Sunday, November 15, 2015

Piece-Rate Compensation - AB 1513 and its impact on contractors

On October 10, 2015 Governor Brown signed AB1513 into law.  The modifications to employment law that AB1513 made deal with workers’ compensation and piece-rate compensation.  This post addresses the latter.

A few industry associations asked a law firm to provide an opinion of the new law as it relates to piece-rate compensation.  The law firm did an excellent job addressing the various points of the new law.  You can view their memorandum here.  Their memorandum outlines the “safe harbor” provisions contractors will need to comply with, by December 15, 2016, in order to avoid fines and penalties.  The changes required by the new law may prove costly for contractors whom have historically compensated their workers on a piece-rate basis.  At a minimum, changes to how these contractors compensate their employees in California appear to be on the way.

A significant element of the changes have to do with contractors being required to pay workers for rest and recovery periods and other non-productive time.  The administrative requirements being imposed by this new law all but assure the demise of piece-rate pay, at least as it has been known historically.  If you have been compensating workers on a piece-rate basis and you want your voice to be heard regarding these changes, I suggest either connecting with an industry association (as referenced in the memo linked above) or contacting your local state representative directly.  In the meantime, you need to become aware of the issues and requirements surrounding the new law and act accordingly.

Sunday, February 22, 2015

Controlling Workers Comp Costs - Mobile First Aid

One of the highest costs to businesses in California is Workers Compensation Insurance.  For those that have done business in California for at least the last 15 years, you have experienced roller coaster like moves in rates.  Those rate swings seem to have come out of left field some in some years, with political and other market forces working behind the scenes to artificially impact those rates.  Those factors are mostly out of your control.  What is within your control is how you approach the issue of safety, how you handle incidents when they do occur, what processes you have in place to mitigate false claims as well as managing other variables.  How you address these areas will have a tremendous impact, positively or negatively, on your experience loss modification. 

One way to deal with potential negative events that would adversely impact your experience modification is to address problems at the earliest opportunity.  Some of my clients use this mobile first aid service, click here for details, to help address work site injuries as they occur.  The service is a 24 hour, 7 day a week operation and they offer a host of other services, as listed on the document along with pricing, designed to help run a tight ship with respect to your field workers.  Beyond the services they offer, I think it is a good idea to have an independent third party tend to these matters as that could benefit you in the event of litigation.

As usual, I am not affiliated with this organization in any way.  It seems like a good service worth investigating to help address these injury events as they occur.  As I mentioned earlier, there are some factors that are out of your control with respect to Workers Comp Insurance.  Creating and maintaining a culture of safety is within your control and you should do everything you can to maximize this area as it will result in substantial savings over time.

Wednesday, January 7, 2015

Tax Increase Prevention Act of 2014 (HR 5771)

Last month, Congress passed the Tax Increase Prevention Act of 2014 and the President signed it into law.  Over 50 popular incentives and credits were extended through 2014, some of the more popular of these “extenders” as they are called are highlighted below.

