On Thursday, October 10 and Friday, October 11, winners of the U.S. Solar Decathlon's Affordability Contest, Market Appeal Contest, Architecture Contest and Communications Contest were announced. The Engineering Contest results and the overall winner of the U.S. Solar Decathlon 2013 will be announced tomorrow, Saturday, October 12. Current team standings for the Decathlon are available on the U.S. Department of Energy's website.
With the U.S. Congress unable to reach an agreement on a continuing resolution, the U.S. federal government shut down all non-essential services on October 1, 2013. The shutdown will remain in effect until Congress passes appropriations legislation for fiscal year 2014. This Pillsbury client alert, which originally was published in March 2011, provides guidance on how a shutdown affects federal contractors and what they can do to prepare for and react to the shutdown.
The U.S. Department of Energy confirmed that the Solar Decathlon 2013 competition and XPO will commence as originally scheduled despite the Government shutdown. The Decathlon will take place October 3 through 13, 2013, at Orange County Great Park in Irvine, California. The competition houses will be open to visitors from 11 a.m. to 7 p.m. daily, Thursday, October 3 through Sunday, October 6, 2013, and Thursday, October 10 through Sunday, October 13, 2013.
The Decathlon is funded, in part, by last year's federal funding and, in part, by at least 30 private-sector sponsors. Federal employee participation will be limited to personnel essential to allow the show to proceed.
The 20 collegiate teams competing in the U.S. Department of Energy Solar Decathlon 2013 and XPO are gearing up for the start of the Decathlon on October 3. This award-winning program challenged 20 teams to design, build, and operate solar-powered houses that are cost-effective, energy-efficient, and attractive with the ultimate winner being the team that best blends affordability, consumer appeal, and design excellence with optimal energy production and maximum efficiency. The competition houses will be open to visitors for 8 days from 11 a.m. to 7 p.m. daily: (A) Thursday, October 3 through Sunday, October 6, 2013, and (B) Thursday, October 10 through Sunday, October 13, 2013. The event is open to the public free of charge.
California contractors who violate prevailing wage laws do so at their peril. A recent case, Ogundare v. Department of Industrial Relations (2013) 214 Cal.App.4th 822, held that a one year debarment from bidding on public projects did not implicate a "fundamental vested right." Consequently, trial court review of a Division of Labor Standards Enforcement decision imposing debarment should have been more deferential to the DLSE decision, evaluating whether substantial evidence supported the decision rather than exercising its independent judgment on the evidence.
In a hearing before the DLSE, a laborer presented his paystub showing that he had worked 61 hours for a contractor in a particular week for $915, or $15/hour. The certified payroll submitted by the contractor to the public owner for that week showed that the laborer had worked 25 hours at the prevailing wage of $36.10/hour. On the basis of this and additional evidence that two other workers had not been paid overtime, the DLSE ordered a one-year debarment of the contractor for commiting willful violations of California's prevailing wage law with intent to defraud.
When the contractor sought mandamus to set aside the debarment order, the trial court assumed that the right to bid on public projects was a "fundamental vested right." It then applied its independent judgment to the facts and found no "credible evidence . . . of an intent to defraud" and that willfulness alone was insufficient to support debarment under the relevant statute.
On appeal by the DLSE, the court found that the right to bid on public projects was not a "fundamental vested right"--the contractor was not prohibited from working on all projects, only public ones, and therefore the interest involved was instead "purely economic." This distinction is critical--administrative adjudications affecting only "purely economic" interests are reviewed under the much more deferential substantial evidence test (phrased in one case as "unless the finding . . . is so lacking in evidentiary support as to render it unreasonable, it may not be set aside."). The court then applied the substantial evidence standard, and despite the contractor's pleas of clerical error and lack of intent to defraud, remanded to the trial court to affirm the debarment.
In addition to introducing their new celebrity part-owner, Shaquille O'Neal, the Sacramento Kings confirmed their concept for an "indoor-outdoor" facility for the new arena that will be constructed in Sacramento's current Downtown Plaza.
At a recent press conference, majority owner Vivek Ranadive suggested that the design for the $448 million arena "will be the first basketball arena that has this indoor-outdoor feature to it. For concerts and other events, you could actually completely open it up and have 18,000 people inside and another 10,000 people outside." He gave few other details, saying, "You'll have to wait and see the plans." Minority partner Mark Mastrov told The Sacramento Bee that attendees would be able to view events directly and on giant TV screens the arena's bowl standing in an outdoor plaza. The designs have not been finalized and community input will be sought.
Did you know that the U.S. Department of Energy's website hosts a database for tax credits, rebates, savings and, in some cases, loan programs available across the nation to a variety of persons and entities for numerous categories of energy saving improvements? It also identifies loan programs for certain types of energy saving improvements. Searches can be performed using filters, including categories for the state, eligibility, energy saving improvement ("savings for") and sponsor of the energy saver program. Once a tax credit, rebate, savings or loan program is identified, the database provides a brief summary of the program, and a link to the program sponsor's official website.
The categories of those eligible to enjoy energy saver credits, rebates, savings and, in some cases, loans include, just to name a few, commercial, industrial, institutional, installer/contractor, residential, retail supplier, schools, etc. The credits, rebates, savings and, in some cases, loans are available for a wide variety of types of energy saver improvements, including but not limited to weatherization, design and remodeling, windows, doors, and skylights, cooling, heating and cooling, appliances and electronics, lighting, water heating, water, solar, etc.
