If you are a Contractor & are in privity of Contract with the General Contractor, you are most likely signing a Contract that includes a Paid If Paid Provision. This provision states that – payment won’t be due from a general contractor until and unless it is first paid by the owner. This shifting of risk of non-payment from a contractor to its subs and material suppliers has found its way into almost all construction contracts you see today.
Firstly, something that everyone should take note of is that many of these clauses are ambiguous. The pay-if-paid language can be interpreted on the one hand as establishing the condition that payment must first be received from the owner before it must be paid out to the provider, or, on the other hand, it can be seen simply fixing a reasonable time frame for when payment is to be made.
When interpreted as a condition precedent, the provider will get paid only on the condition that the party with whom it contracted has been paid by the owner. If it is indeed intended to create a pre-condition to payment, as opposed to a reasonable time frame when payment will be made, it must be free of any ambiguity and must establish by its express terms that payment by the owner is an absolute condition precedent to any requirement on the part of one party to pay the other.
However, when seen as fixing a reasonable time frame for payment, the pay-if-paid language is treated as a promise by the general contractor to pay the subcontractor or supplier, with the understanding that the payment may be delayed for some reasonable time while the general contractor obtains payment from the owner.
Too often, more time is spent bidding a project than actually reviewing the agreement once the bid is won. There are times when pay-if-paid provisions are not discovered or really understood until the parties are well into a job. At this junction, it’s normally too late and too costly to do what could have, and should have, been done at contract negotiation.
Please feel free to reach out to me with any questions you may have.
What did the construction industry learn from Michael, Harvey and Irma?
The first day of June signals graduations, weddings and the sweet, sweltering days of summer vacation. Unless you live in or near Gulf and Atlantic coastal communities, then it means hurricane season is here.
The 2018 hurricane season was brutal with 15 named storms, 8 hurricanes and 2 major hurricanes delivering devastation to the U.S. and Caribbean nations.
Forecasters predict 14 tropical storms would form, of which 7 would become hurricanes.Preparation and risk management are necessities, not luxuries.
Labor shortages in the construction trades are still prevalent. If, or rather when, another major storm hits we can anticipate more contractor, sub-contractor and labor shortages. By vetting ahead of time, construction workers can pretty much pick and choose when it comes to a storm-induced labor shortage. The same applies to general contractors that need to hire extra crews quickly. Spotting reliable construction operations or sources of additional labor ahead of disaster is good practice. Know who not to do business with, too.
Material shortages are a given in disaster situations. Vetting suppliers and researching availability early in the hurricane season is also prudent. Seek out information on surplus or shortage estimates for critical rebuilding materials and possible alternate sources.
Review licensing, lien laws and payment laws in any state your company works in, or plans to work in, as the laws can vary and change. By verifying that all construction legal paperwork and procedures are up to date before disaster strikes, cooler heads and quicker decisions prevail, allowing for a more agile response to post-storm construction contracting.
It’s not the wind. It’s the water. Water management infrastructure and flood mitigation in areas near or below sea level are critical in determining the outcome in terms of damage to a community hit by a hurricane. Torrential rains and storm surge cause greater loss than the initial storm in many instances. Contractors and construction companies operating in areas seriously at risk for flood loss should be ready to secure assets and move materials, as well as know how to maneuver safely at flooded job sites.
Large or small, a construction firm or contractor should have a disaster management plan in place. Managing during the crises, getting back to normal as quickly as possible, and recovering losses as soon as possible are the goals.
What should a disaster management plan address?
Identify risks – This entails discussion of the most likely hazards and disaster events and worst-case scenarios. In Florida and Texas, hurricanes should be front and center in any plan. Other issues to address include fire, explosion, chemical spills, active shooter, etc.
Establish preventative procedures – While there is no prevention for hurricanes, reducing losses before, during and after a storm by focusing on personal safety, securing facilities and materials, and disaster training are important.
