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legislation

When Surety Bond Incorporates the Subcontract by Reference, Is the Subcontract’s Arbitration Clause Also Incorporated?

Developers Sur. & Indem. Co. v. Carothers Constr., Inc., 2017 U.S. Dist. LEXIS 111021 (D.S.C. July 18, 2017); Developers Sur. & Indem. Co. v. Carothers Constr., Inc., 2017 U.S. Dist. LEXIS 135948 (D. Kan. Aug. 24, 2017) Two recent decisions from United States District Courts for the District of South Carolina and the District of Kansas, respectively, reached opposite conclusions when presented with the same issue: Is a surety bound to arbitrate claims against it when the surety’s bond incorporates its principal’s contract by reference, and the principal’s contract contains an agreement to arbitrate disputes. The District of South Carolina, applying South Carolina law, held that a surety is bound by the arbitration agreement in the incorporated contract, while the District of Kansas held that a surety is not so bound. These cases both arise from an arbitration demand filed by the general contractor, Carothers Construction, Inc. (“Carothers”) against the surety, Developers Surety and Indemnity Company (“DSI”). DSI issued performance and payment bonds on behalf of subcontractors Liberty Enterprises Specialty Contractor (“Liberty”) and Seven Hills Construction, LLC (“Seven Hills”) in favor of Carothers for their work on Projects located in South Carolina and Kansas, respectively. Each subcontractor defaulted on its contractual obligations. Carothers initiated arbitration against DSI regarding both Projects. According to Carothers, the bonds incorporated by reference the subcontracts’ mandatory arbitration clauses and thus, DSI was subject to binding arbitration. In declaratory judgment actions before Federal District Courts in South Carolina and Kansas, DSI asked the courts to declare that the arbitration clause did not bind it to arbitrate Carothers’ claims. Each court reached the directly opposite conclusion. This article discusses the decision reached by each court in turn. In this action, DSI sought a declaration from the District Court in South Carolina that the arbitration clause in the subcontract between Carothers and Liberty did not bind it to arbitrate Carothers’ claim. DSI argued that the arbitration clause had no application to the claim between it and Carothers because, by its own terms, the clause applied only to claims “between the Contractor and the Subcontractor,” and DSI, as surety, was neither. It similarly argued that Carothers’ claims fell beyond the scope of the arbitration clause, as the claims arose out of the bond, whereas the arbitration clause expressly applied only to claims arising from or relating to the Carothers – Liberty subcontract. Applying South Carolina law, the court held that the subcontract’s arbitration clause bound DSI to arbitrate. The court found that South Carolina cases had previously concluded that a subcontract may incorporate an arbitration agreement in the prime contract by reference, and that the same result should obtain in the case of a bond. The court further found that DSI had guaranteed the performance of all of Liberty’s obligations under the subcontract and had incorporated all of the subcontract’s terms, including the agreement to arbitrate disputes. Reasoning that a bond is to be construed together with the agreement it incorporates in order to ascertain the parties’ intent, and that a surety obligates itself under a bond to the same liability as its principal, the court concluded that the parties intended to submit disputes against DSI under the bond to arbitration. The District Court in Kansas reached the exact opposite result, finding that DSI did not consent to arbitration of Carothers’ claims on the bonds. The court accepted the argument unsuccessfully advanced by DSI in the District Court in South Carolina – that the arbitration agreement expressly applied only to disputes between contractor and subcontractor, and DSI, as surety, was neither. In so finding, the court cited other provisions within the subcontract that supported its interpretation that the subcontract did not intend for “surety” and “subcontractor” to mean the same thing. Thus, the court held that the arbitration clause’s reference to disputes with subcontractor must not have been intended to include disputes with the surety. The court also reasoned that, although the bonds incorporated the subcontract (and its mandatory arbitration provision) by reference, DSI did not agree in the bonds to assume “any or all obligations” of subcontractor. Rather, it only agreed to undertake “certain” obligations in the event of subcontractor’s default. The court said that it “respectfully disagreed” with the decision reached by the District Court in South Carolina, noting that that court had relied on the general principle of South Carolina law that “the liability of a surety is measured precisely by the liability of the principal.” The court noted that Kansas courts have not adopted such a rule. The court further found that even though a surety’s liability may be coextensive with that of the principle as a general rule, DSI’s liability in this case was defined by the terms of the bonds. Reading the plain language of the arbitration provision, other language in the subcontract, and the language in the bonds, the District Court in Kansas elected to disagree with the District Court in South Carolina’s conclusion that the parties clearly intended to submit disputes to binding arbitration. https://www.lexology.com/library/detail.aspx?g=27162bc5-be73-4329-9e4f-c2669812846f