50% Bonus Depreciation -  The 50% bonus depreciation provisions for new, qualified business property would be extended for property placed in service before January 1, 2015.
§179 Expensing Thresholds -  Section 179’s increased expensing amounts would be extended through 2014. Specifically, for qualified property placed in service before January 1, 2015, the Act extends for one year the increased $500,000 maximum expensing amount under §179 and the increased $2 million investment-based phaseout amount. Afterwards, should there be no further extensions, the maximum expensing amount is scheduled to revert back to $25,000 and the phaseout will dip to $200,000.
Additional 179 Property – Allows taxpayers to treat capital expenditures related to qualified leasehold improvements, qualified restaurant property and off the shelf computer software as 179 property eligible for the accelerated deduction.
15-Year Life for Qualified Leasehold Improvements - Qualified leasehold improvement property, qualified restaurant property, and qualified retail improvement property will have a 15-year depreciation recovery period if placed in service before January 1, 2015.
S Corporation Built in Gains Tax – reduces the recognition period from ten years to five years on the sale of qualified small business stock held for at least five years.
Work Opportunity Tax Credit – Allows a credit of 40% on a maximum of $6,000 in qualified wages for employers who hire military veterans or other qualified personnel who began work for an employer prior to January 1, 2015.
Energy Efficiency Deductions for Commercial Buildings -  Under §179D, deductions of up to $1.80 per square foot for energy efficient commercial building property would be extended for property placed in service before January 1, 2015.
R&D Tax Credit -  Tax credits for qualified increasing research activities would be retroactively extended for one year to apply to amounts paid or accrued before January 1, 2015.
IRA Distributions to Nonprofits -  Individuals age 70 1/2 and older can make tax-free distributions of up to $100,000 per year from their individual retirement plans to charitable organizations for tax years beginning before January 1, 2015.
State and Local Sales and Use Taxes -  The Act retroactively allows taxpayers who itemize deductions to deduct state and local sales and use taxes instead of state and local income taxes for tax years beginning before January 1, 2015.  This is beneficial for taxpayers living in a state with no income tax.
Exclusion for Discharged Home Mortgage Debt -  Discharge of indebtedness income from a qualified principal residence — up to $2 million and $1 million for married filing separately — is excluded from gross income. The Act extends this exclusion to apply to home mortgage debt discharged before January 1, 2015.

Should you have any questions on any of these, as always feel free to contact me.

Sunday, November 16, 2014

Have You Revisited Your Buy-Sell Agreement Lately?

As the business owner’s average age continues to increase given the demographics of our population, there are a number of issues that may not have been perceived as important a few years ago that gain increasing attention as time marches on.  The truth is that these issues (e.g. buy sell-agreements, business continuity plans, etc.) have always been important.  There are a number of ways one can exit his/her business.  Many of those exit plans are voluntary and planned while some are not.  These agreements are often times overlooked as there is no sense of immediate need/urgency, etc.  They also generally deal with less than pleasant scenarios that people prefer not to think about.  The reality is that if you want to take care of your spouse and children, you really need to think about how your business is going to produce a liquidity event, in a timely, efficient and fair (think valuation) manner so your family can be well taken care of.  It can also be helpful to you as a shareholder if for some reason you find yourself, or your partner, having to divest from the business for whatever reason.

In basic terms, buy-sell agreements deal with situations whereby a business owner leaves the business through death, incapacitation or some other unexpected set of circumstances.  These agreements are also important in that if your partner is the one who is unexpectedly unable to continue in the business, the buy-sell agreement is the vehicle which will preclude his/her spouse from becoming your business partner.  This last item alone can be very motivational for business owners to address this issue.  

Some of the key terms addressed via a buy-sell agreement include who may buy the business interest, the events that trigger the agreement and the price to be paid for the business interest.  All of these are very important elements and must be addressed thoroughly and with professionals who are expert in preparing such agreements.  There are a few major, critical considerations which also must be addressed when structuring buy-sell agreements; 1) valuation criteria and 2) properly funding the buy-sell agreement.

The valuing of a business, or a share in a business, is an undertaking that can produce varied results.  I’ve said many times over the years you can have one valuation expert arrive at different valuations for different purposes (there are a number of reasons a company may need to obtain a valuation) at the same point in time.  You can also have different valuation firms arrive at very different results all valuing the business for the same purpose at the same time.  The best way to mitigate the potential for an unexpected and/or unfair result is to hire valuation experts familiar with your industry and business.  One size does not fit all when it comes to valuation and the selection of the right valuation firm is critical.  Valuation is contingent on many factors including methodologies, styles and perspectives, who the valuation firm is hired by (buyer or seller), etc.  Within the context of a buy-sell agreement, valuation is further challenging in that the principals are not necessarily looking for a value today, rather the goal is to ascribe a value to a business, or share of a business, at some unknown point in the future. 

