December 2017

‘Miracle on the Hudson’ Survivor Dave Sanderson Will Be Keynote Speaker at SUBExcel 2018

US Airways Flight 1549, or “The Miracle on the Hudson,” survivor Dave Sanderson, an inspirational speaker and author, has been confirmed as ASA’s keynote speaker at SUBExcel 2018! Sanderson’s thoughts on leadership have made him an internationally sought-out speaker. When the flight ditched into the Hudson River on Jan. 15, 2009, Sanderson knew he was exactly where he was supposed to be. The last passenger off the back of the plane on that fateful day, he was largely responsible for the well-being and safety of others, risking his own life in frigid water to help other passengers off the plane. Despite the hazards to himself, Sanderson thought only of helping others and emerged from the wreckage with a mission: to encourage others to do the right thing. That experience profoundly changed his life and today he travels the globe sharing his inspirational and motivational leadership messages to help people make a difference in how they do business and live their lives.

Don’t miss this opportunity to hear Sanderson speak! Register online for SUBExcel 2018 and make your hotel reservations in the ASA room block at Tempe Mission Palms. SUBExcel 2018 will take place Feb. 28-March 3, 2018, in Tempe, Ariz. The early-bird registration deadline and hotel room block cut-off date is Jan. 31, 2018. To register and for more information, including the schedule, visit ASA’s SUBExcel 2018 Web site or enter via www.SUBExcel.com.

Please note that the final reception, banquet and awards ceremony will take place on Friday, March 2, instead of on Saturday as in past years. The Attorneys’ Council meeting will be the only activity scheduled on Saturday, so most registrants can schedule their departure flights on Saturday—or stay the weekend to explore Tempe, the Grand Canyon, the Apache Trail, or Monument Valley! The Attorneys’ Council meeting is open, so those who are interested in joining the attorneys for this meeting are welcome to do so.

Help ASA Fund Precedent-Setting Briefs with Tax-Deductible Contribution

As 2017 draws to a close and you consider how you’ll direct your year-end charitable giving, consider how much more you can do to help construction subcontractors by sending a tax-deductible year-end gift to the Subcontractors Legal Research Fund of the Foundation of ASA. ASA finances its “friend-of-the-court” briefs entirely by voluntary contributions to its Subcontractors Legal Defense Fund and FASA’s SLRF. So, as you consider the size of your year-end gift, please think about the magnitude and the importance of the challenges that subcontractors face every day—issues like slow or no final payment, pay-if-paid clauses, retainage, a requirement to keep working even in the face of nonpayment, broad-form indemnity, misleading insurance coverages, and more. As it looks ahead to the many precedent-setting court cases that impact construction subcontractors, ASA has to calculate how much funding is available to fund “friend of the court” briefs on each critical issue. It will help so very much if you can send your year-end gift by Dec. 31. FASA is a 501(c)(3) education foundation; contributions to FASA are tax deductible as a charitable contribution. You can make your contribution through the ASA online store. For more information, visit the ASA SLDF Web site at www.sldf.net.

OSHA Extends Electronic Reporting Deadline to Dec. 15

To allow affected employers additional time to become familiar with a new electronic reporting system, the Occupational Safety and Health Administration has extended the date by which employers must electronically report injury and illness data through the Injury Tracking Application (ITA) by two weeks to Dec. 15, 2017. OSHA’s final rule to Improve Tracking of Workplace Injuries and Illnesses requires certain employers to electronically submit injury and illness information they are already required to keep under existing OSHA regulations. The following OSHA-approved State Plans have not yet adopted the requirement to submit injury and illness reports electronically: California, Maryland, Minnesota, South Carolina, Utah, Washington and Wyoming. Establishments in these states are not currently required to submit their summary data through the ITA. OSHA is currently reviewing the other provisions of its final rule to Improve Tracking of Workplace Injuries and Illnesses, and intends to publish a notice of proposed rulemaking to reconsider, revise or remove portions of that rule in 2018.

OSHA Delays Crane Certification for Another Year

On Nov. 9, the Occupational Safety and Health Administration delayed until Nov. 10, 2018, its regulation requiring crane operators to be certified. At the same time, OSHA extended the employer duty to ensure that crane operators are competent to operate a crane safely. The agency said that the extension is necessary “to provide sufficient time for OSHA to complete a related rulemaking to address issues with its existing Cranes and Derricks in Construction.” These issues include whether operators need to be certified by type and capacity, or just by type; and whether certification is sufficient by itself to deem an operator qualified to operate a crane. ASA had urged OSHA to delay final implementation of the final crane certification rule until it addresses these critical issues.

