The Professional Contractor - Spring 2017 by The Warren Group

THE PROFESSIONAL

SPRING 2017

A Publication of the Associated Subcontractors of Massachusetts, Inc.

The Journey & Success of Women in Construction

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THE PROFESSIONAL

A Publication of the Associated Subcontractors of Massachusetts, Inc.

cover story features

16 The Journey & Success of Women in Construction 04 PRESIDENT’S VIEW The Technology of Tomorrow Is Here, and We Need to Prepare

20 TECHNOLOGY 3D Documentation Technology in the Construction Industry

05 MESSAGE FROM THE CEO An Anniversary and a Goodbye

22 PLANNING The Benefits of an Employee Stock Ownership Plan in Succession Planning

06 LEGAL Boston Implements New Residents Jobs Policy 08 ACCOUNTING New Accounting Rules for Contract- Based Companies Looming – Will You be Ready? 10 MEMBER PROFILE Front Line Inc.: Professionalism Under Pressure

23 LEGAL BRIEFS I-9 Records: Keep ’Em Up-To-Date! 24 TECHNOLOGY The Future of Tool and Equipment Tracking Is Here 26 CONTRACTS New Updates to ConsensusDocs Contracts to Reflect Today’s Industry

12 LEGAL Political Contributions: What Corporations Can 28 BONDING and Cannot Do Under the Law Small Business, Big Opportunity 13 TAX Subcontractors Can Tap into Valuable R&D Tax Credits

29 ASM NEWS & EVENTS

30 PROJECT PHOTO GALLERY

14 TRADE TECHNOLOGY Waste Heat Reclamation and Cogeneration Helps Drive a Subcontractor’s Success

The Professional Contractor

PRESIDENT’S VIEW

BY JOSEPH H. BODIO

The Technology of Tomorrow Is Here, and We Need to Prepare

here’s no denying it: technology has grown tremendously over the last few decades, and whether we’d like to admit it or not, we have grown dependent on it. It affects our daily routines, our personal relationships and our careers in ways that we may not even realize until we examine how things have changed over our lifetime. In many respects, technological developments have made our lives, and especially our jobs, easier. Transitioning from computers to tablets, landlines to mobile devices, and postage to emails and text messages – our lives have improved drastically in just a matter of years. The advancements in technology allow work that was once performed slowly and methodically by hand to be done much faster and more efficiently at a fraction of the cost. (Read more about one such technology that’s come a long way, on page 20.) It’s allowing people to focus their efforts on other projects and develop more creative ways to improve the job at hand. It’s clear that the technology of today has catapulted us forward at a rate unlike any we’ve seen in recent history. However, as we sprint through time enjoying all that these technological advances have to offer, we need to consider what we’re losing as a result. It’s no secret that over the past few decades, technology and machines have been taking over what were originally person-held jobs. Printing presses, which were once a thriving industry providing jobs to thousands of people, are now obsolete, Joseph H. Bodio is founder, president and CEO of LAN-TEL Communications in Norwood. He can be reached through ASM at 617-742-3412 or by email at president@associatedsubs.com.

with printed material produced through a variety of machines. As recently as last year, toll booths that once provided hundreds of jobs in Massachusetts are now gone and replaced with automated sensors. As we look forward a few years, I’ll even make the bold prediction that drivers will surely lose their jobs to driverless cars. Technology is developing at such a fast pace that the reality of more jobs being taken over by machines is inevitable. Our industry is not immune to these changes, either. Not that long ago, it took about six workers to produce an air duct. Now, with the help of machines and improved production lines, it’s reduced the necessary manpower to virtually one. In the near future, individuals won’t even need to do physical walk-throughs of sites anymore. Drones have evolved so much that they will be able to provide the opportunity for project managers and contractors to check the status of their projects from the comfort of their office. Even holograms on the worksite aren’t too far off on the horizon. To state the obvious, technology is rapidly evolving. It’s evolving so fast, in fact, that it seems as if the human population is struggling to keep up with it. Many people are losing their jobs to new advances, yet there aren’t enough people entering science and technology fields to meet the growing demand of jobs in these fields. Technology isn’t slowing down, so we need to find ways to keep up with it. Providing our workforce with updated training on the latest technology – as ASM does through regular technology showcase events – and staying informed on what’s coming down the pike will help to keep our workforce from becoming obsolete, and allow our business to grow with the frequent changes rather than be left behind. s

The Professional Contractor is published by The Associated Subcontractors of Massachusetts, Inc. 15 Court Sq., Suite 840 Boston MA 02108 tel 617-742-3412 | fax 857-453-4338 mail@associatedsubs.com | www.associatedsubs.com

ASM Officers

President: Joseph H. Bodio, LAN-TEL Communications, Inc. President-Elect: Susan M. Mailman, Coghlin Electrical Contractors, Inc. Treasurer: Russell J. Anderson, Southeastern Metal Fabricators, Inc. Vice President: Steven P. Kenney, N. B. Kenney Co., Inc. Vice President: Scott H. Packard, Chapman Waterproofing Company Past President: Richard R. Fisher, Red Wing Construction

Spring 2017

ASM Directors

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©2016 The Warren Group, Inc. and Associated Subcontractors of Massachusetts, Inc All rights reserved. The Warren Group is a trademark of The Warren Group Inc. No part of this publication may be reproduced in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without written permission from the publisher.

MESSAGE FROM THE CEO

BY MONICA LAWTON

An Anniversary and a Goodbye: A Message from the ASM CEO

his issue marks the 10 year anniversary of The Professional Contractor, which debuted in 2007 with a cover story on the “surge of commercial starts on the horizon” and ambitious plans for a tower to rise above Boston’s South Station. Ten years and a major recession later, we’re back to where we were then – with the economy once again booming and plans once again taking shape for a tower to rise above South Station. But so much more has happened during the span of 10 years, too – all covered in the pages of this magazine. New university, hospital and big pharma buildings have sprung up across the region, along with new hotels, office and condo towers in Boston and mixed use developments across the state (not to mention casinos), all chronicled in numerous TPC cover stories. ASM has moved twice – and now looks out over one of the newest landmarks in the city, the Millennium Tower (see the Winter 2015 issue). In the public sector, a new form of procurement took hold, in the form of CM at Risk, and became the building method of choice on the state’s major capital projects (Spring 2008). The city of Boston updated its Boston Jobs Residents Policy BRJP to reflect changing demographics and a commitment to greater opportunity and diversity on projects in the city (this issue, page 6). ASM elected its first female president, Sara Stafford, who served 2008–11 (Winter 2008) … and our next is poised for election this fall. Indeed, women have found a firm place in the industry and are making their mark (see cover story, page 16). As noted by Joe Bodio in his column, technology has changed our lives – and our industry – and continues to do so at increasing speed. It’s a theme that shows up, repeatedly, in every issue of the magazine, including this one. Perhaps most surprising of all, is that the basic rules of the game have changed, too – bringing a hint of fairness to industry relations.

Prompt Pay (Summer 2010) is now the law in our state (if not always the practice!) and retainage on large projects is now limited to 5 percent (Fall 2014). And the sky still hasn’t fallen! In short, the construction industry in Massachusetts has been vibrant with change the past 10 years – all reflected in the pages of TPC. Clearly, it’s an industry that offers great opportunity for young people looking for a high-tech yet hands-on career, challenging in ways earlier generations never imagined. For myself personally, it’s been an exciting journey the past 10 years – and the 10 before that, since first arriving at ASM in 1996. Not only has the industry changed, but the association as well, growing into a large and influential group that has raised its voice and made its mark, in no uncertain terms. Some refer to ASM as “the subcontractors.” But make no mistake – ASM members epitomize “The Professional Contractor ” for whom the this magazine was named. The end of the first decade for TPC and two decades for me marks the perfect time for yet further change and transition. In July of this year I will retire from ASM and turn the editorial red pen over to a new association leader and CEO. I will miss the work, the energy, the challenges and the people – but I know the Association will be in good hands. And I look forward to keeping up with all that’s going on in ASM and the industry, through the pages of TPC. s Best regards,

Monica Lawton is the CEO of the Associated Subcontractors of Massachusetts.

The Professional Contractor

LEGAL

BY MONICA LAWTON

Boston Implements New Residents Jobs Policy

Panel participants Peter Sasso (BPDA), Aaron Hallquist (BPDA), Christopher Brown (BRJP Office) and John Smith (Boston Economic Development Office).

n March 16, nearly 100 ASM members attended an educational program and Q&A session on the new Boston Residents Jobs Policy (BRJP), which was passed by the Boston City Council in January and took effect on January 31. The ASM panel featured four city of Boston officials who are among the most knowledgeable in the city on both the old policy and the new. They shared generously of their time in explaining what has changed and what contractors should expect on projects that fall under the new rules. Leading the panel was John Smith, policy analyst in the city’s Office of Economic Development, who was a primary author of the new policy. Joining him were Christopher Brown, manager of the BRJP Office, Peter Sasso, compliance director of the Boston Planning & Development Agency (BPDA), and Aaron Hallquist, assistant compliance manager of the Boston Planning and Development Agency (BPDA). As background, the panelists explained that the reforms had been in the works for several years, at the urging of community advocacy groups and residents, and reflect Mayor Walsh’s commitment to increase opportunity for residents, minorities and women to the Monica Lawton is the CEO of the Associated Subcontractors of Massachusetts.

