Hearings and Business Meetings

SD-366 Energy Committee Hearing Room 02:30 PM

Ms. Cindy Wood

Wood's Fire and Emergency Services, Inc.

 

 

United States Senate

 Committee on Energy & Natural Resources

 

Subcommittee on Public Lands and Forests

 

March 1, 2006

 

Dirksen Senate Office Building

Room SD-366

 

Washington, D.C. 

 

Testimony of

 

Cindy Wood

 

Chief Executive Officer

 

Wood’s Fire & Emergency Services, Inc.

 

Director of California Chapter & Representative of

 

National Wildfire Suppression Association


Mr. Chairman, members of the committee, thank you for the opportunity to present the following testimony.  My name is Cindy Wood and I am the Chief Executive Officer of Wood’s Fire and Emergency Services, Inc. (Wood’s Fire) specializing in wildland firefighting equipment, personnel, project and prescribed burning services and fuels reductions services locally and nationally since 1986. My business is located in the central Sierras of California and Nevada with stations in Portola and Truckee, CA, Reno, NV, and Prescott, AZ. Wood’s Fire is a California Small Business Administration-certified, woman-owned, minority, small business.

 

My testimony is on behalf of the National Wildfire Suppression Association (NWSA) and the California Chapter of NWSA that have extensive experience in these issues.  The NWSA has been in existence since 1991 and represents more than 200 contractors with six chapters throughout the United States. In addition, it has affiliate members including the Northwest Contract Firefighters Association, the Oregon Firefighting Contractors Association, the Northern Rockies Wildfire Contractors Association, and the Western Forest Fire Services Association.

 

NWSA’s members provide fire crews, engines, water tenders, showering units, catering units, tree fallers, dozers, and other resources to help battle wildfires across the United States. NWSA members have also been used by the Federal Emergency Management Agency (FEMA) for other national emergencies such as the Shuttle Recovery, hurricane clean up and other disaster relief.

 

In recent years, the contract fire industry has become an efficient, increasingly vital resource to federal, state and local wildfire suppression officers and public land managers. This is evidenced in the expansion of national “Best Value” engine and crew contracts, which represent a more formalized relationship between the government and the fire suppression contractor. A feature of these contracts is clearly defined standards and inspections.

 

NWSA’s primary goal is to support and assist its members to be successful in their areas of contracting expertise and provide services that meet or exceed national standards. Another goal is to achieve national recognition as a professional organization, or cooperator.

 

Purpose of the Hearing

 

The purpose of today’s hearing is to review the role of the Forest Service and other Federal agencies in protecting the health and welfare of foreign guest workers carrying out tree planting and other service contracts on National Forest System lands, and to consider related Forest Service guidance and contract modifications issued in recent weeks.  

 

As a regional and national contractor pre-qualified to bid on fuels reduction projects, I am bidding against, working with and completing work after companies utilizing foreign guest workers have completed their assigned tasks. The traces left behind of their nomadic lives are evident in the forest.

 

My company and several other local companies and community businesses within the Herger-Feinstein Quincy Library Group Forest Recovery Act (HFQLG Act) project area in Plumas County are dealing with the short and long term effects of the exploitation of foreign guest worker companies. Money that should have been spent housing and feeding these guest workers is taken out of the local community. Contract awards are at ridiculously low prices and we cannot compete with these nomadic contractors as we comply with all training, insurances, and federal and state regulations. We have opened dialogue on a local and national level with the U.S. Forest Service and the Quincy Library Group to bring the situation of the “Pineros”—men of the pines—to light and discuss possible solutions.

 

Historical Background

 

Starting in the 1970’s there was a big push by industry and agencies for education and compliance in the reforestation industry. It was not until the agencies and industry worked together towards a solution that there was some success. However, due to the nomadic nature of many of the non-compliant companies, a large number evaded the regulatory agencies giving them an incredible competitive advantage with their pricing schedules. Compliant companies were then subjected to over-regulation and driven out of business or no longer able to be competitive.

 

The effect of the spotted owl has been dramatic on the reforestation industry resulting in a huge downsizing. Many of the companies that once did only reforestation are now moving into the fuels management and fire industries. Along with this transition have come some of the practices that are now plaguing the industry. Many established and new compliant companies have hired local workers who have been displaced by the spotted owl and slowing logging industry. Many wildland fire services companies began bidding on fuels reduction and forest services contracts to reduce the attrition and costs of keeping employees available for fire emergencies. The training and regulatory costs for this industry is staggering.

 

In any industry there are companies that abide by the rules, those who sometimes adhere, and others who evade the rules every chance they get. The forestry, fuels and fire industry is no exception.

 

Why is this happening?

 

Agency personnel are not fully trained, equipped or empowered to recognize, report and respond to the signs of foreign guest worker exploitation. Direction for checks and balances has not been implemented.

