LEAD Certification for all Building Contractors

May 14th, 2010

EPA Requirements

Common renovation activities like sanding, cutting, and demolition can create hazardous lead dust and chips by disturbing lead-based paint, which can be harmful to adults and children.

To protect against this risk, on April 22, 2008, EPA issued a rule requiring the use of lead-safe practices and other actions aimed at preventing lead poisoning. Under the rule, beginning in April 2010, contractors performing renovation, repair and painting projects that disturb lead-based paint in homes, child care facilities, and schools built before 1978 must be certified and must follow specific work practices to prevent lead contamination.

Until that time, EPA recommends that anyone performing renovation, repair, and painting projects that disturb lead-based paint in pre-1978 homes, child care facilities and schools follow lead-safe work practices.

All contractors should follow these three simple procedures:
Contain the work area.
Minimize dust.
Clean up thoroughly.
Beginning in December 2008, the rule will require that contractors performing renovation, repair and painting projects that disturb lead-based paint provide to owners and occupants of child care facilities and to parents and guardians of children under age six that attend child care facilities built prior to 1978 the lead hazard information pamphlet Renovate Right: Important Lead Hazard Information for Families, Child Care Providers, and Schools .

The rule will affect paid renovators who work in pre-1978 housing and child-occupied facilities, including:

Renovation contractors
Maintenance workers in multi-family housing
Painters and other specialty trades.
Under the rule, child-occupied facilities are defined as residential, public or commercial buildings where children under age six are present on a regular basis. The requirements apply to renovation, repair or painting activities. The rule does not apply to minor maintenance or repair activities where less than six square feet of lead-based paint is disturbed in a room or where less then 20 square feet of lead-based paint is disturbed on the exterior. Window replacement is not minor maintenance or repair.

October 21, 2009 — EPA proposed expanding coverage of its 2008 Renovation, Repair and Painting rule as part of its ongoing commitment to eliminate lead poisoning. The proposed rule would eliminate an exemption from the RRP rule. Read about EPA’s action.

EPA Authorized State Programs

EPA has the authority to authorize states, tribes and territories to administer their own RRP program that would operate in lieu of the EPA regulations. When a state, tribe or territory becomes authorized, contractors and training providers working in these areas and consumers living there should contact the appropriate state, tribal or territorial program office. Currently the following states have been authorized by EPA: Wisconsin,  Iowa, , North Carolina,  Mississippi,  Kansas,  Rhode Island  and Utah.

Information for Property Owners of Rental Housing, Child-Occupied Facilities

Property owners who renovate, repair, or prepare surfaces for painting in pre-1978 rental housing or space rented by child-care facilities must, before beginning work, provide tenants with a copy of EPA’s lead hazard information pamphlet Renovate Right: Important Lead Hazard Information for Families, Child Care Providers, and Schools . Owners of these rental properties must document compliance with this requirement – EPA’s sample pre-renovation disclosure form   may be used for this purpose.

After April 22, 2010, property owners who perform these projects in pre-1978 rental housing or space rented by child-care facilities must be certified and follow the lead-safe work practices required by EPA’s Renovation, Repair and Remodeling rule. To become certified, property owners must submit an application for firm certification  and fee payment to EPA. EPA will begin processing applications on October 22, 2009. The Agency has up to 90 days after receiving a complete request for certification to approve or disapprove the application.

Property owners who perform renovation, repairs, and painting jobs in rental property should also:

Take training to learn how to perform lead-safe work practices.
Learn the lead laws that apply to you regarding certification and lead-safe work practices beginning in April 2010.
Keep records to demonstrate that you and your workers have been trained in lead-safe work practices and that you followed lead-safe work practices on the job. To make recordkeeping easier, you may use the sample recordkeeping checklist  that EPA has developed to help contractors comply with the renovation recordkeeping requirements that will take effect in April 2010.
Read about how to comply with EPA’s rule in the EPA Small Entity Compliance Guide to Renovate Right .
Read about how to use lead-safe work practices in EPA’s Steps to Lead Safe Renovation, Repair and Painting (PDF).
Information for Homeowners Working at Home

If you are a homeowner performing renovation, repair, or painting work in your own home, EPA’s RRP rule does not cover your project. However, you have the ultimate responsibility for the safety of your family or children in your care. If you are living in a pre-1978 home and planning to do painting or repairs, please read a copy of EPA’s Renovate Right: Important Lead Hazard Information for Families, Child Care Providers, and Schools lead hazard information pamphlet. You may also want to call the National Lead Information Center at 1-800-424-LEAD (5323) and ask for more information on how to work safely in a home with lead-based paint.

