An Act To Require Comprehensive Responsible Contracting Practices for Public Construction Projects
Sec. A-1. 5 MRSA c. 155, sub-c. 3 is enacted to read:
§ 1826-P. Definitions
As used in this subchapter, unless the context otherwise indicates, the following terms have the following meanings.
§ 1826-Q. Contractor responsibility certification
A contractor that submits a bid or is included as a contractor on a bid for a construction project shall submit a contractor responsibility certification form at the time of the bid and meet all requirements of this section. The bureau shall administer the contractor responsibility certification process and provide necessary forms to potential bidders.
(1) Has been established within the 5 years prior to the date of the bid;
(2) Is currently registered with and approved by the United States Department of Labor or a state apprenticeship agency as defined in Title 26, section 3201, subsection 22;
(3) Provides bona fide apprenticeship training to participants; and
(4) Is in compliance with the standards and requirements applicable to registered apprenticeship programs under 29 Code of Federal Regulations, Part 29.
§ 1826-R. Contract award; public review; bureau review
If, in the course of its review, the bureau determines that a subcontractor listed pursuant to subsection 2 does not meet the requirements of this subchapter, the bureau may permit the prospective awardee to substitute a qualified subcontractor that meets the requirements of this section; require the prospective awardee to perform the work in question if the prospective awardee has the required experience, licenses and other qualifications to perform such work; or disqualify the prospective awardee. If the bureau determines that a subcontractor does not meet the requirements of this subchapter, the prospective awardee may not make any contractual claim against the bureau on the basis of a subcontractor disqualification.
§ 1826-S. False or misleading information
If at any time the bureau determines that a contractor responsibility certification form submitted pursuant to section 1826-Q contains false or misleading material information provided by a contractor knowingly or with reckless disregard for the truth or evidences an omission of material information knowingly or with reckless disregard for the truth by the contractor, the bureau shall prohibit the contractor for which the certification form was submitted from being awarded any contract covered by this subchapter for a period of 3 years and apply any other penalties and sanctions, including contract termination, available to the State. For a contract terminated under this section, the State may withhold payment due to the contractor as damages.
§ 1826-T. Contract execution
The bureau may not execute a contract with a contractor subject to this subchapter until all requirements of this subchapter are met by the contractor.
§ 1826-U. Relationship to other requirements
The requirements of this subchapter are intended to supplement, but not replace, contractor qualification and performance standards required by any other law, rule or contract documents. If any of the provisions of this subchapter conflict with any other law, rule or contract documents, the requirements of this subchapter prevail.
§ 1826-V. Application
The requirements of this subchapter apply only to contracts executed after the effective date of this subchapter, except that the exercise of an option on a contract entered into prior to the effective date of this subchapter is deemed to create a new contract for purposes of this subchapter.
§ 1826-W. Rules
The bureau shall adopt rules to implement this subchapter. Rules adopted under this section are routine technical rules as defined in chapter 375, subchapter 2-A.
Sec. A-2. 26 MRSA §1304, sub-§8, as amended by PL 2009, c. 453, §1, is further amended to read:
Sec. A-3. 26 MRSA §1308, sub-§1, as amended by PL 1997, c. 757, §7, is further amended to read:
Sec. B-1. 39-A MRSA §324, sub-§3, as amended by PL 2015, c. 469, §3, is further amended to read:
For purposes of this subsection, a violation is considered a knowing violation if the employer has previously obtained workers' compensation insurance and that insurance has been cancelled or that insurance has not been continued or renewed, unless the cancellation, failure to continue or nonrenewal is due to a substantial change in the employer's operations that is unrelated to the classification of individuals as employees or independent contractors; the employer has been notified in writing by the board of the need for workers' compensation insurance; the employer has had one or more previous violations of the requirement to secure the payment of the compensation provided for by this Act; or the employer misclassifies an employee as an independent contractor despite a contrary determination by the board.
Prosecution under paragraph A does not preclude action under paragraph B or , C , D or E.
If the employer is a corporation, partnership, limited liability company, professional corporation or any other legal business entity recognized under the laws of the State, any agent of the corporation or legal business entity having primary responsibility for obtaining insurance coverage is liable for punishment under this section. Criminal liability must be determined in conformity with Title 17-A, sections 60 and 61.