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sba

SBA Makes Changes to its Surety Bond Program

The U.S. Small Business Administration announced today two important changes to its Surety Bond Guarantee (SBG) Program that will increase contract opportunities for small contractors, supporting them to grow their business operations. The changes will become effective on September 20, 2017. The SBA will increase the guarantee percentage in the Preferred Surety Bond Program from no more than 70 percent to no more than 90 percent. The SBA’s guarantee will be 90 percent if the original contract amount is $100,000 or less, or if the bond is issued to a small business that is owned and controlled by socially or economically disadvantaged individuals, veterans, service disabled veterans, or certified HUBZone and 8(a) businesses. All other guarantees will be 80 percent. The eligible contract amount for the Quick Bond Application (Quick Bond) will increase to $400,000 from $250,000. The Quick Bond is a streamlined application process, with reduced paperwork requirements, that is used in the Prior Approval Program for smaller contract amounts. SBA’s review and approval requires minimal time, allowing small businesses to bid on and compete for contracting opportunities without delay. Through its SBG Program, consisting of the Prior Approval and the Preferred Surety Bond Programs, the SBA guarantees bid, payment and performance bonds for contracts that do not exceed $6.5 million, and up to $10 million with a federal contracting officer’s certification. The SBA’s guarantee encourages the surety company to issue a bond that it would not otherwise provide for a small business. https://www.constructionequipment.com/sba-makes-changes-its-surety-bond-program

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How Speed to Value Will Destroy Traditional Insurance

It will not be insurtech startups that destroy the traditional insurance industry. Rather, it will be a complete lack of urgency in regards to the insurance customer experience. There is no more important aspect to the insurance customer experience over the next five years than speed to value. How quickly can you deliver value to your customers? The answer to that question could be the difference between disrupting and being disrupted. Speed to Value Today we’re talking about giant slaying. We’re talking about David putting a grain of sand in his slingshot and taking down Goliath. Today we’re talking about killing the incumbent. There’s a simple reason why insurance industry disruptors are having any impact on our industry at all, and that has to do with speed to value. It has to do with them looking at our industry and finding ways in which they can provide our products and services to insurance consumers in a faster, cheaper, and easier manner. They’re getting the value of the product to the customer faster than the current incumbents are able to do. It’s that sole idea that even gives them a shot. It’s their foot in the door. Common Misconception of Speed to Value Today we’re going to talk about what a common misconception of speed to value is, how insurtech companies are using speed to value to win market share away from incumbents, the three layers of speed to value that most people understand, how we can use those in our business, in our traditional insurance model, and how we can make improvements to that model in order to deliver the value to customers faster and win the speed to value game. Most people confuse speed to value with the innovators’ curve, meaning they think whoever gets to market fastest is ultimately going to be the winner. In many cases, that’s true, but the innovators’ curve is a very different concept. What we are talking about in speed to value is how quickly you are able to deliver value to customers once they engage with your brand. It’s that simple idea that is allowing insurtech companies – in particular, companies with no history inside the industry – to ultimately penetrate and make waves> Now, some of that is just really, really good PR, as we’ve seen from the recent financial results that many of our insurtech darlings have had. But that doesn’t mean that the philosophy, the concepts, the strategy that they’re using isn’t valid. Speed to value is about getting what you do, what your customers want from you as a provider to them, as fast as you can. Speed to Value is Hard In the traditional sense, speed to value is actually a major problem for insurance providers. There’s no real, tangible item that they get to take home and put up on their wall or even really put in their desk since most policies are delivered electronically today. Now, once you have that promise, it’s just a hope. There’s nothing there. You don’t receive that value until you actually have a loss. The speed to value, the amount of time between purchase of product and when actually receive the value from that product, can be a long time. During that time between purchasing a policy and ultimately extracting the value from that policy, which is the claim reimbursement, the financial reimbursement, based on whatever product it is, that customer is deluged with marketing and branding and ideas, and they talk to friends. This is when the initial high of making a decision to choose you, whether it’s the agency or the carrier, as their insurance provider, all the – I’m not going to say euphoria – the positive vibes that they had in choosing to make that purchase with you starts to get a little fuzzy. They start to forget why they chose you because they’re getting pounded over the head with price and then they’re getting pounded over the head with commercials over here and then they see this person and they talk to their cousin and then they get a renewal and that renewal goes up 5% and they’re wondering, “Why, if I didn’t file a claim, is my price going up?” They still haven’t extracted any value from that policy. It’s that time period when those good, positive vibes that they had when they ultimately made the decision to go with you as their provider start to become neutral and then possibly start to swing over to being negative because all they’re really feeling like is they’re paying more for something that they never actually used. Speed to Value Solved This is the problem that we have to solve, my friends. We have to figure out ways that we can take the value that we provide and chop it up and deliver it throughout the course of the year. Now, what that means is our only value to customers cannot be a little bit of education on the front end sale and when we actually pay out a claim because there is so much other time in between those two moments where that customer can become disenfranchised with us – with us as their provider, with us as their agent, with us as their carrier. Then someone comes in with a slightly slicker message and new technology, and they can wedge their way in and buy those customers out from under us. This is the problem we have to solve. In the insurance industry, there are three primary moments when speed to value matter more than anything else that you can do. Read The Entire Article At: https://www.agencynation.com/how-speed-to-value-will-destroy-traditional-insurance