Spring 2017

greatest extent possible during one of the largest building booms the city has ever seen. It’s also a response to changing demographics within the city, which now has a majority minority population. The new policy applies to city-funded projects of any size and to all private new construction projects over 50,000 square feet or rehabilitation projects over 100,000 square feet. However, it applies only to projects for which a project notification form is submitted to the BPDA after Jan. 31, 2017. It does not apply retroactively to projects already underway or approved to proceed, so projects that are subject to the new policy will not likely start to appear until later in the year. Although the new policy includes several major new provisions, much of the policy remains in place but with new enforcement mechanisms to give it more teeth. The most important changes are the new employment standards (goals) that apply to covered projects, and the procedural standards for demonstrating compliance. The new employment standards for developers, contractors and subcontractors at all tiers are 51 percent residents, 40 percent people of color and 12 percent women (increased from 50 percent, 25 percent and 10 percent respectively). The panelists at ASM’s seminar acknowledged that the new standards may present a challenge at this time, but reflect the progress made toward the goals in recent years and the desire to raise the bar higher as an incentive to continuous improvement. The panelists stressed that the focus, first and foremost, will be on assuring that developers and contractors comply with the new standards for demonstrating good faith effort to achieve the goals. The new compliance standards consist of seven

required steps, as follows: 1. Attending pre-development, kick-off and preconstruction meetings to assess workforce plans relating to goals, and to review the compliance process. 2. Submitting weekly payrolls with detailed worker information for review in connection with goals. 3. Attending corrective action meetings as requested by compliance monitors. 4. Appearing at meetings of the Boston Employment Commission when requested. 5. Providing requested written documentation of efforts to meet goals, including responses from unions. 6. Providing referrals of workers to the Boston Jobs Bank. 7. Verifying Boston residency status of workers. Throughout the project, compliance monitors for the BRJP Office and the BPDA will be closely monitoring project compliance and working with contractors on corrective measures. Under the policy, all city projects, including projects under the BPDA, will go before the Boston Employment Commission (BEC) for review on a regular basis, at least quarterly, and contractors and selected subcontractors must appear as requested to provide updates and documentation of compliance. It is the BEC that will be responsible for enforcement actions, including the imposition of sanctions and fines. The commission can impose sanctions on developers, GC/CMs and subcontractors, for their own violations and those of the lower tiers. The penalties include a fine of up to $300 per day for each violation by a GC/CM or subcontractor, and creation of a record

of non-compliance that may be considered when awarding future city contracts. On city projects, the city may also suspend work or payments to GC/CMs or terminate their contract after repeated violations. Perhaps the most important message from the panel at the March 16 event, however, was that no one will be sanctioned just for failure to meet the new percentage goals. Rather, sanctions will be reserved for those who ignore the requirements of the BRJP and fail to comply with the detailed compliance process. To be in compliance with the BRJP, you must simply make a good faith effort to achieve the goals, by following the mandatory seven steps described above, and having the documentation to show that you did. In addition, sanctions are to be levied primarily against developers and general contractors, rather than subcontractors; although, as a practical matter, any fines to developers and general contractors would likely be passed down to lower tiers. As the panelists made clear, however, the purpose of the new Policy is not to punish but encourage a greater and more sustained effort toward providing job opportunities and improving diversity on Boston’s construction projects. The focus is not on sanctions but on taking the necessary steps to comply in the first place. Together, they stressed the intention to make compliance a collaborative process between the City and the development/construction team. With that in mind, the speakers encouraged anyone with questions to reach out to them directly. As a reference, they provided a copy of the BRJP Ordinance and a handout on the BRJP Project Monitoring Process. For copies of these materials, and contact information for the speakers, contact the ASM office at 617-742-3412 or info@associatedsubs.com. s

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The Professional Contractor

ACCOUNTING

BY VINCENZO BOTTA, CPA, CGMA

New Accounting Rules for Contract-Based Companies Looming – Will You be Ready?

major change in how companies account for revenue from the contracts they write with their customers is lurking in the not-too-distant future. And the time to act is now. The change has to do with how revenue from those contracts is “recognized” or reported on a company’s financial statements. For public companies using calendar year-end reporting, the new rules take effect Jan. 1, 2018; for private companies the implementation date is Jan. 1, 2019. But don’t shrug and turn the page just yet. There is a significant amount of work to be done ahead of time – impact assessment, re-characterizing revenue from multi-year contracts, and preparing your company’s systems and processes, for example. Assessing how the change may

affect financial ratios viewed by banks and insurance companies will be especially important. Simply kicking the can down the road could make the adoption process more painful and costly as the deadline draws near.

Biggest Accounting Rule Change Since Sarbanes-Oxley The new revenue recognition guidelines are known as ASC 606, Revenue from Contracts with Customers. Developed by the Financial Accounting Standards Board (FASB) after nearly 10 years of input from the accounting and finance community, the new standard, issued in May 2014, sets forth the how, when and how much revenue from contracts should be actually recorded as revenue.

You put building first.

The new standard eliminates the current transaction-specific rules of U.S. GAAP (generally accepted accounting principles) and replaces them with a principle-based approach more in keeping with the standard being used in most other countries. Soon, U.S. companies with contracts to provide goods or services to a customer will have to follow a five-step process to recognize the revenue they receive from those contracts: 1. Identify the contract with a customer. 2. Identify the performance obligations in the contract. 3. Determine the transaction price. 4. Allocate the transaction price to performance obligations. 5. Recognize revenue when (or as) the entity satisfies a performance obligation.

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The above references to “performance obligations” could be especially relevant to contractors, whose contracts for the construction of an asset (or a combination of assets) tend to span multiple years and may rely on both fixed-price and cost-plus elements. Under the old U.S. GAAP rules, there were two allowed methods for recognizing how contractors satisfied their performance obligations; the “percentage of completion” method or the “completed contract” method (used when estimates about percentage of completion were not available). But once the new ASC 606 guidelines take effect, only the percentage of completion method will be allowed. Here’s an example of how the change affects a contractor using the completed contracts method. A building that was constructed for disaster relief had a construction start date of November 2016 and was completed in January 2017. Total project revenues were $700,000, although $300,000 of the total was earned prior to Dec. 31, 2016. Under the old completed contract method, no revenue from the project was reported in 2016; the full $700,000 was recognized in 2017. Under the new standard, $300,000 would be logged as 2016 revenue (to the extent of costs incurred and performance obligations satisfied) and $400,000 would be logged as 2017 revenue. It seems simple until you apply the change to earlier long-term contracts – the revenues from which must be re-characterized retrospectively – as well as adjust your contract-making practices going forward.

Why is FASB doing this? The objective of ASC 606 is certainly laudable – to make the financial statements of tomorrow more transparent, so that readers (lenders, investors, etc.) can better understand the nature, amount, timing, and uncertainty of revenue and cash flows arising from contracts with customers. But nearly every business will need to adjust their contract-writing and revenue-booking habits going forward. Contracts will have to be more detailed. Performance obligations will need to be agreed upon prior to the start of a job to determine how, when and how much revenue will be recorded as revenue. Work-in-process schedules will have to be re-cast with performance obligations in mind. And financial statements will include a significant increase in disclosures. As you can see, it’s high time for companies to start their engines, and rev up for the new revenue recognition standard. The finish line is closer than you think. s Vincenzo Botta is a partner in the Boston-area CPA and business advisory firm Rucci, Bardaro & Falzone, PC. Through the firm’s Construction Business Services Group, he offers tax planning advice and financial statement services to the owners and managers of contracting firms of all sizes. Botta can be reached at 781-321-6065 or vincenzob@rbfpc.com.

Rule Change May Reach into Other Business Areas Now if you’re thinking that this type of change only affects your accounting and finance functions, think again. The new rules have the potential to impact areas of business operations across your entire organization – from sales operations to human resources, and from finance software tools to debt covenants. For example, if you have employees who receive bonuses based on company revenues, how those bonuses are paid out and accounted for might be affected. If your sales contracts have been executed in a certain way over the years, the past accounting for the revenues derived from those contracts – and perhaps the contract terms going forward – may need to be adjusted. And of course, the technology systems that handle your company’s accounting and financial reporting – including process flows, data capture and calculations – will likely need updating to conform to the new guidelines.

The Professional Contractor

MEMBER PROFILE

BY MALEA RITZ

Front Line Inc.: Professionalism Under Pressure

roviding cleaning, demolition, water damage services and asbestos treatment throughout Massachusetts, Rhode Island and New Hampshire, Front Line Inc. prides itself on maintaining “professionalism under pressure.” Together with its sister abatement company Cutting Edge Environmental, Front Line employs just over 100 people under the leadership of president and owner Nancy Salter. The company has been recognized as one of the top 100 women-led businesses in Massachusetts for over 10 years. Salter got her start in the industry in 1984, cleaning houses at $7 an hour. “Eventually I worked for a carpenter and did a 10

Spring 2017

construction clean for him,” Salter said. “That’s basically how it started, but I’ve since sold that business.” She founded Hopedale-based Front Line, which specializes in cleaning and restoration for building owners, property managers and construction contractors, in 1998, then expanded the business with the addition of Cutting Edge in 2012. Women are often outnumbered on job sites in the physical, labor-intensive construction industry. The Bureau of Labor Statistics reported 9.81 million people were employed in the construction industry in 2014; of these 8.9 percent were women. But Salter has never seen her gender as an impediment to her success.

