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Planning ESOPS for Construction and Real Estate Firms

in Columns/Finance

By Thomas H. Mug

Maybe it’s the preservation of a legacy, perhaps it’s the conclusion of thoughtful succession planning, or it might be a desire to motivate employees and enhance corporate performance … for whatever reason, the construction and real estate industry is increasingly embracing employee stock ownership plans (ESOP).

Indeed, this publication documented the trend three years ago, noting transfers to some form of employee ownership at Brinkmann Constructors, McCarthy Building Companies, CH2M Hill, Parsons, Black & Veatch, HDR, HNTB, Burns & McDonnell and Terracon. Last year, Lawrence Fabric & Metal Structures Inc. and Balke Brown Transwestern, Inc. joined the ranks of employee-owned companies with the help of our law firm, Greensfelder, Hemker & Gale. However, ESOPs are not for every situation and require considerable forethought and planning.

Many businesses begin considering ESOPs as they approach a transition in leadership and want to preserve the distinctive qualities that define the company and its culture and ensure the company’s long-term success. That has been accelerating with a wave of baby boomers entering retirement.

An ESOP is an intense planning process. Business owners should consider the following:

  • Is the firm suited for an ESOP? Business owners should conduct a feasibility study as a first step to determine whether the company is a suitable candidate for an ESOP. This will consider the motivating factors for establishing an ESOP, the financial capability of the company to finance ESOP debt and suitability of the company as an ESOP candidate. The feasibility study will also identify any issues or obstacles in the establishment of an ESOP.
  • Before entering into an ESOP, a business owner needs to know the value of the company. It is likely that the owner will have an expectation of the amount that will be paid for his or her stock. One of the first steps in examining the ESOP as an exit strategy is for the owner to obtain an independent valuation of the company stock. If the result is not to the owner’s satisfaction, the owner may elect to forgo the ESOP and consider other alternatives. Valuation typically involves projecting the future earnings of the company and will rely on those projections of company income. Industry outlook is also a major consideration, as well as the general economic forecast. If appropriate, the valuation may also consider book value and sales of comparable businesses.
  • Federal regulations. ESOPs are heavily regulated by both the U.S. Department of Labor and the Internal Revenue Service. As an ESOP is a retirement plan designed to invest in company stock, the interest of the Department of Labor is to see that plan participants and their retirement savings are adequately protected. Consequently, the Department of Labor will scrutinize an ESOP transaction to assure that the terms of the transaction, including the price paid for company stock, are fair. One way to assure compliance in this regard is to engage a well-qualified independent trustee to represent the interests of ESOP in the transaction.
  • Repurchase obligations. One major consideration for any ESOP, new or mature, is an understanding of the company’s repurchase obligation with respect to its ESOP shares. As employees approach retirement, they will seek to cash out the company stock in their ESOP accounts. In addition to retirement, a repurchase obligation can also occur due to termination of employment, death of an employee or a participant’s exercise of diversification rights. In order to prepare for this eventuality, a company will want to have a repurchase liability study performed and develop a plan to have adequate resources available when the need arises. Failure to plan for this eventuality can result in a crisis in future years.
  • Creating a culture of employee ownership. Critical to the success of any ESOP is the presence of an ownership culture. Some companies have a workplace culture that will give them a head start on this. Others will need to work harder at the developing the ownership mentality. What is important is to have a culture in which employees are engaged as owners and are aware of the responsibilities that come with ownership. This is enhanced through the sharing of information on the financial health and outlook of the company and by developing a team approach to achieve success. An old saying is that there is no “I” in ESOP.

In a sense, a transition to an ESOP takes on the same attributes of a personal family decision. Business owners need to work with financial, legal, and accounting advisors who are familiar with the culture of the firm and its mission. It is a significant advantage when the team has an understanding of the challenges unique to the construction and real estate industry.

It can be more remunerative and sometimes easier to sell to an outside buyer than to embark on an ESOP. The decision depends on the motivation and goals of the owner, the desire for the future of the business, and the feasibility of an ESOP as a succession alternative. Many St. Louis construction and real estate firms have found that properly planned ESOPs are an effective way to develop the next generation of leadership who will continue to advance the legacy of excellence that has defined the company since its inception.

Thomas H. Mug is an attorney in the employee benefits and trust and estates practice groups at the St. Louis law firm Greensfelder, Hemker & Gale, P.C.

Preventing Fraud In Your Organization

in Columns

By Ken Van Bree 

Here’s a statistic that will keep you up at night: according to the Association of Certified Fraud Examiners (ACFE), fraud within the construction industry is now costing an average median loss of $245,000 for organizations. Further, ACFE report that the construction industry’s median loss is approximately $90,000 higher than the average fraud losses across all industries. 

Type of Fraud Schemes

The threat of fraud can never be wholly removed, but leadership should take steps to identify schemes their organization might face. Below are a number of schemes frequently used to defraud construction companies.  

Billing Schemes

The ACFE indicates that billing schemes account for 35 percent of the fraudulent activity within construction companies. Such schemes can be payments to fictitious vendors, overpayment to vendors (often through collusion with an internal employee), and purchase of personal items with company funds. 

