The Contractor’s Compass is the monthly educational journal of the Foundation of the American Subcontractors Association, Inc. (FASA) and part of FASA’s Contractors’ Knowledge Network. FASA was established in 1987 as a 501(c)(3) tax-exempt entity to support research, education and public awareness.
Through its Contractors’ Knowledge Network, FASA is committed to forging and exploring the critical issues shaping subcontractors and specialty trade contractors in the construction industry. The journal is designed to equip construction subcontractors with the ideas, tools and tactics they need to thrive.
The views expressed by contributors to The Contractor’s Compass do not necessarily represent the opinions of FASA or the American Subcontractors Association, Inc. (ASA).
To educate and equip subcontractors and suppliers with the education and resources they need to thrive in the construction industry. Additionally, FASA raises awareness about issues critical to and about construction in the United States.
The Contractor’s Compass is a free monthly publication for ASA members and nonmembers. For questions about subscribing, please contact communications@asa-hq. com.
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Contributing authors are encouraged to submit a brief abstract of their article idea before providing a full-length feature article. Feature articles should be no longer than 1,500 words and comply with The Associated Press style guidelines. Article submissions become the property of ASA and FASA. The editor reserves the right to edit all accepted editorial submissions for length, style, clarity, spelling and punctuation. Send abstracts and submissions for The Contractor’s Compass to communications@ASA-hq.com.
ASA is a nonprofit trade association of union and non-union subcontractors and suppliers. Through a nationwide network of local and state ASA associations, members receive information
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by Ed Zarenski, Consultant
by Dan Broderick, BlackBoiler
by Robert Tuman, CCR Safety Consulting
Contract Provisions That Will Affect Your Insurance Program and What to Do About Them!
by Gary R. Semmer, AssuredPartners
by Dale Carnegie Staff
Contract Review Blindspots for Construction Subcontractors
by Patrick Hogan, Handle.com
by Jim Campbell, AvidExchange
Don’t mean to start this letter on a downer-note…but I’m just listening to the news about the fatal tractor-trailer crash on the CO-KS border, closing down Westbound Interstate-70. Weather was sunny. They’re still looking into the cause, but it makes me want to remind everyone out there - stay alert; do a job right, don’t rush; every job, every task, is a potential hazard - even sitting at a desk. And as the weather gets colder, more weird, more 500-year storms every few years, please get ready, stay ready, and help your neighbors. That’s my public service announcement for this month.
And speaking of weather, our ASA family in SW Florida is still reeling and now recovering from Category 4 Hurricane Ian - the deadliest hurricane to strike Florida since 1935. Estimated damage is between $28-63 billion, most of which through flooding. More than 2.4 million people lost power. Check out the needs of our ASA SW Florida community on our Always Something Awesome page.
Just a few more days until our legal group meets up in New Orleans for their Fall meeting on October 29. If you’re in the area, please join us at the World War II Museum for our fundraiser (or just donate to SLDF) to help their work in defending subcontractor rights around the country. The Subcontractors Legal Defense Fund (SLDF) tackles cases locally that could set national precedent…Texas, Oklahoma, California…wherever.
Also, the Dept. of Labor's Wage and Hour Division proposed a rule that would determine whether a worker is an independent contractor or an employee under the Fair Labor Standards Act (FLSA). Here's a quick summary. Comments on this rule are due on November 28, 2022.
We’ve got some great articles for you this month. Just to highlight a couple: If you’re looking into planning for next year, check out Ed Zaranski’s analysis of where the construction industry is heading. He provides lots of good insight and predictions. Also, Bob Tuman delves into Experience Modification Rate, and what you can do to improve yours.
That’s it from me for now. Thanks for your support of this association, working for your rights, your success, your future. Let us know how we can do better.
Executive Officer of ASA.
AvidXchange announced its new Silver-level sponsorship of the American Subcontractors Association (ASA). This sponsorship announcement comes on the heels of a larger announcement made earlier this year by AvidXchange that its industry leading TimberScan Titanium and AvidPay solution now has API integrations available for Sage 300 CRE, Sage 100 Contractor, Sage Intacct and Acumatica users. All work together to maximize efficiency, minimize risk, and increase visibility.
These new, fully automated integrations offer construction industry professionals, like general contractors, a purchase-to-pay solution which allows them to pay contractors and subcontracts more efficiently using e-payment solutions and can help them save on resources like time and costs by reducing the need to manually handle paper invoices and checks.
“Managing payables and payments can be a significant headache for many organizations, so having an automated solution like AvidXchange, can only create greater efficiencies as well as help save on costs,” said Richard Bright, Chief
“Becoming an ASA sponsor shows our continued support of our construction customers by joining them in this extensive industry network,” Jim Campbell, Vice President of Construction. “On top of communicating with them virtually and at upcoming networking events, we look forward to meeting new potential customers at SUBExcel in March 2023 in hopes that we can help transform the way they manage, receive and pay their bills.”
For more information, visit www. Avidxchange.com/construction.
ASA would like to congratulate ConsensusDocs on 15 years since they were launched and appeared on the cover and editorial of ENR News Magazine. ASA is proud to have been one of the first organizations that helped birth to ConsensusDocs, the first Coalition to bring together 20 diverse and leading design and construction organizations to write and publish standard contract documents. These organizations literally made the DOCS in ConsensusDocs, representing Designers, Owners, Constructors, Sureties, & Subcontractors. They have put over $60 billion of construction under contract and there have been ZERO
reported court case decisions fighting over ConsensusDocs language. Writing best practices that focus on achieving better project results has led to these remarkable results.
On September 23, 2022, the U.S. Department of Energy (DOE) made $7 billion available to fund regional clean hydrogen hubs (H2Hubs) across the country, which will form a key power source in America's future clean energy economy. DOE also released a draft of the National Clean Hydrogen Strategy and Roadmap for public feedback. The H2Hubs will be a critical part of the Department’s efforts to help communities across the country realize the benefits of clean hydrogen and reach the goal of a net-zero carbon economy by 2050. Hydrogen is a versatile fuel that can be produced from clean, diverse, and domestic energy resources, including wind, solar, and nuclear energy, or by using natural gas (while capturing resulting carbon to reduce emissions).
The DOE National Clean Hydrogen Strategy and Roadmap provides a comprehensive overview of the potential for hydrogen production, transport, storage, and use in the United States.
