Construction Outlook May 2013

MAY, 2013

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CONSTRUCTION OUTLOOK published monthly by the Utility Contractors’ Association of New England, Inc., 300 Congress Street, Suite 101, Quincy, MA 02169; Tel: 617.471.9955; Fax: 617.471.8939; E-mail: [email protected]; Website: www.ucane.com. Statements of fact and opinion are those of the authors alone and not necessarily those of UCANE and the Construction Outlook editorial board and staff. Subscriptions are included in dues payments for UCANE members. Presorted Standard postage paid at Abington, MA. POSTMASTER, please send form #3579 to Construction Outlook, Crown Colony Office Park, 300 Congress Street, Suite 101, Quincy, MA 02169.

Editor: Anne Klayman, Associate Editor: Suzanne Savage, Graphic Designer: Sherri Klayman Construction Outlook Chairman: Al MorteoEditorial Board: Al Morteo, Tony Borrelli, John Our and Paul Scenna

“BUY FROM THE ADVERTISERS IN CONSTRUCTION OUTLOOK” 1

3 President’s Message: Together, We Will Forever Be “Boston Strong”

5 Legislative Update:• House Passes Fiscal Year 2014 Budget Proposal • House and Senate Pass Competing Transportation Finance Plans• As Spring Finally Arrives, Municipalities Begin to Examine Their Water

Infrastructure Systems• Primaries for United States Senator and 1st Suffolk State Senate Seat Completed• Attorney General Announces New Appointments

17 MassDEP Releases Final CY2013 Clean Water & Drinking Water SRF Lists Totaling Over $512.3 Million

25 In Memoriam: John Amorello, Sr., J. E. Amorello, Inc.

27 Legal Corner: Recent Bid Protest Decisions: Bidder Responsibility and Project Experience

31 Benefits & HR Strategies: Why and How to Revamp Your Performance Appraisal Process

35 UCANE Welcomes New Members

37 UCANE Interview: Senator Katherine Clark (D-Melrose)

41 Mystic River Clean Water Campaign Launched

43 Environmental Viewpoint: Stormwater Pollution Prevention Plan Requirements

45 Construction Law: The King is Dead; Long Live the King: The Connecticut Supreme Court Resurrects

Stale Claims by the State

47 Save the Date...UCANE’s 34th Annual Golf Classic

49 Massachusetts Municipal Association: Tax-Exemption for Bonds Threatened by DC

53 Financial Management:• From Bear Market to Bull Market• New In-Plan Conversions• Using the Work Opportunity Tax Credit

MAY, 2013

OFFICERSPresident

AL MORTEOFED. CORP.

President ElectTONY BORRELLI

Celco Construction Corp.TreasurerJOHN OUR

Robert B. Our Co., Inc.Secretary

PAUL SCENNAAlbanese D&S, Inc.

BOARD OF DIRECTORSMARCELLA ALBANESE

Albanese Bros., Inc.

JEFF BARDELLDaniel O’Connell’s Sons, Inc.

VINCENT BARLETTABarletta Heavy Division

MICHAEL BISZKO, IIIBiszko Contracting Corp.

STEVEN COMOLETTIP. Caliacco Corp.

MAUREEN DAGLEDagle Electrical Const., Corp.

ADAM DeSANCTISDeSanctis Ins. Agency, Inc.

THOMAS DESCOTEAUXR. H. White Const. Co., Inc.

JERRY GAGLIARDUCCIGagliarducci Construction, Inc.

MARCO GIOIOSOP. Gioioso & Sons, Inc.

BILL IRWINC.J.P. & Sons Const. Co., Inc.

PHIL JASSETHonorary Board Member

BILL KEAVENEYA. R. Belli, Inc.

ROBERT LEEJ. F. White Contracting Co.

RYAN McCOURTMcCourt Construction Co.

RICHARD PACELLA, JR.R. M. Pacella, Inc.

LOUIS SCHOOLCRAFTTi-SALES, Inc.

ANNE KLAYMANExecutive Director

Years of Excellence1954-2013

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The third Monday in April has always been Boston’s official beginning of spring, and this year it started out exactly that way. Each year, Patriot’s Day falls during school vacation week, which brings to mind images of the seasons changing, the blooming of forsythia and tulips, the opening of the Boston Public Gardens and the Swan Boats, the early morning Red Sox game and most of all, the Boston Marathon.

For over a hundred years, this day has been one of the most important and meaningful to the people of Massachusetts, especially Bostonians. It is simply our day to showcase our beloved city and welcome visi-tors from around the world who run in the Marathon or who just come to join in the camaraderie. It is a day for families and friends, some of whom have planned all year, to do something together.

Whether cheering on our beloved baseball team or our favorite marathon runner...our father, mother, broth-er, sister, or friend…many of whom were running for their favorite charity, everyone’s attention is focused on the events that make this day special. But, on April 15, 2013, a day of innocence we all enjoyed was forever changed. A very special day of love and friendship has now become a day to remember the horrific bombings that took place near the finish line at this year’s Boston Marathon and the unbelievable pain and suffering in-flicted on innocent people.

