LEED to Become More Stringent
A New Guest Post from Christopher Hill
Federal and State government work are a growth area in construction these days. With the economy in a downturn (though possibly turning around according to ENR), government projects are even more desirable for commercial contractors.
With this trend toward government contracting, becoming the lowest bidder and squeezing your margins is a big temptation, or even necessity. Along with this lower margin comes higher risk.
However, one saving grace for contractors on Federal projects is the Miller Act. Essentially, the Miller Act was created because contractors cannot put a mechanic’s lien on federal government property. It requires that all projects with a contract value over $100,000.00 have a payment and performance bond, provided by the general contractor.
The payment bond is what I will discuss here as it is the most utilized of the two. As its name implies, this bond is there to assure that subcontractors and suppliers who provide work to the project are paid. With the proper notice, and when meeting the filing requirements, the question then becomes the value of what was provided, and not whether payment will occur.
The Miller Act requires that a subcontractor or party, contracting with a subcontractor, but not in a direct contractual relationship with the general contractor, provide a notice to the general contractor (or principal on the bond if the principal and GC are different) within 90 days of the last work performed or material supplied for which it claims payment. Then, if no payment is forthcoming within 90 days of the date payment is due, suit must be filed within one year of this last work. If this procedure is filed, in my experience a settlement will be forthcoming.
One caveat, the protection of a Miller Act bond extends down only as far as the “second tier” level. In short, a supplier to a second tier subcontractor is not covered. Make sure you keep this in mind when you consider your (or your client’s) claim.
The federal Miller Act has cousins (or “Little Miller Acts”) in most every state that relate to state government projects, so I encourage you to check these out and call an attorney (in MA, Andrea is a good one) to discuss your options with these projects.
In a previous post, I discussed why now is a good time to renovate. I pointed out that builders are not as busy and can devote more time to their projects, the economy has weeded out a number of "fly by night" contractors who were not truly dedicated to the profession and there have been sales on supplies and materials. One advantage that I did not mention, however, was the opportunity to ask builders to cut their prices. That's because I do not believe it's reasonable for owners to try to negotiate lower prices, and it's not good for the profession for builders to do so.
I must admit, this question has been plaguing me as it pertains to Massachusetts. This issue applies to residential renovation only, but I know of many high-end contractors who use this method for their projects.
Section 2. (a) Every agreement to perform residential contracting services in an amount in excess of one thousand dollars shall be in writing and shall include the following documents and information:
(1) the complete agreement between the owner and the contractor and a clear description of any other documents which are or shall be incorporated into said agreement;...
(4) a detailed description of the work to be done and the materials to be used in the performance of said contract;
(5) the total amount agreed to be paid for the work to be performed under said contract;
Given that a Time and Materials Contract does not have a price, I would argue that it violates the Home Improvement Contractor Law. Further evidence to support that belief was supplied by the Office of Consumer Affairs and Business Regulation. They administer the Home Improvement Contractor Arbitration Program that is run by the state. The program is supposed to provide consumers (and contractors) with a more economical alternative to resolving disputes than litigation and does not require the parties to hire attorneys.
The Office of Consumer Affairs and Business Regulation recently rejected a claim filed by a colleague because they said that the Time and Materials Contract made it ineligible for the program.
The purpose of a Time and Materials Contract is theoretically to protect both the owner and the contractor. The owner is only paying for the cost of the actual materials (usually with a mark-up) and the actual hours worked. The contractor does not run the risk of under-bidding a job and much of the risk is removed because he is paid for all of the actual effort expended. These kinds of contracts can be fraught with problems because homeowners frequently question the amount of time spent and are frustrated if the contractor cannot substantiate his records. That said, as long as the contractor stays in constant communication with the owner (I believe in weekly meetings), they can work well. They also allow for instantaneous change orders to keep the project within budget.
However, when one looks at the statute, it requires, "the total amount agreed to be paid." Contractors should keep in mind that any violation of M.G.L. c. 142A is an automatic, per se violation of the Consumer Protection Act, M.G.L. c. 93A. Under that law, the consumer may obtain up to double or triple damages, attorney's fees, interest and costs in a verdict against the contractor.
So, a colleague has suggested that one way to avoid this issue is to include a guaranteed maximum price (GMP) in your contract. The GMP could be adjusted if necessary when a change order occurs. It is also important to include a detailed scope of the work to validate that price. I strongly urge all of you to include a GMP in your contracts and make sure that you ask for no more than one-third of that price for your deposit (unless the deposit also includes the cost of custom materials).
I cannot guarantee that this will avoid the question of the legality of Time and Materials Contracts, but we will not find out until this solution is tested in the courts.
Here's a great guest post from Paul G. Cox, the Business Development Manager at Vigilant Woodworks on wine cellars:
If you have a growing collection of wine, it may be time to think about building a wine cellar or tasting/entertainment area in your home. Some time ago the custom wine room was unusual; today more and more wine lovers are learning about wine cellar construction or contracting the work out to those who know how to do the job properly.