 

Language barriers make it impossible to communicate to workers directly about their conditions.

 

Lack of enforcement for existing State and Federal labor regulations and laws is minimal due to mobility and the nomadic nature of the companies exploiting the foreign work force.

 

Payroll deductions for the use of tools and even personal safety equipment to complete the forest work in addition to recruitment or management fees, mileage and lodging is common.  This borders on indentured servitude.

 

Contractual verbiage needs to address and initiate compliance tools within the contract vehicle.

 

Agencies are pressured to produce results quickly and at the lowest cost possible, at the sacrifice of American workers and small business.

 

My Experience

 

I run a well trained, flexible and small local work force that strives to provide a quality product at a good value to my customers on federal and non-federal lands. Mediocrity or minimal work performance is unacceptable by me or my husband who is Chief of Operations. We employ up to 22 local young men and women with a cadre of very seasoned managers. We are a niche company that adapts itself to the needs of the working fire environment in the most modern sense. We are striving to make a difference in our community by making it Fire Safe with fuels reduction services and we protect it when fires are a danger.

 

I can speak of the Pineros/foreign guest worker issues based on first hand experience.  My company, Wood’s Fire, once subcontracted to another company that utilized foreign guest workers to perform project burn work on the Plumas National Forest.  Wood’s Fire was subcontracted to provide the expertise and management for the burn operation.

 

During the course of the project, my managers witnessed many instances of practices by the prime contractor that were questionable at best if not non-compliant with applicable regulations.  These included: unhealthy sleeping conditions for foreign guest workers in the field when it was freezing or snowing; unacceptable foot attire; and transport vehicles lacking proper license and other certification information.  Only after my managers brought the sleeping conditions to the attention of the prime contractor was lodging provided for the foreign guest workers.

 

From day to day we had a revolving door such that we did not know from one day to the next what foreign guest workers would be working.  The project managers and supervisors from the prime contractor’s company stayed the same but the foreign guest workers would change.  Without proper documentation, particularly fire qualifications for who was working on any given day, it became difficult to ensure safety and performance.

 

Also, at one point, the prime contractor dismissed the Burn Boss, one of my managers, from the burn operations.  This decision to reduce the prime contractor’s costs put my company in a very difficult situation because I was ultimately liable for any escape of the burn operations.  This concern was compounded by the fact that the prime contractor refused to provide proof of workers compensation and liability insurance after I had already provided my insurance documents.  So my assumption was the prime contractor did not have proper insurance.

 

These problems combined with communication and chain-of-command problems led my company to terminate its work with the prime contractor.  At that time we also notified the appropriate agency contracting officer representative.

 

To demonstrate how these practices stifle competition, I’ve included the following table:

 

 

 

Compliant Contractor

Non-compliant Contractor

Task

Acres

Unit Price

Total

Unit Price

Total

Thin, lop, scatter

474

$98.50

$46,689.00

$57.78

$27,387.72

Thin

102

354.12

36,120.24

46.00

4,692.00

Thin & pile

77

442.65

34,084.05

198.00

15,246.00

 

653

 

116,893.29

 

47,325.72

 

 

 

 

 

 

 

 

Total Difference

$69,567.57

 

 

 

Total Difference/Acre

$106.54

 

 

This table shows the difference between actual bids on the Pull Plug Pre-Commercial Thinning project on the Modoc National Forest.  The “Compliant Contractor” bids are courtesy of Firestorm Wildland Fire Suppression, Inc., a local contractor in Quincy and Chico, California.  Firestorm was agreeable to opening its books to demonstrate how hard it is to compete with non-compliant contractors.

 

Solutions

 

The National Wildfire Suppression Association believes the issues surrounding the Pineros do not require any new laws or regulations. What is required is better utilization of existing contracting authorities and greater enforcement by the agencies to both address the needs of foreign guest workers as well as protect local jobs.

 

More specifically, the vast majority of these types of service contracts are an Invitation for Bid (IFB) or a Request for Quote (RFQ).  Both of these are awarded based solely on the lowest cost bid.

 

NWSA would like to see the agencies instead use the Best Value Request for Proposals (RFP) or Best Value Indefinite Delivery Indefinite Quantity (IDIQ) contracts for this type of work.  The RFP and IDIQ are both existing contract vehicles and would lend themselves to the new Stewardship Contracting authority.

 

NWSA believes that using RFPs and IDIQs will provide the agency better means to assess the bidder’s actual business.  Such assessments may include but not be limited to financial ability, experience, past performance, technical qualifications, and the ability to provide local jobs.

 

One of the purposes of this hearing is to comment on Forest Service guidance and contract modifications issued in recent weeks.  I would like to offer some very specific comments in this regard.