In the days since this traumatic event, I have experienced feelings of horror at the bombings…anger at the senseless loss of lives…sadness for the injured and their families, as well as pride in our City that rallied together under the worst of circumstances. I am humbled by the courage of so many medical professionals, first responders, and bystanders who ran into harm’s way to literally save the lives of those who were injured. We will forever be “Boston Strong”.

Memorializing those who perished, and honoring those who were physically and mentally maimed will be our duty to future generations. Honoring the heroic deeds of our public servants, doctors, nurses, and average citizens who fought back their personal fears and rushed to help the injured will always be remembered.

To help us overcome this horror, we must believe that “good” will triumph over “evil”. As we all get back to our daily lives we must count our blessings, but never forget that four innocent Americans were killed. Hun-dreds have been injured and maimed and are struggling on a daily basis to put their lives back together. We need to keep them in our thoughts and prayers and help them in any way we can.

Even in the midst of this horror, the resiliency and grit of Bostonians was evident. We all look to the future, and pledge to make Patriot’s Day 2014 and the Boston Marathon bigger, safer, and more memorable than ever. One of the ways in which UCANE chooses to remember this day is by awarding one of our twelve college scholarships in memory of the Boston Marathon Victims. Together, we will forever be “Boston Strong”. n

Together, We Will Forever Be“Boston Strong”

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continued on page 7

House Passes Fiscal Year 2014Budget Proposal

The Massachusetts House of Representatives passed its fiscal year 2014 budget proposal in mid-April. After releasing a $33.8 billion

proposal from the House Ways and Means Com-mittee, legislators quickly worked through 888 floor amendments over the span of three days. The House budget, which trims about $1 billion from Governor Patrick’s budget, calls for slightly more than a 3.9% increase in state spending. The House budget pro-posal draws $350 million from the state’s stabiliza-tion account, and relies on $83.1 million in casino licensing revenues new to the budget process. Of particular interest to UCANE and its membership were the following items:

• Commonwealth Rate Relief. Although the Governor did not include the Sewer Rate Relief line-item in his proposed budget plan, the House included line-item 1231-1000 at $600,000 to rate relief. If adopted by the Senate, this would result in a $100,000 increase over last year’s appropria-tion to the line-item. (Note: 9C cuts exercised by the Governor earlier this fiscal year eliminated the rate relief funding for fiscal year 2013.)

• WPAT Contract Assistance. The House appropriated $62.8 million to the Water Pollution Abatement Trust line-item (1599-0093). This is in line with the Governor’s recommendation ($63 million) and if adopted in the final budget, would represent an increase of just over $1 million from FY’13.

• DEP Administration. The House adopted the Governor’s recommended $28,014,269 ap-propriation to line-item 2200-0100. If adopted in the final budget, this would represent a $2 million increase to DEP administration.

• Administration and Implementation of Federal Clean Air Act. The House ap-

propriated $841,297 to DEP through line-item 2220-2220 for the state administration and implementation of the Clean Air Act, including the operating permit program, the emissions banking program, the auto-related state im-plementation program, and the low emission vehicle program among other items. Another $1.49 million is appropriated to DEP through line-item 2220-2221 for the administration and implementation of the operating permit and compliance program required under the Clean Air Act.

• Safe Drinking Water Act. The Governor had proposed to increase funding of this line-item by approximately $70,000; however, the House level funded the item from FY’13 with an appropriation of $1,427,019.

• Cape Cod Study. The House adopted the Governor’s recommendation to eliminate funding for the Cape Cod Study line-item (2260-8875). Last year the final funding for the line-item was $350,000. (Note: the line-item was probably eliminated because of the recent WPAT grant of $3.5 million to Cape Cod).

• Watershed Management Program. The House and the Governor appear to be in align-ment with respect to funding of line-item 2800-0101, which was recommended an appropria-tion of $1,029,744. This program also received approximately $1 million in FY’13.

• Stormwater Management. The House adopted the Governor’s recommended appro-priation of $405,000 to line-item 2800-0401 for stormwater management. If adopted, this is a slight increase over fiscal year 2013 funding.

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Legislative Update continued from page 5

continued on page 9


• District Local Technical Assistance Fund Grants. The House included $2.8 mil-lion in funding for line-item 1599-0026 for a re-serve for one-time grants to support municipal improvements; provided, these funds shall be expended to fund the District Local Technical Assistance Fund, including projects that encour-age regionalization, to be administered by the division of local services and distributed through the District Local Technical Assistance Fund.

• MassWorks Infrastructure Program. The House appropriated $19.25 million to line-item 7002-0021 for the MassWorks Infrastruc-ture Program, with the added condition that eligible projects have previously applied and carry a high probability that the public invest-ment in infrastructure will leverage private in-vestment by a ratio of at least 3:1.