Bid Rigging & Corruption

The ACFE reports that nearly 47 percent of the fraud cases examined in the construction industry had an element of corruption, whether it is bribery, kickbacks or quid pro quo situations The bid process can be riddled with opportunity for this type of fraud. 


The construction industry is particularly susceptible to theft of materials due to the location of jobs and the difficulty of tracking construction materials. Job sites can be in remote areas or some distance from the  corporate headquarters and subject to less supervision. Additionally, materials on job sites are hard to track and measure during the construction process. Items lying around a job site such as lumber, concrete, copper pipe, wire and cable can create an opportunity for thieves if proper controls are not in place. 

Misuse of Company Equipment

to theft of materials, misuse of company equipment can also become an issue if there is a lack of controls present. For instance, an employee could operate a side business using a company’s idle equipment.

Other Fraud

The construction industry is subject to the same fraudulent activities faced by every other industry. These include payroll fraud through fictitious employees, check tampering, and fraudulent expense reports. 

The Importance of Internal Controls

After identifying common fraud activities, an organization should design a control structure that will reduce the opportunity for fraud and increase the chances fraud will be detected. Although there are no guarantees, the foundation to a strong internal control environment is proper segregation of duties. For example, the person in charge of setting up vendors should not be the same person who approves vendor payments or reconciles bank statements. Proper segregation of duties applies to all areas of business and can be employed effectively at little or no cost. 

Here are some other simple yet effective internal controls organizational leadership should consider implementing: 

·         Check all estimates for accuracy of calculations, labor rates and correspondence with drawings.

·         Compare job cost estimates with actual costs. Require approvals for cost adjustments or transfers of costs between jobs.

·         Require that estimates for materials above a specified amount include quotes from two or more vendors.

·         Make purchases only with pre-numbered purchase orders, and match them to both receiving reports and invoices before payment is made.

·         Check vendor invoices against estimates to ensure proper discounts and pricing.

·         Always refer to specific job numbers, phase codes or work order numbers in onsite communications.

·         Obtain ink or electronic signatures on change orders before work begins and revise contract values accordingly.

·         Allocate equipment usage to contracts weekly and record equipment maintenance expense in the ledger as they occur.

·         Review all billings for timeliness, accuracy, conformity with contract terms, and correct customer information.

·         Reconcile contract billings with general ledgers monthly, and calculate under-billings and over-billings.

·         Prepare and review monthly financial statements and reconcile them to supporting ledgers, bank statements, and loan schedules 

Not all controls are created equal when trying to detect and prevent fraud.  For instance, according to the ACFE, an external audit was performed in 80 percent of the fraud cases reported, but detected the fraud in only three percent of those cases. The majority of fraud was uncovered through tips to a fraud hotline or management, and employees or customers were the leading sources of those tips. A fraud hotline was in place
for 54 percent of the fraud cases examined.

Based on this information, it is important not to put too much reliance on a single control, but rather have a series of processes that will prevent and detect fraud. 

Know The Signs

The profile of a fraudster can be as important to know as understanding the typical fraud schemes employed themselves. Per the ACFE, fraud typically is not perpetrated by a repeat offender. In fact, only 5 percent of fraudsters had been previously convicted of a fraud-related offense prior to committing fraud crimes. 

Additionally, 82 percent of fraudsters had never been punished or terminated by an employer for fraud-related conduct, which shows that while background checks are useful in screening out some bad applicants, they might not be effective in predicting fraudulent behavior. 

Most fraudsters were employed for more than one year before committing fraud, but most displayed some, such as living beyond their means, financial difficulties, or having unusually close associations with vendors or customers, that could have served as warning signs. Training management to recognize these warning signs for employees, vendors and auditors is important to help detect fraudulent behavior. 

Protect Your Company’s Reputation

Ultimately, knowing the types of fraud, what controls to implement and the profile of a fraudster can help mitigate the chances of a significant fraud loss, but maintaining your reputation is another critical factor. 

Reputation is a construction company’s most important asset since the construction industry is small enough for word of mouth to carry great weight in the decision process of sureties, bankers, suppliers or customers. Across all parts of the organization, companies should operate under a code of ethics that builds their reputation in the community. 

Ken Van Bree, CPA, is a partner of St. Louis-based accounting firm RubinBrown and serves as the partner-in-charge of the firm’s Construction Services Group. For information, visit: Contact: 314.290.3429 or

Sales Death by Product Knowledge

in Columns

By Tom Woodcock 

Often, when I’m brought in to train prospective sales personnel, I’m presented with employees with tremendous product knowledge. When it comes to the features of the product or the service, no one can hold a candle to them. Man, do they ever know their trade or the nuts and bolts of the equipment. Customers will be wowed by the expertise they bring to the table.  

Sound like the perfect sales agent, right? 

Well, all the knowledge in the world is worthless if the customers are bored out of their minds. Information is useless if it isn’t received. A glazed-over look indicates the customer isn’t engaged, and your presentation is falling on deaf ears. 