“I think being a woman, for me, has been an advantage,” she said. “I feel like women are more collaborative and look for more win-win solutions, as opposed to win-lose. Women are not as concerned with egos, and on the whole, are good communicators. I see women as being good at juggling multiple tasks.” Although she admitted she was occasionally intimidated, she said in the long run, it has been an asset. “I’d say one of the main things that has been helpful for me is that I never take anything personal; I focus on business and what [I’m] doing and focus on the work,” she said. Some of her favorite big-name projects have included the New Balance building, Gillette Stadium, Intel manufacturing plant, Fan Pier condominiums, Vertex and the Mandarin. A construction project that suffered a large fire loss in March, 2008 was a particularly interesting learning experience, Salter said.

Adapting to Industry Changes The trade industry is currently facing a number of challenges and more are on the horizon, Salter said, including a skilled labor shortage and a noticeable uptick in the paperwork the industry requires. But there’s some good news – the rapid advances in technology disrupting other industries may not hit the labor sector as hard, and may in fact be a help. Reporting has become increasingly technology-driven, with infrared technology able to help detect water damage, and reports can be done in a fraction of the time, with better quality results, Salter said. “Reporting aside, technology probably affects us the least.

We’re strictly the people who do the heavy work on the job – the lifting, the pushing, the demolition. That’s never going to be replaced with technology,” she said. And the benefits of the company’s membership with the Associated Subcontractors of Massachusetts can’t be overstated. Front Line has been a member of ASM for 13 years, and it all started with an email. “We’ve been a member of ASM since 2004. We saw some of their good emails and saw the value,” Salter said. “I love the way they look after the interest of the subcontractors. They are the only organization that goes to bat for subcontractors, and that’s huge.” The company has found the training, seminars, networking and meet-and-greet events to all be very valuable. Salter also attributes much of Front Line’s success to its dependability. “If we get a call (which we have) on Christmas Eve, at 9 p.m., we’ll have staff there in less than two hours. That shows our commitment to rapid response,” she said. “We put the projects first; we build great relationships with our contractors; we try to be the company to solve their problems. We’re always there at the end of the job, when there’s a ton of pressure to get the job done – and done right – and we perform. We always come through.” s

Malea Ritz is associate editor with The Warren Group, publisher of The Professional Contractor. She may be reached at mritz@thewarrengroup.com.

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The Professional Contractor

LEGAL

BY MAURA D. CRONIN, ESQ.

Political Contributions: What Corporations Can and Cannot Do Under the Law

ecently, the Massachusetts Office of Campaign and Political Finance (OCPF) has seen an increase in the number of cases in which corporations reimburse employees for contributions those employees make to political candidates and committees. Some of the cases have involved construction contractors and significant reimbursement amounts. The Massachusetts campaign finance law, M.G.L. c. 55, expressly prohibits corporations from making direct contributions to candidates. The law also bans any person or entity from making contributions in “any manner for the purpose of disguising the true origin of the contribution …” What does this mean for corporations? It means that corporations – including LLPs, LLCs, partnerships and any entity that is registered as a corporation or incorporated – can’t give money directly to candidates. It also means that corporations can’t reimburse employees for contributions the employees made to candidates, nor can corporations give money to their employees with the intention that the employees use the money to make contributions to candidates. Since 2013, OCPF has resolved 11 cases involving true source and corporate contribution issues. Those 11 cases uncovered over $190,000 Maura D. Cronin, Esq. is counsel for the Massachusetts Office of Campaign and Political Finance. She can be reached through the OCPF main number at 617-979-8300.

Spring 2017

in prohibited political contributions; as a result, the corporations and contributors involved have forfeited a total of $566,000. Corporations may, however, become involved in Massachusetts elections in other ways. A 2010 Supreme Court case, Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), declared that corporations had the right to make independent expenditures to support or oppose candidates. Therefore, pursuant to Citizens United, corporations may use corporate funds to purchase advertisements or communications demonstrating their support or opposition of a particular candidate, as long as the corporation does not coordinate with a candidate or committee in preparing, developing or distributing the communication. Once coordination has occurred, any resulting communication is no longer independent; it is an in-kind contribution from the corporation to the candidate’s committee – which, as noted above, is prohibited by the campaign finance law. In 2016, OCPF enacted new regulations to clarify what constitutes coordination. For example, if an individual or entity makes an expenditure at the request, suggestion, or direction of the candidate benefitting from the communication, or if the candidate provides input on the communication’s content, timing, or audience, such interaction would be considered “coordination.” Furthermore, coordination is presumed in several circumstances: if the corporation making the expenditure employs the candidate’s former staff member; if the expenditure is based upon information provided by the candidate regarding the campaign’s needs; if the communication republishes (in whole or in part) a communication on the candidate’s website; or if the corporation making the expenditure notifies the candidate in advance of its intent to make an expenditure. There are several other circumstances in which coordination would be presumed, so corporations or their attorneys should contact OCPF for guidance as to whether or not prospective activity would constitute coordination under the new regulations. Provided there is no coordination between the continued on page 15

TAX

BY JEFFREY FEINGOLD

Subcontractors Can Tap into Valuable R&D Tax Credits

s another tax season quickly approaches, contractors and subcontractors can gain considerable benefits through federal and state research and development (R&D) tax credits. Knowing the specifics about eligibility, which party has rights and risks and how the credits are calculated can go a long way in maximizing your tax savings.

Background The federal government implemented the Research and Experimentation tax credit in 1981 to create jobs and spur technology in the U.S. Known as R&D tax credits, the program was meant to be a temporary measure to give the economy a boost. After many temporary extensions, the tax credit was made permanent by Congress in 2015 to allow companies that create innovative products and processes to receive tax credits for the qualified activities they conduct. Historically applied to technological and biomedical research work, the scope of what the government considers “research and development” has expanded over the years. Now construction contractors may qualify for R&D incentives for a host of activities, as long as they meet the IRS’ four-part test, one of which calls for the development of a new or improved business component (product or process).

Construction Projects are Complex Construction project R&D is unlike typical manufacturing R&D where the business component is often obvious. Either a new product is being developed, or an existing product is improved. With a construction project, the business component is the design of the property that is ultimately built for the customer. This means that the design might relate to an entire building, a building system (e.g., HVAC or plumbing) or an infrastructure project like a bridge or highway. Therefore, it’s critical to know who has the rights to the tax credits.

Determining Who Has Rights and Risks In determining whether a subcontractor qualifies for the R&D credit, an important first step is a review of the pertinent contracts. To make this determination, an experienced R&D specialist should conduct a thorough contract analysis. It is

also essential to document how the project meets the IRS’ four-part test for qualifying R&D activities, as well as to identify the different costs associated with the contract work, such as labor, materials and contractors. The potential ability for a customer to claim the R&D credit can be used by the construction companies in contract negotiations or bid-and-proposal requests. Determining which party has the rights and risks really comes down to which party retains ownership over the process, developed process and intellectual property.

R&D Calculations The R&D tax credit is calculated in one of two ways: 1. Regular Credit: A higher effective tax credit can be claimed by older companies by comparing current year expenses to a base amount stemming from data from the 1984-1988 period. 2. Alternative Simplified Credit (ASC): For all other companies, only three years of prior data is needed to compute a base amount. While the ASC results in a lower effective credit rate, the R&D tax credit can still add up to a sum too valuable to ignore.

When to Apply Credits The federal tax credit can be carried forward for up to 20 years and, depending on your company’s filing deadline, can be retroactive for the prior three years. State carryforwards are different – in some states, the tax credit can be carried forward indefinitely. Depending on your company’s tax return filing deadline, it may be eligible to claim the federal R&D tax credit for the prior three years and the state credit for the prior four years. R&D tax credit for the prior three years and the state credit for the prior four years. continued on page 15 Jeffrey Feingold is founder and managing shareholder of Tax Point Advisors Inc., which provides R&D tax credit study services and other specialty tax services to CPA firms and their clients throughout the U.S. He can be reached at 800-260-4138.

The Professional Contractor

TRADE TECHNOLOGY BY SCOTT SZYCHER

Waste Heat Reclamation and Cogeneration Helps Drive a Subcontractor’s Success

he Boston Bruins’ memorable run to the Stanley Cup in 2011 did more than just electrify our region; it helped spark a renewed interest in ice hockey and ice skating. One result of that renewed interest was a dramatic rise in the building of new ice arenas to help meet the market’s growing demand, from the new high profile Warrior ice arena at Boston Landing to a planned $30 million multi-use ice complex in Amesbury. But for existing and prospective ice arena owners, one obstacle still loomed large: these facilities, with their need for constant refrigeration and strict humidity and temperature control, are notoriously energy-intensive, and therefore very expensive to operate and maintain. As a result, ice arena owners have been using advanced methods of heat reclamation and cogeneration – which is sometimes referred to as CHP, or combined heat and power – to simultaneously generate both electricity and useful heat. Using cogeneration to reduce the costs of heating these infamously cold facilities has provided cost-saving benefits for owners, as well as economic opportunities for skilled contractors. One such contractor is Pembroke-based Preferred Mechanical Services Inc., which has rapidly become a subcontractor of choice for ice arena owners, and the general contractors in charge of constructing or renovating their facilities. While President Jennifer Meade and her team, including son Alex Meade, have been performing HVAC work for a variety of clients for 25 years, including projects for office buildings, schools, warehouses and more complex installations of pressure labs, clean rooms and UV filtration systems for corporate clients, the company has recently has carved out a significant niche in the ice arena market. “It’s fair to say we’ve become well known in this space,” said Alex Meade. “Back in 2011, we were one of the few contractors doing significant waste heat reclamation and cogeneration projects for ice arenas, and that included projects for the University of Maine and Boston College. Now ice arena projects make up about 60 percent of our business.” Over the past few years, they’ve utilized their Scott Szycher is ASM’s membership director. He can be reached at 617-742-3412, ext. 3 or sszycher@associatedsubs.com.