Develop a response plan – For every scenario imaginable and applicable, have a plan. Get response protocols down to a fine point, and address all possible variations. Play the “what if” game. Ensure that each part of the plan is adaptable, and have back-up communication plans in place to circumvent disruptions in normal communications. Don’t forget document preservation and management, whether digital or hard copy.
Tell everyone – Communicate the plan to all personnel. Identify who will do what, where and how. Train people to meet their assigned responsibilities in a disaster setting with confidence and competence.
Drill – Test the plan to find holes or weaknesses. The middle of a hurricane is no time to practice disaster response. Schedule hurricane drills and update the plan as needed. Keep records of results and work on improving and refining as part of the company’s overall risk management policy.
Payment Bonds and Performance Bonds from top rated sureties add a layer of confidence and protection during hurricane season. Advanced preparation and putting a detailed disaster management plan in place exhibits good business practice and proactive risk mitigation to sureties.
For suggestions on ways to improve your bond underwriting risk factors and obtain the best rates available, contact the professionals at Alter Surety Group at (305) 517-3803 or visit www.altersurety.com.
Considerations that may determine premiums on your next construction bond
Construction bonds are an integral part of any project owner or contractor’s risk management program. For most projects, the cost of a surety bond is a standard line item in the construction cost estimate. Premiums for construction bonds are calculated as a percentage of the bond value, and usually quoted in dollars per thousand: Bond Amount X Rate/1,000. Percentages are typically tiered given the size of the bond and average in the .7 – 2.5% range but can go as high as 3% or more, depending on a variety of factors. So what affects the rate quoted for a construction bond? The short answer is risk.
As a non-traditional insurance product, similar to lending, surety bonds are underwritten. Surety underwriters consider risk factors associated with the bond and with the applicant. The higher the cumulative risk, the higher the rate on the construction bond. A good surety producer can assist with the process to ensure that the contractor is getting the appropriate construction bond at the best rate available.
Surety rate factors associated with the bonded projectType of bond – The most common premium generating construction bonds are performance and payment bonds. There is no premium for Bid Bonds. These bonds, typically issued as a package to protect the obligee/owner of a project, are based on contractor resources, experience and ability to meet the contract requirements.
Amount of bond – A larger bond may carry a lower average blended rate depending on the underlying financial strength of the contractor.
Class of business – There are some specific trades that are viewed as less risk, hence a more favorable premium rate structure due to loss experience. Common examples are paving and roofing contractors.
Size of bonded principal and operation – A small construction company that uses surety bonding less often may pay a higher rate than a large contractor with an established bond history.
Other project considerations – Design/Build projects tend to carry a higher rate. There may also be a surcharge for projects with extended durations and/or warranties exceeding one year.
Surety bond rate factors associated with the applicant
An applicant’s financial strength is the greatest part of the underwriting process when determining risk, and therefore rate. Along with the company or corporate entity, any principal or owner of a construction company with a stake in the operation greater than 10% will be evaluated for personal financial strength. In order of importance, these risk factors largely determine the rate quoted on a surety bond.
Personal credit – Credit history for an owner or owners of a construction firm is a key underwriting consideration for most construction bonds. A good personal credit score indicates strong character, good financial management practices and sureties like that. Contractors with good to excellent credit are generally rewarded with rates under 2%-2.5%, while those with poorer credit scores may see bond rates run closer to the 3% level. For smaller bonds, generally under $500,000, personal credit may be the only financial performance indicator evaluated.
Business Financial Statements – Statements prepared by a CPA familiar with construction accounting practices are viewed more favorably. Especially for larger surety bonds, expect to receive requests for company balance sheets, P&L statements and income statements over one or more accounting cycles. When it comes to the financial strength of a construction business, cash is king. So underwriters will look carefully at things like cash flow statements, WIP schedules, corporate equity, cash on hand and bank line availability to determine if the construction company has the financial ability to perform.
Personal Financial Statements – Similarly, a contractor’s personal net worth is also a factor in determining risk. While underwriters do not always require this, the ability to demonstrate a positive personal net worth with liquidity may be a consideration for acquiring a good rate on larger bonds. In such a case, expect to receive requests from underwriters for proof of personal cash/security account balances.
