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WICKS LAW ON THE CHOPPING BLOCK YET AGAIN Go Top

Less than one month into the 2001 legislative session, New York State’s multiple prime contracting law, commonly know as the “Wicks Law”, was once again under attack by way of bills introduced in both houses of the Legislature. Currently, the Wicks Law requires that separate specifications and contracts be prepared for plumbing, HVAC and electrical work on public construction projects valued at $50,000 or more.

Under legislation introduced by Senator Roy Goodman (R-26) and Assemblyman Steven Sanders (D-63), two legislators from Manhattan’s East side, the $50,000 Wicks Law threshold would be increased to $500,000. That is, projects under $500,000 would no longer be subject to multiple prime contract requirements. But that’s not the worst part. Under this proposal, for projects in excess of $500,000, public owners would have the choice of “alternative contracting methods”. That is, they would be allowed to choose whether to bid work using multiple prime contracts (Wicks) or a single prime contract. This so-called “freedom to choose” is simply a different way of stating that the Wicks Law would be repealed altogether. In a weak attempt to appease mechanical and electrical contractors who would lose their prime contractor status, this legislation also includes the somewhat meaningless protection of requiring that the general contractor submit the names and prices of the proposed plumbing, heating and electrical subcontractors within 48 hours of bid opening. This inadequate requirement represents the bill sponsors’ attempt to prevent bid shopping. Of course, all subcontractors know that a 48-hour sublisting requirement merely means that general contractors will conclude their bid shopping activities within that 48 hour period. Thus, such a requirement really is no protection at all.

NESCA’s state affiliate, the Empire State Subcontractors Association (ESSA) has notified the bill sponsors and the local government committees in both houses of its strong opposition to this legislation. Any member who would like more information on this bill should call the NESCA office.

ESSA TO PUSH FOR INTEREST ON RETAINAGE Go Top

The Empire State Subcontractors Association has drafted legislation which would require that retainage held on private construction projects be placed in an interest-bearing escrow account for the benefit of the parties from whom the retainage is being held. It is expected that bills will soon be introduced in both houses of the Legislature by Senator Kemp Hannon and Assemblyman Eric Vitaliano.

This legislation was approved for inclusion in ESSA’s 2001 legislative program at ESSA’s December 12, 2000 Board of Directors meeting. It is believed by the Board that short of the outright elimination of retainage, all retainage withheld on private projects should at least be placed in an interest-bearing escrow account for the benefit, and security, of the parties who are owed that retainage. Since retainage represents money which has already been earned by subcontractors, it is the subcontractors from whom retainage has been held who should benefit from investment earnings on that money. Further, by having retainage placed in an escrow account, subcontractors will have far more assurance that they will actually receive this money in the event an owner’s financial status becomes questionable later in the project.

PRESIDENT’S MESSAGE Go Top

On February 12th, I had dinner at the Fort Orange Club in Albany with a few other NESCA members, our staff and several NYS Assemblymen. As president of NESCA, I was asked to attend this dinner primarily to get the opportunity to meet and discuss subcontractor issues with Assemblyman Eric Vitaliano, who is the primary sponsor of pro-subcontractor legislation in the State Assembly. For close to ten years, Assemblyman Vitaliano has introduced numerous bills on behalf of our state affiliate, the Empire State Subcontractors Association (ESSA), and I learned that night what a good friend subcontractors have in the Legislature!

The funny thing is, we actually spent very little time discussing ESSA’s legislative program because it was clear that Assemblyman Vitaliano has a firm understanding of our issues and is fully supportive of our program. For most of the evening, we simply socialized with Mr. Vitaliano and two of his colleagues, Assemblymen Ron Tocci and Peter Abbate. I had a great time and I’m glad I had the chance to meet with these three Assemblymen.

