ASM Legislative Track Record
A Proven History of Legislative Success
Through legal action and strong legislative advocacy, ASM has helped protect the rights of subcontractors on public and private work for nearly 60 years. Today, ASM is widely recognized as the voice of subcontractors on Beacon Hill.
ASM has an impressive track record of passing legislation favorable to subcontractors, and defeating bills harmful to the industry. Below is a brief chronology of our major legislative successes.
Prompt Pay Law, 2010
On Nov. 8, 2010, c. 293 of the Acts of 2010 took effect, making Massachusetts the 33rd state with a "Prompt Pay Law" for private construction. The most significant construction legislation in more than a decade, the law is a major victory for ASM and the subcontractors of Massachusetts, and is the result of a nearly 10-year effort by ASM to address payment problems in the industry. After trying for several years to get industry support for a comprehensive payment bill, ASM went to Beacon Hill this year with a short, new bill, which quickly won the support of House and Senate leaders, who recognized that chronic slow payment is a serious threat to businesses and jobs, particularly in a recession.
We extend special thanks to Senate President Therese Murray and House Speaker Robert DeLeo, for making our “prompt pay” bill a priority in the final days of the legislative session, and we applaud Governor Deval Patrick for signing it into law. We appreciate the support of many other House and Senate members as well, most notably, Rep. David Flynn of Bridgewater, Dean of the House and steadfast champion of our bill from the beginning. We could not have succeeded without them.
Nor could we have succeeded without the support of many industry allies, and hundreds of subcontractors who made calls or wrote letters urging passage of the bill. Our success shows the power of collective action, and is a victory for all who took part. Read more about our campaign.
The new law applies to all prime contracts signed after November 8 with a value of $3 million or more, except 1-4 unit residential projects. The goal is simple: to “keep the payment process moving” so that funds flow as they should on construction projects, and prompt payment becomes routine business practice.
The law sets reasonable, “not to exceed” time periods for approval (or rejection) and payment of progress billings; and sets up a similar process for acting on change orders. It provides due process for rejections, and the right to initiate dispute resolution after 60 days. It also eliminates the use of condition-precedent or “pay if paid” provisions, except in two very narrow circumstances; and as a last resort, it allows for the right to stop work for nonpayment. Read the bill text, summary of key provisions, and seminar materials prepared by the authors of the bill, Attys. David Wilson and Carolyn Francisco of Corwin & Corwin LLP.
The Prompt Pay Law represents major change for the construction industry, yet is change for the better, that is long past due. At the Associated Subcontractors of Massachusetts, we couldn’t be more pleased and proud to see it happen!
For more information on the law, see our information packet, that includes:
- a brief re-cap of our campaign to pass the law, and recognition of all who helped
- a summary of key provisions of the law
- a copy of the law itself
Public Construction Reform, 2004
For years, there were calls for construction reform in Massachusetts, and for years, ASM opposed it, because it did little more than target the filed sub-bid law and eliminate competitive bidding for subcontractors.
But 2004 was different. ASM was part of a 20-member Special Commission of all interested parties (public agencies, legislators and construction industry leaders) who worked over several months to achieve consensus on proposed changes. The result was a true reform package designed to improve all aspects of the construction process — including design, contractor selection and project oversight — while also preserving the best features of the existing law.
Chapter 193 of the Acts of 2004 called for improved designer selection procedures, experienced project managers on all municipal projects over $1.5 million, DCAM certification of subcontractors, prequalification of both general contractors and subcontractors on all projects over $10 million, increase in the thresholds that trigger filed sub bidding, authorization to use alternative methods on projects over $5 million, and more.
The reform package easily won the support of the Legislature and the governor and was signed into law on July 19, 2004, bringing the first major changes to public construction in nearly 50 years. ASM is proud of our role in making those reforms possible.
Construction Management at Risk legislation, 2004
In 1997, ASM worked cooperatively with the state’s chief building agency, the Division of Capital Asset Management (DCAM), to craft the innovative procurement method used successfully for the state’s largest public building project ever: the Boston Convention and Exhibition Center. The procurement method, which combined a CM at Risk process with prequalification of subcontractors and award to the lowest bidder, in turn served as a model for legislation ASM negotiated in 2002 with DCAM for use on courthouse construction.
