February 14, 2017 voted 81 to 19 to confirm Linda E. McMahon Administrator to lead the U.S. Small Business Administration.

Senate Majority Leader Mitch McConnell (KY) said McMahon seeks to “prioritize growing jobs over growing government bureaucracy”.  “This is welcomed news to small business members of Federal Allies Institute”, said David T. Boddie, Founder and Executive Director of Federal Allies Institute.


Do Your Homework!

February 8, 2017

By Anna Urman, Director Fairfax Virginia PTAP

Tell me if you’ve heard this one before – from contracting officers, OSDBUs, SBLOs, your well-meaning networking acquaintances and teaming partners and Chamber of Commerce #govcon speakers…And you have no idea what they are talking about.

What homework? How much do I have to do? Where do I start? What’s the point? Are you just letting me down easy to wiggle out of a conversation? (Well, I can’t answer that last one – but I can certainly help guide you in the homework-doing department).

What the industry experts mean by ‘homework’ is to be prepared for a conversation with a potential customer – whether it’s a government agency, a large prime, or a similarly small business who you want as a partner.  Prepared to not just to recite to them how great you are, but to speak to your value proposition. What can you do for them?

Well, what can you do for them?

If you are even thinking about responding with something along the lines of “well, I can sell them my…” – STOP.

Federal agencies, and the food chain of contractors that you want to be a part of aren’t just buying products and services, no matter how shiny and cool. They aren’t “giving out” contracts, there are no magic words that would enable a government agency to suddenly bypass decades of processes and volumes of rules just to do you a favor.

So how do you figure out what your customer wants to hear?

  1. Get to know your customer

How do you even know where to start, who would be a good customer for you? You may know from experience, which puts you a step ahead. But if it’s just a hunch – test that hypothesis through solid research before venturing out – you’ll save a lot of frustration and parking dollars.

  • What have they bought before? From whom? Where? How much did they spend? What kind competition do they usually have for your products/services? What NAICS do they use to buy your gadget?  Tools like USASpending and Schedule Sales Query are a good start. If you’re in IT, familiarize yourself with the IT Dashboard.
  • What are they on the market for currently? Opportunities in FBO, Procurement Forecasts.
  • Want more? Look at GAO reports, Inspector General’s office findings. What are your customers posting on Twitter? Are the decision makers speaking at conferences on topics of interest?
  • If you’re meeting with primes, find out in advance what they do. Their websites are a great start.
  1. Present yourself

Elevator Pitch, Business Card, Capabilities Statement, and a website. Know them, have them, invest in them. You want to present yourself as an established business that isn’t risky in any way. You want to appear polished and professional, memorable and knowledgeable.  If you are even thinking about sending an email to a government customer from a yahoo or gmail account, don’t do it. Get a company website with an email @your own domain. There are tools out there that make it really easy to put together a presentable website even for non-IT folks, for not a lot of money. Wix, SquareSpace are so easy, even I can do it.

They’ll be much more likely to invest time and answer questions from someone they see potential in.  They’ll be much more likely to send a complete newbie to their local PTAP office for the basic skills.

  1. Engage and ask the right questions

Forget asking your customer “what do you do.” If you haven’t figured it out, you’re wasting your time and theirs.   Now, if you are meeting a company you haven’t heard of at a networking event, that’s a fine question.  At a planned appointment, when you’ve had a chance to pull up their website at the least, it’s a taboo question.  If you’ve done the reading, you know what they do, you know what they buy, you know who they buy it from and how much they spend annually.   The questions you ask should showcase your knowledge of their environment and challenges, a subtle indication that you know exactly how to fix things – and a desire to understand their ideal state.

There are a number of opportunities to meet your customers – yes, at their office. Also at industry days, conferences, in LinkedIn groups, in local AFCEA, NCMA chapters, industry-specific organization Federal Allies Institute, and even on social media. Where are they going to learn? Where are they going to share information?  Don’t forget that your customers are people too – and can be found at dog parks and PTA meetings and home improvement stores. I’m not advocating stalking, but there’s a lot you can learn in a casual, no pressure, non-sales interaction that can enlighten your business development / teaming / proposal strategy.

This is plenty of homework to get started. If you need help, we’re here to help you work on your pitch, review your capabilities statement, assist with market research.

And Yes, there are instances where companies get work faster than the usual contracting timeline. That is the stuff of legends in our field. Usually, such miracles are the result of a lot of hard groundwork and persistence.