After a two-year delay due to the pandemic, NCS Credit is thrilled to announce the celebration of its 50th anniversary (2020), the anxiously awaited grand opening of its new 3,200 foot building expansion, plus the launch of its updated corporate name, logo and website.
"Over the five decades we’ve been in business, one constant remains: we've stayed true to our roots, always focused on helping businesses get paid for the work they do. And we could not have achieved our remarkable success without the dedication of the talented team here at NCS Credit. Their passion for the work – and putting the client first – shines through in everything they do. Every day, this team upholds our Core Values; we are determined, conscientious, inquisitive, and we have an amazing community." said NCS Credit President Mary Cowan.
Learn more about NCS Credit at NCScredit.com
ASA, along with the Construction Industry Safety Coalition (CISC), are monitoring the following proposed OSHA rules:
• OSHA Blood Lead Level Rulemaking – On June 28, OSHA issued an Advance Notice of Proposed Rulemaking (ANPRM) seeking public input on its standards for occupational exposure to lead for general industry and construction. In short, OSHA issued a series of 60+ questions asking the public input on such topics as the permissible exposure limit to lead and blood lead level triggers for medical removal, return to work requirements, the method and frequency for blood lead monitoring, current practices for PPE, hygiene and training, and more. Comments were originally due on August 28th, but the deadline has since been extended to October 28th. We will continue to monitor
the rulemaking as it moves through the regulatory process and deliver feedback as a coalition as needed.
• Process Safety Management Stakeholder Meeting – OSHA announced the agency will hold an informal stakeholder meeting seeking feedback on its Process Safety Management (PSM) standard on Wednesday, October 12th. First published in 1992, the PSM standard requires employers to implement safety programs that identify, evaluate and control highly hazardous chemicals. The standard is performance-based and outlines 14 management system elements for controlling highly hazardous chemicals. Employers have the flexibility to tailor their PSM programs to the unique conditions at their facilities.
• Changes to OSHA Severe Violator Enforcement Program – In September, OSHA announced it is expanding the criteria for placement in the agency’s Severe Violator Enforcement Program. Since 2010, the Severe Violator Enforcement Program has focused on enforcement and inspection resources on employers who either willfully or repeatedly violate federal health and safety laws or demonstrate a refusal to correct previous violations. In addition to being included on a public list of the nation’s severe violators, employers are subject to follow-up inspections. The new criteria include violations of all hazards and OSHA standards and will continue to focus on repeat offenders in all industries. Previously, an employer could be in the program for failing to meet a limited number of standards. The changes will broaden the program’s scope with the possibility that additional industries will fall within its parameters. The updated program instruction replaces the 2010 instruction, and remains in effect until canceled or superseded.
• PPE in Construction Proposal under OMB Review – On September 7th, the Office of Management and Budget began its review of OSHA’s proposed rule to clarify the requirements for the fit of personal protective equipment in construction. According to the
Spring 2022 Regulatory Agenda, the proposal was expected to be issued in September. We will continue to monitor the status of the proposed rule.
Having a staff that is spread throughout the country has pros and cons. One of the cons is that the group is rarely, if ever, in one place at the same time. Spending our time together on screen calls and the phone is not the same as some in-person bonding. A gathering in Frederick, Maryland in mid-October changed that, bringing the group together for discussions and team-building.
I gave two conference presentations in the past month. The most pressing questions from the audience were (not in any particular order):
1. Are we headed into a recession? When will recession begin?
2. What can be done about the labor shortage?
3. How can we support all the infrastructure work that is about to begin?
Ed Zarenski retired (well, semi-retired) in 2014 from a 42 year career in construction, 30 of those years as a building project cost estimator and construction economics analyst. He now spends his time as a construction economics analyst, author, educator, and presenter. Upon retirement he focused on two life-goals: providing unique construction economics reporting and teaching, which he was fortunate to do at Worcester Polytechnic Institute. He created the blog Construction Analytics as a place where his readers can find in-depth, behind the headlines commentary related to the economics of building construction. Find out more at https://edzarenski.com.
This article is republished with the authors permission. It was originally published in the September/October issue of Estimating Today.
There is no question the sizable drop in starts in 2020 lead to a downturn in construc tion spending, mostly felt in 2021, but this extended into 2022. However, this quick turnaround for residential spending and nonresidential buildings spending is now past the low point caused by the pandemic-initiated slowdown. With new construction starts to date at all-time highs and the forecast for new construction starts in the pipeline, it is hard to envision how this would lead to a construction recession.
• In 2021, new starts increased 17%. Residential +21%, Nonresidential Buildings +15% and Non-Building +9%.
• In 2022, new starts are forecast up 11%. Residential +10%, Nonresidential Buildings +18% and Non-Building +4%.
• In 2023, new starts are forecast up 10%. Residential +12%, Nonresidential • Buildings +7% and Non-Building +11%.
Total of all starts year-to-date in 2022 are up 6% over January - May 2021. Nonresidential Buildings starts are up 17% year-to-date. For the past 6 months, December 2021 to May 2022, residential construction starts posted 5 of the 6 highest months ever. The 6-month total for residential starts is the highest 6-month total ever recorded, up 4% over the previous 6-month record, posted in 2021.
Residential new starts get spent at a ratio of 70:30. Nonresidential Buildings spending from new starts, on average, gets spent over the next 3 years in the ratio of 20:50:30.
{That is, 20% of spending from all starts within the year gets spent within the year started, 50% gets spent in the following year and 30% gets spent in the 3rd and sometimes 4th year.}
So, from this we can say, if new starts are up 10% for the year, then spending from that source will increase 10% x 20% or 2% the 1st year, 10% x 50%, 5% the 2nd year and 10% x 30%, 3% the 3rd year. If we get 3 consecutive years of growth in new starts, there would be no downward pressure on spending for the next 3 to 4 years.
In the 2nd half of 2021, residential starts, although still strong, posted a few lower monthly totals. Although 2022 spending will still finish the year up, these lower monthly starts from late 2021 will work to cause a slight spending dip in the 2nd half of 2022. Nonresidential Buildings spending is slowly increasing in 2nd half 2022. Non-Building spending is flat or very slowly decreasing. The net effect is spending will post a decline in 4 of the next 8 months of 2022, but the total declines may not result in 2 consecutive quarters of declines. By the time we head into 2023, all three major construction sectors are in a growth pattern.