FMCSA Expands Its Drug Testing Panel to Address Opioid Epidemic

On Nov. 14, the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration issued a new rule expanding its drug testing panel to include four synthetic opioid drugs: hydrocodone, hydromorphone, oxycodone and oxymorphone. Under the new rule, FMCSA also adds methylenedioxyamphetamine (MDA) as an initial test analyte or substance subject to analysis, and removes methylenedioxyethylamphetamine (MDEA) as a confirmatory test analyte. The addition of the synthetic opioid drugs is intended to address the nationwide epidemic of prescription painkiller abuse. Hydrocodone, hydromorphone, oxycodone and oxymorphone are Schedule II controlled substances and are more commonly known as Vicodin, OxyContin, Lortab, Norco, and Dilaudid, among others. FMCSA still will refer to its drug testing panel as a five-panel, but “opiates” is being changed to “opioids” and now will include these four synthetic substances in addition to heroin, morphine and codeine.

Suicide in the Construction Industry: What You Need to Know

ASA, in collaboration with the Construction Industry Alliance for Suicide Prevention, is helping employers address the shocking rate of suicide among construction workers. According to a study by the Centers for Disease Control and Prevention, the construction industry ranks first in the number of suicide deaths and second in the suicide rate. According to a March 2017 paper by the Brookings Institution concerning mortality and morbidity among white non-Hispanic Americans in midlife since the turn of the century, “Increases in all-cause mortality continued unabated to 2015, with additional increases in drug overdoses, suicides, and alcoholic-related liver mortality, particularly among those with a high-school degree or less.” This is the very population that dominates the U.S. construction workforce. To introduce or expand suicide prevention in your company, begin by reading Construction + Suicide Prevention: Why is this an industry imperative? 10 Questions Leaders Must Ask Themselves. For a copy of this guide and other resources, visit the Alliance Web site.

ASA White Paper Discusses Subcontractor Bidding and the Law

ASA’s white paper Subcontractor Bidding and the Law explores the ways subcontractors can get in trouble when bidding, from failing to comprehend the scope of work upon which they are bidding to making careless errors. Topics addressed include the bidding process, contract award, bid errors and the legal concept of promissory estoppel. The white paper sets forth the following seven guidelines:

1. Beware of bids that refer to the prime contractor’s standard subcontract which is not furnished with the bidding documents.
2. Avoid acceptance based upon the prime contractor’s standard subcontract.
3. Consider developing and using your own bid proposal that includes those subcontract terms that are the most important to you. ASA includes a model Subcontractor Bid Proposal as part of its Subcontract Documents Suite, which is available to ASA members under “Contracts and Project Management” in the Member Resources section of the ASA Web site.
4. Watch out for acceptances that vary or add to the bid documents upon which your bid is predicated.
5. When bidding via email or telephone, establish that the bid is an estimate only and not a firm price. Advise the prime contractor of any variation to the bid documents.
6. Verify a telephone bid with an email to the appropriate representative of the prime contractor, stating the date, time, place, the nature of conversation, variation to bid documents, and the conditional aspect, if any.
7. Upon discovery of a mistake, take the following actions immediately:

• Notify the prime contractor of the error in writing.
• Take no action that could be construed as an acceptance of the subcontract.
• Offer to meet with the prime contractor’s representative and bring your work sheets to explain the basis of the error.
• Demand the return of your bid deposit.
• Offer not to rebid the project if excused from your bid to avoid charges of collusion.

The new white paper is available under “Bidding and Market Development” in the Member Resources section of the ASA Web site.

ASA Releases White Paper on Mastering Subcontract Negotiating Strategies

Subcontractors have a wide range of options available for overcoming unacceptable language in a prime contractor’s subcontract document. There is no single right way, because individual circumstances vary so much. Thus, it is important for a subcontractor to become adept at using the proven techniques available to deal most effectively with a prime contractor’s subcontract terms. The material contained ASA’s new white paper, Mastering Subcontract Negotiating Strategies, when used in conjunction with other information published by ASA, gives a subcontractor the guidance needed to negotiate terms in a professional way. From pre-award to post-award, the white paper suggests strategies that a subcontractor can use to persuade a prime contractor to adopt more neutral subcontract terms. In addition, the white paper demonstrates how a subcontractor can respond to typical prime contractor contentions during negotiations. Most prime contractors recognize the value of addressing problem areas before a job begins. In addition, responsible prime contractors concede that they are only as good as the subcontractors that they use on a project. Everyone benefits in the long run through agreements that foster cooperation instead of confrontation. Proficiency comes with practice. A subcontractor can develop a comfort level by building on successes in dealing with prime contractors. The white paper is available to ASA members as a downloadable PDF document under “Contracts and Project Management” in the Member Resources section of the ASA Web site.

ASA Introduces ‘Mastering Hold Harmless Clauses’ White Paper

Subcontractors are vulnerable to paying large amounts of money for the negligence of others—both on contracts directly with owners, as well as those with prime contractors. Almost all construction contracts include indemnity provisions. Some of these terms represent an equitable allocation of responsibility among the members of the construction team for their negligence. Too often, though, the subcontract makes a subcontractor responsible for the costs of job-related injuries or damages over which it has no control. ASA’s newest white paper, Mastering Hold Harmless Clauses, explains in layman’s terms, how a subcontractor can use subcontract language to minimize exposure to losses beyond the extent of its own negligence. Along the way, it reviews the types of indemnity clauses, provides samples of each, and gives tips on how a subcontractor can respond to typical unfair language. The white paper is a no-cost member benefit available under “Insurance and Risk Management” in the Member Resources section of the ASA Web site.