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legislation

Dramatic change ahead for the Ontario construction industry

With the summer months behind us, the fall season in the construction industry will include the next steps in passing Bill 142, also known as the Act to Amend the Construction Lien Act. If implemented, Bill 142 will represent the most significant legislative reform seen in the Ontario construction industry since 1983, when the existing Construction Lien Act came into force. The first reading of Bill 142 was carried on May 31, 2017 and it is widely anticipated that the second reading will occur early in the fall. Although consultation on the language of the draft continues, it is almost a certainty that Bill 142 will pass well before the provincial election in the spring of 2018. While the themes giving rise to this legislation have been under discussion for many years, the industry should be prepared for dramatic change with respect to both contract administration and dispute resolution. The hot button terms representing this reform are without a doubt “prompt payment” and “adjudication”. Together with a slew of changes intended to modernize construction liens, and a new requirement for bonding on most public projects, these key concepts are going to impact virtually every player in the construction industry and every type of project – from the largest P3 infrastructure project to the renovation of your kitchen. Indeed, one of the commonly cited challenges with Ontario’s construction legislation has always been that projects sitting at opposite ends of the spectrum with respect to size and contract price are nonetheless governed by the same law. There are many ways that the objectives of this construction law reform can be captured. The following three are salient: creating a statutory mechanism to enforce timely payment for work performed; reducing the prevalence, cost, complexity and duration of construction dispute resolution proceedings; and simplifying the construction lien process. Bill 142 has been modelled, in part, after other jurisdictions. However, the purpose of this article is to focus more on a forward-looking summary of what Bill 142 will mean for the industry, and less on the process that led to it. The scope of the overall changes can be seen even in the title of the legislation. Rather than the Construction Lien Act, Ontario will soon have the Construction Act. Prompt payment A lengthy debate within the construction industry over the need for prompt payment was the primary driver behind the provincial government commissioning a full review of the Construction Lien Act. It is therefore not a surprise that prompt payment features prominently in Bill 142. One of the principal criticisms of past efforts at prompt payment (many readers will recall Bill 69) was that with payment terms imposed by legislation, parties would not have the freedom to customize their contracts for the unique nature of each project. For example, while some contracts contemplate monthly billing and payment, it is quite common on larger projects for payments to be tied to the achievement of specific milestones. The prompt payment structure contemplated by Bill 142 seeks to achieve that balance. The deadline for making a payment will be triggered by the submission of a “proper invoice”. The Bill sets out the minimum information that a proper invoice must include and then allows for “any other requirements that the contract specifies” and any other information that may be prescribed by regulation. In addition to basic information such as the contractor’s contact information and where to send payment, a proper invoice must include the authority (usually the contract) on which the work was supplied, a full description of the work, the amount owing and the payment terms. Importantly, Bill 142 provides that proper invoices shall be submitted monthly unless the contract provides otherwise. Accordingly, it will be more critical than ever for parties to figure out the timing and basis for invoices (including milestone payments) at the time they draft their contract. The decision will otherwise be made for them by the legislation. It is also essential to understand that the statute will prohibit any contract clause that makes the giving of a proper invoice contingent upon payment certification or the prior approval of the invoice by an owner. In other words, if the statutory and contractual requirements for the contents of a proper invoice are met, the deadline for paying it will start to run. This concept may be disappointing to some in the industry who would have preferred to see payment deadlines tied to certification. However, the counterargument to that reaction will be the freedom to negotiate the invoice delivery process at the front end of the job. The key concept in the prompt payment section of Bill 142 is the imposition of statutory payment deadlines. The deadline for payment by an owner to a contractor will be 28 days from the delivery of the proper invoice, unless the owner delivers a prescribed form of notice of non-payment within 14 days of the proper invoice being received. Notably, such a notice must particularize the amount and basis for non-payment and can be tested, at the discretion of the contractor, in the binding adjudication process that is described below. Read The Entire Article:http://www.jdsupra.com/legalnews/dramatic-change-ahead-for-the-ontario-38417/