So, we will see a few months of spending declines, but the new starts pool of work is growing, not decreasing. The current forecast model is predicting no recession on the horizon.
This next plot shows labor and volume of work (spending minus inflation) to support that labor growing equally, al beit with short-term peaks and troughs, from 2011 to 2018. In fact, this equal growth extends far back with only few years causing exception to this pattern. This plot, and the extension of this plot to older data, shows that normally, labor increases at the same rate as volume. You can see that 2018 posted a significant drop in volume while jobs continued to increase. This departure had nearly corrected itself by Jan 2020. The most recent construction spending report, issued July 1, revised unadjusted spending data for 2020 and 2021, both years added $30+ billion. That brought volume up those years on this plot. The current spread between jobs and volume of work is still 10%.
In May of 2020, jobs were already on the rebound, but the volume of work was not. Work volume did recover some at the end of 2020 but then fell again, as was predicted, into mid-2021. In May of 2020, jobs and the volume of work were near balance. Since May of 2020, spending increased by 22%, but most of that was inflation. Since May 2020, actual work volume increased by only 1.5%. Jobs increased by 9%.
The last time the normal jobs/volume growth pattern was disrupted like this was 2006, the only other time in the last 25 years this occurred.
Volume, not spending, supports jobs. If volume is down, support for more jobs drops. If jobs increase while volume is declining, then productivity is declining, and the number of jobs required to put-in-place $1 billion of construction volume increases. At the same time, the inverse, the amount of volume put-in-place per job, decreases. This produc tivity loss drives up construction labor cost inflation and the need for additional labor to complete the job.
The current administration has approved an infrastructure spending bill that earmarks approximately $500 billion for construction spending. It will take several years to start all this work.
The infrastructure spending bill may fund construction for a variety of buildings and non-building types of construction, for example, highway, water, and sewer, educational, healthcare, etc. Rather than strictly classified as infrastructure, or as commonly referred to as nonbuilding construction, this bill will fund some forms of buildings and non-building construction in the public construction sector.
The total of all public construction is only 25% of all construction. This subset of construction totals about $360 billion in annual construction spending. It has never increased by more than $37 billion in spending ($35 billion in volume) in a year. Average growth is closer to $10-$15 billion/year. This public sector of construction does not have the capacity to increase by $100 billion/year.
As you can see in the plot above, it takes about 5,000 jobs to support $1 billion of volume for 1 year. So, increasing volume by $35 billion in one year would require 35 x 5000 = 175,000 new jobs for that year. Keep in mind, this is to support a subset of construction that is only 25% of all construction.
Jobs have never increased by more than 400,000 in one year for all construction. Even taking out the 13 years when jobs dropped, the average jobs growth for the past 50 years is only 220,000/year for all construction. That would seem to indicate the average growth for the public sector, at 25% of all construction, averages only 55,000 jobs/year.
Total all construction for the three years 2022-2023-2024 is forecast to increase $140 billion, $117 billion, and $116 billion. The remaining 75% of the construction industry still adds a lot of demand for growth and jobs beyond just that of the public sector that gets a boost from the infrastructure bill. But after adjusting for inflation, the growth in volume over this three-year period is only about $120 billion. That would generate a need to create 600,000 new jobs over the next three years. About 25% of those jobs support the infrastructure funded growth.
If the infrastructure spending bill adds $35-$40 billion/year in spending, $30-$35 billion/year in volume, the need would be 150,000 to 175,000 jobs/year to support that 25% of the construction industry. Since it is unlikely the public sector of construction could add that many jobs, it is more likely the amount of construction added yearly will be somewhat lower.
Infrastructure has a slower spending curve than the 20:50:30 for Nonresidential Buildings, roughly more like 15:40:30:15. If $100 billion of new contract awards start in 2022 than spending would be $15 billion in 2022, $40 billion in 2023, etc... At $100 billion of new starts per year, the highest one-year growth would be $40 billion, probably double the pace the sector can grow.
by Dan Broderick, BlackBoiler
Apocryphally, the phrase “may you live in interesting times” comes from an ancient Chinese curse. In the words of Sir Austen Chamberlain, politician, and brother of the British Prime Minister, Neville, “The curse has fallen on us… we move from one crisis to another. We suffer one disturbance and shock after another.”
There is no doubt that we live in “interesting times” right now, although whether that is a blessing or a curse is up for debate. We have some very strong headwinds as we enter the second half of 2022. The inflation rate
in the US is heading towards double figures (8.6% in May) and hit a 40-year high recently. This may lead to what economists call a “cost of living crisis” which could auger a recession next year. In spite of this, the current economic situation is mixed, with unemployment still less than the number of job vacancies, and some industries seem to be weathering these headwinds with ease. The engineering and construction market is an interesting case in point. Although the supply of new homes has lagged the real demand for the past decade, a potential slowdown in
spending will likely have a significant impact on the residential sector. The home building industry has recovered rapidly after the pandemic. Both residential and commercial builders face the same headwinds, but some are exacerbated.
Firstly, both contractors and subcontractors face hiring challenges. Many construction workers left the industry post-financial crash and then during the pandemic. Replacing them
is certainly challenging. Secondly, the well-publicized issues with supply chains, caused by both the pandemic and the Russian war in Ukraine, deeply affect the construction industry, given its dependence on physical materials. Thirdly, costs of building materials have risen 20.4% YoY and 33% since the start of the pandemic according to the Bureau of Labor Statistics (ref).
Despite all these challenges, the residential construction sector remains strong with a 27% increase in spending in 2021 compared with 2020. In the commercial sector, spending fell 11% for the same period, but a boost is coming from government investments in largescale infrastructure projects (roads, bridges, rail, etc.). But, this is a fragile situation. If interest rates are raised significantly to rein in inflation, then borrowing becomes more expensive and that affects mortgages and house purchases. Let’s assume supply chain issues persist. In that case, contractors and subcontractors alike will need to sharpen up their processes to improve efficiencies and protect margins that are under pressure across the AEC landscape.
RSM, the accounting firm, in a recent post, highlights supply-chain concerns, inflation, and labor shortages as concerns for the AEC industry. RSM recommends that contractors (including subcontractors) prepare for any possible strengthening of these headwinds by, among other things, including price escalation clauses in their construction contracts.