As a sales trainer, I run into this scenario all the time. Though noble in its quest, putting product or service knowledge ahead of engagement is to blatantly disregard the customer. Even a potential client that loves product information will lose interest if he or she is not dialed in to the presenter. 

Have you ever been to a seminar where the topic was relevant and detailed, but you found yourself looking at your watch through the whole thing? Sadly, a high percentage of seminars fall in this category. The presenter is more into the data than the attendees. 

The same dynamic happens in selling, but on a smaller scale. Companies look at their personnel and choose who will go to the customer. They often conclude that those with more product or service expertise are more critical to get in front of customers than the likable employee who can own a room. They just want that person with people skill to get a little more knowledge first. Sooooo, are they going to get the person with product awareness a little more socially skilled? 

What do you think is easier to teach? 

You have to come to the realization that developing a relationship trumps product knowledge in relation to price. A potential customer can take your product knowledge and measure it to the competitor’s product. It’s easily carried. I cannot take the level of personal connection I have with the sales agent from your company and transfer it to the competitor. So where is the competitive edge? 

Now, I’m not saying product knowledge isn’t important. The ultimate sales person has both strong people skills AND significant product or service knowledge, but these thoroughbreds are very hard to find. They’re actually much easier to develop. 

Taking the raw, but socially talented person and educating him or her on both product and sales knowledge is a formula for success. I see many talented young reps  wasted as they get bogged down and belittled for their limited product knowledge that they never are comfortable using their God-given abilities. Long-term employees call them “green” or “shallow” and chase them into the woodwork to become product wonks. They try to use social media as an outlet and are even restricted in those avenues by management. 

As a rep I was never the best at gaining product knowledge. There were so many different types of products and my customers knew them from daily use better than I ever could. I felt it was more necessary that I respected their knowledge and made sure my approach was likable. They not only respected me in return, they appreciated my honesty, often educating me through the process. A good rep will take that education in relation to the individual customer and bank it. Then the next time the need arises with that client, they’re ready with the customer’s preferences. This is the art of making the deal. 

Understanding your customers as people and functioning as a customer-friendly liaison to your product or service are the crucial roles of a salesperson. You meet their needs and expand the relationship. Pricing then becomes far less of an issue because of the amount of trust you’ve developed. For that to work, it’s also important to establish product support to your strong social reps so that they have access to support personnel or resources that can assist them in answering questions or objections. 

Many times those steeped in product and service knowledge come across as arrogant or condescending. That’s a complete customer turn-off. The ability to take the vast knowledge a product-oriented rep has and transferring that information to a potential buyer is difficult. The key to growing in this regard is learning how to listen first and then suggest, not tell customers why they’re wrong or off base. That’s hard to do when you know more than them. The mastering of this skill will begin the process of social skill development. Notice I said process. The higher levels of social skill require personal stretching even for the most outgoing sales personnel. 

Belief in your product or service is extremely important. Customers need that knowledge. The problem is: if they don’t connect with the messenger, they rarely connect with the message.  

Tom Woodcock, president, seal the deal, is a speaker and trainer to the construction industry nationwide. He can be reached at his website: or at 314-775-9217.

Manufacturer Not Liable; Followed MoDOT Plans

in Columns/Law

By James R. Keller 

A manufacturer that follows an owner’s plans, drawings and specifications for a construction project is not strictly liable when a person is injured by the product, Missouri’s Eastern District Court of Appeals decided on September 22.  The case is Hopfer v. Neenah Foundry Co., 2015 WL 5573965.  

In 2009, Norman Hopfer was severely injured when he lost control of his pickup truck after driving over an open drainage inlet on Hall Street in the City of St. Louis.  At least one of the grates covering the inlet was dislodged at the time. 

Hopfer’s lawsuit alleged that Neenah Foundry Co. was liable for his injuries under a strict products liability theory. Specifically, Hopfer alleged that the grates became dislodged due to design defects in that only two open-slot bolts were used to secure the grates.  

Neenah was a manufacturer of the cast-iron grates. Neenah’s normal grates have four bolts fastening each grate to a frame.  In this instance, the grates on Hall Street were modified to use only two-bolt holes. 

Neenah had manufactured the grate under a contract with the Missouri Department of Transportation (MoDOT).  MoDOT installed the grates as part of its road improvement program. 

After a jury verdict in Neenah’s favor, the Eastern District considered two points on appeal:  first, whether the trial court erred by allowing a jury instruction that contained the affirmative defense that compliance with the contract specifications absolved Neenah from liability and, second, whether the jury should have been allowed to consider that Neenah did not perform certain testing when designing the grates.  

Regarding the first point, Neenah contended at trial that MoDOT specified the same grates for the 2005 Hall Street project that previously were manufactured and used in a MoDOT 1999 retrofitting project. 