Against this background, ASM in 2003 forged a team with the Associated General Contractors and Boston Society of Architects to develop comprehensive legislation that would authorize the use of CM at Risk on appropriate large-scale public building projects, and standardize the procedures across all public agencies. In 2004, the ASM/AGC/BSA CM at Risk legislation became the centerpiece of the Construction Reform package proposed by the Legislature’s Special Construction Commission.
Under CM at Risk, the CM is selected on quality as well as price, comes in early to ensure design plans are good, and is held responsible for costs that exceed a guaranteed maximum price. Trade contractors in the filed sub bid trades are pre-qualified to bid, contracts are awarded to the lowest bidder, and subcontractors enjoy the same contract and payment protections as under current law.
The CM at Risk legislation represents the first statewide authorization of “alternative methods” on public buildings in the Commonwealth, and became available on January 1, 2005.
Preservation of Filed Sub Bid Law, 1990-2004, prior to Construction Reform
Since 1954, Massachusetts’ Filed Sub Bid law has allowed qualified subcontractors in 17 trades to compete directly for contracts on public building projects, in a fair and open process that is free of corruption and gets the best deal for taxpayers. The law has a proven record of producing high-quality public buildings that are the equal of any in the country, at the lowest possible price.
For more than a decade, the Filed Sub Bid law came under attack from those who claimed — without evidence — that the law adds significantly to the time and cost of public construction. Between 1990 and 2000, ASM defeated five successive attempts by the governor to either repeal the Filed Sub Bid law outright, or pass “reforms” that were little more than a repeal in disguise. In addition, ASM stopped numerous bills seeking special exemption from the law for state and municipal projects, and in 2002, ASM persuaded the Legislature to stop approving “home rule petitions” seeking exemptions for school construction. On the final round of school exemptions in 2002, ASM won amendments to protect the rights of subcontractors on the exempted projects.
In 2003, the state’s fiscal crisis once again prompted calls to “reform” the public construction laws as a way to save money and provide “relief” to cash-strapped municipalities. Bills were filed to curtail competitive bidding and allow the use of design/build. Thanks to opposition from ASM, the bills were set aside while the Legislature formed a Special Commission to review the construction laws and recommend improvements.
ASM was named to the Special Commission to represent subcontractors, and over the course of six months, helped to craft historic legislation that represents reform in the true sense of the word, preserving the best of the existing system (including the filed sub bid) while bringing needed improvements that benefit contractors and public agencies alike.
Public Prompt Pay Law, 1998
In 1998, ASM, AGC and CIM won passage of a “Prompt Pay” law which speeds payment on public projects by requiring state agencies to pay contractors in 30 days instead of 45, on both Ch. 149 building projects and Ch. 30 road and bridge work.
Lien Law Reform, 1996 and 2002
In 1996, ASM and a coalition of industry groups won sweeping reforms to the 100-year-old Massachusetts Lien Law, after a seven-year effort. The new law expanded the scope of lien protection; covered more types of projects; and extended the time limit for claiming a mechanics lien, giving better payment protection to contractors and suppliers on private work. In 2002, ASM won passage of a major correction to the law, to extend the filing deadlines on projects where there is a lien bond in place, and prevent subcontractors from losing lien rights prematurely.
Despite broad support for the 1996 reforms, bills are filed in every session to amend the Lien Law and wipe out the hard-won payment protections for subcontractors. Thanks to aggressive opposition from ASM and our industry allies, the bills never see the light of day, and subcontractors’ new lien rights remain intact.
In the early years of the association, ASM won significant changes to the public bidding laws that form the basis of the current law:
- 1954: In response to ASM advocacy efforts, the Legislature changed the public bidding law to provide for sub-bids from 17 separate trades.
- 1954: ASM helped pass the “direct payment” law, allowing subcontractors to seek payment directly from awarding authorities when general contractors fail to pay.
- 1956: ASM persuaded the legislature to amend the bid law to allow subcontractors to submit bids to the awarding authority for public opening, instead of directly to general contractors.
- 1960: ASM succeeded in getting a new law passed requiring general contractors to use the simple, two-page form of subcontract that is still in use today.
Special Thanks to our Corporate Sponsors