Industry Experience – Contractor or construction company owner and key personnel resumes that demonstrate long-standing success in a market are a plus. Reputation, particularly in the age of instant digital information, can also play a part in determining surety bond rates. Professional history, bios and production stats posted on sites such as LinkedIn, or social media entries across a variety of platforms, may be reviewed.
For suggestions on ways to improve your bond underwriting risk factors and obtain the best rates available, contact the professionals at Alter Surety Group at (305) 517-3803 or visit www.altersurety.com.
What does your Percentage of Completion data say about your company?
Work in Progress (WIP) is what a construction company or contractor invests in delivering a completed project, including materials, labor and overhead throughout the process of construction and in all stages of a construction contract, right? Well, yes and no. Those are definitely components of a WIP.
In reality, a WIP translates to numbers or, more accurately, an accounting schedule. It is a moniker attached to the balance of costs associated with a project as it moves from one stage to the next. And those numbers end up on a P&L statement and balance sheet, which bankers and sureties consider when setting rates.
For standard construction accounting using a Percentage of Completion (POC) methodology, WIP schedules for each accounting period are required (per GAAP). POC is calculated by dividing actual costs (to date) by estimated total costs. Other POC data tracked include revenues, gross profits and billings.
WIP reporting serves an important function as an early warning system by tracking actual job totals for the completed percentage of the job during and through a specific period, and offering a snapshot of profitability at a specific point. Accurate WIP data reporting can head off cash flow and budget problems, which are extremely important to smaller contractors that perform one contract at a time. Since a timely WIP schedule offers a helicopter view of contract Key Performance Indicators (KPI), it is also an immensely important strategic tool for larger companies with multiple contracts ongoing.
Top Key Performance Indicators for a Construction WIP
For WIP reporting to be useful, the KPIs tracked for actual job totals is critical. Depending on the size of a company and type of construction, your most crucial KPIs may vary. However, a construction company should always know where it stands on each project, at each period, for the following KPIs:
Underbillings – although carried as an asset on a balance sheet, this number can signal profit erosion, unapproved change orders, billing issues or vendor invoicing delays that may result in cash flow problems. And cash flow problems usually equate to increased contractor financing costs.
Overbillings – while this improves cash flow and keeps the contractor from having to dip into his own pocket, it results in a balance sheet liability. That, in and of itself, is not necessarily a negative unless it results in a pattern of “job borrowing.”
Job Borrow – this occurs when billings are more than actual to-date costs incurred AND the difference is more than anticipated total gross profit. If your budgeted gross profit is 12% on a half million-dollar job ($60K) and you’ve billed $300K YTD on $200K of actual costs, you’ve “borrowed” $40K against the job. If that money stays in the construction account, it’s not as big of a problem. But if it goes to pay for other general or administrative expenses, the money won’t be there to finish the job. A company that robs Peter to pay Paul may limit its ability to secure construction bonds with a reputable surety.
Profit Fade/Spike – cost overruns due to sloppy management or poor estimating can cause profit fade, as can inaccurate reporting in prior periods. On the other hand, profit spikes in final reporting periods may indicate that you were too conservative with beginning estimates. Margin history and margins for open jobs should run relatively consistent. Remember, the bank may have made financing decisions based on profit estimates. Accounting could be impacted, and IRS taxes may be affected, too, by profit fade or spike.
Your company’s monthly, quarterly or annual WIP schedule provides profitability insights not only to your CFO and bankers, but also to bonding agents. These statements can affect how sureties view your financial practices and bonding capacity. For more information on understanding the effects of Work in Progress KPIs on construction bonds and limiting other risks, contact the professionals at Alter Surety Group at (305) 517-3803 or visit www.altersurety.com.