The best way to handle the valuation issue in a buy-sell agreement is to have a valuation performed in the first year and then get annual, less expensive updates to that valuation in subsequent years.  Using this process, the many variables associated with properly valuing a business can be addressed given the set of conditions present at that time.  It is impossible to build a formula that will successfully process all of the variables that can change in the future.  That being said, in addition to building in a valuation requirement, it makes sense to insert a formulaic approach into your buy-sell agreement if for some reason a valuation wasn’t performed at the scheduled time(s) as a backup safety valve.  A dynamic formula is better than none at all and can be critical in the absence of a valuation being performed.  Arriving at a fair value for the business is essential to ensuring you and your family’s interests are protected.

Another important consideration in structuring buy-sell agreements is the funding of the liquidation event.  Depending on the particular set of circumstances, there are a variety of ways to fund buy-sell agreements so that the business is not disrupted.  Also, insurance can be an effective tool serving as value preservation in the event that the loss of a key individual adversely affects the valuation of the business.  Generally speaking, there are a number of insurance products used to fund the buy-sell agreements so that the business has the liquidity it needs to pay out the proper value of the business to the appropriate parties.  

A buy-sell agreement that isn’t properly funded is similar in many ways to establishing a living trust without funding it (i.e. converting title of assets into the trust, etc.)  It ends up causing additional heartache and stress and the good intentions of putting such structures in place are nullified by the failure to complete the job and address all the issues up front.  If you do not have a buy-sell agreement in place, or if you are unsure if it’s properly funded, you should reach out to your trusted advisor team and address it immediately.  If your agreement hasn’t been reviewed in a number of years you should revisit it to ensure it will achieve your objectives so you and your family are protected in the event the agreement is triggered.

If you would like assistance in reviewing the terms of your buy-sell agreement and/or developing the funding model, please do not hesitate to contact me.

Sunday, October 12, 2014

California Competes Tax Credit

There are many programs in the state of California designed to foster and incentivize business growth.  The California Competes Tax Credit is an income tax credit available to statewide businesses in all industries looking to invest in California. This is a dollar for dollar tax credit against income tax due in California which can also be used against the Alternative Minimum Tax (AMT).

This credit is limited and will be evaluated and awarded based on the respective company's situation. The investment agreements are negotiated by GO-Biz and approved by the California Competes Tax Credit Committee, consisting of the State Treasurer, the Director of the Department of Finance, the Director of GO-Biz, and one appointee each by the Speaker of the Assembly and Senate Committee on Rules. The program started January 1, 2014, and is scheduled to sunset on January 1, 2025.

It is important to note that no more than 20 percent of the aggregate amount of the credit will be available to any one taxpayer and 25 percent will be reserved for small businesses. This process is competitive, so submitting information timely is essential in obtaining these potential credits.

The factors determining how much credit a taxpayer will be allocated in a fiscal year include:
  • The number of jobs created or retained in California;
  • Compensation levels paid to employees;
  • Investment amounts to make in the state;
  • Levels of unemployment or poverty in the area where the business is located;
  • Incentives available to the taxpayer in this state and in other states;
  • Duration of the project for which the taxpayer commits to remaining in California;
  • Overall economic impact of the taxpayer's business, including opportunity for future growth in the state; and
  • The extent to which the anticipated benefits to the state exceed the projected benefit to the taxpayer from the credit.
The program will accept applications during the following dates:
  • September 29, 2014 through October 27, 2014 ($45 million available)
  • January 5, 2015 through February 2, 2015 ($75 million available)
  • March 9, 2015 through April 6, 2015 ($31.1 million available plus any unallocated amounts from the previous application periods)
We can help identify, at no cost, if a business is eligible for this lucrative tax savings opportunity.  As always, if you have any questions please contact me.

Sunday, September 7, 2014

Architectural Billings Index

The July 2014 Architectural Billings Index results were published a few weeks ago.  I like to keep an eye on this index, which is a leading indicator for construction activity (about 9 – 12 months ahead of related construction activity).  For more background on this index, click here…

On a national basis, the index score was 55.8, a sharp increase from previous months and a strong rebound from earlier in the year when harsh winter weather slowed things down considerably.  In a nutshell, any number 50.0+ indicates increased architectural billings and foretells increased construction activity.  The regional data shows activity in a tight positive range across the U.S. as follows: West (53.5) South (55.1) Northeast (55.5) and the Midwest (54.1).

