National Defense Authorization Act for Fiscal Year 2023
Floor Speech
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Mr. PALLONE. Mr. Speaker, I rise today to express my opposition to Amendment No. 554 to H.R. 7900 Offered by Mr. Langevin of Rhode Island.
I think we can all agree that increasing cybersecurity coordination across different sectors is an important goal. However, I have concerns with the functions of the Interagency Council for Critical Infrastructure Cybersecurity Coordination. I am concerned that this amendment is assigning the Council tasks that it does not have the qualifications to complete.
The Council is charged with reviewing existing regulatory authorities that could be used to strengthen cybersecurity for critical infrastructure. It is also supposed to identify regulatory gaps that could invite cybersecurity risks to critical infrastructure and develop legislative proposals to resolve such regulatory gaps.
I am worried the Council does not have the expertise to review regulations and propose legislation for our critical infrastructure. While I appreciate that the Council will include representatives from Sector Risk Management Agencies and potentially other federal departments and agencies as determined by the Secretary of National Cyber Security, I am concerned that each councilmember's expertise within a given sector or within cybersecurity generally is not adequate to perform this regulatory assessment or potential legislative proposals required by this bill.
For example, I do not agree that a councilmember whose expertise is in the financial sector should be reviewing regulations of the dams sector. Nor should the councilmember for the dams sector be proposing legislation for the health and public health sector.
While I understand that there are commonalities to cybersecurity risks posed to different sectors, the regulatory and statutory regimes--including those related to cybersecurity--must account for the unique operations of each sector, the type of actors in each sector, and technical feasibility within each sector.
Therefore, I oppose the creation of the Interagency Council for Critical Infrastructure Cybersecurity Coordination as structured by this amendment. I urge my colleagues to oppose this amendment.
Mr. SMITH of New Jersey. Mr. Speaker, the Smith-Norcross amendment to the Fiscal Year 2023 NDAA directs the Army Corps of Engineers to ensure high-quality workmanship on federal construction projects by providing each of their districts with clarifying, uniform guidance and to enforce compliance more strongly with already existing laws--especially the Davis-Bacon Act--that mandate proper worker classification and the corresponding wages.
Additionally, it requires the Corps to investigate worker classification complaints and third-party related complaints within 30 days of filings and reaffirms transparency and disclosure requirements for certified payroll reports.
For years, we have witnessed disingenuous contractors purposely hire underqualified workers for military construction projects and put them in high-skilled jobs for which they lack the needed expertise--a practice known as ``worker misclassification''. These contractors dishonestly undercut their more skilled, better-value competitors, only to have those important projects mismanaged, understaffed, delayed, 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 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 cheaply while 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. As recently as 2019, the Corps obligated over $11 billion for domestic construction contracts, according to the Government Accountability Office (GAO)--the federal government's ``watchdog'' agency.
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 combat this persistent problem and ensure these important laws are being enforced, in 2019, Congress passed an amendment I authored, cosponsored by Congressman Norcross, to the 2020 NDAA directing the GAO to study the contracting practices of the Corps with a focus on the monitoring and enforcement of 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 semi-structured 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 [Davis-Bacon] Act.''
Ultimately, the GAO recommended that the Army Corps provide clarifying information on how they conduct payroll reviews and document on-site inspections to ensure the proper monitoring of the number of workers and work performed.
More work remains to be done to implement these recommendations and crack down on this harmful practice.
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.
Mr. Speaker, working with partners such as the AFL-CIO, North America's Building Trades Unions, New Jersey trades like the IBEW and the Plumbers and Pipefitters, and my friend, Congressman Norcross, we can finally ensure that military construction is done with the best possible workmanship, that we make best use of the hardworking Americans' taxpayer dollars, and that the men and women who work with our military are treated fairly.
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