I also learned something very important about our association. Many of us, as members of NESCA, read the NESCA Newsletter each month and therefore probably have a general understanding of the work NESCA and ESSA does to protect our interests in the Legislature. However, at this dinner I was able to gain a renewed appreciation of how much “behind the scenes” work is done on our behalf. Our association, through our staff and lobbyist, not only vigorously lobbies for a full package of pro-subcontractor bills each year, but also reviews and monitors literally thousands of other bills introduced during the legislative session. Some of the legislative issues ESSA routinely responds to affect all subcontractors and suppliers equally, and other issues (such as the Wicks Law) may directly impact only a particular segment of our membership. The important thing is that we, subcontractors and suppliers, have advocacy in the State Legislature. I shutter to think of the some of the bills that would pass and get signed into law if we did not have an organization fighting for us! I hope all members understand that even if you do not attend NESCA’s meetings and seminars or take advantage of our lien service or other services offered, NESCA is worthy of your continued support. All of us should continue to support and pay our annual dues to NESCA, if for no other reason, then just for the legislative advocacy our businesses are provided. Let’s face it. You don’t have time to do it, and I don’t have time to do it. That is precisely why we have NESCA.

Steve Dewey

President

COURT DISMISSES SUBCONTRACTOR’S BREACH OF WARRANTY CLAIM Go Top

In Naftilos Painting, Inc. v. Ciambro Corporation, et. al., 275 A.D.2d 975, the Supreme Court, Appellate Division, Fourth Department held that a painting subcontractor’s claim against a paint supplier based on negligence and a breach of expressed warranties and implied warranties of fitness and use for a particular purpose was denied. The subcontractor sued the paint supplier after it had used paint supplied by the defendant supplier in a bridge renovation project. The court held that the subcontractor’s negligence and negligent misrepresentation claims were not predicated upon violation of a duty independent of contract. Furthermore, invoices provided by the defendant paint supplier to the subcontractor contained a conspicuous disclaimer of all warranties, and defendant established that no defect in the paint or paint thinner proximately caused the rusting problems on the bridge.

This case illustrates that a negligence cause of action is separate and apart from a contract cause of action based on breach of warranty. The contract cause of action for breach of warranty failed here because the supplier clearly disclaimed all warranties, including implied warranties, by a conspicuous notice in the invoice. Subcontractors should pay close attention to invoices or purchase orders to ascertain the nature of the warranties, if any, being made by the supplier and whether the supplier is disclaiming any warranties. The New York State Uniform Commercial Code allows suppliers to disclaim the implied warranties of merchantability and fitness for a particular use provided such disclaimers are conspicuously noted in a document presented to the subcontractor.

Terence J. Burke

NESCA Legal Counsel

Lien On Us Go Top

Let NESCA’s Free Lien Filing Service Help You To Collect Your Overdue Payments

One of NESCA’s most important and most utilized services of membership is the association’s free lien filing service. NESCA has operated the lien filing service for more than 20 years, and annually files more than 250 private mechanic’s liens and public improvement liens on behalf of members who haven’t been paid for labor and/or materials furnished to construction projects in New York State.

NESCA will file liens for members against projects located anywhere within New York State - both private projects and public works projects. Every NESCA member is entitled to the preparation and filing of up to three (3) liens free of charge during any given NESCA fiscal year. This includes the cost of all filing fees, service of the lien, postage and administrative expenses. Additional lien filings carry a $75 administrative fee.

Members wishing to utilize this service should call NESCA at 518-869-9800 and request an “Information Required to File a Lien” form. Once you have completed the form, fax it back to our office and work will begin immediately to get your lien filed.

ESSA WORKERS’ COMP. PROGRAM CAN SAVE YOU MONEY Go Top

Several years ago, NESCA’s state affiliate, the Empire State Subcontractors Association, Inc. (ESSA), established a workers’ compensation safety group designed exclusively for subcontractors and suppliers doing business in New York State. This member benefit is managed by Allied Safety Management, Inc. through the State Insurance Fund, and provides many advantages to today’s subcontractor or supplier. Here’s five reasons why you should take a look:

1. GUARANTEED COST

2. ADVANCE DISCOUNT

3. YEAR-END DIVIDEND

4. CLAIMS SERVICES

5. PROVEN LOSS CONTROL PROGRAM

For more information on this valuable member benefit call John Blackmore at Allied Safety Management, Inc. at (516) 733-9200.