The negotiation of construction contracts is one area where firms in the value chain can hedge and ensure tighter control over these headwinds. Main contractors and their subcontractors, for example, can construct better, more tightly controlled contracts, which reduce risks between them. Often these firms, especially subcontractors, rarely have highly skilled legal staff to manage the complex redlining and negotiation
processes to get to an executable contract quickly. That is not usually their area of expertise. Outside counsel can be engaged of course but that comes at a cost. By automating construction contract negotiations, companies can save cost and reduce the time to an executable contract. Creating a playbook of the ideal contract negotiation position and strategies for all types of contracts from NDAs, MSAs, Time and Material contracts to Lump Sum contracts, and then automating the contract review and negotiation process with the counterparty has enormous potential for cost savings. This is the bread and butter of what BlackBoiler‘s contract review software does for its clients in the AEC space. Playbooks can be rapidly built within the tool by learning from historical contracts, creating rules manually, and using a guided Q&A style playbook builder, allowing thousands of contracts to be automated redlined in 70% less time than manual review.
The outlook may be positive, but there is much that can be done to minimize further potential weakness. It starts with forward planning whether that be pre-ordering materials or tightening construction contracts to reduce risk.
Whether the times we live in are simply “challenging” or they are indeed, “interesting” probably depends on where you sit economically, financially, and politically. For those who operate in the AEC market, it appears to be more the latter than the former. Yes, there are challenges ahead but demand is clearly there and with a focus on efficiency, many contractors and subcontractors can navigate their businesses to a bright future.
Dan Broderick is the co-founder and CEO of BlackBoiler, an automated contract markup tool that instantaneously marks up contracts right in “Track Changes,” just like an attorney. Through deep domain expertise and passion, he's built a vision for BlackBoiler to transform the status quo of contract negotiation.
Before founding BlackBoiler, Dan was an attorney with Kilpatrick Townsend & Stockton LLP, an AM 100 law firm. There, he specialized in negotiation, related disputes, and developing more efficient processes for contract review. He holds a J.D. from American University. Additionally, Dan holds a degree in engineering management. This article was originally published in July 2021, and is reprinted with permission from BlackBoiler.
In my almost 40 years as a risk manager and safety consultant, I was privileged to work with contractors who over time succeeded in lowering their experience modification rates, resulting in lower workers’ compensation premiums and more favorable treatment when bidding work.
Whether it is right or wrong, owners judge contractors on the basis of their experience modification rates, and I recall a concrete contractor client which was disqualified from even throwing its hat into the ring on a $10 million contract due to its 1.17 experience modification rate12 points above the owner’s and
General Contractor’s 1.05 experience modification rate cutoff. The owner questioned the disqualification, but was denied an appeal.
SO…HOW CAN YOU IMPROVE AND LOWER YOUR EXPERIENCE MODIFICATION RATE (“EMR”)?
1. Ask your agent about experience modification rating and the adverse impact of injury and illness claims, and especially the impact of claim reserves on experience modification rates. Many agents possess software programs which can forecast future experience modification rates and premiums based on current claim costs, claim reserves, and other variables such
as payroll and class codes. Workers’ compensation insurance is experiencerated similar to auto insurance surcharges following at-fault events and accidents- i.e. conviction for turning on a “NO TURN ON RED” sign, rear-ending another vehicle, driving while intoxicated. Simply put, workers’ compensation claims, with reserves to pay for “what ifs”, increase EMRs and premiums in each of the 3 years following the claims. Even denied claims can impact your EMR. For example, a contractor’s EMR tripled due to a $250,000+ reserve put on a death claim. The owner’s brother, responding to a weekend emergency, was killed in a head-on collision while
driving to the jobsite. The insurer denied the claim, which a judge overturned 3 years later. Another client, a medical laboratory, experienced a dramatic increase in its EMR and workers’ compensation premium when a lab tech claimed that she contracted tuberculosis from handling tuberculosis-tainted blood two and one-half years after she had left the laboratory. The very thorough but timeconsuming investigation found that she had contracted tuberculosis after moving near the prison where her boyfriend was incarcerated and had contracted tuberculosis.
2. Regularly obtain and review workers’ compensation “loss runs” from your agent. A loss run is a detailed accounting of claims costs- for medical treatment, incomereplacement payments to injured workers, reserves, and claimrelated expenses such as accident investigation and loss control consultation. Reserves are essentially an escrow account the insurer establishes to fund “what ifs”: “What if the injured worker needs surgery and lengthy physical therapy?” “What if the worker can’t return to her or his chosen occupation, and requires job retraining?” “What if the worker is permanently and totally disabled and can’t ever work again?” Insurers report what they have paid and what they have reserved to their states’ workers’ compensation rating and inspection bureaus, which then calculate experience modification rates for the following policy year. KEEP IN MIND THAT THE AMOUNT OF A RESERVE, WHETHER ANY OR ALL OF IT HAS OR HAS NOT BEEN SPENT, IS FACTORED INTO THE BUREAU’S CALCULATION OF EXPERIENCE MODIFICATION RATES. Due to experience rating, regularly reviewing loss run detail is as important as reviewing your company’s sales reports, expenses, income statements and balance sheets. Make believe you are self-insured for workers’ compensation- that every dollar
spent by your insurance company is coming out of your current revenue. Accordingly, it is perfectly reasonable for you to ask adjusters “How did you come up with this reserve?” “Do you need this amount of (reserve) money, given that our employee is back to modified duty and doing well?” “Our employee is back to modified duty. Can you reduce the reserve?” “Our employee has stopped treating and is back to full duty. Can you close the claim?” “What is your plan to resolve this claim?” “Why did you accept (or deny) this claim?” All are reasonable questions.
3. Given that you now have claim details, regularly communicate with adjusters to obtain claim updates. Claims evolve, and you want to know how they evolve- for the better or for the worse.
