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What ASA & ASAWM Has Done for Subcontractors Lately
February Meeting Re-cap
 On
February 28, at the General Membership Meeting, Steve Hilger,
Attorney with Rhoades McKee, and noted construction law expert,
provided a presentation titled:
"High Risk Contract Clauses
..and How To Make Them Better."His examples of current
contract clauses that could put subcontractors at risk, were
drawn from commonly used construction contracts. His suggestions
for making them better included the use of the ASA developed
contract addendum and bid conditioning tools.
Click here for complete information.
Also presented at the February 28th
meeting was the report from the Prompt Pay Task Force that
summarized the findings from the interviews the Task Force
members conducted with 6 contractors. This report will provide a
good foundation as we move forward in our efforts to improve the
timeliness and completeness of payments for construction
projects. Many thanks to Mike Powers of Allied Electric for very
effectively chairing this Task Force and Tom VandenBosch, also
of Allied Electric, for compiling the report.
Click here to view a copy of the report. |
Recent ASA Accomplishments Improving the Business Environment for
Construction Subcontractors and Suppliers
ASA: Fighting for Subcontractors in the
Courts
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Prompted by
an April 14, 2006, letter from ASA, the California Supreme Court will
review a decision enforcing a duty-to-defend provision in a broad-form
indemnity clause. ASA argued that the clause violates state law and that
a developer shouldn’t be “held completely harmless [by a party without
fault] against a lawsuit that resulted from negligent work that it was
responsible to supervise.”
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On Oct. 26,
2005, Ohio's Supreme Court ruled that a construction owner could not
overstep limits on tort claims to obtain delay damages against a
subcontractor that had deleted a provision for delay damages from its
subcontract agreement. ASA filed two “friend of the court” briefs
arguing lack of privity of contract disallowed the owner’s claim.
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When three
payment sureties asked Maryland's high court to overturn a ruling that
the sureties had waived defenses to a subcontractor’s bond claim by not
following prescribed procedures, ASA filed a brief arguing that if
subcontractors have to meet specified deadlines for claims, then
sureties have to meet their deadlines too. On July 21, 2005, the court
ruled in ASA’s favor.
ASA: Fighting for Subcontractors in the
States
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ASA
published its second annual “report card” on the state policies that
most affect subcontractors, which is helping ASA local associations
demonstrate to state legislators exactly how laws are deficient and need
to be reformed. The report card found that no state had an adequate
overall level of protection for subcontractors. In a March 11, 2006,
speech at ASA’s annual convention, Engineering News-Record’s
Editor-in-Chief referenced ASA’s report in identifying the “state of
subcontracting” as one of the top 10 trends that will be important to
the construction industry in the next decade.
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ASA is
helping to ensure that state legislators are aware of the negative
impact of retainage by disseminating the results of an independent
report commissioned and published by the Foundation of ASA, “Retainage
Practice in the Construction Industry.” ASA local associations use the
report to argue for legislative reforms.
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ASA provided
guidance on anti-indemnity, prompt payment, and retainage reform
legislation to ASA local associations.
ASA: Fighting for Better Contracts
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ASA made
available to members its new ASA Subcontractor Bid Proposal and updated
model ASA Addendum to Subcontract.
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ASA is
working with groups representing general contractors, private and public
construction owners, and others to develop balanced standard contracts
that could eliminate the need for parties to repetitively negotiate
contract terms and conditions.
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ASA
co-published a valuable negotiating tool, “Guidelines for a Successful
Construction Project,” which spells out management best practices and
describes typical responsibilities of the parties participating in the
construction process. ASA, the Associated General Contractors of
America, and the Associated Specialty Contractors developed the
document. Visit www.constructionguidelines.org.
Remote Events Impact Every Business
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ASA’s
activities on behalf of construction subcontractors and suppliers cross
local and state and regional boundaries. ASA helps secure legislative,
judicial and other victories that have the widest possible positive
impact for the construction industry, whether that means ASA is active
in your local courthouse or in the U.S. Supreme Court. Laws and legal
decisions in remote places can have an important impact on your
business.
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For example,
a construction owner in Rhode Island mounted a constitutional challenge
to mechanic’s lien rights that imperiled the validity of liens filed in
48 other states. ASA intervened to win the case, preserving the
mechanic’s lien rights of countless thousands of subcontractors.
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ASA works to
create precedents that other states will follow in the legislative and
legal arenas, but ASA’s activities are not limited to public policy.
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ASA works to
ensure that subcontractors and suppliers have:
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Better businesses.
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Better contracts.
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A better work force.
ASA: The Subcontractor’s Voice to
Congress and Federal Agencies
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ASA
mobilized subcontractors to contact their federal legislators to ensure
that any immigration reform law that includes new immigration status
verification requirements also provide employers with clear procedures
and reliable compliance tools, as well as a “safe harbor” for employers
that follow the verification procedures. ASA is communicating members’
concerns to the Department of Homeland Security (DHS) regarding
DHS-proposed changes to existing immigration verification regulations.
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ASA lobbied
for legislation re-authorizing the long-term federal surface
transportation program. The Safe, Accountable, Flexible and Efficient
Transportation Equity Act-A Legacy for Users (SAFETEA-LU) provides
$286.5 billion in guaranteed funding for federal highway, transit and
safety programs.
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ASA has
garnered the support of 15 co-sponsors in the 109th Congress for the
Construction Quality Assurance Act, which would eliminate bid shopping
(including online reverse auctions) on all federal projects over $1
million. ASA’s push for reform continues.
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ASA asked
the U.S. Army Contracting Agency to use a traditional sealed bidding
method instead of an electronic reverse auction in procuring a new
recruiting command facility in Fort Monmouth, N.J.
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