ASA Publishes White Paper on Negotiating Mechanic’s Lien Provisions

ASA’s new white paper, Mastering Negotiations on Mechanic’s Liens, recommends that construction subcontractors and suppliers become thoroughly familiar with the lien laws of the states in which they operate. This includes procedures for designated notices, filing methods and timing, priorities of claims, etc. One source for this information is the Foundation of ASA’s Lien and Bond Claims in the 50 States. ASA’s new white paper also provides guidance to subcontractors on prospective lien waivers. ASA recommends that a subcontractor not sign a subcontract on lien waiver forms that could preclude or diminish any lien rights prior to the receipt of payment in full for the work described in a lien release or waiver. The white paper suggests that a subcontractor in a discussion with a prime contractor can maintain:

“Your subcontract says that I’m waiving my lien rights in advance of any payments. I can agree to partial waivers for the amounts I’ve been paid, but I can’t give an advance waiver. I need to protect my interests, just as you protect your interests with the owner.”

The white paper is available under “Contracts & Project Management” in the members only area of the ASA Web site by logging-in at “LogIn/Access Member Resources.

Nelson Inducted into National Academy of Construction

On Oct. 26, ASA Chief Advocacy Officer E. Colette Nelson was inducted as a member of the prestigious National Academy of Construction. NAC recognized Nelson for her work “to insure equal protections, particularly payment for all stakeholders” and to build coalitions “to achieve consensus on construction issues.” The NAC recognizes and honors individuals for their distinguished contributions to the construction industry and shares this reservoir of expertise as a service to the nation. The Academy membership represents 250 exceptional industry leaders with a bias for action. The membership represents the entire array of construction industry stakeholders—owners, designers, construction managers, general and specialty contractors, financial managers, labor leaders, academicians and researchers, journalists and editors, and professional and trade association executives. Nelson said, “I’ve had the opportunity to help identify and disseminate best practices with the goals of integrity, productivity and sustainability in construction. I know these are values shared by the members of NAC.” Nelson added, “It has been an honor to serve the construction industry during a time of enormous change.”

ASA Answers Your Questions on the Transfer of Casualty Risks

Subcontractors report that one of their biggest challenges is subcontract terms that shift casualty risks—risks of “bodily injury” and “property damage”—to them, whether or not they’re equipped to control the risk or avoid the loss. Casualty risks are transferred to subcontractors by three types of subcontract clauses: indemnity clauses (often including a requirement to “defend”), additional insured requirements and waivers of subrogation for workers’ compensation and general liability insurance. These three mechanisms can have harsh consequences for a subcontractor, making its insurance far more expensive than its own claims experience would justify. To help subcontractors deal with such clauses, ASA provides a Frequently Asked Questions that reviews the casualty risk transfer clauses that a subcontractor is likely to encounter and to show the way out of the risk transfer dilemma: Accept the risk or lose the work. ASA has a broad range of other educational materials to help subcontractors learn about casualty risk clauses. These include the following documents that are available online to ASA members:

• Subcontractor’s Negotiating Tip on Indemnity or Hold Harmless
• Subcontractor’s Negotiating Tip on Duty to Defend
• Subcontractor’s Negotiating Tip on Additional Insured
• Subcontractor’s Negotiating Tip on Owners & Contractors Protective Liability Policy
• Subcontractor’s Negotiating Tip on Subrogation of Workers’ Compensation
• Anti-Indemnity Statutes in the 50 States
• White Paper and Podcast: Addressing the Additional Insured Problem
• White Paper and Podcast: Defending Yours—Not Others’—Mistakes

ASA also has a robust advocacy effort to address casualty risk transfer. This includes both legislative initiatives and judicial action when appropriate. To find out what you can do to help with ASA’s advocacy efforts, contact your local ASA chapter, review ASA’s legislative work kit A Guide to Reforming Risk Transfer: Improving Safety and Quality in Your State, located under Government Advocacy in the ASA Chapter Toolbox, or contact ASA’s Subcontractors Legal Defense Fund.

OSHA Issues Enforcement Guidance for Now Effective Silica Rule

On Oct. 19, the Occupational Safety and Health Administration issued a memorandum to OSHA’s regional administrators intended to help them enforce the agency’s rule on crystalline silica in the construction industry. OSHA has been enforcing the Respirable Crystalline Silica in Construction standard since Sept. 23. However, for the first 30 days, OSHA offered compliance assistance in lieu of enforcement for those employers who were making good faith efforts to comply with the silica standard. Effective Oct. 23, OSHA began fully enforcing the standard with respect to construction. The new memorandum highlights some of the requirements of the OSHA rule, but does not provide guidance on all the standard’s provisions. The attachments provide inspection and citation guidance; as well as flow charts to assist with evaluating employers’ control methods. The memo also says that OSHA is in the process of developing a final compliance directive.