Eversheds merges with Sutherland Asbill & Brennan LLP to form Eversheds Sutherland

February 3, 2017

Federal Allies Institute is pleased to inform its small business members London-headquartered Eversheds and U.S.-based Sutherland Asbill & Brennan have merged, creating a new global law firm known as Eversheds Sutherland.

The combined entity, which now boasts of more than 2,300 lawyers in 61 offices across 29 countries, will be led by joint CEOs as part of a six-strong global management team.

Eversheds Sutherland (International) managing partner and CEO-elect Lee Ranson and Eversheds Sutherland (US) managing partner Mark Wasserman have been appointed as joint CEOs.

According to a media statement, no significant internal structural changes are expected within either firm, and respective practice group heads will work together to co-lead client initiatives.

The move comes months after merger plans were announced in December 2016.  “During the past two years under its new name Eversheds Sutherland has become a top supporter of Federal Allies Institute providing great assistance to our national Federal Allies Summits and Washington Days Conference and we very much look forward to continuing this alliance, said David T. Boddie, Founder & Executive Director, Federal Allies Institute.


Federal Allies Institute Board Members Join Treasury Panel on Small Business

December 16, 2016

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Federal Allies Institute Board Members David T. Boddie, Founder & Executive Director and Gabriel Fulton, Chairman of the Board and CEO Sintel Group Inc. participate at US Treasury Department Panel hosted by Jose Arrieta, Director OSDBU and moderated by Brian Watson of Treasury OSDBU. https://lnkd.in/dgvQY9a

 


200th Anniversary U.S. Senate Foreign Relations Committee

December 6, 2016

December 10, 1816
Senate Creates Permanent Committees

Photo of Foreign Relations Committee in Session

For its first quarter-century, the Senate tried to operate without permanent legislative committees.  From 1789 until December 1816, the Senate relied on three-to-five-member temporary—or “select”—committees to sift and refine legislative proposals.  A late eighteenth-century guidebook to “how a bill becomes a law” would have explained the process in three steps.  First, the full Senate met to discuss the broad objectives of a proposed bill.  Next, members elected a temporary committee to convert the general ideas expressed during that floor discussion into specific bill text.  The senator who received the most votes automatically became chairman.  This system ensured that committees would consist only of those who basically supported the proposed legislation and that activist members would have more committee assignments than those who were less engaged in the legislative process.  In the third step, after the committee sent its recommendations to the full Senate, it went out of existence.

In 1806, concerned over the increasing amounts of time consumed in electing dozens of temporary committees each session, the Senate began to send new legislation to previously appointed select committees that had dealt with similar topics.  Soon, the Senate also began dividing the president’s annual State of the Union message into sections by subject matter and referring each section to a different select committee.

The emergency conditions of the War of 1812 accelerated the transition from temporary to permanent committees by highlighting the importance of legislative continuity and expertise.  In December 1815, at the start of a new Congress and with the war ended, the Senate appointed the usual select committees to consider the president’s annual message, but, when those panels completed that task, the presiding officer assigned them bills on related subjects, thereby keeping them in operation.  During that session, however, the Senate also appointed nearly 100 additional temporary committees.  Once again the upper house was spending excessive amounts of time voting on committee members.

On December 10, 1816, the Senate took the final step and formally converted 11 major select panels into permanent “standing” committees.  This action ensured that those committees, each with five members, would be available not only to handle immediate legislative proposals, but also to deal with ongoing problems and to provide oversight of executive branch operations.

(Photo:  Members of the Foreign Relations Committee meet, ca. 1970. Senate Historical Office)

Reference Items:

U.S. Congress. Senate. The Senate, 1789-1989, Vol. 2, by Robert C. Byrd. 100th Cong., 1st sess., 1991. S. Doc.100-20.


When U.S. Small Business Administration Office of Advocacy was a Start-Up

June 28, 2016

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At the 40th Anniversary Symposium for SBA’s Office of Advocacy, June 22, 2016 in Washington, D.C., former Chief Counsels reminisce. Still, 40 years after the creation of the Office of Advocacy and other legislation was passed, the Office of Advocacy still needs more influence to enforce required small business review panels at many federal agencies that regularly ignore the well-being of small businesses across America. See SBA Advocacy Part One and Two.

Part One

Part Two

For more information, contact FederalAllies.org.