4. Implement an ACTIVE/ PROACTIVE Early Return to Work Program where you maintain contact with your employee: “How are you feeling? Is there anything we can help you with or do for you? We have a job for you when you’re ready. Here’s what it entails. You can start with a few hours. We’re having a retirement/birthday/holiday party on….- how about joining us?”. PLEASE BE AWARE THAT CLAIM COSTS INCREASE AS LONG AS INJURED EMPLOYEES CONTINUE TO BE OUT OF WORK AND THAT WORKERS’ COMPENSATION ADJUSTERS HAVE NO CHOICE BUT TO INCREASE RESERVES IF THEY SEE THAT THERE IS NO END IN SIGHT. It is therefore incumbent on you, and in your and your injured employee’s best interest, to get her or him back to suitable, productive work, even it is parttime, as soon as medically possible. To company Presidents and senior managers: If you were injured and could not work for weeks or months, what would you like your company to do for you? The active/proactive approach includes contacting your employees’ medical providers to
develop suitable modified duty jobs, and to modify these “light duty” jobs to accommodate the employee’s capabilities and restrictions. The ineffective passive approach relies on the employee’s doctors telling you what their patients are capable of doing. However, most of the time the doctor is going to detail what the employee CAN’T do. How many times have you seen doctors’ reports which state “can’t lift more that … lbs., can’t reach, can’t climb ladders…can stand for a maximum of ….minutes per day?” Come up with jobs and tasks which need to be done but you are not currently doing and put them in a job description which you then send to your employee, her or his doctor, and the insurance adjuster. If the doctor thinks the jobs or tasks will or might aggravate the patient’s condition, modify the “light duty” job and job description and send it back to the doctor, with a cc your employee and the insurance adjuster.
5. Do a better job of screening applicants. Risk management starts with applicant screening. Ask yourself: Do you check references? FYI, after a reference spouts numerous superlatives about her or his former employee, ask “What is the worst thing you can say about ….?”. When I asked this question about a woman I had interviewed for an administrative position, her former employer told me “She has a hard time getting along with co-workers.” I did wind up hiring her, as her positives were more than her negatives. However, after a year we agreed to disagree, as she did have a very hard time getting along with co-workers. She was a good, but not a great individual contributor, but she created friction, dividing and polarizing staff. Try having several (no more than 4) valued, veteran employees and managers interview applicants and then conduct “What did you think of the applicant?” sessions. This will help you to get different and helpful viewpoints. Ask applicants to demonstrate the competence
they claim they have- i.e. operating equipment, ability to read and understand plans, their knowledge of safety- i.e. scaffold safety- especially if they listed relevant experience and knowledge on their applications or resumes. Not necessarily relevant to your line of work, but when interviewing secretarial applicants, I asked one to take a typing test. Her resume stated that she typed 60 words per minute. She said her glasses were in her car, and asked if she could get them. 5 and 10 minutes went by. Where was she? Long story short- she never came back. Perform as many legal background checks as possible. Risk management RULE 1: the more risklowering actions you take, the lower the probability of those risks and injury and illness exposures rearing their ugly heads. AND RISK MANAGEMENT STARTS WITH CAREFUL APPLICANT SCREENING.
6. Develop, implement, and execute a legal policy and procedure which enables you to quickly terminate employees who have misrepresented their skill level, competencies, and are underperforming and/or not meeting the documented expectations you and the new hire agreed on. The expectations should include a safety section- i.e. “We require the following Personal Protective Equipment”. If I had a nickel for all the times I heard a client say “I should have gotten rid of her/him sooner”, I would have amassed a lot of nickels. Often this statement followed unwitnessed accidents and very questionable costly and contentious workers’ compensation claims. Question: what do you think of a claim submitted after you fired the employee?
7. Understand your biases and hit the delete button to remove them from your head. Every applicant screening process should start with a clean slate. Worst case personal example: I was wowed by an applicant who appeared in a suit and tie, was the
breadwinner of a family of four, owned his home, was a licensed insurance agent in his family’s insurance agency, and said all the right things. I contacted references, asked “What is the worst thing you can say about Joe?”, with references replying “I don’t have anything bad to say about Joe”. During his new employee orientation, I detailed my expectations, which included receiving a copy of Joe’s schedule at the beginning of each week along with an activity report detailing the previous weeks’ safety meetings, safety inspections, and other activities. A few weeks into the job, we started getting calls from clients: “Where’s Joe? He was supposed to be at our safety meeting at 11 but never showed up and never called.” Enough noise to cause me to be suspicious and to start documenting these complaints. Further, one morning, while driving back to my office, I spotted Joe’s company car speeding past me and other vehicles and weaving in and out of traffic. Waiting for me back at the office was an urgent request from my insurance agent: call me right away. Back then, Massachusetts assigned numerical scores to driving records. For example, a 9 indicated a perfect driving record. Drivers with at-fault violations were charged additional points. The reason behind my agent’s urgent request: to tell me that Joe’s score was 36, a result of 19 speeding tickets, at-fault accidents and other assorted moving violations (i.e. running red lights, passing an occupied school bus with its “STOP” signs and flashers going)! I confronted Joe and took the car away. At the same time, we discussed the client complaints, and I cited the many no-shows. He gave me a lot of lame excuses which I documented, and which went into a disciplinary memo citing my expectations for the next 30 days. Much to my disappointment, the number and seriousness of the complaints increased during the next 30 days, and I had no choice but to terminate Joe. I later found out that Joe had also had his insurance
agent’s license revoked due to numerous improprieties- one for repeatedly pocketing new clients’ life insurance deposits. Long story short: I was duped by my bias and I only had myself to blame. I had failed applicant screening 101. This guy was a sociopath and an empty suit, and I should have done better.
8. Commit to a goal of lowering your EMR. This will require you to be patient and to implement practical, doable safety practices such as multiple-person lifting and equipmentassisted lifting, Pre-Task Safety Planning for tasks with high inherent risk of injury or illness, daily Foremen/ Supervisor-employee Job Hazard/Job Safety Analysis (“What are we doing today? What do we need to do to keep ourselves safe?), Project-Specific/ Site-Specific Safety Planning are other tools which contractors use to manage the many constantly-changing projectspecific injury and illness risks and exposures.
Can’t or are unwilling to do these things? Hire from a labor service and engage a safety consultant and give her or him the authority to take timely corrective action.
I want to thank all the contractors who listened to me despite their hesitations. I was happy to be told “Bob, you did a great job, but you worked yourself out of a job.” Note to the file: many of these same contractors reengaged my services after they unfortunately relaxed their commitment to safety.
Bob Tuman is president of CCR Safety Consulting in California, providing safety consultation to construction contractors and performing Workers’ Compensation and General Liability Loss Control Surveys for property and casualty insurers. For further information or to contact CCR directly, please contact: 805-545-5976 or email bobtuman@ gmail.com.