WELCOME NEW MEMBERS Go Top

Classic Environmental, Inc.

P.O. Box 480

Clifton Park, NY 12065

(518) 664-1209; Fax (518) 664-1209

Contacts: Sandi Ingalls, Craig Ingalls

Global Underwriters Agency, Inc.

P.O. Box 4987

Clifton Park, NY 12065

(518) 877-8557; Fax (518) 877-4803

Contacts: Jay Hans, Rich Pufpaff

Government Contrs. Benefit Trust

6 Wembley Court

Albany, NY 12205

(518) 464-4080; Fax (518) 464-4087

Contact: Tom Santa Barbara

J.D. Johnson Company

184 Church Street

Poughkeepsie, NY 12602

(845) 452-3200; Fax (845) 452-7623

Contact: Lawrence Downey

Northwestern Mutual

951 Albany Shaker Road

Latham, NY 12110

(518) 785-7436; Fax (518) 785-4714

Contact: Pat DiCerbo, Trent Beckwith

Pachyderm Enterprises, Inc.

1861 Chrisler Avenue

Schenectady, NY 12303

(518) 346-7707; Fax (518) 346-7579

Contact: Willy Jones, Mary Newsome

Theodore Stay & Sons, Inc.

14 Kaycee Loop Road, P.O. Box 458

Plattsburgh, NY 12901

(518) 561-4012; Fax (518) 561-0825

Contact: Keith Stay

Tote Construction Serv. Masonry

1 Houlton Avenue

Schenectady, NY 12303

(518) 356-3010; Fax (518) 356-4932

Contact: Joseph Tote

OSHA ISSUES NEW STEEL ERECTION STANDARD Go Top

The Occupational Safety and Health Administration (OSHA) has issued a new rule on steel erection, developed in concert with industry and union groups. OSHA claims the new rule, issued on January 17, 2001, will prevent 30 fatalities and 1,142 injuries annually and will save employers nearly $40 million a year.

The steel erection rule is the first OSHA safety standard developed under the Negotiated Rulemaking Act of 1990 and the Department’s Negotiated Rulemaking Policy. The rule was developed by members of the Steel Erection Negotiated Rulemaking Advisory Committee (SENRAC), representing employers and employees significantly affected by the standard.

The standard enhances protections provided to iron workers by addressing the hazards that have been identified as the major causes of injuries and fatalities in the steel erection industry. The final rule protects all workers engaged in steel erection activities. It does not cover electric transmission towers, communications towers, broadcast towers, water towers or tanks.

The final rule will become effective July 17, 2001. Key provisions of the revised steel erection standard include:

Site Layout and Construction Sequence

· Requires certification of proper curing of concrete in footings for steel columns.

· Requires controlling contractor to provide erector with a safe site layout including pre-planning routes for hoisting loads.

Site-Specific Erection Plan

· Requires pre-planning of key erection elements, including coordination with controlling contractor before erection begins, in certain circumstances.

Hoisting and Rigging

· Provides additional crane safety for steel erection.

· Prescribes proper procedure for multiple lifts (Christmas-treeing).

Structural Steel Assembly

· Provides safer walking/working surfaces by eliminating tripping hazards and minimizes slips through new slip resistance requirements.

Column Anchorage

· Requires 4 anchor bolts per column and other column stability requirements.

· Requires procedures for adequacy of anchor bolts that have been modified.

Beams and Columns

· Eliminates extremely dangerous collapse hazards associated with making double connections at columns.

Fall Protection

· Prescribes new fall protection requirements

Training

Requires qualified person to train exposed workers in fall protection.