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mechanical contracting and energy conscious engineering expertise on several large ice arena projects, including the Ice Haus at the Jay Peak Ski Resort in Vermont; Plymouth State University’s Allwell Center in New Hampshire; and more recently the $9 million, NHL-sized facility in Keene, New Hampshire, which opened in late 2015, and also functions as a community events center. Of course, for complex projects such as these, the company has needed state-of-the-art technology to produce the results that owners are looking for. Preferred Mechanical is now the New England region’s “knowledge center” for New Hampshire-based Emerald Environmental Technologies, a provider of innovative renewable and sustainable technologies to the mechanical engineering industry. Specifically, Preferred Mechanical has been using Emerald Environmental’s “Ice3” technology, which is ideal for capturing and reusing the heat generated by the refrigeration process for applications such as radiant floor heating and snow-melting, centralized air distribution systems, swimming pool heating, commercial kitchens, and more. “We’ve used the Ice3 system for six to seven years with great success; on our project for the Jay Peak Resort, they capture so much waste heat from the ice arena’s refrigeration system that it is heating not only their entire arena facility, but also its neighboring indoor water park, which itself requires really significant amounts of heat,” Meade noted. Meade emphasized that advances in cogeneration and heat reclamation technologies have allowed it to cross over to more traditional projects, such as the high rises that now grace the Boston skyline. “If you have any process that produces excess heat, many building owners and engineers want to use any or all of that heat before it goes to the cooling tower,” Meade explained. While the technology for cogeneration has improved during the course of his career, Meade attributes the rise in its use to a growing emphasis on energy efficiency. “In some ways, refrigeration hasn’t changed all that much, but the need to be more efficient has,” Meade said. “Squeezing every ounce of that heat before it goes into the atmosphere makes sense, both from an economic and environmental standpoint.” s

Political Contributions

Subcontractors

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corporation and a candidate, there is no limit on the amount of money a corporation may spend on independent expenditures. However, any individual or entity that spends more than $250 in a calendar year on such communications is required to disclose the identity and address of the entity making the expenditure, the name of the candidate whose election or defeat is promoted, the name and address of any person to whom the expenditure is made, the total amount or value of the expenditure, and the purpose and date of the expenditure. Such reports are due within 7 days of the date the expenditure is utilized or, if utilized within 10 days of an election, within 24 hours of utilization. Corporations may also give money to Independent Expenditure Political Action Committees (IE PACs in Massachusetts or SuperPACs on the federal level). Such contributions may be unlimited,

Find Out if Your Activities Qualify

and although the corporation would not have to file campaign finance reports to disclose the contribution, the IE PAC would be required to disclose the receipt of funds from the corporation. IE PACs and corporations that make independent expenditures may also have to include a disclaimer on the communication that identifies the top five contributors to the entity, in addition to the disclosure mandated by the campaign finance law. Disclaimer requirements are addressed in Section 18G of the campaign finance law. For more information on what corporations may or may not do in relation to Massachusetts elections, please consult your corporation’s attorney, or OCPF, which may be reached at 617-979-8300. Prior to engaging in political activity, corporations may also want to contact a tax attorney to ensure compliance with the relevant tax codes. s

The R&D tax credit can be a lucrative incentive for innovative contracting businesses. Given the new permanent nature of the tax credit, now is the time to consider whether activities performed by your company qualify for major cash-saving tax credit opportunities. We’ve put together these and other helpful resources for construction and contracting businesses in a nine page e-book, which can be found on our website at: www.taxpointadvisors.com/contractors. Or, for questions about your contracting business’ eligibility, feel free to reach out to a Tax Point Advisors’ specialty tax credit professional through our website, www. taxpointadvisors.com, or by phone at 800-260-4138. s

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The Professional Contractor

The Journey & Success of Women in Construction By Joe Kourieh

f the roughly 10 million people working in the construction industry nationwide, only about 10 percent of them are women, according to the Bureau of Labor Statistics, but this number is on the rise. Industry veterans agree that over the past few decades, women have risen to prominence in what was once considered a “boy’s club,” emboldened by social evolution, new trends in technology and, perhaps most importantly, support from one another. Though they have all experienced the same trends, every woman’s journey in the industry is unique, and all across Massachusetts, women continue to confront the challenges of lingering inequality in their own individual style. We talked to a number of these women, who reflected on what it’s taken to make a name in construction, and what it will take to move the industry forward from here.

Susan Mailman As the fourth generation owner of her family’s company, Coghlin Electrical Contractors, based in Worcester, Susan Mailman knows how instrumental a family firm can be in bringing young women into subcontracting and the construction industry, where she says daughters are now beginning to consider the possibility of a career. Mailman’s early work at a bank allowed her to utilize accounting and financial skills in an operational role at Coghlin. Though during that time she never imagined running the company, a steady regimen of hard work made her a natural fit. The resources now available to young people have resulted in a “flurry of activity” to diversify the industry, according to Mailman, but she says there is more work to be done. “Looking at the entire educational spectrum, we’re trying to broaden our understanding of what is available and what can be done,” said Mailman. As president-elect of the Associ16

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ated Subcontractors of Massachusetts, she plans to advocate for professional and leadership development in the realm of public policy. “We’ve got to be concerted about creating opportunities to grow trade and technical skills,” she said. Mailman cited certified apprentice programs, which are available from union contractors such as Coghlin, as well as educational opportunities outside of unions and from the state. She said this is especially important in Gateway Cities, where skilled positions often go unfilled. Women and minorities also ought to be a priority, she said. “There’s a definite role for diversity in the construction industry, and we should all be more thoughtful about promoting it,” she said. “If women try to help each other, these opportunities will be known, and some will take advantage.” “Bring a friend,” she added. “We have strength in numbers.”

Leslie Carrio For Leslie Carrio, the daughter of the owner of DePaoli Mosaic Co. – by that time a second-generation familyowned firm more than a century old – growing up in the construction industry was a family affair, but by no means a sure bet for a career. “My father didn’t have any boys,” she said, which made her the heir apparent. Although she was “not groomed to inherit the business” and didn’t become active in the family firm until she was already active in the job market, she was able to keep a foot in the door as “the boss’ kid” long enough to be mentored into proficiency. But proficiency was no shield against sexism. Though her company was “ahead of the curve” in welcoming female employees, the industry was not. Carrio had to face down belittling industry veterans, including one clerk of works who put her through an “outrageous” lecture on why women did not belong in construction.

“Women in construction need a thick skin,” Carrio said, adding that even today – eight years after taking primary ownership of the company – industry associates will occasionally address her male staffers rather than her. Though frustrating, the gender dynamic needs to be met with a sense of humor, as well as confidence, she advised. “You can’t go to the job site with a chip on your shoulder, or go in afraid someone is going to be rude to you,” she said. “Advocate for yourself.”

Jenn Weiss-Donovan Jenn Weiss-Donovan sees a bright future for women in construction. Growing up among a family in the electrical trade, Weiss-Donovan was a natural for the industry but took a slightly different path, becoming an architect, and now working as an owners project manager with Pinck & Co. Inc. “A major improvement is that since so many more women are entering this field, there is more ability to find and provide experienced mentoring,” she said, citing a “vast network” of professional women enthusiastic about helping each other out. Male colleagues are also doing their part, with everyone “typically now completely accustomed to mixed company at any design or construction meeting, and generally respecting the differing skills everyone brings to the table.” Of course, the first step in advancing women in the industry is getting women into the industry. In the past, many young women would steer clear of math and science in school, or avoid nontraditional fields like construction – but today, that is no longer an issue, Weiss-Donovan said, because the educational system is more focused on opening doors for all students. “With so much emphasis on STEM for our young people, and so many organizations offering ‘equal’ training programs and educational curricula, the opportunity is there; women just have to work hard to achieve,” she said. Despite more women – and more role models – in the industry, Weiss-Donovan said there are challenges that remain, especially around work-life balance and managing a family while pursuing a career. “While every job has its hoops to jump though regarding parenting, when entering a career that is predominantly male, it is always a source of stress wondering if colleagues or employers will understand schedules, family demands and sick days,” she said. “What is refreshing is that, with so many women in the industry, there is a much greater appreciation and respect for the pressure of this balancing act.” WeissDonovan added that traditional domestic duties are shifting as well, with more men sharing family responsibilities, which creates common ground. Despite the residual challenges facing women in today’s industry, she said future generations – including her own daughter – will freely pursue any trade or profession, unbridled by “outdated concerns or hesitations.”