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Euler Hermes Americas Launches Surety In The US Canada Brazil

Euler Hermes, the world’s leading trade credit insurer, today announced it has launched Surety- including performance and payment bonds – in its Americas region (U.S., Canada and Brazil). With nearly 100 years of global surety and bonding history, Euler Hermes is one of the world’s most experienced surety providers. ‘The addition of Surety is a natural evolution for Euler Hermes, as we seek to provide a full suite of risk management solutions and business growth support to our customers,’ said James Daly, president and CEO of Euler Hermes Americas. ‘Surety bonds allow our customers to preserve liquidity, leaving cash free for potential new projects. By partnering with Euler Hermes, a customer can ensure its working capital remains intact and its business continues profitable growth.’ Locally in the U.S., Canada and Brazil, Euler Hermes will partner with specialized surety agents and brokers and will focus on contract and commercial surety. Contract surety bonds are a common requirement in the construction industry, where Euler Hermes offers bid, payment, performance, supply and maintenance bonds for mid to large contractors, while commercial surety bonds may be required by local and state law to comply with state or federal regulations. Euler Hermes offers a variety of bonds to individuals, small businesses and large companies. Euler Hermes’ investment grade ratings (AA- S&P, A+ AM Best) are accepted by corporations and banks across the globe, making it a solid reference for contractors and surety customers’ beneficiaries and financial partners. Certified through the U.S. Department of the Treasury’s Listing of Approved Sureties, Euler Hermes can structure individualized bonds to meet specific customer needs in the more than $6B U.S. surety market. With a global surety team of over 150 employees, Euler Hermes is uniquely capable of providing true integrated international bond programs, allowing for central management and a single contact for operations in multiple countries. The company’s worldwide presence and proprietary global market information allows it to accurately calculate risks to proactively support customers. ‘When competing for business, companies and contractors need a reliable global surety partner who understands their plan and their industry,’ said Peter Quinn, Head of Surety for Euler Hermes Americas. ‘Our team of domestic and international surety experts provides a high level of knowledge and service to help our customers compete quickly and confidently. Our personalized approach enables us to find optimal solutions for each partner.’ http://www.publicnow.com/view/14FF6D5B5C63EBA293FDE7F075F23376F0334EDB?2017-08-16-17:00:09+01:00-xxx2966&sthash.zYdWeVUs.mjjo

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Hub International purchases “certain assets” of Quebec surety broker

