ASA Board of Directors Meet in New Mexico 

ASA’s Board of Directors met in Albuquerque, New Mexico on July 1, 2021 – their first live meeting since the pandemic began. Board members were overjoyed at the ability to finally be able to meet in person, and the event was a well-attended success. While Zoom meetings got them through this past year, there is simply no substitute for being face-to-face; and having the ability to hold their first full-fledged board meeting in over a year left attendees feeling excited about the work being done at ASA. The electricity in the room was invigorating, and the attendees were energized about planning for the future.   

Board member, Ray Moya, was incredibly proud that outgoing ASA President, Brian Cooper, chose his home state of New Mexico to host this incredibly important meeting. The opportunity for the local chapter leadership to be able to share a lovely meal and evening with the board was an honor and a privilege for everyone who was involved.     

“We got to meet new board members and we shared a wealth of ideas and knowledge,” said Moya. “It’s very interesting to see how we all have similar successes as well as similar challenges. We are like different children but all from the same family. It is very evident that the leadership on the national level is very strong. We made decisions and recommendations that will propel ASA to the next level as well as plans that will grow our membership. We made decisions that will keep us strong and fiscally sound. We scheduled events that will keep our members engaged. Our government and legislative advocacy is second-to-none. It had been a long time since New Mexico had the honor of having this ASA group meet in our ‘home’.”    

The ASA Board of Directors’ next meeting is scheduled for late September in Austin, Texas and all in attendance are looking forward to getting together again. ASA would like to say a special thank you to everyone from the New Mexico Chapter that dedicated a lot of hard work to make this incredible event happen.  

ASA Family Honors the Life of Brianna Wright

We are heartbroken to announce that Brianna Wright passed away peacefully early Saturday morning, July 3rd. Brianna served as Executive Director for the American Subcontractor Association’s Houston Chapter for 24 years. She brought an incredible amount of energy, passion, and spirit to everything she did for ASA Houston. Brianna worked hard and sweated the details, just like her contractor members. No job was too big or too small for her to pour everything she had into it.

Brianna’s smile was her standard greeting and she was easy with a laugh. It did not matter whether you were a new hire or the owner of the company, she made you feel welcome.

Brianna battled cancer with the same grit and determination she brought to every challenge. She played through the pain, and made it seem to almost everyone but those closest to her that nothing was wrong. Brianna never wanted the focus on her – whether it was an ASA luncheon, an EIC event, or her fight with cancer.

Her respect for the community she helped build showed in her dedication to recruit a new executive director and leave the ASA Houston chapter in good hands for the future. Our thoughts and prayers go out to Brianna’s husband David, who has been a champion by her side, and her family whose loss is so much greater than ours. Brianna believed that this separation would be a temporary one and we share that hope as well. Until that time, we can offer nothing but gratitude for her service and love for so many years. It will never be forgotten.

God bless you, Brianna, and thank you.

Price Escalation: ConsensusDocs Shares Free Resources and Updates 

To help our members address the price escalation concerns of the industry, ConsensusDocs has created a price escalation resource center that includes a brief overview and free resources you are encouraged to use and share. The page includes a link to the industry-only standard contract document price escalation clause, the ConsensusDocs 200.1 Time, and Price Impacted Materials Addendum. The page also includes helpful articles, recorded webinars, and state and federal price escalation examples. Please share with them any information you have found helpful, so that others may use this as a resource as well. ConsensusDocs will also hold a webinar on the topic in early August. Stay tuned. 

SLDF in Action in Oklahoma: ASA Files to Defend Subcontractor in Lien Waiver

The American Subcontractors Association produced an application to file an amicus curiae brief in the Oklahoma Supreme Court in July, asserting that the outcome of the case at hand could have significant adverse consequences for subcontractors and suppliers. The case, H2K Technologies, Inc. v. WSP USA, Inc.and Fidelity and Deposit Company of Maryland is currently on appeal to the Supreme Court of the State of Oklahoma.

This appeal arises following the judgment by a trial court in favor of an Owner, dismissing the lien claim of a Subcontractor who provided labor and materials to improve the owner’s property. 

In the original contract, the Contractor agreed to waive its lien rights and to insert similar lien waivers into any subcontracts it entered into. When the Contractor hired Subcontractor, however, the agreement did not contain any such lien waiver language, did not refer or incorporate the prime contract and did not advise Subcontractor its lien rights were purportedly waived. This Contractor eventually filed for bankruptcy without having paid Subcontractor anything for its work. The Subcontractor then filed a lien against Owner’s subject property.

The trial court held that even though Subcontractor had no knowledge of the lien waiver agreed to by Contractor, it was held to have “constructive notice” of the terms of the prime contract, and thus its lien rights had been waived by the Contractor. The Subcontractor is appealing this ruling to the Oklahoma Supreme Court. According to David Walls, who prepared the brief on behalf of ASA, “The effect of this ruling by the trial court is devastating on subcontractors, vendors and suppliers. If allowed to stand, subcontractors would be bound by the terms of any and all contracts above it in the chain of contracts on a private project, whether it had knowledge and receipt of them or not. Extended to its logical end, this means financing agreements, prime contracts and upper tier subcontracts.  This holding turns the letter and intent of Oklahoma’s mechanics and materialmen’s lien laws on its head, and effectively strips subcontractors of their most useful tool in making sure they get paid.”