Hopfer conceded that the grates used in the Hall Street project were the same as those used in the previous 1999 retrofitting project. He argued that the plans for the Hall Street project did not specify the type of grates to be used.  He contended that MoDOT relied on Neenah to design and manufacture the two-bolt grate and to gauge the safety of this product, especially since it was a departure from the standard four-bolt grate typically manufactured by Neenah.  Hopfer also presented evidence that MoDOT does not design roadway grates. 

A Neenah employee and engineer testified that MoDOT and Engineering Design Source, Inc. (EDSI) asked Neenah to change its standard four-hole grate to a two-hole design.  The employee further testified that MoDOT was “controlling the show” with respect to the design and that Neenah “supplied what they asked for.” 

Neenah was not consulted about what type of grates to use in the Hall Street project.  MoDOT engineers decided that the Neenah two-hole grates originally created for the 1999 retrofitting project were to be used in the Hall Street project. After work was completed, a MoDOT engineer on the Hall Street project testified that he had accepted the work as complying with MoDOT specifications, including the two-hole grates. 

Hopfer’s legal theory was strict liability.  Strict liability focuses solely on whether the grates were unreasonably dangerous and therefore defective when made. 

Unlike negligence, a defendant’s conduct, standard of care, and fault in the manufacturing process are not relevant considerations for the jury.  The appellate court decided to uphold previous Missouri law that  compliance with contract specifications is a defense that shields the manufacturer from strict liability. 

On Hopfer’s second point on appeal, he argued that the trial court erred in excluding evidence of Neenah’s failure to conduct Failure Mode and Effects Analysis (FMEA) testing when designing the grate system.
The appellate court agreed that the trial judge correctly exercised its discretion to exclude testing evidence.

The court concluded that in a strict liability claim, the sole subject of inquiry is the defective condition of the product. Excluding this evidence was consistent with Missouri’s approach (not followed in many other states) that in claims of strict liability testing goes to defendant’s conduct in designing the grates, which is a consideration the jury should not be allowed to make in a strict liability case.  Such a consideration may be appropriate in a negligence case, but Hopfer only proceeded on the single theory of strict liability. 

The appellate court also declined Hopfer’s request to expand Missouri’s strict liability law to allow for application of the prudent-manufacturer test.  This test states that a product is unreasonably dangerous if a reasonably prudent manufacturer would not have produced and marketed the product in the condition that it was in at the time it was placed into the market.  To the extent other states follow this approach, this appellate court explicitly rejected it under Missouri law. 

James R. Keller is a partner at Herzog Crebs LLP where he concentrates his practice on construction law, complex business disputes, real estate and ADR.  He also is an arbitrator and a mediator.

The New Buzzwords in Technology Aren’t Really Technology at All

in Columns

If you’ve shopped for technology lately, you’ve probably heard some new buzzwords, well acronyms actually, HaaS and SaaS. Neither has anything to do with technology, however, they are all about money. 

HaaS stands for ‘hardware as a service’ and with that said, you may have guessed that SaaS is‘software as a service’. The new moniker, as-a-service, is really an annuity model, where the customer pays a flat rate (usually per month) for the use of equipment and/or software applications. 

One big plus for this model is that budgeting becomes easier for the customer since the payments are fixed over time and the every three to five year ‘hit’ for refreshing technology is spread out. Notice I said spread out. It isn’t eliminated. You will still pay for that new server, new software version, printer, etc. It’s just that you’re paying for it over time. Which brings up
the big minus for this model.

You are still paying for the whole amount, but now the cost has interest and inflation factored in. Plus, since the customer never owns the hardware or software under these models, if the agreement is terminated, everything gets picked up and carted off since title almost always stays in the supplier’s name. In other words, the customer may have made payments for years but they don’t own anything in the end. 

Many technology providers are enamored with this new model and its endless revenue stream. For a number of clients, it may indeed be a win-win. Businesses with constantly changing needs, either because of wild fluctuations in employee head count or because they can charge off the tech costs to projects much easier in this way. 

However, for stable businesses using the basics of email, word processing, accounting and industry specific applications, like CAD/CAM that really don’t change over time, HaaS and SaaS may be tossing money into the wind, month after month, from now until doomsday. 

Also worthy of consideration, unlike traditional firms that sell based on the annuity model (insurance companies specifically), these technology companies  have none of the decades, or in some cases, centuries, of experience as to how to correctly price these services. Therefore, these HaaS and SaaS programs are in constant flux, the program you signed up for may be changed or discontinued as the vendor finds their
utilization projections have sent them into the red.

In far too many cases, even the sales staff at these vendors are blindsided when changes occur. In one recent case, a SaaS vendor entered into a price agreement with our trade group, only to have the vendor’s company purchased by another firm less than a week later. Their staff had no idea what was going on, the new company had no idea what had just been negotiated and less than two weeks after that, the new firm was purchased by yet another company. Needless to say, months later, customers are in limbo, rollouts are delayed, frustrations are mounting and considerable effort, time and money has
been wasted from all parties involved with nothing to show for it.

About everyone does agree that ending one of these agreements causes the most problems. How do you get your data off equipment that’s going away. Who and how much will it cost to move that data to a new provider. Will you need to pay two providers for a transition period so you can be sure there isn’t something missing? 