These regional numbers can be compared against the table below which shows the March numbers for 2014 and 2013:


Earlier this year I wrote the following after the March 2014 numbers were posted: “The numbers, year over year at March, dropped for all regions but far more sharply in the colder weather climates.  If weather was a factor, we should see these numbers rebound in the Spring/Summer months.  The numbers suggest, in our region here in the West, that things are stable and growth is moderate.  The West region numbers in 2012 and 2011 were 46.6 and 47.7 respectively, so things have certainly improved these last few years.  Given this is a leading indicator, expect more of the same over the next year in terms of construction activity, that is modest growth.”

These recent ABI numbers are certainly encouraging.  Many of us who work in this industry can see the improvement in our marketplace.  These numbers bode well for the near and intermediate term of the building industry in the U.S. and out here in the West.

Thursday, June 5, 2014

Winning Federal Government Contracts - Patience, Persistence and Strategies to Grow Your Business

by Sarah Weaver, President of STRATEGIC | Creations

The natural progression for construction companies looking to do business with the government is to grow their subcontracting work into prime contracts. The step up to prime time can be done; however, in this competitive and compliance-focused industry, procurement is gained through tenacity, thoroughness and patience (the “stick-to-it-ness”). I have witnessed the downfall of far too many companies that were impatient and expected “one government meeting” to result in a contract. Or their expectations are not aligned with reality, as in, “I have my 8(a) certification, where is my work?” Success can be yours if you’re willing to plan the work and work the plan — let’s roll up our sleeves and get started!

1. Win your first project as a prime contractor (0-2 Years)

So you’re knocking on the door of a federal government agency, hoping to score a prime contract —only to be turned away because you lack the exact prerequisite you are looking to attain — federal prime contract experience. How do you get past this Catch 22? 

In a nutshell, stay persistent, be patient and be prepared for an initial investment. An American Express survey of 1,500 entrepreneurs who were government contractors or actively pursuing a contract found that most were turned down the first two years before finally procuring their first project award. That takes a lot of staying power, as in, “I will bet turned down, but keep trying.” It also takes a bit of financial investment. The same survey found that, in 2010, small business contractors reported investing $103,827 over the course of a year in the bidding process for federal contracts, up from $86,124 reported the previous year. This investment surely includes persistent bidding, presentations and business development efforts to obtain that first contract.

So what is that $100,000-plus a year being spent on? More than likely, your first prime contract is going to come from a sole-source award or a low-price bid because you’re not-yet able to compete based on experience. (Remember, you don’t have experience yet!) Your job at this point is to hone-in on how to best utilize those dollars. 

One way to position yourself for a sole-source award is having expertise in a single key scope of work. (Emphasis on “key scope” — installing door hardware, for example, will not get you to the required minimum of 15% self-performance on typical projects unless the entire project is in fact installing door hardware). As with any industry, you need to bring something to the table, and make sure what you offer is a solution to your customer’s needs. For instance, you wouldn’t market Photovoltaic (PV) installation in Seattle, with its 200-plus overcast days, verses in sunny Yuma, Arizona.

It is also vital to be in front of all your government clients with your marketing materials and capability statements, and these need to be backed up by superb or outstanding performance ratings. Essentially, this is your background check. (You wouldn’t hire an employee without verifying their credentials, and neither will the government.) To that end, do an honest assessment of what your company realistically can and can’t do; above all, know your strengths and capabilities. You may sound good on paper, but your actual past performance speaks for itself. The government sees right through unsubstantiated and vague statements — a “We do everything” blanket statement will not get you far in a one-on-one capabilities briefing. A better strategy to follow in your capabilities briefing is to highlight what you are realistically capable of doing, how you will pull together all of the other necessary resources, and align that with what your customer is looking for.

