HUB Phoenix Construction News Issue # 2
April 2014
Volume: 1
Vice President of Construction Services: Dave Bentley
780-453-8419
Our Surety Team Director of Surety Relations/Marketing: Drew Adam
780-453-8405
Account Executives: Randy Singh Rick Steenbergen
780-453-8414 780-732-9917
Account Manager: Robert Leddy
780-453-7752
Construction Service Support: Leila Zdebliak
780-453-0839
Our Construction Insurance Team Account Executives: Donna French Brent Sierpinski Karla Nichols
Welcome to our Spring installment of our newsletter. 780-453-8417 780-453-8426 780-453-7757
Account Managers: Jennifer Badgley Shannon Mackelson Raumy Mostafa
780-732-6883 780-732-6889 780-732-8921
On the Web HUB Phoenix Construction Team
Website: Email: Follow us on:
How to Reduce the Risk of Contractor Non-Payment
As we move out of what was considered a long winter into what we hope will be a successful 2014 building season, we wanted to draw our readers’ attention to something that is very concerning - the growing issue of contractor nonpayment. While recently traveling internationally with a number of successful local contractors, the common topic of discussion was that of contractor non-payment. One traveler in particular, a respected fifty year veteran of the construction industry, commented that he had never seen the issue of contractor non-payment as bad as it is currently. This is precarious when you stop and think about how vital construction is to the health of Canada’s overall economy.
Issue # 2
April 2014
Volume: 1
HUB Phoenix Construction News
How to Reduce the Risk of Contractor Non-Payment (cont.) Having lived through an era where some notable contractors have defaulted (civil, building, prime subs), our communities have been forced to absorb these “monetary hits”, and it is sometimes very difficult to recover. Employees and their families get hurt financially, companies close their doors, and suppliers take write-downs on their financials. Currently in Ontario, there is a movement afoot to push Prompt Payment Legislation through their Legislature. It is currently stalled having gone through its second reading, but those of us around the country are keenly watching these developments. Through the ashes of it all, there are some clear processes a company can take to protect itself: 1. 2. 3. 4. 5. 6.
Prequalify your clients – do they have clean cash? (private deals often burn GCs and Subs) Read your contract – all of it Know what legal rights you have in your contract (payment, termination, security, etc.) Know what contract security is in place Do not miss important filing dates (schedule, liens and bonds) Seek qualified construction oriented advise (legal, accounting, risk management)
Our Team is 14 members strong with a wealth of experience in the Construction Risk Management Arena. If you have a specific issue you would like to confidentially discuss, a member of our Team would gladly come to your place of business for a conversation.
Dave Bentley, B.A., ACSB, CRM Vice President of Construction Services
2
Issue # 2
April 2014
Volume: 1
HUB Phoenix Construction News
What to Watch Out for Inside the Contracts You Sign (Insurance Specifications) Here at HUB International Phoenix Insurance Brokers we see many different Agreements that are signed by Contractors for the variety of projects that they have been awarded. One of the things that we do as Brokers is to review the Insurance Specifications for each project to ensure that the Contractor has the coverage that has been agreed to in the Insurance Specifications. Over the past years, and in particular, more recently, we note the Insurance Specifications in the Contracts and Agreements that are signed by Contractors on a regular basis are becoming more and more onerous and require Contractors to provide higher limits of coverage, and more coverage extensions are indicated in the various Insurance Specifications. At one time, the typical Insurance Specification would indicate a typical $2 million limit, this has increased to $5 Million being more standard. We commonly see the Insurance Specifications requiring even higher limits. Another trend we see is the requirement for more and more coverage extensions under the Commercial General Liability and the required Property Insurance. In efforts to reduce costs, we see that Owner / General Contractor Supplied Coverage have much larger Deductibles than were seen in past years. Upon review of the Insurance Specifications, we see the responsibility of the large Deductibles is being passed down to each Contractor, Subcontractor and Sub-Subcontractor by contract and subcontract. Even the standard CCA 1 Subcontract indicates that the responsibility of the Deductibles are the responsibility of the party at fault, or the party that benefits from the coverage provided under the agreement. Does your current Broker review your Insurance Specifications, and point out the specific requirements for the Projects that you are awarded? HUB International Construction Services takes pride in the services that we provide to our clients, and we endeavour to ensure that the Insurance Specifications are met for the Agreements signed by our Contractors. Donna French Construction Services Account Executive - Insurance
3
Issue # 2
April 2014
Volume: 1
HUB Phoenix Construction News