Is the cost of transitioning out of a ‘bad deal’ so astronomical that it will break the budget, keeping your business stuck with service, or equipment that does not meet your needs and no way to move on? And what happens if your vendor, who carries the title on the as-a-service items gets into financial trouble, or goes belly-up and its creditors come knocking on your door to repo them? 

Deciding on moving to a HaaS or SaaS program from traditional ownership of your equipment and licensing of software is not a decision to be taken lightly. Be sure to weigh all the ramifications and above all, think where your business will be in three, five, ten years. Your vision for the future of your company could be seriously impacted, either for good or for bad, by your decisions on how your technology is provided. 

I welcome your questions or comments.

Joe Balsarotti is President of Software To Go and is a 35-year veteran of the computer industry, reaching back to the days of the Apple II. Joe, served three terms as Chairman of the National Federation of Independent Business’ (NFIB) Missouri Leadership Council, as Chairman of the Clayton, Missouri Merchant Association for a dozen years, Chaired Region VII of the Federal Small Business Regulatory Fairness Board and currently serves on the Dealer Advisory Panel of the ASCII Group, an organization of over 1000 independent computer and technology solution providers in North America.

Your Company Can Take Advantage of The Research & Experimentation Tax Credit

in Columns

By Richard L. Wile, MBA, & Richard K. Pickett

Does your construction or engineering services firm engage in projects involving the development or improvement of designs (particularly design/build and design/assist projects)?  If so, you may want to consider taking advantage of the Research & Experimentation (R&E or R&D) tax credit.

The R&E tax credit is an income tax credit that rewards companies for developing innovative solutions to many of the challenges encountered on a daily basis.  The credit applies to taxpayers engaged in the development and/or improvement of a product, process, formula, technique, software, or invention.  Within the construction industry, these projects include developing or improving designs where the company is at both economic risk (think lump sum contracts instead of time & materials) and design risk (think design/build and design/assist projects).

The R&E tax credit is a federal (and sometimes state) wage-based initiative rewarding innovation, including the development of designs for new structures or electrical and mechanical systems, or research on new and improved materials, or even the validation of these systems and designs during the commissioning process.

Interestingly, because of recent changes to the regulations and several relevant court cases, this credit may be available to your company using information that is already maintained within your project tracking software. These changes and judicial decisions have clarified the types of contracts and project types that are eligible for the credit.

Evolution of the R & E Tax Credit

The R&E tax credit has evolved substantially over the years, with significant changes and clarity coming from a variety of sources including the US Treasury Department, the judicial system, and Congress. Many of these changes have been taxpayer friendly.

The biggest change occurred when the Treasury Department issued Treasury Decision (TD) 9104 in 2004, which backed away from what was called ‘the discovery test.’ The level of innovation needed to pass the discovery test was that the research had to expand or refine knowledge within the industry. This usually required a patent to support the position. TD 9104 removed the  discovery test language, effectively lowering the “innovation bar” to where it only had to be new to the company.

“Research” defined

“We don’t have scientists wearing white lab coats using beakers and test tubes. Improving our designs and fabrication processes is a normal part of our company culture.  How can this be research?”

This is a common reaction when introducing the R&E tax credit to companies. People often think of research as needing to revolutionize an industry or redefine a technology to qualify for a research credit. Those activities are indeed research in the traditional sense the innovation, but the U.S. Tax Code’s current requirements have a unique definition of research and experimentation.

Four-part Test

A four-part test defined in the IRS regulations must be satisfied for projects and activities to be eligible for the research credit.

The first, known as the “Business Component” test, references six project types — product, process, formula, technique, software, or invention.

The second requirement requires the existence of uncertainty in one of three categories:

  1. Capability (Can we do it?)
  2. Method (How do we do it?)
  3. The appropriateness of the design (What will it look like?)

The ultimate success or failure of the project is not relevant.  In fact, projects need not to have been awarded. Therefore, you may even want to consider re-visiting large projects you’ve lost in the bidding process if they involved significant up-front design costs.

The third requirement is that the research must be technological in nature: fundamentally relying on the principals of the physical or biological sciences, engineering or computer sciences.

The final requirement calls for the existence of a process of experimentation, which can include modeling, simulation, and/or a systematic process of trial and error.

A research project is not eligible if the taxpayer is not at economic risk for the research or does not retain substantial rights to the outcome of the research.  For this reason, in the construction and engineering fields, projects where the compensation is structured based on lump sum fees (as opposed to cost-plus or time and material arrangements) are the primary focus in the identification of “qualified” projects.

Qualifying Expenditures

There are three types of expenses that qualify for the credit.  These include eligible wages calculated from the qualified hours spent on projects, supply costs (for mock-ups, new material trials, etc.), and the expense contract research, which are costs incurred for third-party services that would have been qualified had they taken place within the company.

Examples of qualified activities in the construction industry include: presenting alternatives or improvements in precon and design review meetings, development of designs during the conceptual, schematic, and design development phases of a project; improvement of designs based on conditions encountered on the job site; development of CAD or fabrication plans; BIM simulations for identification of conflicts from other systems; and validation of system performance during the commissioning process.