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Construction Contracts are becoming more complex, regardless of which ones you're entering into, and the Insurance Requirements often include addendums or exhibits that need to be reviewed to comply with your Insurance Program.
The following are some of the more common Contract provisions that come up today in our Client’s Construction contracts.
It’s important to check with the General Contractor to determine who is going to provide the Builders Risk (BR) coverage (Owner or GC) and request a copy of the BR Policy or BR Certificate of Property Insurance evidencing coverage terms and deductibles. In addition, larger projects often come with higher deductibles and review the contract to see if you are responsible for payment of the Deductible. If that is
the case, either negotiate it out of the contract, or bring it down to a level that you can handle or factor in the Deductible amount into your Bid to handle potential payment of the BR deductible.
2. Property Insurance for Stored Materials: Based on supply chain and scheduling issues, GC’s are requiring Subcontractors to take early delivery of equipment and materials and store them at their warehouse or offsite facility which can create a Property Insurance exposure and add insurance premium costs to their Insurance program. Check with your Insurance Agent/Broker to determine what the additional cost is and factor that into your bid.
3. Indemnification Provisions: Have your Attorney review Indemnification/ Hold Harmless provision to determine that you aren’t accepting “Broad
Form” type Indemnity language for either the Owner’s or GC’s negligence and try to negotiate it out of the contract. The ASA Attorney’s Council has done significant work in this area and can be of assistance.
4. Additional Insured requirements: Just about every Contract we review has a requirement for adding the Owner, GC and others as an Additional Insured’s (A/I) on the Subcontractors’ General Liability (GL) coverage. The key here is to provide the “correct” A/I version or its equivalent so that in the event of a GL claim you aren’t in breach of contract that could lead to possible litigation. It’s important to provide a copy of the Insurance Requirements to your Agent/Broker for review so that you have the appropriate coverage.
5. Waiver of Subrogation requirements: Most contracts today contain a Waiver of Subrogation (WOS) provision for Workers Compensation, General Liability, Auto liability and Umbrella liability which “waives” your Insurance Carriers rights to go after the GC or others if they contributed to the loss. Again, provide your Agent/Broker a copy of the Insurance Requirements to provide the appropriate specific or automatic WOS coverage.
Gary Semmer, CIC CWCA, is Executive Vice President and Construction Practice
Vertical Leader with AssuredPartners. Gary specializes in providing Insurance & Risk Management solutions to the Construction and Real Estate industries. He has served as President of the Independent Insurance Agents of Illinois (IIAI) and Associated Risk Manager
(ARM) of Illinois. AssuredPartners is the 10th largest Insurance Broker and Consultant in the country providing Commercial Insurance, Risk Management, Employee Benefits through consulting and services. For more information on AssuredPartners, please contact Gary at Gary.Semmer@assuredpartners.com or asa@assuredpartners.com.
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by Dale Carnegie Staff
1. When psychological safety exists, team members are more collaborative and more comfortable taking the interpersonal risks necessary to be innovative and to successfully implement change.
2. Teams that lack trust and psychological safety will struggle to be agile.
3. Creating an environment of psychological safety relies heavily on the soft skills and behaviors involved in social intelligence.
“I screwed up.” Three simple words, but in some teams, they might just be the hardest ones to utter — and the organization is inevitably suffering as a result. Not because of the mistake, but because the team lacks trust and psychological safety. Without those key elements, team members will struggle to work together effectively, make good decisions and keep up with rapidly changing business developments. In other words, the team will struggle to be agile.
With artificial intelligence (AI) ushering in a new era in the workplace — one that’s bringing massive, ongoing
change and a lot of uncertainty with it — agility is becoming more and more important. As Dale Carnegie’s research has shown, increased agility will require building an environment of trust and psychological safety that comes from high levels of social intelligence. That’s because, to successfully implement change, organizations need people to feel like they can be honest and not get in trouble for it. With new technology and evolving customer demands dramatically altering the competitive landscape, everyone needs to be encouraged to try new things without fearing backlash if they fail.
In teams where psychological safety exists, people are comfortable bringing up issues, pointing out errors, asking the “dumb” questions and taking a gamble that might not necessarily pan out. Team members are confident in taking interpersonal risks because they know they won’t get punished, blamed or treated like they’re stupid. It’s not surprising then that they’re able to cooperate so well and get the information they need so they can make decisions quickly.
Our research has found that agile teams are fueled by collaboration, creativity, innovation and the ability to thrive through change. They seize on new ideas, respect each other’s input and encourage people to be candid. Because there are many complex relationships that have to be navigated in an agile environment, these teams also have strong trust, both in each other and in their leadership. They don’t have to spend time wondering about hidden motives or worrying about whether their leaders will make the right decisions. In fact, our research has shown that a high level of trust is a hallmark of the strongest corporate cultures and essential to success in the era of AI.
In a world dominated by technology, interpersonal human skills still matter and, in many ways, they matter more than ever. Here’s how you can get started creating an environment of psychological safety to increase your team’s agility:
1. Don’t criticize, condemn or complain: “How could you not know that?” “Where have you been?” “This is wasting everyone’s time!” When someone asks a question and everyone pounces, you can bet that person won’t be speaking up again anytime soon.
Dale Carnegie’s Principle #1, “Don’t criticize, condemn or complain,” reminds us that the quickest way to destroy psychological safety is to criticize or attack someone for something they said or did.
2. Admit mistakes quickly and emphatically, especially if you’re the leader: While everyone is responsible for creating psychological safety, the leader’s actions can be particularly powerful. When leaders own up to their mistakes, they show that it’s okay to not be perfect, and they make it safe for others to follow suit.
3. Be curious and open to different thinking. When leaders model curiosity by asking questions instead of giving direct orders, they’re telling people their opinions and ideas are important. When team members remain curious and open-minded, it helps them avoid knee-jerk reactions that might shut down some of the “crazy” ideas that will open the door to creative, innovative solutions.
4. Take the fear and judgment out of failure. Plans will go wrong. Mistakes will be made. How people respond to another person’s failures and how quickly that person can recover are what matter most. Dale Carnegie offers some helpful guidance in this area as well. For example, often the best course of action is to follow Principle #26 and “Let the other person save face.” Being candid doesn’t mean trampling on someone’s feelings or aggressively calling them out in front of others.