Not Getting Paid? Filing a Labour & Material Payment Bond Claim
As a purveyor of Contract Bonds, we spend a great deal of time analyzing and discussing contractor financial statements and there seems to be a disturbing and alarmingly growing trend within the construction industry. Payment to sub-contractors has drastically slowed down or, in some cases, has stopped altogether. This can be for a variety of reasons, not the least of which is the financial difficulty or the insolvency of the contractors they are working for. Certainly, this is a serious issue that jeopardizes the viability of the affected sub-contractor. If there can be a silver lining in this situation, it’s that they may qualify as a Claimant under a Labour & Material Payment Bond (L&M Bond), if one has been posted by the contractor with whom they have a direct contract with. Also, in some cases, contractors further down the construction chain may also qualify as Claimants under that same Bond. An L&M Bond is issued to protect the sub-contractors and suppliers of the Principal named on the Bond. Some items to keep in mind: 1) The L&M Bond is not in place to alter the payment terms of the subcontract. It will not supersede the arrangement for payment contained within the subcontract. 2) The Bond has conditions that must be complied with and timelines that must be adhered to. A claim must be submitted within 120 days of the last date upon which labour and/or material was supplied to the project or 120 days after holdback was due, if filing for holdback nonpayment. 3) Claiming under an L&M Bond does not compromise the ability to file a construction lien on the project, nor does it affect lien rights. 4) You do not need to engage a lawyer when filing a claim under an L&M Bond, although it is recommended. If the contractual avenues with respect to getting payment have been exhausted and any mechanism with respect to dispute resolution contained within the contract has been reviewed, it may be time to file a claim. 1) Procure a copy of the L&M Bond, if one was posted. As it was provided to the company that has contracted the contractor who owes you money, a request to this entity is your first step. Many subcontractors get nervous about this process, not wanting to “rock the boat”. The Bond has been posted for your benefit and you have every right to it. Good practice is requesting a copy of the L&M Bond at the outset of the project. 2) Provide written notice to the Bond Company (Surety) who has provided the Bond with your intent to file a claim under the Bond. In your letter, cite the contractor who you are claiming against, the project name, your scope of services and the Bond number. If time and availability permits, you may want to gather documentation substantiating your claim and submit it at the same time as your written notice. Provision of the following material, early in the process, can certainly create some time efficiencies within the claims process and it will be required in
Issue # 2
April 2014
Volume: 1
HUB Phoenix Construction News Not Getting Paid? Filing a Labour & Material Payment Bond Claim (cont.) If time and availability permits, you may want to gather documentation substantiating your claim and submit it at the same time as your written notice. Provision of the following material, early in the process, can certainly create some time efficiencies within the claims process and it will be required in due course, regardless: 1) Complete copy of your original, signed contract as well as all subsequent change orders issued altering the scope / conditions of your contract. Ensure to include, but clarify, all change orders and amounts claimed but not approved in writing by the Principal. 2) Copies of all invoices, progress billings and statements of account submitted to the Principal on the Bond. 3) Copies of all payments received, including dates received. 4) Copies of Statutory Declarations with respect to your own sub-contractors and suppliers. 5) Copy of the Lien documentation, if one has been filed. 6) Evidence of the last date labour and/or material was supplied to the project. 7) Any other documentation (emails, etc) which you believe will help further substantiate the validity of your claim.
The information above has been intentionally simplified to provide some basic, easy to understand information during what can be a trying time for contractors in this position. We welcome any questions, requests for further information / clarification or requests for help with the process. Feel free to contact our office at your convenience and we will do everything we can to alleviate any concerns. Best of luck out there!! Randy Singh Construction Services Account Executive - Surety
Issue # 2
April 2014
Volume: 1
HUB Phoenix Construction News
HUB International Phoenix Corporate Challenge Team 2014
GO HUB GO!!! HUB International Phoenix Insurance Brokers is proud to take part in this year’s Edmonton Corporate Challenge. The Corporate Challenge is 17 days of sports, recreation, teamwork, spirit, and most of all fun! GO HUB GO!!!
Leila Zdebliak Construction Services Support/Corporate Challenge Coordinator
HUB Phoenix Construction News is published by HUB International Phoenix Insurance Brokers Construction Services Team. 10320 – 146 Street Edmonton, Alberta T5N 3A2