Nardine Bellew Since starting General Safety Services Corp. (GSS) in 2004, Nardine Bellew has seen an interesting shift occur as she seeks new projects. While once upon a time male construction leaders looked at female subcontractors “with their heads spinning,” Bellew says there has lately been a significant “attitude change.” “At first it was a struggle, but now I’m noticing that being a woman is helping me build my business the last few years,” she said. “I’ve been noticing that general contractors for bigger jobs have been seeking out more diverse subcontractors, actively seeking women and minorities.” Women are serving in vital roles on job sites and bringing a unique and useful presence to the table – “very detail oriented, focused and organized,” she said. And to her company and clients, having the best people do the best possible job is a matter of life and death. Specializing in window washing and fall protection, GSS ensures that exterior work and maintenance happens in strict compliance with safety regulations. Cutting corners can result in calamity. “I believed in what we were doing,” Bellew said of the early days of her company, when the anger from watching companies do the bare minimum – and put lives at risk – pushed her through the challenge of being a female executive in a male-dominated industry. Though she said it’s unlikely the gender dynamic of the industry will ever equalize, especially in the field, Bellew said women can easily make waves if they use two keys: motivation and mentoring. “Join something like the Associated Subcontractors of Massachusetts; you get so much support there,” she said. “It’s wonderful to go to a meeting and be among so many successful women. It’s better than I could have imagined in 2004.”

Kourtney Mierzejewski J.C. Cannistraro’s Director of Estimating Kourtney Mierzejewski attributes her fast rise in the construction industry to being in the right place at the right time – and of course, doing a great job. “I came in during the recession, learned my skills during the recession, worked very hard and stayed detail-oriented,” she said, noting that though she was a young woman, the pressure of the troubled economy helped equalized the workplace. “I was never treated differently – they wanted whoever could get the job done.” Nearly a decade later, Mierzejewski says that although her firm has a healthy gender balance, in the industry at large the bias of the past lingers. “My feeling is, for women, there’s been no room for error,” she said. continued on page 18 The Professional Contractor

Women in Construction continued from 17

“You have to be on your game. There’s no place for mediocrity for a woman – it’s a respect industry.” “If you do your homework and are authentic and a go-getter, you’ll have a place. … Women have earned that place.” Mierzejewski, who as past president of the National Association of Women in Construction/ Boston worked on the front lines of advancing the female presence in the industry, feels that education is the key to equalizing the genders. “A big part of it is how you grow up. I don’t know that the schools and counselors are doing enough to teach women about those opportunities early,” she said. “There’s a huge lack of women choosing nontraditional roles, which is recognized as a problem, and a loss of potential.” She said that it will take successive generations of female leaders taking charge to create a trickle-down effect of prestige and confidence. “It would be nice to see more women at the top,” she said, both in the construction industry and also the government. “There needs to be changes made even at federal government level to equalize the workplace,” she said. “Women have family choices to make that men don’t take into account.” If Mierzejewski’s vision is realized, there is a “young, innovative culture” eager to take hold. She said that, as the Baby Boomers retire, young Millennial women will continue to develop skills and seek opportunities, and “that’s something top people need to be encouraging, across the industry.”

Jacquie Magill Though Jacquelyn Magill’s first job at a construction firm was a welcome change from the survey company she had joined at the outset of her career, her entrance into the male-dominated industry was inauspicious: she was mistakenly referred to as “Jack” by new coworkers who weren’t expecting a woman to walk through the door. After showing “looks of horror” at that realization, they moved onto calling her “the broad,” she said. Despite the friction, Magill proved to be a valuable asset to the company in a leading role, which landed her in an even more awkward predicament. In meetings, women were supposed to remain silent and let men do the talking – Magill had to resort to passing notes to her male coworkers to orchestrate the dialogue. Eventually, she dropped jaws again by standing up and providing her expertise aloud. Though some traditionalists around the industry turned up their noses at her boldness, the risks paid off, and before long firms were competing to hire her. “I find it comical, honestly. You can’t let it bother you,” she said. “If you’re interested and dedicated, it shows.” Eventually, she struck out on her own, and since 1999 has been the owner of EDM Construction in Merrimac, providing structural steel and miscellaneous metals services on a 18

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wide variety of public and private projects. For the new generation, Magill advocates networking as perhaps the most important remedy to the gender bias, which has not entirely faded. “It’s who you know,” Magill said, describing how she had started simply with a vocational school degree, without the luxury of industry ties. “Network everywhere, even if it means going outside of your comfort zone.”

Rose Conti Over her career, Rose Conti has observed a sizable cross-section of the industry, having worked at four different general contracting firms across three decades. The changes have been significant, she said. “It’s not your father’s construction business anymore, or your brother’s,” she said. “It’s not a boys’ club anymore.” Although when she started at construction firm Lee Kennedy Co. in the 1980s, she was virtually the only woman in the office, Conti made sure not to dwell on the fact – even if others did. “Being the only woman, you were subject to more attention,” she said. “I kept my head down and absorbed everything, and grew my confidence. … I needed to earn my stripes. “My mentors were important,” she added, describing how Lee Kennedy was always a diversity-focused firm which hoped to tap into the skills women bring to the table. These include organization, multitasking and, perhaps most importantly, communication. “It’s a people business in the end,” she said. And it’s the forward-thinking culture at Lee Kennedy that brought her back to the firm, where today she is the director of interiors and special projects. Improving interpersonal skills is one of Conti’s goals for the next generation and the up-and-comers she mentors. As a past president of the National Association of Women in Construction / Boston and the founder of an unofficial mentoring program with the alumni association at her alma mater, Wentworth Institute of Technology (WIT), Conti aims to illustrate the opportunities of the construction industry to young women and girls, sometimes as early as middle school. “A lot of women just don’t realize this is a viable career path,” she said, describing herself and her peers as a “sounding board” where women can air their trepidations that might otherwise scare them off entirely. Though the enrollment of women at WIT has risen significantly since her time there, Conti said it is still below a quarter of the student population. “You have to go outside your comfort zone sometimes to grow,” Conti said. “Keep learning, absorb as much as you can, join groups, talk to peers. … You have to do your homework and keep getting educated, formally and informally.”

Kimberly Small Kimberly Small of 360Klarity Financial, Boston, has watched the world of construction from the inside for nearly her entire life, growing up as the daughter of a female executive in the industry, and now specializing in financial planning for construction professionals around Greater Boston. Joking that her role as an advisor tends to be about 70 percent therapist, Small said she has seen her female clients (roughly half of her roster) at times grow frustrated with the industry. She advocates diplomacy. “They need to know how to manage the relationship. Don’t push back, and don’t take it home,” she said, adding that solid people skills like authenticity and professionalism will keep clients coming back. “Know who you are and stay centered.” Despite these occasional annoyances, Small said that the role of women in the industry has gotten much better, thanks largely to trailblazers like her mother who focused on producing results, proving that women could hold their own. This has more recently been boosted by a surge of technology, much to the benefit of Millennials in particular,

who come out of college with a firm grasp of tech and thus a leg up on even the industry veterans. “Change your mentality – don’t be resigned to a ‘man’s world,’” Small said, and advised that ambitious women looking to run their own firm should hire a business coach in order to establish a long-term plan and structure their aspirations. “Simple hard work isn’t enough anymore. … Get coached – even the best skilled athletes in the world have coaches.” Although everyone’s journey has been different, there is one thing on which all would agree: It’s noticeably easier today for women in construction than 20 years ago – and there is hope that 20 years from now, there won’t be any need for articles such as this highlighting challenges or how far women have come – because there will be equality across the industry based on skill, experience and mutual respect. Be sure to read our separate but related story profiling another industry trailblazer, Nancy Salter of Front Line Inc., on page 10. s

Joe Kourieh is associate editor of The Warren Group, publisher of The Professional Contractor.

The Professional Contractor

TECHNOLOGY

BY MAUREEN FLYNN, JD

3D Documentation Technology in the Construction Industry

D documentation has become a standard in the construction industry. The technology allows for the easy use and incorporation of 3D documentation into all stages of a project, from concept and design to construction and project delivery. 3D laser scanning (3DLS) is a non-contact, non-destructive technology that digitally captures measurable documentation of as-built structures and surfaces and brings them into the computer world as a three dimensional representation. The laser scanner captures an object’s exact size and shape using a line of laser light (people and eye safe). The point cloud data produced through the use of this technology creates an image similar to a pixelated black and white photo. Those “pixels” are actually points, each with an x, y, z coordinate value. Point cloud data can be used to create: 3D models, 2D plans, topography and more. Created in the 1960s, the equipment for the original 3DLS technology was large, heavy, cumbersome to transport and challenging for the user to maneuver. Improvements in technology have Maureen Flynn, JD, is the business development manager for Haag 3D Solutions, a full-service 3D documentation firm providing a multitude of services to professionals in the AEC industry. To set up an AIA accredited lunch and learn, or to schedule a conversation, she can be reached at 856-206-7756 or at mflynn@haagglobal.com.