But what if one of the carriers provides a defense to the lawsuit, but the other refuses? Under One Beacon the carrier that provides a defense can sue the carrier that doesn't. Time will tell the effect of that. One danger might be that carriers become reluctant to settle with insureds in a continuous loss case because of the risk of later being sued for more money by a co-insurer. Alternatively, it may - as the New Jersey Supreme Court believes - promote early settlement, as an insurer that anticipates paying an allocated portion of defense costs may factor those costs into a potential resolution of the underlying claim and will be incentivized to seek earlier settlement.
There are numerous contractor-related bills making their way through the California legislature this year. The following bills, although not an all-inclusive list, are worth noting:
Assembly Bill 44 - An Act to amend, repeal, and add Public Contract Code § 4104 relating to public contracts - signed into law by the Governor September 9, 2013 and operative July 1, 2014. The Subletting and Subcontracting Fair Practices Act, Cal. Public Contracting Code §§ 4100, et seq., requires an entity taking bids for the construction of any public work or improvement to specify that any person making a bid or offer to perform the work to, in his or her bid or offer, include specified information, including the name and location of the place of business of each subcontractor who will perform work or labor or render service to the prime contractor in or about the work or improvement. Commencing on July 1, 2014, any person making a bid or offer to perform the work to, in his or her bid or offer, will be required to include the California contractor license number of each subcontractor.
Four California solar-related bills were enrolled on September 11 and 12, and await Governor Edmund G. Brown Jr.'s signature. This legislation would, as a whole, provide residents, schools and businesses across California more opportunities to participate in, invest in and benefit from California's growing solar economy.
Assembly Bill 327 (Perea) -- Electricity: natural gas: rates: net energy metering: California Renewables Portfolio Standard Program
Senate Bill 43 (Wolk) -- Electricity: Green Tariff Shared Renewables Program
Assembly Bill 217 (Bradford) -- Electricity: solar electricity: low-income households
Assembly Bill 792 (Mullin) -- Utility user tax: exemption: distributed generation systems
The United Kingdom's Solar Trade Association (STA) recently published guidance on the 10 best practices for solar development, guidance its members have committed to follow in building and managing solar farms. The guidance sets forth STA's views on the best practices for siting, land use and community engagement:
1. Focus on non-agricultural land or land which is of lower agricultural value
2. Be sensitive to nationally and locally protected landscapes and nature conservation areas, and welcome opportunities to enhance the ecological value of the land
We have previously reported on Maryland's efforts to modernize its public-private partnership ("P3") law. Our own Jeff Gans has had considerable involvement with the new legislation, and, at the request of the Lt. Governor's office, has testified before Maryland Senate and House committees considering the P3 legislation. The new law is about to be put to good use.
Last month, Maryland Governor Martin O' Malley announced plans to utilize a P3 to build and operate a $2.2 billion public transportation project. The project is a light rail line - the "Purple Line" - which will run from Bethesda in Montgomery County to New Carrollton in Prince George's County and tie into the existing Metrorail, MARC, and Amtrak train lines as well as bus routes.
Maryland will provide $400 million for construction of the 16-mile, 21-stop route, plus $280 million for right-of-way acquisition and finalizing design. The private partner is expected to contribute between $400-900 million, and additional funding for the project will come from the federal government.
The California Department of Public Health (CDPH) Fatality Assessment and Control Evaluation (FACE) program recently embarked on an effort to produce and release to the public work-place safety videos. Its second is a four-minute video that tells the tragic story of a solar panel installer's 45-foot fall from the roof of a three-story apartment building.
The pre-project plan called for fall protection on the project due to the distance of the sloped roof to the ground and the slope of the roof, including 100% tie off on the sloped roof with single-D anchors, yo-yo type fall restraint life and full-body harness. It was not known how often management surveyed compliance with the fall protection plan on the job sites. On the first day of the particular project, a safety meeting was held by the project manager who told the work crews that fall protection safety equipment would be required when working on the roofs. The employer had an Injury and Illness Prevention Program (IIPP) that included, among other things, safety meetings, training and incentive and disciplinary measures. The IIPP incorporated guidance on the use of pre-project plans and job hazard analyses to evaluate work-place safety hazards. Its training program included new employee orientation, specific on-the-job training, job site orientation and weekly safety meetings.
SolarPermit.org, a website developed by SunShot awardee Clean Power Finance and supported by a Department of Energy grant, "organizes and simplifies the solar permitting process by compiling permitting information in a single location." The newly redesigned website hosts the National Solar Permitting Database, a free, online database of solar permitting requirements for cities and counties across the country. The website now contains "80% of jurisdictions with 200 or more residential installations per year."
The website "is an interactive, crowd-sourced website - similar to Wikipedia - for solar permitting requirements." Solar contractors and others can use the website to collect information from the database that may be helpful to them and to contribute information to the database based upon their experiences that may be helpful to others. Users of the website are able to provide feedback on the information provided by others. The "database contains jurisdictions for over 18,000 United States cities and counties. Each page includes over 100 data fields to give users an easy way to track a wide range of information about permitting requirements and processes." Information made available on the website includes: (1) contact information, (2) turnaround times, (3) fees, (4) specifications for system designs, (5) inspection processes, and (6) common errors.
The website's goal is to "minimize the time and resources required to... support the mass-market adoption of solar."