Construction Corner - November 2018

Michael E. Catania
Legal News and Updates for the Design and Construction Industry

OSHA Reveals Top 10 Violations for 2018



Its that time of year again ... no, not the Holiday season, its time for OSHA to reveal the most cited violations for the year:

1. Fall Protections
a. Failing to provide fall protection systems/protections for employees working near/on elevated surfaces such as roofs, excavations and hoist areas.
b. Failing to provide protection from falling objects.

2. Hazard Communication
a. Failing to identify toxic or hazardous chemicals and substances.
b. Mislabeling of hazmat.
c. Failing to maintain safety data sheets on-site.
d. Lack of documented safety training.

3. Scaffolds
a. Failing to provide safe scaffolding design, installation and use including suspension, ladder jacks, top plate brackets, roof brackets, outrigger and pump jack scaffolds.
b. Failing to provide fall protection/arrest systems for 10 ft plus scaffolding.

4. Respiratory protection
a. Failing to provide workers with respirators to protect against contaminated air.
b. Lack of engineering controls such as ventilation or enclosures or confinement of operations.

5. Lockout/tagout
a. Generally excludes construction industry but is applicable to contractors who perform electrical work on their own premises.
b. Failing to have/maintain devices that prevent equipment from starting up such as devices that isolate breakers; prevent fluid or gas valves from being opened; lock out electrical plugs, cords and air hose connectors; or prevent flipping of an "on" switch.

6. Ladders
a. Failing to abide by maximum loads.
b. Improper rung/step placement.
c. Lack of skid resistance, clearance and safety devices.

7. Powered industrial trucks
a. Improper use of platform lift trucks, motorized hand trucks, fork trucks and other electric or gas-powered trucks.
b. Improper design, lack of fire hazard safeguards.

8. Fall protection — training requirements
a. Failing to provide adequate fall protection training.

9. Machine guarding
a. Failing to protect operators from injuries caused by sparks, flying chips, rotating parts and other dangers.
b. Failing to have in place accepted controls such as barrier guards, two-handed tripping devices, electronic safety devices and anchoring to keep fixed tools or equipment from "walking" during operations.

10. Personal protective and lifesaving equipment — eye and face protection
a. Failing to provide hazard-specific eye and face protective gear.
b. Failing to assure worker compliance.


Miller Act
The recent United States Court of Appeals case of K-Con, Inc. v. Secretary of Army serves as a potent reminder to federal contractors with respect to payment/performance bonds. 40 U.S.C. §§ 3131, commonly known as the Miller Act, requires that before a contract for construction of any Federal Government building or public work in excess of $150,000 is awarded, the contractor must provide performance and payment bonds to the Government. As K-Con points out, this is the case even when the bonding provisions are not part of the contract. C.A. No. 2017-2254 (Fed. Cir. Nov. 5, 2018). Specifically, as miller bonds are mandatory under applicable federal law and in the interest of public policy, their insertion into federal contracts was mandated.

Takeaway- Contractors who bid federal government work should be aware of the bonding requirements under the Miller Act, regardless of whether they are indicated in the bidding documents. Failure to account for the provision of these required bonds could result in significant underbidding and subsequent loss of profits.  



This Newsletter is meant to provide general information only and not to provide legal advice or opinions. The viewing of the information contained in this newsletter should not be construed as, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance on the information contained herein and we disclaim all liability with respect to actions taken or not taken based on any or all of the contents of this newsletter to the fullest extent permitted by law. An attorney should be contacted for advice on specific legal issues.

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