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reduced the weight, size and complexity of the equipment; modern versions no longer require light, weigh only two pounds, often need just one field technician to operate, and offer full color panoramic images overlaid on highly accurate point cloud. As with any technology, there are limitations with laser scanners. Advancements over the last 50 years have made significant improvements, reducing or eliminating many limitations. Since laser scanners work on line of sight, they cannot see through objects or surfaces, but properly trained field crews will remove or work around those obstacles by performing additional scans. Reflective or shiny surfaces are an issue for laser scanners. Rather than capture the surface, the laser reflects off it and can bounce in another direction. Baby powder and certain aerosol sprays can be used to reduce the reflectivity and allow the scanner to capture the object’s surface, as will any dust or dirt that has settled on the object. Water is a unique challenge for laser scanners. Most often, the water absorbs the energy of the laser leaving what looks like a black void in the point cloud. Surfaces with pools of water (low spots on concrete, puddles on pavement) are areas that will not have accurate point cloud data. The 3D equipment providers can help determine whether the water will interfere with the scanner’s goal, and the best ways to work around the water feature. Whereas extreme temperatures historically were an issue for laser scanners, modern laser scanners can function properly with ranges in temperature from -20°F to over 100°F. Steam, rain, fog and dust continue to be factors of consideration when performing a scan. The result is referred to as “noise.” Noise is essentially a data capture of the moisture or dust that is in the air rather than the surface being captured. Advancements in some scanners allow for the “noise” to be cleaned out of the point cloud imagery. Today, scanner set-ups can be completed in three minutes, capturing one million points per second – a major improvement over the hours or days it used to take to capture a surface. Advancements in software technology allow for data

processing to occur within a matter of hours. Within the construction industry, laser scanning technology can be used from concept through project delivery. 3D documentation is an invaluable tool for architects, engineers, contractors and sub-trades. Accurate as-built site conditions, whether it is a vacant lot or the interior of a building, are necessary during the design and construction phases. 3DLS provides an alternative method to traditional hand measuring and documentation. The use of 3DLS saves time and produces highly accurate point cloud data that can be used to generate 3D models, 2D plans, topography, BIM coordination and clash detection. Using true as-built conditions allows for accurate model development, construction coordination and confidence in pre-fabrication. It also helps to streamline the design and construction process by identifying as-built site condition issues prior to the start of construction, thereby reducing delays in the field and the number of change orders, and allowing for a more cost-effective and time-efficient construction process.

A complement to 3DLS and a vital tool for the construction industry is Building Information Modeling (BIM) and Virtual Design Construction (VDC), terms that are often used interchangeably. It is the process of creating an intelligent, integrated, multi-disciplinary, three-dimensional computer-generated model of a building. The model provides architecture, engineering and construction professionals with the visual tools to more efficiently plan, design, construct and manage a building and its infrastructure.

BIM/VDC is the ideal method for trade coordination and clash detection during the design process. It is a universal

tool that can be implemented on any project by the general contractor or any of the sub-trades. During the placement of the trades and their materials, areas where different trades are clashing (i.e. placement of HVAC equipment versus plumbing) are easily identified and quickly rectified in the 3D model. These efforts eliminate the clash from occurring in the field, leading to delays and increased costs. Using a 3D documentation service provider is an easy and headache free solution to implementing BIM/ VDC for trades who do not have the technology or trained staff in-house. The benefits and value of BIM/VDC are not limited to just the design and construction phase. At project delivery, the detailed model of the building is provided to the owner as a tool for continued use in facilities, asset and property management.

BIM and VDC are two services streamlining and increasing efficiency on all design/build projects. Projects utilizing BIM/VDC technology have fewer change orders, fewer delays in the field and improved project delivery completion times as a result of the detailed advance planning prior to the start of construction. Before one shovel touches the ground, the entire construction project has been mapped out. Using the data correctly and providing the client with the deliverables necessary for the specific project goal is essential. 3D documentation service providers should have a conversation with their client(s) to determine the project goals and appropriate deliverables. Often clients know they have a challenging project and they know they need an accurate as-built; good 3DLS service providers should help them determine if a detailed and complex 3D model is required, or if point cloud data alone provides the information they need. The 3D documentation industry includes hardware, software and services. Professional companies providing these services have technicians trained in the proper use of equipment, site-planning and office data processing. Choose a service provider with the knowledge, experience, staff, equipment and software platforms to provide you with highly accurate point cloud and the deliverables necessary for the success of your project. s The Professional Contractor

PLANNING

BY DAVID CONSIGLI JR., CPA, ABV

The Benefits of an Employee Stock Ownership Plan in Succession Planning

uccession planning can be a challenge for privately-held business owners. Finding the right buyer can be difficult and time-consuming. In some cases, owners may want to transition their business to their current employees, but the employees may not have the financial means to consummate a sale. An Employee Stock Ownership Plan (ESOP) may be the solution. ESOPs can be very successful when implemented in the right situation, allowing owners to create sustainable and transferable value, and a well-prepared and successful exit, while at the same time delivering the best possible benefit to employees.

loans, fund benefits or pay for administration expenses. •• ESOPs can borrow money from lending institutions on employer credit to acquire the company stock. For owners who desire to pass the business on to employees, ESOPs makes this succession plan much more achievable. •• Borrowed funds can be used to repurchase shares with pre-tax dollars. •• Borrowed funds can be used to purchase new capital equipment needs, refinance other debt, purchase other companies and for other business purposes. •• In many cases, ESOP participants exhibit higher morale and productivity because they have a vested interest in the financial welfare of the business. •• ESOP shares can be used to match employee 401(k) contributions, even under the safe harbor matching formula. This may make your 401(k) plan more attractive to employees, leading to greater participation. It may make it easier to comply with anti-discrimination testing requirements.

Benefits to Employers

Benefits to Employees

•• Employers can, under certain circumstances, deduct contributions to the ESOP, including both interest and principal on loans the ESOP uses to buy the company stock. The company can also donate their shares of stock to the ESOP and get a tax deduction. •• C corporations can get a deduction for dividends paid to an ESOP used to repay loans, passed through to the participants or reinvested in company stock. •• The owner of the C corporation can defer taxation of the sale of the stock to the ESOP by complying with Internal Revenue Code Section 1042 requirements. •• S corporation ESOPs do not pay taxes on their portion of the corporation’s income. The distributions paid to the ESOP can be used to pay down David Consigli Jr., CPA, ABV, is the director of business valuations at AAFCPAs, which has been providing assurance, tax, business consulting and information technology advisory solutions since 1973, with offices in Westborough, Boston and Wellesley. He can be reached at 774-512-4005 and at dconsigli@aafcpa.com.

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•• Once an ESOP is established, employees are offered an additional benefit plan that is not taxable until they receive distributions, which is usually when they retire or leave the company. They can then rollover the distributions, tax-deferred, into an Individual Retirement Account (IRA). •• ESOPs allow employees to have a vested interest in the financial wellbeing of the company on the same level as the original owners, even allowing them to vote their allocated shares on major issues. •• ESOPs are similar to profit sharing plans, and can be valuable for those planning for their own retirement. •• ESOPs can borrow money from lending institutions on employer credit to acquire the company stock. This alleviates the cash funding challenges employees may face if they were to buy the company on their own. AAFCPA advises commercial business owners to strongly consider the benefits of ESOPs for succession planning, to borrow money at a lower after-tax cost or to create an exciting additional employee benefit. ESOPs can be an underutilized tool because their benefits are not fully understood. s

LEGAL BRIEFS

BY SEWALL “SPIKE” CUTLER, ESQ.

I-9 Records: Keep ’Em Up-To-Date!

e all know (or should know!) of the obligation to properly determine the eligibility of prospective employees to work, and to document employees’ eligibility under immigration law by preparing and maintaining I-9 forms. Some employers are sloppy, and rather than preparing, signing and properly-filing I-9 documentation, choose to simply copy identity documents and place them in the employee’s file. Bad idea! First of all, while employers should verify the eligibility of prospective employees by inspecting appropriate identity documents, keeping actual copies of those documents is risky, because it creates an increased risk of identity theft, along with the possibility of a later “bite at the apple” by enforcers who second-guess the employer’s judgment of the legitimacy of the documents. Next, the employer must properly prepare and file the completed I-9 form within three days following the employee’s first date of employ-

ment, and these records must be maintained for at least one year after the employee’s termination or three years after the employee’s date of hire (whichever is later). In a recent case, an employer was fined a very large sum because, while they had inspected appropriate identity documents and maintained records of the documents themselves, the actual I-9 forms were not prepared until the employer was notified by Immigrations and Customs Enforcement of an audit. Too late! When you hire, review the documents, complete the I-9 and place it in your immigration compliance files immediately. Don’t wait until it’s too late! s Sewall C. “Spike” Cutler Jr., Esq., is a partner in the construction law firm of Cutler-Smith, P.C., in Dallas, Texas, and serves as Counsel to the Subcontractors Association of the Metroplex (SAM). He can be reached at scutler@cutler-smith.com or 214-219-0800.

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The Professional Contractor

TECHNOLOGY

BY MILWAUKEE TOOL

The Future of Tool and Equipment Tracking Is Here ogy to develop a tool management solution that provides a better way for work to get done for any sized company. The application offers a variety of functionalities to increase company and user productivity – including the ability to track tools in real time, customize compatible products and manage inventory. In particular, through the ONE-KEY™ inventory management functionality, a user can create a central place to manage all of their tools and equipment across their network of jobs and operators – completely through the free-to-use web and mobile app. Putting information where it can be easily accessed allows a user to keep pulse on the location of their tools and equipment at all times.