How much?

The net benefit of the federal R&E tax credit is approximately six percent of the qualified expenditures. Therefore, for every $100,000 in qualified wages, supply costs, and contract research, the company (or its owners in the case of flow-through entities) receives approximately $6000 in dollar for dollar reduction in tax. Many states (unfortunately not Missouri) also have state programs. The credit can be included on the originally filed tax return, and also can be captured by amending the returns still within statute (typically three years).

Why now?

If your company has not taken advantage of the research credit in the past, now is a great time to review your activities to determine if you are eligible. Due to recent activity by the Treasury Department and in the courts, there have been many changes with the R&E tax credit in the last year. If you have taken the credit in the past, you will want to make sure you are in compliance with all the recent changes and that you are maximizing the credits available to you.

Richard Wile, MBA, is partner-in charge and Rich Pickett is manager and vice-chair of RubinBrown’s Research & Experimentation Tax Credit Services Group:  Contact:

314.290.3367;, or 314.678.3610;

Dispute Over Parking Lot Access Lands One Party in Contempt

in Columns

By James R. Keller

After years in court before four different trial judges, owners of adjacent commercial properties will continue their dispute over access to their common parking lots. The Western District of Missouri dismissed an appeal, leaving in place an order of contempt against one of the owners and sending the case back for more trial proceedings.

The case is Relaxation, Inc. v. RIS, Inc., 452 S.W.3d 743 (Mo. App. W.D. 2015).

Relaxation and RIS own adjacent commercial properties. Two common parking lots between the properties were set up for use as common customer parking. This included a requirement that an existing 25-foot wide driveway was to always remain open.

In July 2011, RIS began construction of a new shopping center on its property. The development included several big box stores as future tenants including Menard’s, Kohl’s and CVS. During construction, RIS altered or destroyed portions of the two parking areas, barricaded and restricted access, stored construction vehicles, supplies and other equipment on the areas, and ran power lines and other utilities across the areas without Relaxation’s permission.

Relaxation filed a lawsuit against RIS seeking a temporary restraining order (TRO), a preliminary and permanent injunction and damages. The first judge ordered the parties to agree on a location for the common parking area and ordered RIS to open the driveway of the parking lot and restore the area to its agreed dimensions within 10 days. The court stated that it would issue a TRO if those conditions were not met.

The next day, Relaxation had the area surveyed and stated that if RIS had any disagreement with the boundaries, it should contact Relaxation’s counsel. RIS did not respond and did not restore the common parking area.

A week later, RIS moved in court for a change of judge. The court had noted that construction work was still continuing in the disputed common area in spite of the court’s previous order.  The trial

court concluded that it could “entertain absolutely no reason for defendant’s contemptuous behavior.” The case was then assigned to another judge.

The new trial judge gave RIS 30 days to reach a settlement. The court stated that if there was no settlement, it would enter a TRO. The court also ordered RIS not to perform any additional construction work on the disputed property.

During the next 30 days, RIS continued performing construction work on the disputed property. The trial court then issued a TRO requiring RIS to restore the two parking easement areas within 96 hours and remove any utility poles and construction materials.

That judge then recused himself and the case went to yet another judge.

From March through May 2012, the trial court through its new judge issued additional extended temporary restraining orders at Relaxation’s request.

Relaxation then filed another motion for contempt based on RIS’s failure to comply with the prior court orders. Relaxation requested daily fines and the incarceration of Gary Prewitt, the principal owner of RIS. The trial court issued another TRO and a show cause order on why RIS should not be held in contempt.

At the contempt hearing, Prewitt testified that he did not even read the prior court order and that his company took no steps to comply with it. RIS’s construction manager further testified that additional construction work had occurred in the disputed areas in violation of the court’s orders. RIS also constructed a large commercial sign partially within one of the disputed lots.

In April 2012, the court issued an order of contempt, finding RIS’s conduct constituted a trespass and issued a preliminary injunction.

RIS’s defense to its actions was that there was a potential condemnation action, which might affect the property in question and therefore RIS felt that it did not need to comply with any of the court orders. The City of Lake Ozark did in fact file a condemnation proceeding.

At this point, the trial court ordered RIS to pay $45,892.94 for Relaxation’s attorney fees and surveyor fees. The court then entered an order that Prewitt would be incarcerated if he failed to strictly comply with the orders of the court including payment of the $45,892.94 and if he failed to restore the parking areas.

RIS argued that the condemnation action superseded the parking lot dispute and thus the action should be stayed. The court agreed and stayed the parking lot dispute and then the trial judge recused himself and a fourth judge was assigned to the case.

RIS appealed the contempt order. The Western District dismissed the appeal as being untimely.  This sent the case back to the trial court once again with the order of contempt remaining in place

James R. Keller is a partner at Herzog Crebs LLP where he concentrates his practice on construction law, complex business disputes, real estate and ADR.  He also is an arbitrator and a mediator.