 

On November 18, 2005, Forest Service Chief Dale Bosworth sent a memo to the field regarding “foreign workers on H2B seasonal work visas” and how “Concerns have arisen about some contractors exploiting these workers and about the health and safety conditions they work under.”  The Chief is only hitting a part of the problem.  That is, these concerns are not exclusive to H2B seasonal workers.  In fact, I would submit that this is not where the problem lies.  Instead, the greatest exploitation comes from those contractors that do not abide by the rules including the H2B rules.

 

Also in the Chief’s memo, he makes three key points: (1) on matters beyond the responsibility of the Forest Service, e.g. immigration law or OSHA regulations, that the agency personnel are to “promptly report the situation to the appropriate oversight agency and to document the notification”; (2) on matters within the Forest Service’s scope, e.g. safety equipment, the Chief says “don’t let them work”; and (3) documented violations must be a factor in evaluating future bids and awarding future contracts.

 

I will comment on these three points.  First, point (1) above is simply passing the buck.  If the Forest Service representative knows enough to promptly report the situation, they should also be stopping all work.  Prompt reporting to the appropriate oversight agency does not ensure prompt investigation by the oversight agency and thus the contractor is allowed to continue working.

 

The second point should be a given.  If the Forest Service representative sees a safety violation or something similar, they can and should immediately stop all work.  As the Chief said in his memo, this is nothing more than just as “we would [do] with our own employees.”

 

We agree entirely with the Chief’s third point that documented violations, whether arising from (1) or (2) above should be a prominent factor in evaluating future bids and awarding future contracts.  We also feel the only way the Forest Service can do this is to move away from the IFB and RFQ to the RFP and IDIQ Best Value contract vehicles.

 

There is one last comment on recent contract modifications I’d like to make.  On January 4, the Director of Acquisition Management sent a memo to the field with new provisions for service contracts.  We have reviewed these provisions and support adding them to the contracts.  It is our interpretation that these provisions articulate worker safety, lodging and other existing requirements.  By including these in all service contracts, all parties will be working from the same set of information.  We also believe by including these provisions, the agency representatives will be better empowered to enforce existing regulations.

 

Recommendations

 

“Inspect What You Expect”

 

Contractually set up a system for checks and balances for Contract Officer Representative (COR) and contracting office to utilize in their “tool box”.

 

1.      Notification of Lodging & Food facilities for foreign guest worker (FGW) companies.

2.      Notification of Work Schedule and the Work Area to COR daily to be able to track and catch non-compliant companies

3.      Defined work hours to be negotiated (i.e.: daily start time, weekend/holiday exemptions)

4.      Employee verification to address matters of Homeland Security, for example:

a.       Photo Id

b.      Social Security

c.       Work Visas

                                 i.            *To be carried in the field by FGW company representative at all times with their copy of contract specifications. This is mandated in the fire fighting community, why not in this environment.

5.      Changes in project staffing would use same protocol

6.      Development of checks and balances in the initial contract award work place

a.       Verification of employee id’s, work visas with existing data bases being implemented now by the Forest Service with the fire community

b.      Employee Disclosures as stated by U.S. Department of Labor

c.       Contractor verification of all insurances, review of class codes for Workers Comp Insurance

d.      Disclosure of I.N.S., D.O.L. suspensions, fines, resolutions of findings by contractor with cross check

e.       Company Ownership disclosure on all contractors and subcontractors to assure violators are not forming new companies

7.      Agency Law Enforcement Officers (LEO) be cross trained by I.N.S. or other specific agency to perform spot checks.

8.      COR or LEO need to communicate in the language of the FGW at the project site to conduct interviews or have a bilingual individual on contract to help with this need. Possible bilingual ratio to crew workers development

9.      Assure all required postings are on the job site

10.  Assure all company vehicles are marked with the proper ID/Company designation as outlined by D.O.L./I.N.S.

 

In Closing

 

Recently I discussed this situation with my parents and asked them about my family’s experience with migrant labor. Coming from a Mexican and French heritage with my ancestors legally migrating across the Mexican Border into Arizona and California in the 1900’s as workers in the agriculture, ranching and mining industries or to escape being killed during revolutions, they found the information deeply disturbing and unacceptable. As children, when school was out they went on family working vacations and picked nuts and apricots and were never subjected to the conditions that the Pineros and other foreign guest workers endure now trying to attain the “American Dream”.

 

I concur with my parents. These people are being exploited and it needs to stop in a fair and swift manner. It is my fear and the fear of private industry that history will repeat itself with the over-regulation of professional, capable and compliant companies. That the nomadic contractor practices of the past will slip thru the regulatory cracks and local small businesses and communities will suffer. We only want a fair chance to compete. Long term stability for the industry is the result of better written contracts and enforcement of existing rules. It will provide a better product to the agencies that are stewards of our natural resources and better protection to the worker.