The American Subcontractors Association is actively involved in the promotion of legislative action across the nation and has regularly intervenes in legal actions that affect the construction industry at large through its Subcontractor Legal Defense Fund. The issues presented in this case implicate the ability of its’ members to be paid for the work they do in all facets of the construction industry. ASA encourages the Supreme Court of Oklahoma to grant permission to the Association to present its argument on behalf of H2K Technologies in this case.

David Walls, Esq., David A. Walls, PLLC, Oklahoma City, OK, prepared the application for ASA.

ASA’s Subcontractors Legal Defense Fund financed the brief. ASA’s Subcontractors Legal Defense Fund supports ASA’s critical legal activities in precedent-setting cases to protect the interests of all subcontractors. ASA taps the SLDF to fund amicus curiae, or “friend-of-the-court,” briefs in appellate-level cases that would have a significant impact on subcontractor rights. Contributions to the SLDF may be made online. For more information about the SLDF visit www.sldf.net.

ASA Supports RETAIN GPS and Satellite Communications Act

ASA strongly endorses the Recognizing and Ensuring Taxpayer Access to Infrastructure Necessary for GPS and Satellite Communications Act or the “RETAIN GPS and Satellite Communications Act” introduced by Sen. Inhofe (R-OK). This legislation would ensure that the costs incurred by the public sector, businesses and consumers as a result of the FCC’s decision to permit Ligado Networks LLC to use spectrum in a way that would cause interference to GPS and satellite communications would be covered by Ligado, the licensee benefiting from the decision. The FCC’s Ligado Order already recognizes the potential for interference to GPS receivers and requires that, “Ligado shall expeditiously repair or replace as needed any U.S. Government GPS devices that experience or are likely to experience harmful interference from Ligado’s operations.” However, the Order failed to go far enough in three ways.

First, it did not provide an adequate description of the potential costs to federal agencies and thus the American taxpayer. Federal agencies are responsible for ensuring reliable GPS and satellite communications necessary for all manner of safety of life operations. Second, while recognizing the potential costs associated with interference to Federal agency owned devices, the FCC order inexplicably fails to require that Ligado also bear the costs of interference to other government and private owners of devices and applications that may be disrupted by Ligado’s proposed operations. Third, the Order improperly applies interference limits that are fundamentally insufficient to protect critical satellite communications and navigation signals from unknown millions of Ligado devices operating over wide geographic areas.

Ninety-nine percent of the GPS receivers are used in critical applications by non-Federal government users, businesses and consumers, and satellite communications networks. The reliability of GPS and satellite communications is necessary for safety of life operations, national security and economic activity including the operation of construction and mining equipment. The RETAIN GPS and Satellite Communications Act acknowledges the harm to GPS and satellite communications end users caused by the Ligado order and ensures the burden of cost sits squarely where it belongs on Ligado, rather than our construction companies.

Senate Advances Bipartisan Infrastructure Package

On July 21, Senate Majority Leader Schumer held a preliminary floor vote (60 votes are required) to limit debate on whether to proceed to a legislative vehicle that would be used to carry the bipartisan infrastructure bill.  Additionally, he set a Wednesday deadline for Senate Democrats to reach agreement on a $3.5 trillion budget resolution that would include President Biden’s families’ plan (childcare, education, paid family leave) climate change and other provisions.  Key Republicans complained that Schumer was rushing a process to finalize critical details of the bipartisan plan providing $579 billion in new infrastructure spending over five years, particularly on how to pay for it.  Sen. Portman, one of the leading Republican negotiators,  confirmed that the bipartisan group of 11 Republicans and 11 Democrats had eliminated a plan to rely on increased IRS tax enforcement to help pay for new spending. That plan called for providing $40 billion into the IRS to generate a net $100 billion in new revenue from increased collections.  Sen. Portman said the bipartisan group would rely on other financing strategies including the repeal of a Trump administration rule that would require drug price discounts negotiated between drug makers and insurance middlemen to be passed on to consumers. Repealing the rule could save as much as $170 billion over 10 years in Medicare expenses, partly because federal subsidies would increase to meet rising Part D premiums that would no longer benefit from the discounts.

The Congressional Budget Office (CBO) suggested that more funding could be tapped from unspent pandemic relief and that expanded unemployment benefits have cost $53 billion less than expected, and that an employee retention tax credit still has $66.6 billion in funding available, though estimates were subject to change. Also, CBO stated that a tax credit for employers to offset the cost of providing paid family and medical leave to their workers still has $106.3 billion in available unspent funding; however, the CBO noted those estimates were not directly comparable to their prior projections.

House Completes FY22 Appropriation Bills

The House has completed full committee action on all 12 FY22 appropriations bills.  The next phase will begin with plans to consider a seven-bill maxibus. The bills to be considered include:  Labor-HHS; Agriculture-FDA; Energy and Water; Financial Services; Interior-Environment; Military Construction-VA; and Transportation-HUD. The other five bills could also be considered, but no date has been scheduled for floor consideration.