Sales, It’s a People Thing

in Columns

ByTom Woodcock

Selling can be either a simple process or very complex one. In the construction industry, people often make it more complicated than it really is.

The format of competitive bidding can be frustrating, but if you don’t let the pricing mechanism dictate your actions, you can see through the fog. Even very intelligent contractors have to
work not to buy into the conventional wisdom on bidding. It’s extremely easy to get sucked into the “It’s all about low bid” crowd.

The pressure to focus on pricing can be intense. It takes discipline and effort to realize that there are other factors in the construction buying decision. Failing to recognize those factors
can lead to a lack of understanding of why you’re not winning projects. 

Getting on a bid list is a small accomplishment, but getting inside information on the bid process, needs, or results is significant. That is not achievable through a great Facebook page or
social media activity.  Getting the information requires engaging with the customer and establishing a relationship.

Being connected to your customer base is old school, but it is necessary. The impact of social media is beginning to level off, which brings us back to good ol’ fashion customer contact.

I thoroughly enjoy helping a client get connected to the customer base and watch his bid volume increase. They develop strong relationships with their clients that even turn into
friendships. They don’t just entertain their clients, but connect with them socially.

It isn’t a matter of throwing money at them, but of treating them as people. Learn their preferences and likes, and then take advantage of that to secure quality opportunities. Your investment of
time and treasure produces significant returns if you stay with it. The easy thing to do is write off the necessary customer contact as time wasting and expensive. The majority of contractors tend to lean in that direction. Those that persevere get the desired results.

The process of connecting with a wide swath of customers is simple if you don’t complicate it. Getting in front of customers and doing so consistently will pretty much meet the requirement.
Talking about life in general will incorporate business conversation nine times out of ten.

Forcing conversation or pressuring a customer usually backfires. You’ll experience a lot of one appointment and done results. Relax as much as you can and ask reasonable, personal questions. Be genuinely interested in your customers’ opinions and lives. They’ll appreciate it and want to know about you. Stepping out in this fashion will grease the path to success. Just stick with it.

Personal contact is very difficult for some people. For them, it’s a struggle to meet new people and feel comfortable. It can sometimes seem amazing that some other people can connect at the drop of a hat. If you have one of the latter type of individuals, don’t saddle them behind a desk or computer. People with topnotch people skills can be very  difficult to find, but often they need structure and support.

For those who dread connecting with people or working a room, getting in the position to do so is half the battle. Pushing yourself to introduce yourself to a new business contact breaks the
seal. Most people feel exactly as you do so that little step can begin the relationship process. If there’s no other choice but having to connect with the customer base, you have to learn how to make a first move.

It’s easy to hide behind Linkedin or Twitter, send an email, or post on a wall. The problem is it relegates you to virtual invisibility or white noise.

Gaining the separation from competitors that everyone says is necessary requires personal contact. The more you try to structure your approach, the more complex it becomes. Ten-second
elevator speeches and cute ice-breakers are easily spotted. Trying to get out what you do in the first 90 seconds of a conversation is amateurish and flat out cheesy.

The construction consumer is much more astute than in generations past. The ability to secure information and project knowledge is at our fingertips. The more you’re simply yourself, the more
impact you have on the customer. Let’s face it, being yourself should be easier than pretending to be something you’re not.

As I train dozens of construction personnel on selling, I find the greatest impediment is the willingness to get around people as much as possible. It’s much easier to make excuses for why you
can’t get around potential customers than it is to raise the priority of such behavior in your schedule. Paperwork, project visits, and financials are actions with immediate results. Sales is the definition of delayed gratification. Accepting this premise and persevering anyway will separate you from a high percentage of the competition. It’s not enough to think it’s a good idea to connect with customers, you have to put feet to it. Yes, selling can be complex, if you make it so.

Tom Woodcock, president, seal the deal, is a speaker and trainer to the construction industry nationwide. He can be reached at his website: or at 314-775-9217.

Reducing Risk in the Internet Age

in Columns

By Joe Balsarotti

Seems every tech article nowadays is about the liabilities of technology. Hacking, lost data, damaged online reputations, and the legal and ethical ramifications of technology and stored data.

So, it seems appropriate to delve into how to, if not minimize, at least mitigate the liabilities that the digital world has created for all businesses large and small.

Does your business host its own website?

Unless you have private components to yours site for vendors or customers to access your database, there is no reason to host your own site. Cutting off that entry point to your network goes a long way in reducing your risk. Besides, except for keeping internal I.T. people busy, there’s not much upside in  hosting your own website. Outsource it to professionals after you’ve done due diligence to make sure there are backups, redundant sites, and uptime guarantees. In short, let specialists deal with it. How about email, why would you host your own?

Forget the security concerns for a moment. Since over 95 percent of all email transmitted gets rejected at the server as spam, that means that 95 percent of the Internet ‘pipe’ you are paying for is wasted on trash. Find a reputable provider whose focus is on providing email.  After all, there are very few individual businesses with access to datacenters across the country for redundancy, battery and generator backup, communication lines from multiple providers, and 24/7 staffing, but quality email providers do.

