The change order solution

Marcia1By Marcia Gruver

As contractors working under New York City’s Local Law 77 will tell you, some state and local agencies have found a sneaky way to require contractors to meet diesel emission reductions on current fleets – even though these reductions are not currently required by any state or federal law. On the books since 2003, Local Law 77 requires contractors doing public works jobs throughout the city to use “best available technologies” to control emissions on equipment 50 horsepower and over.

In 2008, the Northeast Diesel Collaborative – made of federal, state and local environmental agencies plus private sector companies – issued a diesel emission control model contract specification. The collaborative says its goal in issuing the spec was to “to promote the widespread use of emission controls in the construction sector.” On $2 million-plus projects built before December 31, 2012, these specs would require contractors with equipment 75 horsepower or greater to either meet Tier 4 non-road emission standards or have EPA- or California Air Resources Board-approved emissions technology that reduces particulate matter emissions by a minimum of 20 percent. (NEDC’s Clean Construction Workgroup is currently looking at updating the model specification.)

Every qualified contractor can bid; every low bidder runs cleaner equipment.

There’s a better way, says Leah Pilconis, senior environmental advisor to the Associated General Contractors of America. Pilconis says not only does including such language in contracts impact bid competition, it also discriminates against contractors based on the age of their equipment. “Let’s say a smaller contractor who has an older fleet is bidding against a company that’s already retrofitted their equipment. One contractor has to factor in the cost of retrofitting into their bid and the other one doesn’t,” she says.

To counter these contract requirements, AGC sat down with the Clean Air Task Force, a non-profit environmental group, and came up with a win-win solution. The two groups agreed to achieve diesel emission reductions in federally funded transportation projects not through contract requirements, but through change orders made after the bids are awarded.

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States would require successful bidders on federal transportation jobs to identify the off-road diesel equipment they plan to use on the project. States would then issue change orders requiring contractors to pursue the best EPA-approved options for reducing diesel emissions. The change order would fund 100 percent of contractors’ compliance costs.

This approach – which would be funded through the Congestion Mitigation and Air Quality program that’s already part of present highway funding – makes perfect sense. If clean air is a governmental goal, then government should help contractors reach that goal without forcing them to refashion their fleets and bid strategies in ways that run counter to market forces. Every qualified contractor can bid; every low bidder runs cleaner equipment.

It would be a great template for CARB – if the agency would look up long enough from defending its skewed off-highway rules to see it. EW