What’s in store for some major markets in the rest of 2017
If you haven’t heard, there is a homebuilding boom on in Texas. Not just a little uptick, but a full-blown BOOM. Of the top five 2017 homebuilding markets — according to recent Trulia research based on building permit data —- three are in Texas. Dallas (#1), Houston (#2) and Austin (#5 behind New York and Atlanta) have enjoyed steady increases in job growth and very healthy post-recession housing appreciation, with housing starts trending well above historic averages. Among those three top Texas metro areas, 130,000 new home starts were on track for 2017. That number equals more than 10 percent of all U.S. homebuilding permits, and the combined starts of nearly 50 other big U.S. metro areas.
What defines the completion of a contract for the purposes of legal action?
Effective July 1, contractors have a better idea of when a contract is finished due to a recent change to Florida law. In June of this year, Governor Scott signed House Bill 377, which amended the statute that deals with limits for filing lawsuits related to defects in design or construction on real estate improvements. For actual flaws in design or construction, the statute of limitations is four years. For latent defects — those that are not immediately discoverable — the statute of repose is 10 years.
If you’re involved with Federal construction projects and government set-aside programs like SDVOSB, know that your bonding company may ask a few more questions.
On July 31, 2017, the U.S. District Court for the District of Columbia issued a ruling in a reverse False Claims Act case that says bonding companies can be held liable for treble damages if they issue surety bonds to companies that try to defraud the government by falsely claiming to be a Service-Disabled Veteran-Owned Small Business (SDVOSB).
The Veterans Benefits Act of 2003 established a procurement program that allows federal contracts to restrict bid competition and award these set-aside contracts exclusively to small businesses that meet specific criteria, as in the case of SDVOSBs. Given that the government has exceeded its Federal contract goals for SDVOSBs four years in a row with $13.8 billion in small business contracts awarded, it’s easy to see why some contractors might be tempted to falsify their SDVOSB or other small business program status to get a piece of the action.
Construction growth continues to be strong in 2017 in most sectors.
This growth is spurring the expansion of surety programs for healthy contractors who want to take on larger projects. One critical component in the surety – contractor relationship is the need for service specialists who know the construction industry. This includes CPAs and attorneys.
Most people think of bonds as a form of investment that’s capable of returning a high interest to the investor based on market fluctuations.
But those are primarily investment bonds that have nothing to do with another form of bonds that are used in the business arena. Surety and fidelity bonds that are mentioned in the title of this article are a very important part of these business type bonds.
Are you a DBE contractor specializing in transportation? Would you like to be involved in Florida’s $2.3 billion I-4 Ultimate Construction Project?
As the leading surety bond agency in South Florida, you can rest assured we will guide you through the processes necessary to bid any public job beginning with the I-4 Ultimate Construction Project.
Alter Surety Group, Inc., in partnership with U.S. Department of Transportation Office of Small Business, is a stakeholder in the Bonding Education Program (BEP) whose goal it is to ensure that small businesses across Florida are prepared with a surety bond with a surety bond line already established, giving everyone an equal opportunity to participate/bid on DOT funded contracts. The Florida I-4 Ultimate Construction Project will be completed by hundreds of small businesses one of which could be yours.
As Central Florida’s most well traveled interstate connecting the east and west coast and funneling millions of tourists to one of the world’s most popular travel destinations, the reconstruction of I-4 will bring hundreds of jobs, economic growth and sustainability to the region. Traffic will most likely be rerouted along the corridor causing the usual construction tie-ups, however once completed I-4, is proposed to improve transportation throughout the state and reshape the region.
Targeted contractors for this project include small transportation-related companies across the state of Florida predominately in the Orlando area that are eligible to qualify for or have an existing bond line of credit. Our job, as one of only two agencies in Florida participating in this program, is to answer questions, make introductions to the AM Best Surety markets and explain surety expectations. The BEP program, which is targeted at small/emerging businesses, will offer assistance as you compete for the various jobs available.
As small and emerging contractors bidding on jobs that may be out of your typical work scope, we at Alter Surety Group, recognize the challenges associated with becoming bondable or increasing your capacity, which emphasizes the importance of your participation in this federally backed BEP program. Being strategic when going through the bonding process is the key to long term success ultimately putting yourself in the best position to win the public jobs you bid.