Granted, going with one of the ‘big guys’ for email or hosted Exchange has its own set of issues as they are larger targets to hackers. If someone breaches your in-house email server, however, you don’t really have recourse, but if a multimillion or billion dollar provider gets breached, they will have far more resources to bring to bear on restoring service and recovering damaged or lost data. Plus, it’s a fair bet that lawyers will be lined up to help you recover compensation for any losses you suffer.

Passwords, remember them?

One of the easiest ways to minimize liability with technology doesn’t cost a penny, but it is essential. ANY notebook, phone, tablet, or home PC that can access your company and/or customer data must always be password protected and should lock if unattended.

When replacing old PCs and servers, businesses generally know to keep the hard drives or get a  certificate of destruction. However, the same precaution goes for those tablets or phones. Getting a couple bucks for trading in an old phone or tablet turns into a really bad deal when the tablet or phone falls into the hands of foreign hackers and organized crime, who buy old electronics by the pallet, looking for data off of hard drives.

Save yourself some headaches and reduce your company’s risk in the digital world by getting a certificate of destruction for every device that you dispose of.

I welcome your questions or comments.

Joe Balsarotti is president of Software To Go and is a 35-year veteran of the computer industry, starting back in the days of the Apple II. He served three terms as chairman of the National Federation of Independent Business’ (NFIB) Missouri Leadership Council. He was chairman of the Clayton, Missouri Merchant Association for a dozen years, chaired Region VII of the Federal Small Business Regulatory Fairness Board and currently serves on the Dealer Advisory Panel of the ASCII Group, an organization of over 1000 independent computer and technology solution providers in North America.

On-Premise or “The Cloud”, Which is Right for Your Business?

in Columns

By Joe Balsarotti

Talk of “The Cloud” permeates tech advertising nowadays and even though the majority of people can’t explain what it really is, more and more are trusting their businesses to it.

In reality, The Cloud is nothing more than another phrase for using resources across the Internet. Some years ago, someone drew a cloud on a diagram in their presentation to represent the inner workings of Internet connections and bingo! Both, the name and symbol stuck.

Services like Microsoft’s Office 365 or Google Apps are examples of Cloud Services. With a cloud-based service, the data and the program (now generally called an app) no longer reside on your computer. They are off-site, hosted at one or more data centers across the globe. On-Premise programs, such as traditional accounting, client management, inventory and design programs run on servers and PCs  housed within your walls.

To decide which is right for your business is, unfortunately, a long and arduous task in most cases. On-Premise and Cloud versions of even the same program are rarely identical. True prices, not to mention any savings or additional cost, can be difficult to calculate since Cloud services tend to be rented, rather than licensed. And while the initial monthly cost might be easy to see, there are no assurances that costs will not rise substantially in subsequent years when businesses are ‘hooked.’ Conversely, On-Premise programs require substantial capital expenses upfront. Cash flow considerations make monthly payments look attractive for Cloud, but being able to stretch another year, or two out of an On-Premise program might be a lifeline to a business dealing with an industry downturn.

Another wrench in the works when trying to decide Cloud vs. On-Premise is what happens when the

Cloud service is not as advertised, or the vendor goes out of business. Moving from one service to another is not an easy task and can lead to considerable cost. A number of Cloud services have gone under in spectacular fashion, but sometimes clients have less than a month’s notice that they will be without the ability to bill, collaborate, do payroll or have access to their own data. With a traditional server and software program, a vendor’s demise doesn’t mean the program can’t continue to be used while a thoughtful search for a replacement is made.

Then there are legal ramifications to consider. Businesses dealing with compliance issues, Government contracts, or sensitive data, need to be assured that any Cloud service they choose uses only US-based data centers, since data held offshore is subject to the laws of the country the center resides in. This becomes a very sticky situation when a Cloud vendor merges or is bought out by one from another country. If a business has become overly dependent on a single vendor, they could find themselves breaching their confidentiality agreements without even knowing it.

Finally, there are infrastructure considerations to add to the decision mix. If some ‘genius’ with a backhoe cuts the Internet line to your office, your office is completely down for the duration whereas with the traditional client-server programs, you might not be able to send and receive email, or research on the Internet, but staff can still enter invoices, prepare bids and get some work done.

Whether going to The Cloud, using On-Premise software or some combination of the two is the way for

your business to go can be a difficult decision and requires more advance-planning and research than many businesses may be accustomed to do, but that research and planning are essential to keeping a business running smoothly.

You can reach me at:

Joe Balsarotti is President of Software To Go and is a 35 year veteran of the computer industry and member of the Computer Industry Hall of Fame. He served three terms as Chairman of the National Federation of Independent Business’ (NFIB) Missouri Leadership Council, was Chairman of the Clayton, Missouri Merchant Association for a dozen years, Chaired Region VII of the Federal Small Business Regulatory Fairness Board and currently serves on the Dealer Advisory Panel of the ASCII Group, an organization of over 1000 independent computer and technology solution providers in North America.

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