Wine cellars are more than a dark, cool place to stock a collection of wine bottles. Today’s custom wine cellar is a controlled environment where humidity and temperature are regulated to allow wine to correctly age without damage to corks, labels or the wine itself.
There are two styles of wine cellars. One is an area that has been particularly made to store wine in the correct environment and the other is a stand-alone system that duplicates those conditions. A stand-alone wine cellar is not as effective as a custom-built version, but some people like the aesthetics of a small cooled refrigerator over a custom wine cellar. Those who do choose a custom cellar have three basic considerations for proper creation…
Temperature Control and Venting
A wine cellar room is used to hold and age the wine in the bottle rather than keeping it at a serving temperature. (A stand-alone wine fridge is excellent for carrying wine out of the cellar to hold at serving temperatures.) Aging wine is a balance of time, temperature and the chemical reactions that happen as a outcome of the two.
Wine should be matured in conditions ranging between 55 and 65 percent humidity and a solid 55 degrees Fahrenheit, within approximately one degree. Wine stored at higher temperatures will mature quicker and wine experiences chemical reactions at higher temperatures that devalue the notes of the wine over time.
In some areas of the country, property holders with basements often realize that conditions are right for basic wine storage, but seasonal temperature and humidity variations ought to be avoided. The perfect storage solution is a custom-built or DIY-construction wine cellar with climate and humidity control using a wine cellar cooling component to maintain the temperature at a stable 55 degrees.
These units come in a variety of sizes and the dimensions of your wine room will dictate what size you need to purchase. Never select a wine cellar cooler too small for your room; you most likely will never get a accurate, optimal storage temperature and the wine cooling system will become overtaxed trying to keep up.
Wine cooling units demand proper venting, and your wine cellar construction project requires either a hole in the wall to allow venting outdoors or enough vent space to flow warm air out of the room. Check the specs of your wine cooling unit; most require a venting space at least two times as big as the wine room space itself.
Electrical power is also an issue. Custom wine cellar builders recommend a devoted power source to run a wine cellar cooling system. Those who want to use a common power source frequently find the system overloading with blown fuses and other electrical problems.
Insulation and Vapor Barriers
The wine cooling system is only part of your climate control plan for a custom wine cellar; you also need a vapor barrier made of plastic sheeting used on the “hot” side of the wall. Some people wrap the interior of the wine cellar before inserting the insulation, leaving the plastic loose so that insulation can be placed between the studs in the wall. Cover the ceiling and the walls, or your vapor barrier will be incomplete. After the barrier is put in, the insulation comes next.
Good wine cellar building needs the right kind of insulation for your walls and ceiling. For instance, if you are building a 2x6 wall, R19 insulation is recommended, but if you have a smaller wall of 2x4, R13 may be your best bet. (The “R” designation represents the heat resistance of the insulation.) Ceilings require R30. Custom wine cellar builders should not install the insulation loose without packing the material into the sections, as this decreases the insulation’s effectiveness.
The next step is to install a kind of drywall called green board, which is moisture-resistant, making it a bit more expensive than regular drywall. Install an exterior-grade door to the wine cellar and your climate control plan is complete.
Lighting and UV Exposure Control
Wine is destroyed by UV exposure, which is why the bottles are normally constructed out of dark glass. Avoid putting in fluorescent bulbs in the wine cellar room, as they give off UV radiation. Control the brightness by using recessed lighting on a dimmer and avoid shining light straight on your wine bottles for long periods of time. Some wine cellar racks are made with compartments that hide bottles from the light which can help reduce exposure, but if your bottles are stowed in clear view, try to avoid the “spotlight” effect on your bottles.
Nearly any kind of flooring can be used in your custom wine cellar. If your home is big enough for a wine tasting room to complement your cellar, you may wish to give them both an identical look, but by no means use carpet and rugs in the cellar area. They simply can’t hold up to the required humidity levels without surrendering to mold. Mold growth will wreck your wine, as can any powerful odor from chemicals or cheeses. A wine cellar should be used only to hold wine; keep food in a separate area.
Constantly examine the temperature and humidity in your wine cellar with an external sensor or gauge. By no means guess that the wine cooling system will always function accurately. A quick glimpse at the external gauge can offer you early notice if the wine cooling unit is having difficulties, or if the unit is showing a wrong readout because of a bad sensor or other technical troubles.
Constructing a custom wine cellar room may require some attention to the design demands of correct wine storage, however once properly built, you may realize that your collection grows quickly; it’s simple to invest more money in wine when you know it will be held safely for maximum delight.
Vigilant is a premier design/build firm for custom and specialty cabinetry and millwork, specializing in wine cellars and wine storage and display for the home and commercial markets. Check out our extensive educational resources focused on building a wine cellar on our web site,www.vigilantinc.com.