[Congressional Record Volume 167, Number 165 (Thursday, September 23, 2021)]
[Extensions of Remarks]
[Page E1017]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2022

                                 ______
                                 

                               speech of

                       HON. CHRISTOPHER H. SMITH

                             of new jersey

                    in the house of representatives

                     Wednesday, September 22, 2021

  Mr. SMITH of New Jersey. Mr. Speaker, my amendment directs the Army 
Corps of Engineers to provide uniform guidance and to strengthen 
enforcement of laws that are already on the books to ensure that 
federal construction projects, particularly on our military bases, are 
completed with the highest quality workmanship.
  The Government Accountability Office (GAO)--the federal government's 
``watchdog'' agency--recently completed an investigative report, 
mandated by an amendment I authored as part of the 2020 National 
Defense Authorization Act (NDAA), that found inconsistencies with 
implementation of the Corps mechanisms for compliance with important 
worker protection laws. Today's amendment addresses those problems and 
instructs the Corps' to fully comply with relevant federal laws and 
regulations for: building quality facilities--labs, hangars, housing, 
and workspaces--for our military men and women; providing an honest 
wage for construction workers; and providing the best investment for 
the taxpayer.
  For years, we have witnessed unscrupulous contractors win 
construction bids for critical federal work, only to have those 
important projects mismanaged, understaffed, delayed, left unfinished, 
and in some cases, rebid--then properly redone by high-skilled 
tradesmen and women who should have gotten the job in the first place.
  There is wide-spread concern that irresponsible contractors and 
subcontractors hire unqualified or underqualified workers and put them 
in high-skill jobs for which they lack the needed training and 
expertise--a practice known as misclassification.
  There are two different types of misclassification: craft 
misclassification and independent contractor misclassification. Craft 
misclassification occurs when dishonest contractors misclassify high-
skilled workers as general laborers or lower wage classifications in 
order to avoid paying the higher prevailing wage rate applicable to the 
high-skilled work actually performed. Independent contractor 
misclassification occurs when contractors misclassify employees as 
independent contractors to avoid paying prevailing wages thereby 
reducing labor costs and avoiding state and federal taxes.
  These practices deny workers of their rights to critical benefits and 
protections, including prevailing wages, worker's compensation and 
unemployment insurance, and communities suffer because 
misclassification results in lower tax revenues for federal, state, and 
local governments.
  Additionally, the end product is often compromised by shoddy 
workmanship which can lead to do-overs and substantial cost overruns.
  Congress has passed laws to prevent such problems and punish the 
offenders. The Davis-Bacon Act is critical in this effort as it 
requires contractors working on certain federally funded construction 
projects to pay their workers a prevailing wage to ensure that our 
federal projects are completed by skilled workers who have been 
properly trained, classified and paid according to their expertise and 
locality. The Act stands as a check and balance designed to protect 
employees from low-wage, low-bidding contractors who look to do the job 
on the cheap hurting the workers and the client, i.e. the federal 
taxpayer.
  When it comes to domestic construction projects, the Army Corps of 
Engineers, procures more than most divisions of the Department of 
Defense. According to the GAO, in 2019, the Corps obligated over $11 
billion for domestic construction contracts.
  Each federal agency is primarily responsible for enforcing the Davis-
Bacon protections at its construction worksites. The Army Corps has a 
lot of construction projects and federal construction monies to 
properly oversee.
  Unfortunately, federal construction projects in my district, 
including Army Corps projects at Joint Base McGuire-Dix-Lakehurst--have 
fallen short in oversight and compliance and have run into trouble with 
unqualified, subpar bidders who avoid hiring needed skilled workers. We 
have seen cases of sophisticated work--HVAC, plumbing and sheet metal--
needing to be ripped up and redone after the irresponsible bidders 
failed to properly do the work.
  To examine this problem and find lasting solutions, in 2019, Congress 
enacted my amendment to the 2020 NDAA directing the GAO to study the 
contracting practices of the Corps with a focus on how the Corps 
monitors and enforces the Davis-Bacon Act.
  The GAO conducted its audit from May 2020 to March 2021 examining 
Corps guidance, relevant documents about the Davis-Bacon Act, 
Department of Labor guidance and other relevant laws and regulations. 
They conducted ``semistructured interviews'' in four Army Corps 
district offices--Louisville, New Orleans, New York and Walla Walla--
based on the district's activities and representing ``various 
geographical areas in the U.S. and a mixture of volume and type of 
construction contracts (e.g. military and civil projects)''.
  They interviewed Corps headquarters officials, DOL officials and four 
external groups including two labor unions and two trade associations.
  The GAO said that ``monitoring, including payroll reviews and on-site 
inspections, are key to ensuring that the Corps enforces contractor's 
compliance with the Davis-Bacon Act''.
  But the report also described implementation inconsistencies across 
the various districts that can easily lead to gaps in compliance with 
Davis-Bacon.
  The GAO concluded that aspects of the reviews and on-site inspections 
``may not be sufficient.'' They found that ``Corps documents lack 
information'' and said that ``In the absence of directions to 
consistently document on-the-ground conditions, like the number of 
employees on site'' district officials ``may not be fully using on-site 
inspection to ensure contractors' compliance with the Act.''
  GAO's final recommendations to Army Corps were that Corps 
headquarters provide clarifying information on how to conduct payroll 
reviews and document on-site inspections to ensure the proper 
monitoring of the number of workers and work performed.
  In essence, the GAO found that the Army Corps needs to do a better 
job in complying with and enforcing Davis-Bacon protections on Corps' 
projects.
  My amendment instructs the Army Corps to provide each of its 
districts with the guidance it needs to enforce Davis-Bacon. It also 
directs the Corps to investigate worker complaints and third-party 
complaints within 30 days of filings and reaffirms transparency and 
disclosure requirements for certified payroll reports.
  With better compliance and more transparency, we will see better 
workmanship, and a greater return for the taxpayer.

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