The government is not looking to contract with construction managers; they want people who can perform major aspects of work. You should already have personnel in place or lined up for the work you are chasing. Communicate your staffing plan to your potential customer. Get a clear grasp of how you can meet your client’s needs, and have the solutions ready before going to in-person meetings.

Remember, each customer and each federal installation is different, so do your homework before any one-on-one meeting!

Also keep in mind that there’s no shame in playing a supporting role. Most actors have supporting roles before landing the big part; the same goes with contracting. If you’re only getting subcontracting work, keep increasing the size of the project you subcontract on so the government can see your growing responsibilities and capabilities. Get savvy on government rules, regulations and lingo. Understand the funding process, prime contracting responsibilities, how the NAICS codes and size standards work, as well as teaming regulations and allowances, and keep your certifications current. Whenever possible, go straight to the source. Understand who within your customer’s agency is responsible for allocating funds and selecting contractors. An old colleague of mine had it right – he never stopped knocking on the door until he was in front of the “decision makers.” Be that resilient.

2. Make your experience work for you (2-4 Years)

Winning your first government prime contract can be a milestone for your company; but you still have a lot of work to do. In many ways, you are still in the audition process; the government is testing you to see how well you manage government projects. Do whatever you can to avoid an adverse past performance rating. The less experience you have, the more crucial it is to have overall favorable past ratings. One poor rating out five projects, for example, represents 25% of your work, whereas one negative past performance rating out of 50 projects reflects only 2% of your work.

Stay active in cultivating your relationships while onsite and continue to knock on doors as you do when you have no prime contract experience. Define what your mix of project types will look like in terms of size, scope and building types and begin to strategize your portfolio on projects that will take you to the next level.

This is also the time to really invest in your marketing and estimating. The toughest proposals to write are the ones where the Company almost qualifies or barely qualifies. This makes it difficult to differentiate from the competition and almost always risks elimination from competition before your price can even make it through the review process.

3. Know how to expand and grow (4+ Years)
Deciding to expand your business means it’s time to get strategic. Here are some recommendations:

§  Bidding process. Formalize your bid/no-bid process to ensure you are only pursuing financially viable projects as well as those that add to your strategic project portfolio.

§  Teaming and joint ventures. Be selective in your teaming. My personal preference is to pursue projects as an informal “team” or traditional prime/sub relationship versus as a joint venture. This method allows for more control and less risk. There are instances where joint ventures may be necessary to qualify, but I highly recommend this option only when it’s absolutely necessary. Regardless of the approach used, utilize teaming and joint ventures to elevate your experience, in project size and/or location.

§  Relationships with your current customers. Each new customer and location requires an initial investment. Continue to cultivate your current relationships. It is easier and cheaper to work in the same location (less mobilization costs, personnel remain happy by not having to move around or relocate, the customer’s unique processes are likely already understood, so there is less of a learning curve in how to please the client).

§  Past Performance. Again, I cannot emphasize this enough - get favorable past performance ratings. These do matter and are often the highest-rated evaluation factor in a proposal.

§  Define your strategic project portfolio. Just like when you are starting your company, growing your business can be somewhat of a Catch 22. You need the exact experience of the work you are trying to chase. Defining the project wins that will take you to the next level and grow your business should start years in advance. Do not be afraid to continue to adjust this plan as the market and/or your company direction change. Go after your strategic portfolio projects with diligence, and make sure you approach with a formal capture planning process.

One more key piece of advice as you take this federal contracting journey is to not grow beyond your capabilities for the sake of growing. Stay within your means, and be patient. Success in any industry is not overnight – and federal contracting is no different. Follow a realistic plan and don’t haphazardly bid. Financial planning aligned with market analysis is so critical to your success – so spend time on these planning processes as you develop and grow your business.

Click on the graphic below the byline for a visual entitled "The Natural Federal Contracting Progression".

If you would like more information on developing or growing your federal contracting business, don’t hesitate to contact me at