Chicago, Ill.-based Hub International Limited announced on Monday that Hub Quebec has purchased “certain assets” from Patrice Varin, through a corporation held by him. Terms of the acquisition were not disclosed. Varin will join Hub Quebec, bringing with him a commercial line book of business focused on offering bonds and surety-related products, Hub noted in a press release. Varin is a member of the Surety Association of Canada and associated with MP2B Assurance, which offers personal, commercial, marine, aviation and specialty insurance, among others. The purchase is the latest Canadian acquisition from Hub. In January of this year, Hub acquired-based Mainline Insurance Brokers Inc., Indian Head Agencies (1980) Ltd., R&J McKay Agencies Ltd. and Cathedral Insurance Services (1995) Ltd. (together as Mainline). Based in southeastern Saskatchewan, Mainline has 16 offices throughout the province and is a “property and casualty and personal lines insurance solutions provider.” On Sept. 8, 2016, Hub acquired two brokerages in one day: Barrie, Ont.-based Sarjeant Insurance Brokers Limited and Edmonton-based managing general agency New Dimensions Underwriters Ltd. In both of those cases, terms of the acquisitions were not disclosed. Sarjeant specializes in providing P&C solutions, including auto, residential, recreational vehicle and watercraft insurance, as well as private client services for valuable and collections, fine arts, wine collections and personal excess liability. The company also offers risk management services, building valuations, risk audits and contractual reviews. Other Canadian acquisitions over the last few years include: The full-service commercial and personal lines brokerage Gamble & Associates Insurance Limited, which helped to establish a large footprint in southwestern Ontario; A book of auto dealer business from independent broker Alliance Assurance Inc. in New Brunswick, expanding Hub Atlantic’s general middle-market business; and The shares of Gibson’s Insurance Agency Ltd., a general brokerage servicing government automotive insurance needs and that maintains a large agriculture/farming customer base, resulting in Hub broadening its local market reach and specializations in Manitoba. Hub, a global insurance brokerage that provides property and casualty, life and health, employee benefits, investment and risk management products and services from offices located throughout North America, said in the release that it is “committed to growing organically and through acquisitions to expand its geographic footprint and strengthen industry and product expertise.” https://www.canadianunderwriter.ca/insurance/hub-international-purchases-certain-assets-quebec-surety-broker-1004118730/

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Travelers Casualty and Surety Co. of America seeks more than $400,000 from Godfrey corporation

EAST ST. LOUIS – A Godfrey corporation and two individuals are accused of failing to provide indemnity per the terms of their agreement with a surety company. Travelers Casualty and Surety Co. of America filed a complaint on Aug. 3 in the U.S. District Court for the Southern District of Illinois against Heafner Contracting Inc., Michael Heafner and Sally Heafner alleging breach of contract. According to the complaint, the plaintiff executed bonds on behalf of Heafner Contracting Inc. and the Heafners were indemnitors. The plaintiff alleges that numerous claims have been made against the bonds and that it has paid $423,622.70 to resolve such claims. The plaintiff holds Heafner Contracting Inc., Michael Heafner and Sally Heafner responsible because the defendants allegedly failed to reimburse the amounts plaintiff has paid on claims against the bonds and in connection with its investigations of claims. The plaintiff requests a trial by jury and seeks judgment against defendants to indemnify plaintiff’s losses in the amount of $423,622.70, plus interest. It is represented by Mark R. Osland of Law Office of Stephen H. Larson in St. Louis. U.S. District Court for the Southern District of Illinois case number 3:17-cv-00828 https://madisonrecord.com/stories/511176567-travelers-casualty-and-surety-alleges-godfrey-corporation-failed-to-provide-indemnity