Sec. C-1. 26 MRSA §1317 is enacted to read:
§ 1317. Project labor agreements
(1) Advance the State's interest in achieving economy and efficiency in State procurement by producing labor-management stability and ensuring compliance with laws governing safety and health, equal employment opportunity, labor and employment standards and other matters; and
(2) Be consistent with law.
Sec. C-2. Report. The Department of Labor, in consultation with the Commissioner of Administrative and Financial Services, the Department of Transportation and the Maine Turnpike Authority, shall submit to the joint standing committee of the Legislature having jurisdiction over labor matters a report no later than January 1, 2021 with recommendations about whether broader use of project labor agreements, as defined in the Maine Revised Statutes, Title 26, section 1317, with respect to both construction projects undertaken under state contracts and construction projects receiving state financial assistance, would help to promote the economical, efficient and timely completion of such projects.
Sec. C-3. Application. This Part applies to all solicitations for contracts issued by a public authority on or after the effective date of this Part.
Sec. D-1. 26 MRSA §1318 is enacted to read:
§ 1318. Occupational Safety and Health Administration certification
An employee subject to the requirements of this section who has not completed the construction safety training program is subject to immediate removal from the work site by the Bureau of Labor Standards.
Sec. D-2. Application. This Part applies only to contracts for construction on public works let after the effective date of this Part.
Sec. E-1. 26 MRSA §1314, as amended by PL 1997, c. 757, §11, is further amended to read:
§ 1314. Exceptions
Whenever a public works construction is built in whole or in part by federal funds and is under the jurisdiction of the Davis-Bacon or other Federal Act that requires the Secretary of Labor to establish the minimum wage and benefits and those minimum wages and benefits are established by the Secretary of Labor, sections 1304 to 1313 do not apply , unless application of those sections would result in higher total wages under the contract.
This section does not apply to public works construction funded with funds for low-income public housing under the United States Housing Act of 1937, as amended, 42 United States Code, Section 1437, et seq., if the application of the wage and benefits rate required by this section is expressly preempted under 24 Code of Federal Regulations, Section 965.101.
Part A, for the purpose of ensuring that the work on public construction contracts is performed by responsible, qualified contractors that maintain the capacity, expertise, personnel and other qualifications and resources necessary to successfully perform public contracts in a timely, reliable and cost-effective manner, establishes responsible contractor requirements for publicly funded construction projects that receive state funds. The Part outlines a responsible contractor certification process to be administered by the Department of Administrative and Financial Services, Bureau of General Services.
Part A also clarifies that, for the purpose of the law requiring fair minimum rate of wages and benefits on public works contracts, "public works" includes any construction projects funded all or in part with state funds.
Part A also amends the method of determining the prevailing wage and benefits rate paid in the construction industry to require the Department of Labor, Bureau of Labor Standards to ascertain the applicable wage and benefits rates established in collective bargaining agreements in private construction and includes in benefits wages paid to apprentices in apprenticeship programs registered with the department.
Part B requires the Executive Director of the Workers' Compensation Board or the executive director's designee to immediately issue a stop-work order to an employer who fails to procure workers' compensation insurance coverage. It requires the executive director or the executive director's designee to issue a stop-work order to an employer if the executive director or the executive director's designee finds after a hearing that the employer knowingly misrepresented employees as independent contractors or provided false, incomplete or misleading information to an insurance company on the numbers of employees the employer has for the purpose of paying a lower payment.
Part C encourages the State to use project labor agreements for large-scale state-funded construction projects of $10,000,000 or more. A project labor agreement is a prehire collective bargaining agreement with one or more labor unions that establishes the terms and conditions of employment for a specific construction project.
Part D requires an employer with a public works contract with the State of $50,000 or more to provide to all employees who will be on the construction work site a safety training program that uses a curriculum approved by the United States Department of Labor, Occupational Safety and Health Administration and that is at least 10 hours in duration. Flaggers, security workers and certain other employees not considered to be on the work site are exempt from this requirement. A contractor that violates this safety training program requirement may be assessed a fine of up to $2,500 and an additional fine of $100 per employee for each day of noncompliance.
Part E provides that for public works construction contracts that involve funding from the Federal Government the prevailing wage requirements in state law apply unless the prevailing wage requirements that would otherwise apply under the federal Davis-Bacon Act would result in higher total wages under the contract. An exception is provided for funds received under the United States Housing Act of 1937 if the application of a state prevailing wage is expressly preempted by federal law.