A Virtual Eye on Everything

he Internet of Things (IoT) is no longer where the world is headed; it is all around us. Everything in our lives, from homes to cars, is “smart.” This ready access to technology has shaped consumers’ perceptions and decisions and has begun to play an even more active role on the jobsite. Building Information Modeling (BIM) has been around for some time, and has helped contractors efficiently plan, design, construct and manage building projects from concept to occupation. However, while BIM has certainly improved the efficiency of a project’s overall process, there has not been an effective solution for managing the essential tools and equipment used in the actual project. That is, until ONEKEY™ and, subsequently, the new TICK™ were introduced. First introduced little more than a year ago, Milwaukee Tool’s ONE-KEY™ is the first digital platform for tools and equipment. Built on the principles of Customize, Track and Manage, ONE-KEY™ combines tool and software technol-

Spring 2017

“Tool loss, and the time spent looking for missing tools, contributes significantly to a company’s bottom line,” said Steve Matson, senior product manager. “A single lost or damaged tool on a jobsite can increase the time spent completing a task by over 30 percent. This, multiplied across the length of a large project, can add up to tens of thousands of dollars in wasted labor, and cause significant overruns on project schedule. The goal of ONE-KEY™’ is to simplify the process of managing tools, removing costly or cumbersome methods used today. The ability to quickly identify a tool’s location can save time and money if a tool goes down or is needed on short notice.” To address this, Milwaukee Tool developed the TICK™ – a professional-grade Bluetooth™ tool and equipment tracker. Designed to withstand the harshest jobsite environments, this small device can be easily attached and hidden from sight on any product, regardless of brand, providing users an invaluable way to track anything in their inventory through Milwaukee Tool’s ONE-KEY™ app.

ONE-KEY™ App with TICK™ “By harnessing the same integrated tool tracking technology found within ONE-KEY™ enabled tools, we’re giving users a way to track any tool, simply by attaching the TICK™. For professionals

everywhere, their tools and equipment are key to their livelihood – the TICK™ ensures they have eyes on everything to better manage their investment,” said Matson. With its low profile design, the TICK™ can securely attach to anything through glue, screw, rivet or strap. Its flat back enables a snug fit to a variety of surface types and its circular shape fits into a range of places hidden from view; for instance, the underside of a ladder or miter saw stand. Each TICK™ is also laser-engraved with a serial number so users can easily identify and assign multiple TICK™s. Once attached and hidden from view, the TICK™ makes tracking tools and equipment as simple as pulling out your phone. Products with a TICK™ attached are paired via the ONEKEY™ app. Tool records and locations are updated when any device with the ONE-KEY™ app comes within 100 feet of the TICK™. These location updates are transmitted through any ONE-KEY™ app that’s in range, regardless of whether the app is open or not, allowing users to pinpoint missing tools more quickly. In addition, users can easily manage all of their tools through the app’s simplified tool and equipment management features. These features allow users to assign and store detailed information for all of their tools and equipment – whether it’s a tool equipped with a TICK™, a ONE-KEY™ enabled tool or any other tools and equipment.

Fully embodying the Milwaukee promise of “Nothing but HEAVY DUTY,” the TICK™ is ruggedly protected from the harshest environments – giving professionals peace of mind that they’ll receive updated locations of their tools and equipment, no matter what. Its water and dust-tight closure protect the internal components from weather elements, and UV rated plastics keep the TICK™ from getting brittle when exposed to extended periods of direct sunlight. In addition, its rugged electronics housing can stand up to high vibration and impact, as well as heavy duty tracking applications, like underneath a generator. ONE-KEY™ updates over 30,000 tool locations every single day and counting! By utilizing this growing network of users, the TICK™ will ultimately help contracting companies keep tabs on their equipment even if it isn’t near them. Unfortunately, no one can stop tools and equipment from going missing on projects, but the TICK™ is the very first solution that can get us that much closer to getting tools back after they’ve been stolen. s For more information on Milwaukee tool tracking solutions, contact Adam Siegmann, job site solutions market manager – Boston, Milwaukee Tool at adam.siegmann@milwaukeetool.com, or 339-223-1313.

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The Professional Contractor

CONTRACTS

BY BRIAN PERLBERG, ESQ.

New Updates to ConsensusDocs Contracts to Reflect Today’s Industry

ou can’t say general contractor without saying the word “contract.” Construction contracts set the foundation for project teams, but too often, contracts are treated as an afterthought. Most construction contracts are not well understood – or even read! Standard construction contracts published by industry associations provide a common understanding and offer a best practice baseline for all parties to follow. Unfortunately, over the years, the balance of most industry standard documents has fragmented. The majority of projects have “unique” – I would say “Frankenstein Contracts” with body parts and scars from dead projects, brought back to life after being crudely sewn together to complete a body of (mis)understanding. Sometimes contracts that have been modified even exceed the length of the original standard contract, and at the sacrifice of predictability and fairness. ConsensusDocs, an unprecedented coalition of leading construction organizations that primarily include Owner and contractor groups, was created nine years ago to forge a better path with fair and best practice contracts. The goal was to improve the industry by, in part, reducing wasteful transactional costs in projects spent on claims and litigation. The coalition has grown from 20 groups to 40 groups, and has a successful track record of projects that don’t end up in claims and the courts. ConsensusDocs has established itself as one of the two most used industry standard documents, with over 2,000 subscribers across the country. These contracts are used often on projects utilizing active and sophisticated owners, as well as projects in which the builder has a greater role earlier in the projects. When builders are involved early in projects and, thereby, contract forming decisions, such as in design-build or construction manager at-risk, ConsensusDocs contracts are more likely to be used. The coalition has a five-year revision cycle, and just published comprehensive revisions to its prime and subcontract agreements in its Design-Bid-Build (200 Brian Perlberg, Esq., is executive director of ConsensusDocs and senior counsel for Construction Law for Associated General Contractors of America. He works in the Washington, D.C. area and can be reached at bperlberg@ConsensusDocs.org.

Spring 2017

series), Design-Build (400 series), CM At-Risk (500 series) and Subcontracting (700 series). This article will highlight revisions from this update cycle that are intended to keep ConsensusDocs – and you – ahead of the curve. This comprehensive update is more of a clarification and refinement than a rewrite. And after getting extensive feedback and evaluation, the risk allocation principles to achieve fair and best practices are kept intact. The changes that have allowed these documents to stay ahead of the curve mostly relate to changes and updates in the construction insurance market, the impact of technology on projects, and consistency in terminology and placement within the entire family of documents.

Insurance Updates One of the larger changes was in insurance. No longer does the purchase of builder’s risk insurance default to the owner. While the owner can opt to buy this policy himself, it has been determined that it is more common and cost effective for the builder to buy this policy and make sure it covers renovation work. Because of these changes, builders will want to be sure and include their cost in a lump sum price, or modify language to seek a change order to reflect the price. In addition, risk of loss for work done before substantial completion will rest with whoever is charged with procuring the builder’s risk policy, which again, will now default to the builder. Also in the area of insurance is a check-the-box recognition that pollution liability insurance is often required on projects when the project site or the nature of the work raises pollution liability issues. A provision allowing the owner’s self-insurance is being eliminated from the standard contract.

Termination for Convenience ConsensusDocs will no longer automatically convert an improper “termination for” cause to be considered a termination for convenience. Consequently, an improper “termination for” cause may have larger damages, such as lost profits on work not performed. Associations involved with the coalition have the opportunity to publish ConsensusDocs Guidebook comments to highlight especially important issues for

possible education and modification. Termination for convenience is a topic that AGC is now addressing in its Guidebook comments.

Indemnification The indemnification section now explicitly covers intentional wrongful acts – in addition to negligence. It would seem strange to be protected if a company acted negligently, but not protected if a rogue employee intentionally sabotaged a project.

Fiduciary Relationship is Stricken Over the years, some design professionals and insurance stakeholders complained about the possibility of unintentionally creating a fiduciary relationship in the ConsensusDocs 240 Owner and Design Professional Standard Agreement. In 2011, language referencing a covenant was stricken. Now, in 2016, language about furthering “others’ interests” is also stricken. As a result, there should be little concern that a fiduciary relationship is being created. Creating a fiduciary relationship would be problematic in that it would require a design professional to put the owners’ interest above his own, and create extra liability exposure beyond insurance coverage. The change is another indication that ConsensusDocs is fair to all stakeholders and is not aiming to provide either an advantage or a disadvantage to design professionals. In contrast, design-builders contemplating using an AIA 141 Standard Form of Agreement Between Owner and Design-Builder should be very aware of the fiduciary relationship language that is included in Exhibit A, which is inconsistent with other AIA agreements that involve a design professional.

matically increases if the contract price increases by more than 10 percent has been eliminated. The parties are encouraged to coordinate with their sureties on the project if there is significant price creep on a project, which will keep the surety on the loop of changes and the chance to reunderwrite a project without automatically giving approval. It should be noted that additional bond premiums are ultimately collected automatically when contract price goes up.

Clarifications If you did a straight redline of the old and new additions, you might see hundreds of changes. The majority of changes are editorial in nature for better clarity, brevity and consistency. If there were differences between some general language in, say, the design-bidbuild and design-build language, great care was taken to choose the best worded language, and then have that same language appear in all the equivalent agreements. In some instances, sections were moved; you can now expect to see contract provision language in similar order across dif-

ferent (project delivery method) families of contract. I get a consistent feedback that most people want to have very short contracts of no more than two pages. However, unless you want to put the guts of the contract in exhibits or separate general conditions that might conflict, you’re not achieving a “meeting of the minds.” Most construction projects, even the smaller dollar ones, still have some complexity that needs to be addressed. With that caveat, the ConsensusDocs short form documents (ConsensusDocs 205, 245,751) have just been revised and are our most often used documents.

Future Outlook ConsensusDocs working groups will shift focus towards creating new standard documents that address emerging industry issues such as P3s, lean and design-assist. Additional information posted on the ConsensusDocs Guidebook is also forthcoming. This article originally appeared in the January-February 2017 issue of Design Cost Data magazine. s

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Dispute Resolution and Mitigation The ConsensusDocs approach to avoiding and minimizing claims and litigation is a trademark feature, and why ConsensusDocs offers a better way. Also added is an explicit check-the-box approach to mediation that includes JAMS, but creates a default of the American Arbitration Association (AAA) if no boxes are checked.