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legislation

Reverse False Claims Act Liability Extended to Bonding Companies

On Monday, the U.S. District Court for the District of Columbia ruled that bonding companies can be held liable for treble damages under the False Claims Act for issuing surety bonds to construction companies that falsely claim to be a Service-Disabled Veteran-Owned Small Business (SDVOSB). In a novel reverse False Claims Act case, whistleblower Andrew Scollick alleged that the bonding companies “knew or should have known” the construction companies were shell companies acting as a front for larger non-veteran owned entities violating the government’s contracting requirements. A reverse false claim action can occur when defendants knowingly make a false statement in order to avoid having to pay the government when payment is otherwise due in violation of 31 U.S.C. § 3729(a)(1)(G) (reverse false claims). See United States ex. rel. Scollick v. Narula, Case No: 14-cv-01339-RCL (District Court, District of Columbia. July 31, 2017). Under the Miller Act, government construction contractors must post bid bonds, performance bonds, and payment bonds that guarantee that the contractor will perform the work according to the terms of the contract. In this case, the contract terms required that the construction be performed by a SDVOSB entity. Michael Kohn, of Kohn, Kohn & Colapinto, who represents the whistleblower, argued that given their role in providing a surety bond to the contractor the bonding companies would know whether the invoicing being billed against the contract is being performed by a SDVOSB. The district court agreed and found that a “reverse false claims” violation occurred because the bonding company knew or should have known that the construction organization was not a SDVOSB and the act of issuing surety bonds furthered the fraud. As a result, the bonding companies were held legally obligated to return to the government funds the bonding company knew to be paid to contractor firms fraudulently posing as SDVOSBs. Being held liable under the False Claims Act means that treble damages will be awarded for every dollar up to the amount of the bond that the government paid out under each contract Because of the substantial dollar amounts involved, it is not all that uncommon for contractors to falsify service-disabled veteran status. Holding bonding companies liable when they have reason to know of the fraud could have an immense impact on stamping out such contract fraud. “Holding bonding companies liable for treble damages in these types of case will have a huge impact on preventing fraud in government contracts and will help ensure these contracts go to disabled veteran-owned companies as intended,” said Kohn. The Scollick case alleges that two of the largest surety bonding companies, Hanover Insurance Company and Hudson Insurance Company, knowingly bonded dozens of Veteran Administration construction contracts totaling more than $12.5 million with the knowledge that the bonded contractors did not qualify as service-disabled, veteran-owned small businesses. https://www.webwire.com/ViewPressRel.asp?aId=211708

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legislation

Court Finds Public Owners Responsible for Evaluating Surety as well as Surety Bonds

Mechanic’s liens provide security for nonpayment to subcontractors and suppliers on private projects. Because mechanic’s liens are not valid against property that is owned by the state or a municipality, the Little Miller Act (C.G.S §49-41 et seq.) was implemented to provide subcontractors and suppliers working on public works projects with a similar level of security. Pursuant to the Little Miller Act, any contractor entering into a construction contract exceeding $100,000 for a public works project must provide the public owner with a payment bond “with a surety or sureties satisfactory to the officer awarding the contract.” If the public owner fails to receive such a bond, the statute provides that the public owner may be liable to unpaid subcontractors in accordance with C.G.S §49-42. In a series of recent lower court decisions that involved multiple subcontractor claims in connection with the same project, the Connecticut Superior Court considered the level of investigation a public owner must perform on the surety company in order to find the surety to be “satisfactory” under the Little Miller Act. The court considered whether the public owner’s contracting officer fulfilled his obligation under the Act by merely confirming that a signed bond form was provided by the contractor. The contracting officer was unaware that the surety that issued the bond was not authorized/licensed to do insurance business in the State of Connecticut and that there were irregularities on the face of the bond and its attached power of attorney. The courts concluded that finding a surety “satisfactory” requires more than a simple review of the bond as to form. The court determined that compliance with the Act by a public owner requires a focus on the surety issuing the bond and a consideration of substantive issues including: whether the surety company actually exists; whether the surety company is authorized or prohibited to do business in Connecticut; and whether the public owner has actual knowledge of facts that might or should preclude characterizing the surety as satisfactory. To comply with the Little Miller Act (and protect itself from liability), a public owner should perform a substantive review of the bond instrument and the bonding company to determine that the surety meets the conditions identified by the court. We recommend that this review include, at a minimum, a search of the records of the Connecticut Secretary of the State under the name of the surety and an inquiry of the Connecticut Insurance Commissioner to determine whether the company legally exists and is authorized/licensed to issue surety bonds in the state of Connecticut. http://www.jdsupra.com/legalnews/court-finds-public-owners-responsible-14759

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Contractor With Financial Issues Blew Past Budget and Deadline on Encanto Elementary Project