5. Be transparent: Our research uncovered this important factor for agility within the context of artificial intelligence in the workplace. AI can chip away at psychological safety when people don’t understand what it’s doing, how it does it and how it’s being used.
For example, when we asked respondents how likely they would be to trust and accept a performance appraisal conducted by AI instead of a human supervisor, 65% were at least somewhat likely — so long as the criteria were transparent. When we asked the same question with the caveat that the criteria weren’t completely transparent, the percentage dropped to 39%. The lesson: Build transparency in to what you’re doing, and communicate openly with your stakeholders.
As you can see, creating psychological safety relies heavily on the skills and behaviors involved in risk-taking for innovation. These soft skills are increasingly paramount as we look at what it will take to develop the workforce to become more agile and adaptable in this changing business environment.
Robert Graves, MBA, is a Dale Carnegie Certified Trainer for Dale Carnegie Tampa Bay. His focus is Relationship Selling. He is the author of “Making More Money with Technology.” He often speaks on the evolution of Marketing, Sales, and Service. Robert can be reached at robert.graves@ dalecarnegie.com or call/text 813-966-3058.
Dale Carnegie is a global training and development organization specializing in leadership, communication, human relations, and sales training solutions. More than 9 million people around the world have graduated from Dale Carnegie training since it was founded in 1912. Dale Carnegie Training can help an organization build effective interpersonal skills that generate the positive emotions essential to a productive work environment and that lead to increased employee engagement.
Contracts can significantly impact construction projects' profitability, and complacency can lead to wasted resources--even revenue loss. Many fail to be conscientious about reviewing contracts for various reasons--they may have been working with the same client for several projects now, or they've never had issues with their templated contracts, so they don't have a process in place for thorough reviews.
This can spell disaster, especially in construction, where a single project can spell the difference between a business still running and one that has to close down. Contracts are all about shifting risks. The most meticulous party–and, sometimes, cunning–will get the longer end of the stick. You don't want to be shortchanged. It doesn't mean you look at all clients with a judging eye--you just have to look out for your interests at all times. Granularly reviewing contracts is just good practice.
Here are some possible blindspots your company might be overlooking in the contract review process.
While conditional waivers are an essential component of mechanics liens laws, general contractors or clients could include wording in the contract equivalent to waiving subcontractors' right to file mechanics liens in case of payment issues. Watch out for the mention of unconditional waivers and stop payment notices--make sure that the inclusion of these lines isn't impeding your right to file an action in case you don't get paid. Of course, ensure you send the necessary preliminary notices to protect your right to file liens.
Price fluctuations are a big challenge for the construction industry. The
pandemic saw changes in raw material pricing that swung profitability for subcontractors in extreme directions. The prices you've used during the estimation phase won't hold up through to the start of the project. It's not unusual for general contractors to have clauses in their contracts outlining guidelines for any change orders or price adjustments if the prices of raw materials in the market change. Some indicate that the prices in the contract are guaranteed up to a 5% change in the market, but any more would allow for price adjustments. Make sure that any price fluctuation protection considers your situation--especially for lower-tier subs--and is not one-sided.
Here is where conscientiousness can pay off big time. With so many bids you have to send, it might be tempting to skip site visits. If something on the site can dramatically impact the contract price, it's best to know as soon as possible. Many contracts stipulate that getting into an agreement with the client or general contractor means that you've already inspected the site and considered external factors. This prevents you from adjusting pricing when the contract has already been signed.
Conducting a thorough site visit during the bidding phase is imperative–you get more information about the project and can also ensure that your bid allows for actual profits. Letting competitors know about any situation impacting pricing drastically also helps keep the bidding competitive.
While specific clauses can be blatantly one-sided and caught through cursory review, contracts are hotbeds for ambiguity. If everything goes as planned, these clauses may not matter at all. But clients or general contractors will not think twice about using restrictive
language that's open to interpretation against each other or subcontractors if it plays to their advantage, especially when projects get hairy, which they can get.
Many of these one-sided clauses may not even hold up in court, but avoiding anything that could be a cause for concern when in court is best. Getting into litigation always equals wasted time and resources, which significantly impacts a sub more than major general contractors and clients.
Ensure you've considered tool inventory when writing up your contract and estimates. Earmark funds for tools you anticipate needing maintenance or replacement during the project. Failing to include these will muddy your profit projection. Not including explicit wording that allows you to include tools in the pricing is not only bad business practice, but it can also backfire if you have to replace costly equipment in the middle of a project without accounting for costs associated with it when you write up your estimates and contracts.
These are just some critical areas to pay particular attention to when reviewing and drawing up contracts. The back and forth while finalizing a contract can also be a period of massive risk-shifting, so ensure that each exchange is thoroughly reviewed.
Patrick Hogan is the CEO of Handle.com, where they build software that helps contractors and material suppliers with lien management and payment compliance. The biggest names in construction use Handle on a daily basis to save time and money while improving efficiency.
Here’s a closer look at how automated accounts payable (AP) solutions can help the owner keep costs in check, ensure consistent payments to suppliers and streamline back-office operations amidst persistent inflation.
The construction industry wrangles with time and budget pressures as prices on the goods and services it depends on continue to climb to recordhigh levels.
With inflation the highest it’s been in more than 40 years, firms are forced to closely monitor internal and external costs to proactively mitigate market concerns and protect cash flow and bottom line. The extra scrutiny takes a toll on staff, requiring time and attention that can be better spent building the business. And, the rising costs and pricing volatility inevitably churn through budgets, causing overages that lead to project deferrals and cancellations and add to the complexities of doing business, making it tougher to get ahead.
Advanced automation technology can be the key to solving major challenges. Automating financial processes like invoicing and bill pay eases demands on time and budgets, freeing staff to focus on winning and serving customers.
Here’s a closer look at how automated accounts payable (AP) solutions can help the owner keep costs in check, ensure consistent payments to suppliers and streamline back-office operations amidst persistent inflation.
Coming off pandemic disruptions and still in recovery mode, the construction industry is now forced to contend with the inflated costs of doing business, including higher prices on core building materials and labor.
Rampant supply chain shortages and high demand have led to price spikes on critical products like steel, which has more than doubled, and double-digit
increases on lumber, copper, pipe and many other materials construction is dependent upon. According to a 2022 Construction Outlook Report, the steep prices aren’t expected to level off any time soon.