Bonds and Penal Sum Based on feedback from the surety industry, a floating penal sum that auto

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The Professional Contractor

BONDING

BY PATRICK ROONEY

Small Business, Big Opportunity

he best way to predict the future is to create it. If you are a small contractor looking for your business to take that next step in growth, then public and private bidding may be your answer. There is a vast market for smaller bidding jobs, both public and private, that is currently going untapped. And accessing it is even easier than you might think. What’s the catch? In order to bid on these jobs, you must have a performance bond. Bonding companies issue performance bonds as assurances that jobs will be completed according to budget, timeline and contract. What sets performance bonds apart from traditional insurance policies is that the bonding company will not simply write a check if you default on the job. If you’re unable to complete the work in the agreedupon timeframe, the bonding company may put the job out to bid with select contractors or even complete the work itself. This provides a greater sense of security for the client and more negotiating power for your business, assuming you can obtain these performance bonds. In order to issue a performance bond, bonding companies will look at a business’s three Cs – capital, capacity and character – which are usually demonstrated by submitting the business’s financial data. When making a performance bond request, you must include a balance sheet, income statement, cash flow statement, complete notes/disclosures, work schedules and a detailed explanation of the job you are bidding on. If you fail to provide any document in this comprehensive list, the surety company will consider an investment in you more of a risk, and most likely will not approve you for a performance bond. Once a contractor is able to provide each of these documents, the financial statements must demonstrate sufficient working capital, equity, cash flow and profit. Companies looking for a performance bonding line must also have the capacity to complete the job and have a reputable character with excellent legal history in the market. For these reasons, bonding lines can be extremely hard to get for smaller or younger companies. Patrick Rooney is a senior account executive with Roblin Insurance, a family-owned, fourth-generation provider of innovative insurance and risk management solutions. To learn more about the ESBB, please go to www.suretybonds.blog or contact Patrick Rooney at 617-905-2021, or at prooney@ roblininsurance.com.

Spring 2017

As you can imagine, only larger companies are able to meet the financial criteria to obtain these bonding lines. They usually have CPAs on staff who handle and update all the financial information, as well as the large amounts of working capital that are required. While large companies still have to meet the bonding companies’ requirements, their growth and resources make them more prepared to do so in the tight timeframe public and private bidding jobs sometimes require. Once these larger companies become bonded, they typically bid on larger jobs that meet their capacity and yield a bigger profit. If you’re approved for a surety bond of $1 million, why bid on a $250,000 job? The smaller bidding jobs are overlooked because the businesses with matching capacity don’t typically have a bonding line. These jobs are going unclaimed – and there lies the untapped market. Smaller businesses have been missing out on these opportunities because these traditional bonding lines seem just out of their reach – but not anymore. Insurance carriers have developed “The Emerging Small Business Bond,” or ESBB. This performance bond will allow smaller businesses to become bondable with less restrictive financial documentation. That means no balance sheet, no income statement, no cash flow statement, no CPAs. The requirements for obtaining the performance bonding line are a one-page application – asking for basic information about the contractor, the owner/indemnitor, and optional information about the bond requested – and an applicant’s credit score. The whole process in setting up the ESBB once the application is completed can be done in less than an hour, as opposed to the weeks it can take to set up a traditional bonding line. This will now allow subcontractors and tradesmen to search potential bidding jobs, purchase bonding lines and then proceed to bid on jobs residing in this flourishing market. In addition to having access to this market, subcontractors and tradesmen with the ESBB will now be able to work with general contractors who require their subcontractors and tradesmen to be bonded, providing the general contractors with more options and subcontractors and tradesmen with even more opportunity. The ESBB has the ability to unlock your company’s potential and secure a place for your business in the world of private and public bidding. Talk to your local insurance agent or bonding company for more details, as opportunity could be knocking for your contracting business! s

ASM NEWS & EVENTS

HTS New England Merges with Stebbins-Duffy

Stebbins-Duffy Inc., a leading HVAC manufacturer’s representative, has joined the HTS/DXS family, and is now known as HTS New England. The combined business serves as the exclusive Daikin equipment sales rep in New England, and now offers more state-of-the-art HVAC equipment, expertise and client services than ever before! We congratulate the team at Stebbins-Duffy, and look forward to keeping them connected to our member subcontractors!

Capital Carpets Acquires F.J. Roberts Floors

Wilmington-based Capital Carpet and Flooring Specialists Inc., has announced the acquisition of Danvers-based F.J. Roberts Sport Floors, which enables Capital Carpet to diversify into markets such as synthetic sports flooring, wood flooring installations and refinishing, exterior field turf and track coverings, and more. The acquisition also provides Capital Carpet with an exclusive dealership with Mondo Sport – a manufacturer of a complete range of flooring materials for indoor sports such as basketball, volleyball, handball, futsal and multipurpose sports floors – for the New England market.

Wayne J. Griffin Electric Celebrates National Apprenticeship Week

Wayne J. Griffin Electric Inc. participated in its second consecutive U.S. Department of Labor’s National Apprenticeship Week, a program which highlights the role that apprentices play in offering employers the opportunity to develop a skilled workforce while growing their businesses. Each of Griffin Electric’s five offices held events to spotlight its participation in the program, and recognize their enrolled apprentices. The company invited potential apprentices to tour the company’s facilities, learn about its in-house training programs and network with current apprentices and existing Griffin Electric employees. Over the past 20 years, Griffin Electric’s Apprenticeship Training Program has helped hundreds of students prepare for their electrical journeyperson licensing exam.

LAN-TEL Communications Celebrates 25 Years

LAN-TEL Communications Inc., of Norwood, a regional leader in the structured cabling and security systems industry, is celebrating its 25th anniversary this year. President and founder Joe Bodio launched the business from his home with three employees in 2007, specializing mostly in structured cabling. Today LANTEL Communications boasts close to 125 employees and $40 million in annual contracts, as Bodio and his management team evolved with the times and continuously added new services. In addition to structured cabling, LAN-TEL Communications now configures, installs and maintains security, cabling and wireless solutions for a diversified client base, not just in Greater Boston, but across the state. Active in the industry, Joe Bodio currently serves as president of ASM and has held several leadership roles with Greater Boston NECA. Congratulations to Joe Bodio and LAN-TEL Communications on a successful 25 years and best wishes for the next 25!

Acadia Insurance Program Issues Over a half Million Dollars in Dividends!

One of the most popular benefits of ASM membership is our insurance program with Acadia Insurance, which offers all lines of commercial coverage at competitive rates, plus the potential to receive dividends based on individual and group performance. In February, Acadia announced almost $525,000 in dividends for the 2013 and 2015 plan years, which was shared by 95 companies who contributed to the good performance of the program. That’s an average of over $5,500 per company – which effectively paid for their membership in ASM three times over! Since the inception of the program in 2003, Acadia has returned over $5 million in dividends to participating members. The Professional Contractor

PROJECT PHOTO GALLERY 1A

1C 1A 1B 1C Bent Electrical Contractors (Somerville) installed all-new LED lighting controlled with Acuity controls, new power system and fire alarms for the conference rooms, business/social area, kitchens and over 100 offices at the Regus “Spaces” center at 100 Mass Ave./361 Newbury St. in Boston. 2A 2B 2C JM Electrical (Lynnfield) installed the power and controls for the Ashburnham Westminster Regional School District’s upgraded HVAC equipment.

3A 3B 3C Knollmeyer Building Corporation (Wilmington) performed the $1.9 million exterior renovation of the St. Paul Arms Condominium in Brookline, including the building envelope masonry, lentil replacements, removal and replacement of siding and windows, and related interior and exterior work. 4A N.B. Kenney (Devens) installed the new HVAC system at Roxbury Latin’s Indoor Athletic Facility. 4B N.B Kenney upgraded the HVAC system for Berklee College of Music’s project at 150 Massachusetts Avenue in Boston.

4C N.B. Kenney did a comprehensive HVAC retrofit at Harvard University’s Cabot Library renovation. 5A R&R Window (Easthampton) installed 19,000 square feet of aluminum composite material supplied and fabricated by New England Panel Systems for the Antonucci Science Complex at Fitchburg State University.

5B 30

5C Spring 2017

5B R&R Window installed aluminum composite panel cladding from New England Panel Systems for entry ways, wall segments, and the intricate entry canopy at Longmeadow High School. 5C R&R Window installed over 19,000 square feet of New England Panel Systems’ aluminum composite material for the Cadet Housing Building 4 at the Massachusetts Maritime Academy.

6 R.H. Keleher Company (Sharon) provided the pipe support systems for Hamel & McAlister’s HVAC installation at the Boston Bruins’ Warrior Ice Arena practice facility in Brighton.

7A United Stone & Site (Canton) furnished and installed precast, granite and concrete pavers, as well as the precast walls, curb, granite columns and bases at Yale University’s School of Management.

7B United Stone & Site’s work on Boston’s Longfellow Bridge rehabilitation included the furnishing, refurbishing, removal/restoration/ repair, and reinstallation of all bridge towers, piers and abutments.

7C United Stone & Site installed site granite, concrete pavers, stone veneer walls, caps, curbs, steps, and granite plinths for Suffolk University in Boston.s

ASM PARTNER SPOTLIGHT DIRECTORY

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