Information for Tenants and Families of Children under Age 6 in Child Care Facilities and Schools

As a tenant or a parent or guardian of children in a child care facility or school, you should know your rights when a renovation job is performed in your home, or in the child care facility or school that your child attends.

Before starting a renovation in residential buildings built before 1978, the contractor or property owner is required to have tenants sign a pre-renovation disclosure form, which indicates that the tenant received the Renovate Right lead hazard information pamphlet.
Beginning in December 2008, the contractor must also make renovation information available to the parents or guardians of children under age six that attend child care facilities and schools, and to provide to owners and administrators of pre-1978 child care facilities and schools to be renovated a copy of EPA’s Renovate Right: Important Lead Hazard Information for Families, Child Care Providers, and Schools  lead hazard information pamphlet (20 pp, 3.3MB).

Information for Contractors

As a contractor, you play an important role in helping to prevent lead exposure. Ordinary renovation and maintenance activities can create dust that contains lead. By following the lead-safe work practices, you can prevent lead hazards.

Contractors who perform renovation, repairs, and painting jobs in pre-1978 housing and child-occupied facilities must, before beginning work, provide owners, tenants, and child-care facilities with a copy of EPA’s lead hazard information pamphlet Renovate Right: Important Lead Hazard Information for Families, Child Care Providers, and Schools. Contractors must document compliance with this requirement?EPA?s pre-renovation disclosure form  may be used for this purpose.

Understand that after April 22, 2010, federal law will require you to be certified and to use lead-safe work practices. To become certified, renovation contractors must submit an application and fee payment to EPA.

EPA will begin processing applications on October 22, 2009. The Agency has up to 90 days after receiving a complete request for certification to approve or disapprove the application.

Contractors who perform renovation, repairs, and painting jobs should also:

Take training to learn how to perform lead-safe work practices.
Find a training provider that has been accredited by EPA to provide training for renovators under EPA’s Renovation, Repair, and Painting (RRP) Program.
Please note that if you previously completed an eligible renovation training course you may take the 4-hour refresher course instead of the 8-hour initial course from an accredited training provider to become a certified renovator.
Provide a copy of your EPA or state lead training certificate to your client.
Tell your client what lead-safe methods you will use to perform the job.
Learn the lead laws that apply to you regarding certification and lead-safe work practices beginning in April 2010.
Ask your client to share the results of any previously conducted lead tests.
Provide your client with references from at least three recent jobs involving homes built before 1978.
Keep records to demonstrate that you and your workers have been trained in lead-safe work practices and that you followed lead-safe work practices on the job. To make recordkeeping easier, you may use the sample recordkeeping checklist  that EPA has developed to help contractors comply with the renovation recordkeeping requirements that will take effect in April 2010.
Read about how to comply with EPA’s rule in the EPA Small Entity Compliance Guide to Renovate Right.
Read about how to use lead-safe work practices in EPA’s Steps to Lead Safe Renovation, Repair and Painting .
NOTE: Contractors and training providers working in Wisconsin,  Iowa, , North Carolina Mississippi, and  Kansas,  Rhode Island  and Utah  must contact the state to find out more about its training and certification requirements. These states are authorized to administer their own RRP programs in lieu of the federal program.

Fee Rule

On March 20, 2009, EPA issued a final rule to establish fees for the new Lead Renovation, Repair and Painting rule. The rule establishes fees that are charged for training programs seeking accreditation, for firms engaged in renovations seeking certification, and for individuals (for example, risk assessors) or firms engaged in lead-based paint activities seeking certification. The rule applies only in those states and tribes without their own authorized lead programs. The rule also modifies and lowers fees for the Lead-based Paint Activities regulations. The fees were developed as required by section 402 of the Toxic Substances Control Act (TSCA) to recover the cost of administering and enforcing the law’s requirements. Read EPA’s fact sheet on the final rule.

Thanks to the EPA for this posting.

For the most Updated information go to:
GO To: http://www.epa.gov/lead/pubs/renovation.htm

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Change Order Nightmare

April 26th, 2010
Are you expecting to get paid for changes you submitted and received approval for????
For most contractors a change order is a positive arrangement for additional work or change in scope.You seem to do everything above board never suspecting the general contractor or owner is manipulating the situation to there favor.
Did you read your contract? Did you have your Attorney read your contact?
Enlightenment Companies can review sub-contraactor contracts and give you a simplified report one to two pages on the average indicating important dates, clauses issues, problems, etc.. including actions you should take to avoid issues like being paid on time.
Call 440-236-3024 ask for Ron for mor information .
 