In addition to paying more for supplies, firms are paying a premium for labor, forced to pay up for skilled tradespeople that are hard to come by or risk losing business to those who are ready to work.
As if that’s not enough, the back office is also chipping away at profitability. Paper-based, manual tasks, like those around processing invoices and paying the bills are time and labor-intensive, requiring staff to gather invoices, reconcile, chase approvals across jobsites and cut paper checks for payments.
They are costly processes, especially for an industry that regularly deals with scores of invoices and multiple billing methods, including complicated paywhen-paid structures. Goldman Sachs estimates that a mid-size business
spends $16 to process a single invoice. Automated AP solutions offer a way to offset the costs, reducing it to under $6 per invoice, a net savings of roughly 60-70%
By replacing time-intensive manual processes with automation, firms also save significant labor expense and can often eliminate the need to hire additional AP staff to accommodate new business. Staff are empowered to do more with less and their time freed for more strategic work like strengthening supply relationships and seeking new opportunities.
Construction firms also see a cost benefit from automation on the payments side. E-payment options not only ensure faster, more secure payments, they can also eliminate an estimated $4-20 typically spent to issue a paper check, according to Viewpost and Bank of America, as well as the costs of the envelopes and stamps used to mail them.
Beyond an inflationary environment, the construction industry has been notoriously slow in making payments, as PricewaterhouseCoopers estimates an average 96-day turnaround on payments to general contractors and subcontractors. It’s understandable — construction is a complex business with complicated owner billing and payment structures, frequent change orders and slews of stakeholders. However, sending late payments is not conducive to growing a business, even in a paidwhen-paid scenario.
The industry relies on goodwill and strong relationships, which depends on prompt, accurate payments. It’s how firms develop supplier relationships and win subcontractors’ loyalty, ensuring that they have what it takes to complete jobs and bid new ones.
But, despite good intentions, consistently paying the trades and suppliers accurately and on-time takes precise management of cash flow, which starts with more efficient owner billing, evaluating pricing fluctuations, ensuring change orders are approved in a timely manner, and monitoring shifting
inventory levels of essential building components.
It also means collecting invoices and supporting documents from scores of subcontractors and suppliers, reconciling data to ensure what’s been billed has been delivered and securing invoice approvals from people scattered across job sites. After all of this effort, do we really want to extend the process by cutting paper checks and relying on a third party to deliver them?
Invoice management solutions powered by automation offer a solution by enabling invoices to be automatically acquired, coded and sent to the appropriate workflows for approval through machine learning technology. Automated bill payment software can then be used to accelerate payment deliveries and construction companies can offer contractors and vendors their preferred method of payment, such as Automated Clearing House or Virtual Credit Cards, both of which are executed faster and more securely than paper checks – to determine what works best.
In addition to saving the industry time and money and ensuring speedy payment, automating the AP department streamlines back-office operations and provides newfound visibility that is especially critical during the inflationary environment.
For example, depending on manual processes to make sense of an avalanche of change orders and shifting work and supplies to accommodate them opens up the potential for error, as well as missed opportunities. With better insights into expenses and incoming payments, firms can more accurately bid projects, allocate resources and make projections to improve margins and ultimately profitability.
Streamlining the back office with cloud-based automation that seamlessly integrates with existing accounting software allows construction firms to accept online invoices, pay them electronically and keep real-time records of transactions and supplier data. By storing financial data in the cloud,
they can access it from anywhere, at any time. The visibility enables them to quickly and easily assess which materials have been delivered and are ready for payment, track costs to better manage cashflow, and run reports to monitor spending trends and forecast income.
Demand for construction is projected to continue its upward trajectory, offering up a wealth of opportunities for firms to expand and evolve. But businesses will continue to face hurdles, including persistent inflation and a dwindling labor force.
Modernizing the financial side of the business with automated tools will help to alleviate these pressures, saving time and money and strengthening the relationships construction. Moving AP processes to the cloud will also give better access to important financial data and powerful insights to help monitor financial health and guide important decisions to not only sustain business but scale it to embrace new opportunities despite market constraints.
Jim Campbell is VP of Construction Sales for AvidExchange. Jim began his professional career in 1979 with Timberline Software Corporation, a pioneer in the development of application software for the construction and real estate industries, eventually rising to Vice President of Sales in 1996. The company was purchased by Sage Software, and he continued in his senior management role there until 2005, when he became president of CIS Consulting Group, Inc. in Charlotte, NC. In 2010, CIS was acquired by Viewpoint Construction Software, where he served as Channel Sales Manager for North America before joining AvidXchange. Learn more at avidxchange.com/construction.
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Wednesday, November 9, 2022 | 12:00 - 1:00 pm (EST)
Builder’s risk insurance is essential in helping protect construction projects, but can be complex and often misunderstood. However, having a properly structured builder’s risk insurance policy can be crucial. In fact, it will serve as the backbone of a successful risk management program, protecting projects from damage due to fire, theft, and Acts of God, and more. Get your questions answered, learn what you need to know to protect yourself and your company. Register for this webinar.
in the November 2022 issue of FASA’s
• Are You Losing Contact with Sales Humanity?
Wednesday, December 14, 2022 | 12:00 - 1:00pm (EST)
“SBA Office of the National Ombudsman: A small business ally for regulatory issues.” Created in 1996, the Office of the National Ombudsman works with each federal agency that has regulatory authority over small businesses to ensure regulatory issues are handled and enforced fairly. They are a voice for small businesses that have concerns about the implementation of federal regulations and can help you navigate the complex world of compliance. The Office of the National Ombudsman is a free and valuable resource, so this is a webinar you won’t want to miss. Guest Speaker: John Kelly, External Relations Manager, Office of the National Ombudsman, U.S. Small Business Administration
Presented by: John Kelly, External Relations Manager, U.S. Small Business Administration
John Kelly has been with the Small Business Administration now for thirteen years. First at the SBA’s Washington, DC Metropolitan Area District Office where he served as a Business Opportunity Specialist for the 8(a) Program where he supported small business owners with their business development needs. Then moving into his current role at SBA’s Headquarters, Office of the National Ombudsman, where he assists small business owners that feel they are being negatively affected by federal regulations, excessive audits, and unfair penalties and fines. Prior to that John spent 15 years as a Business Development and Finance Director for the Corporate Office of a national franchisor where he aided small business owners in the capitalization of their start up or expansion of their small businesses
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