Unforeseen issues drove the cost to overhaul Encanto Elementary 30 percent over budget. The project’s contractor was facing financial problems at the same time of the cost increases; but the district is adamant that there’s no link between the company’s issues and the cost overruns. Encanto Elementary needed a lot of work. And last month, the San Diego Unified School District wrapped up the school’s comprehensive upgrade, replacing windows, retrofitting for air conditioning, updating the building for disability and accessibility compliance and planting trees to add shade on the playground. In the end, the project cost the district more than $2.5 million over its original $8.6 million contract and finished more than a year past its scheduled completion date. That unforeseen 30 percent cost increase in the project is an extreme outlier among the district’s construction projects. But the contractor responsible for the project has another big job with the district at Crawford High, and that one is on the cusp of reaching its budget, too. Many of the cost increases and delays came from unforeseen construction issues, like termites and asbestos. But the timeline coincided with a culmination of financial problems faced by the project’s general contractor, T.B. Penick & Sons. The district is adamant that there’s no link between the company’s financial issues and the cost overruns with the Encanto Elementary project. The district and T.B. Penick initially agreed to a contract to modernize Encanto Elementary in July 2014 for $8.6 million. But over three years, the contractor requested – and the district approved – changes to the project totaling another $2.5 million. Whenever contractors need to exceed the agreed upon price of a project, they submit a request change. If the district approves, it’s called a change order. A project’s change order rate measures the percentage increase in a project’s cost based on all those adjustments. Encanto Elementary’s change order rate of 29.4 percent is far and away the highest of the district’s active bond projects – the districtwide average rate is just 2.2 percent – according to the district’s latest construction report. The next highest rate for active bond-funded projects is 9.2 percent, for upgrades to the athletic facilities at Crawford High School. T.B. Penick is the contractor on that project, too. “Considering the district has 60 construction projects under way, it is not unusual for one or two projects to encounter unforeseen issues that necessitate above-average change orders,” said the district in a statement. Unforeseen conditions led to many of the change orders. For example, the contractor discovered termite damage inside walls during renovation, and the change orders allowed workers to restore the building’s structural integrity. William Savidge, the former chair of the Coalition for Adequate School Housing, the largest coalition of school district facilities professionals in the country, said good practice calls for districts to budget for a 10 percent change order rate in building upgrade and modification projects, because sometimes older buildings offer surprises that weren’t found during pre-construction surveys. The district heeds to that 10 percent budget cushion for project changes. Encanto’s nearly 30 percent rate is much higher than that, and Crawford’s is creeping toward its limit. Since that specific change order pushed the rate over the 10 percent threshold, it had to go to the school board for approval. None of the subsequent changes went to the board, because no individual change exceeded $200,000. At the time the asbestos-related change went to the board, the project was already nearly $1 million over budget and the asbestos only cost an additional $19,902. While the project was edging forward, T.B. Penick was having issues of its own. At recent bond oversight committee meetings, district staff disclosed that a surety – a third party in bond contracts that ensures that all obligations are completed in case something goes wrong – would be guaranteeing the projects’ completion. “On nearly all projects the general contractor completes the construction project without needing assistance of their surety (insurance company),” the district said. “The insurance is only seldom needed when a financial or other operational issue arises that prevents the general contractor from completing the project, such as the case with T.B. Penick.” Because T.B. Penick is experiencing financial challenges the surety is directly issuing payments to subcontractors on the company’s behalf for the Encanto and Crawford projects. “T.B. Penick & Sons is having financial problems that have impacted the project schedules at Crawford High School and Encanto Elementary School,” the district said in a statement. “The San Diego Unified School District requires contractors to submit performance bonds on all construction projects to guarantee performance and ensure completion. The district is working with the performance bond surety to complete and closeout both the Encanto and Crawford projects. … Now that both projects are being overseen by the surety we expect satisfactory completion.” T.B. Penick did not respond to multiple requests for comment. The contractor has been slapped with several lawsuits alleging failure to pay subcontractors across the country. Several this year alleged nonpayment on projects on a military base in San Bernardino County. Doug Flaherty, an attorney who represented two subcontractors in lawsuits regarding payment issues on projects in San Bernardino County against T.B. Penick, said it’s hard to gauge the relation between the lawsuits and the company’s financial issues. Often, he said, payment disputes aren’t reflective of a company’s cash flow. And sometimes subcontractors have to file lawsuits before they’re paid for simple legal reasons. They have a limited window to file a suit, in case they aren’t ultimately paid, so they’ll do so early as a precaution. Both of Flaherty’s lawsuits were dismissed and the subcontractors he represented were paid. A member of the district’s Independent Citizen’s Oversight Committee, William Ponder, said he has concerns over potential links between the contractor’s financial issues, the lawsuits alleging it didn’t pay subcontractors and the projects it’s working on in the district. “One of my major concerns is when you don’t pay subcontractors you start to look at

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