This is a clause may not readily stand out in your contact, although reading the contract is highly recommended. You may find yourself not getting paid for any extras should they exercise these clauses.
 
A common clause can read as follows:
A.  ” all change orders must be approved in writing before contractor installs or changes any work” we have all read this.
B. ” Sub-Contractor is responsible for obtaining approval in writing for all changes”
This is easy however ther is missing  information, or at least the information is not readily interpreted, or is it?
 
These examples and similar clauses are very dangerous clauses in your contract. To properly interpret this clause one must look at the words “approved or approval in writing”. Who must approve this? You, the project manager, the owner, well you had better know!!!
A local electrical contractor (EC) was contracted by a general contractor (GC) on a Baillie’s Fitness project. About one third into the project a scope change occurred adding a pool and locker-room to the over all project. The EC provided several change orders that the GC’s project manager signed. The EC was delighted and proceeded with the work. When it came time to be paid the GC called a meeting. The EC was told at this meeting that the changes totalling over $140,000. were not going to be paid. The GC cited the cause to be improper authorization by the GC. They also terminated the construction manager that was running the project, indicating that he was not the authorized signer. The attorney for the EC concurred with the GC as the contract stated ” electrical sub shall obtain written approval with authorized signature for all changes prior to starting or installing any such changes”. In this case the Authorized signer was only the president of the general contractor company. This was a very unscrupulous contractor and owner ( yes, the owner was aware of this issue). The result was the EC was not paid and suffered a substantial financial loss resulting in several years of repayment and stagnating the company growth.
 
The person who signs your change order may not be the person that can approve changes and that can even include the project owner!
 
To remedy this situation make a request in writing to your contracting party requesting the name of the person, title and contact information that is approved to sign and authorize change orders. There shall be no other person until you have the information in writing. The letter must be on the contracting company letterhead and signed by a principal of the company, ie president, vice president, owner.
 
Do not let your change orders hang you out to dry.

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The Change Order “CO”

March 16th, 2010

Are you working with CO’s generated from your contract or an RFP?

 Well, on most construction projects the CO or Change Order is a normal part of the construction process. Each change order must be clearly understood by both the customer and the contractor to eliminate any future misunderstanding. Often enough the contractor must deal with difficulties in collecting on change orders due to questions that that arise about the work as it was completed, incomplete information, signatures and relevance to the base contract.

Written contracts are an absolute requirement on any project. The contract will limit responsibility of the contractor to the work that the contractor is providing. The contract will also outline the parameters on the project and provide structure for coordination, management and changes. Jobs are rarely completed exactly as originally planed. This can occur due to a number of instances. Whenever there is a deviation, amendment, expansion, variation, etc. to the original job as planned and specified in the contract a change order should be executed in writing to modify the original contract and add the changes as being part of the original contract and overall job.

From the start, never sign a contract that states there are no extras or changes allowed. These types of contracts only lead to significant grief for the contractor. In some cases this is an indicator that the owner does not have enough money to complete the project and puts the contractor at severe risk. The best planners and design teams will never be able to create a perfect project and changes are inevitable. Never use or anticipate that a change order can be used to gain competitively bid work. Most owners recognize these situations and make it a significant difficulty to obtain change orders that will be over priced. In some instances the owner will look to third party services to qualify change orders and negotiate very hard. On the other side of the spectrum the contractor should never give away work in hopes of receiving additional work in the future. This can result in financial ruin for the contractor, which is another subject altogether.

Supervision of construction projects includes the management of field change orders. These changes disrupt the plan that has been developed for the project. To properly executed change order, follow these steps: a. Document the name of the project, the date and the date the change occurred, b, Describe the change in detail and the work involved to incorporate the change into the project, c. Provide impact on project in time and man hours as this will validate overtime or an extension of the overall project completion date, d. Detailed cost of change.

To elaborate, item b, this is a critical component as the reason for the change must be documented. The person who requested the changes or RFP document number (Request for Pricing). In addition a complete description of the work must be provided listing the location, quantity, existing conditions, demo, etc., the more specific the information the easier it will be to negotiate the cost for the change order. Item c, many change orders will not impact the overall project but the few that do, the contractor must review the overall implications. This includes project delay not only to this contractor but the other trades affected as well as the general contractor and owner. This is where the case is made for overtime, delay costs and extending the original contract completion date. The better the detail here will allow consideration and ease cost negotiation. Item d, when pricing a change order do a complete full-cost analysis, not a quick, about, around, the last time it cost, or best guess. By failing here the contractor can jeopardize the change order or worse create a financial crisis. Properly costing a change order is essential to the contractor as this will be the final stage of negotiating a change order cost. The contractor should provide a complete material list with published pricing and labor units from a published source such as NECA Labor Units® to ensure the cost negotiation is in the contractors favor. Creativity in detail here represents higher return.

Remember that change orders cost more money in labor and material. Don’t ballpark your quote. It’s better to submit a price after a couple of hours or the next day before submitting a quote that will be wrong. It is poor policy to wait until the contract is completed before billing the customer for changes and extras. At that time, details may not be as clear. Invoice and get paid for extras as soon as they are completed.

It is important that all construction personnel comply with company policies including change orders. The responsibility of training those employees how to sell, document and cost change orders is that of the contractor. A complete written company policy can be developed for handling change orders and should be adhered to on all jobs as there can be significant financial and management benefits to the contractor.

The contractor on occasion may find himself or herself having to negotiate a change order. Be sure that if the company is going to be forced into a negotiation that through good practice of documentation and proper signature you may need to fight less and gain more.

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Costly Contract Clauses, Part 3

November 2nd, 2009

In this third part of our Costly Contract Clauses series, we will examine two more contract clauses that can really wreak havoc for a contractor.

In Demnification (Hold Harmless):

In short, you are expected to protect other parties from your own negligence on errors. Make sure you pay for insurance to cover these rights.

Many of the contracts you will review will have hold harmless clauses but when they ask you to not only hold harmless the G.C. but the owner, design professionals, inspectors, visitors, and on and on, you may be trying to insure risk you and your insurance company are capable of. This kind of risk can leave you in a very uncomfortable position should something occur.

In many states broad forms of hold harmless clauses are unenforceable. Some courts will not support transfer of responsibility for one’s own negligence to another party. Never the less, make sure you negotiate or change the clauses to accept only those rights you are able to maintain control over or for which you can provide insurance.

Retainage:

Thanks to AIA (American Institute of Architects) that retainage even exists. The idea is to create an incentive for the contractor to complete punch lists and provide final documentation. Ideally, you want to negotiate no retainage in your contract. Most contractors (G.C’s) will not support this so negotiate the smallest amount or percentage you can submit a retainer bill in lue of subjecting each invoice to retainage.

In Summary:

This list is not all inclusive of contract provisions that could cause you and your business harm. These phases (if indorsed by your signature) can cause significant financial harm to your business. Evaluate all provisions very carefully.

Remember:

  1. Everything is negotiable.
  2. Sometimes it is better to walk away.

This site is for informational purposes only and does not contain legal advice.

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Costly Contract Clauses, Part 2

October 18th, 2009

To protect your company from unnecessary risk, remember to evaluate contracts carefully. In most cases, contracts protect both parties involved, but sometimes they can be used to take advantage of a contractor. Below are a few more “costly clauses” to look out for.
Lien Forms
Let alone everything else, lien forms can do more damage than anything else in the General Contractors arsenal. There are many types of lien release forms on the market, each requiring careful anyalization. You could sign an initial form and sign away your entire rights even signing away your rights to retainage. There are or should be only two formats you need to be using.

First, the conditional lien waiver.

The conditional lien waiver will limit your lien to only the amount you have NOT repeat NOT been paid.

Second, the final lien waiver:

This form removes all rights to lien and should NEVER NEVER be signed until you have received your final payment in full.
Contingent Payments
A contingent payment clause will set terms on when you are paid. Two such clauses are “pay when paid” and “pay if paid”. The “pay when paid” clause requires you to wait until the GC is paid. This could delay your payment significantly. Most states allow this clause and assume that this means a “reasonable amount of time” while allowing your right to be paid. On the other hand, “pay if paid” forfeits your right to payment if an owner goes bankrupt or just refuses to pay. This clause should be struck out of any contract you intend to sign. There are a few states that have outlawed the “pay if paid” provision such as California and New York, never the less, you should thoroughly review your contract before signing.
No Damage for Delay or Acceleration
Very few contractors understand delay and acceleration and the impacts of cost to the contractor. You have all seen this happen for example – the steel is 6 weeks late but the completion date stands still. On the contractor suddenly has 200 men on the job and expects you to be completed in a day.

Each of these cause additional cost to you to cover additional mobilization, demobilization, more crews, overtime or cost to expedite at a later date. You can even set yourself in more trouble trying to accelerate a job which can result in loss of productivity, high overtime and job accidents. When an employee is hurt or worse this could mean disaster for you, but that’s another article.

On the flip side, most GC contracts in the favor of the GC. They with the owner are entitled to liquid damages if you delay or accelerate. Preserve your right to recover your additional expense in the case of scheduling delays or acceleration.

This site is for informational purposes only and does not contain legal advice.

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Costly Contract Clauses, Part 1

October 2nd, 2009

By signing a contract that contains these clauses you can put you and your company at risk.  These risks can be limited by negotiating with the contracting party.  In some cases, walking away is your best option.

Contracts are for most case a positive form of protection for all parties in a common constructive goal, such as, a construction project.  These legal devices help outline the rights and responsibilities of each party that signs.

By signing a written contract you are obligating yourself and your company to the performance of that document.  Your signature allows courts to generally enforce the provisions provided those provisions are not beyond applicable contract law allowed in your state or municipality.

Most contractors have little experience being a lawyer and can get caught up into very bad terms by not reviewing a contract thoroughly.

Work Scope:

Your proposal or bid must be used to determine the work you have agreed to perform.  The terms you set in that proposal need to be incorporated into any contract you are going to sign.  For instance, an electrical contractor usually bids work on the “E” plans.  If your contract states the “A”, “P”, “M”, “E”, “S” plans you could become responsible for work on all such plans.  Limit your contract to the work you proposed.  Some unscrupulous engineers, architects and owners are placing such clauses in the specifications. For example:

i.      Sections 16722 & 15500 of the Project Specifications (excerpts are attached). Section 15500 – 1.02 reads; “THE ENTIRE BUILDING SHALL BE PROTECTED BY A COMPLETE WET SPRINKLER SYSTEM. THE SYSTEM SHALL COMPLY WITH ALL RULES & REQULATIONS OF BODIES HAVING JURISDICTION  AND WHERE MODIFICATIONS ARE REQUIRED TO THAT SHOWN ON THE DRAWINGS TO OBTAIN SUCH APPROVALS, AND THAT THEY SHALL BE PROVIDED WITHOUT EXTRA COST TO THE OWNER. THE SPRINKLER SYSTEMS SHOWN ON THE DRAWING IS DIAGRAMATIC. IT IS THE RESPONSIBILITY OF THE FIRE PROTECTION CONTRACTOR TO INSTALL A COMPLETE SYSTEM IN ACCORDANCE WITH NFPA 13 AND ANY REQUIREMENTS AS REQUIRED BY THE LOCAL FIRE MARSHAL”

ii.      Section 16722 1.02D & E read: D. THE FIRE ALARM SYSTEM SHALL CONSIST OF ALL NECESSARY HARDWARE EQUIPMENT AND SOFTWARE PROGRAMMING TO PERFORM THE FOLLOWING FUNCTIONS: 1. FIRE ALARM & DETECTION OPERATIONS   2. REMOTE MANUAL & AUTOMATIC CONTROL OF ELEVATORS, ALL SMOKE CONTROL RELATED FAN SYSTEM, DOOR HOLD-OPEN DEVICES, FIRE SUPPRESSION APPLIANCES, REMOTE MONITORING OF SPRINKLER AND OFF PREMISE NOTIFICATION. E.  RELATED SECTIONS: THE FOLLOWING SECTIONS CONTAIN REQUIREMENTS THAT RELATE TO THIS SECTION:  1. DIVISION 15 SECTION “FIRE PROTECTION” FOR WATER FLOW, PRESSURE, OR TAMPER SWITCHES CONNECTED TO FIRE ALARM SYSTEM.

This clause eliminates cost to owner and liabilities to the engineer for incomplete drawings.  You must qualify your proposal or be prepared to negotiate these clauses out of your contract.

Incorporation by Reference:

These terms are usually harder to find and understand in many situations. This provision can make you party to the terms between the General Contractor and Owner or others. Did you see or read these other contractor documents? You could be accepting terms like:

  • A no lien contract (very bad)
  • Design responsibility
  • Notice provisions
  • Payment provisions (This is a bad one)

    • What can you do?

  • Request a copy of the agreements or contracts and read them thoroughly.
  • Insert language to limit the clause.

    • If your customer (i.e. GC) agrees to a no lien contract SO HAVE YOU!! That’s bad. This clause will remove your only recourse to enforce payment once your work is complete.

    This site is for informational purposes only and does not contain legal advice.

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