In addition to the aforementioned line-items, there are two outside sections of the House’s fiscal year 2014 budget of interest. The sections provide:

• Outside section 20. This section slightly modifies the MassWorks infrastructure pro-gram language such that “preference shall be given to projects incorporating smart growth

initiatives that are consistent with sustainable development practices in the commonwealth.” As you know, this program issues public in-frastructure grants to municipalities and other public instrumentalities for design, construc-tion, building, repair, and improvement to pub-licly-owned infrastructure, including, but not limited to, sewers, water treatment systems, utility extensions, streets, telecommunications systems, etc. to provide for commercial and residential transportation and infrastructure developments and improvements and projects under the growth districts initiative.

• Outside section 96. This section would es-tablish a public-private partnership commission to review and evaluate the administration and fiscal impact of public-private partnerships, in-cluding but not limited to design-build-finance-operate-maintain or design-build-operate-maintain services. The commission is to make recommendations to the Legislature regarding the current practices, administrative efficacy, and cost benefit of increased use of such ser-vices; recommendations shall be aimed at maximizing opportunities to meet public infra-structure needs. The commission shall include 15 members, including the Secretary of A & F,

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the state treasurer, the Inspector General, the Secretary of Transportation, Secretary of Hous-ing and Economic Development, an appointee of the Senate President, an appointee of the Speaker, and four appointees of the Governor – one of whom shall represent organized labor, one of whom represents the business commu-nity, one of whom represents public higher edu-cation, and one of whom is a representative of a regional planning agency. Additional members added through the amendment process include designees of the Minority party, the Massachu-setts Organization of Scientists and Engineers as well as a representative of an architectural trade association.

On a final note, the Massachusetts House ad-opted a floor amendment eliminating Section 20A of chapter 29 which removes the requirement of an awarding authority to report to the Comptroller in the event of a payment for a change in work or equipment. The Massachusetts Senate, which has received the House budget, will consider this and other items as it considers its fiscal year 2014 bud-get proposal in mid-May.

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In raising funds, the House and Senate bills raise new revenue from a $1 per pack increase in the ciga-rette tax and increases on cigar and smokeless tobacco products, new sales taxes on computer design services and software modifications, the removal of a tax ex-emption for utilities, and a 3 cent increase in the gas tax, which would also be indexed to inflation, as measured by the Consumer Price Index (CPI). (Note: if the CPI falls, the gas tax does not under the terms of both bills.)

In an effort to raise greater revenue without, osten-sibly raising more taxes, the Senate Ways and Means Committee redirected a 2.5 cent gas tax surcharge for an underground storage tank cleanup fund to transpor-tation programs. That move would generate roughly $80 million annually. The Senate plan would also man-date that the MassDOT lease right-of-way access to telecom and utility companies, a strategy that would bring in $40 million over three years, beginning in 2016.

As the Legislature enters the month of May, State House watchers anticipate an agreement that will send a revenue package to the Governor before the end of the month.




House and Senate Pass Competing Transportation Finance Plans

In April, the Massachusetts Legislature tackled the question of raising revenues to address the Commonwealth’s growing transportation finance

gap. Meeting within less than a week of each other, the House and then the Senate passed competing, although similar, transportation-financing plans. Leg-islation raising gas, tobacco, and business taxes in Massachusetts by $500 million and eventually dedi-cating up to $800 million a year in new revenues for transportation cleared the state Senate by a 30-5 vote. The House of Representatives passed a similar plan that raised slightly over $500 million.

That said, the two branches must now negotiate the final legislation that gets sent to the Governor’s desk. Complicating the matter? The House bill fell just short of the vote required to override a potential veto.

After Patrick threatened to veto the original bill of-fered by DeLeo and Murray, arguing that their original plan did not provide enough new revenues to meet transportation system needs, the Senate grew their planned revenue model to slightly less than the $1 billion sought by the Patrick-Murray Administration.

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As Spring Finally Arrives, Municipalities Begin to Examine Their Water Infrastructure Systems

As flowers begin to bloom across the Com-monwealth, municipalities face the balance of assessing the current status of their infra-

structure while meeting the other demands of provid-ing local services. As reported in The Dedham Tran-script, the Dedham Engineering Department, having tested several sewer systems in town for leaks, found 39 areas that will be addressed before the 2013 win-ter. Weston and Sampson performed smoke test-ing on about 155,000 linear feet of sanitary sewer in eight of the 26 subareas of Dedham from October 15 through November 15, 2012. According to the Tran-script, the environmental and infrastructure consult-ing firm recommended that sewer frame and covers be replaced to redirect storm water (water from rain storms) that is currently going through the sewer sys-tem to the storm drain utility. Storm water is currently entering the sewer system, which is responsible for wastewater, through cracked pipes instead of going directly to the ground. Some of the recommenda-tions include installation of five cleanout caps, lining manholes with cement, and installing smaller pipes in cracked pipes. The town will repair all municipal sys-tems included in the report, but it will have to conduct further studies on the private property systems.

To the north, the Lawrence Eagle Tribune recently published a troubling report on the amount of raw sew-age that is working its way into the region’s waterways. According to the New England Center for Investigative Reporting (NECIR), billions of gallons of raw sewage and contaminated stormwater surge every year into the waterways and onto the streets of New England, as a 40-year-old pledge to clean America’s lakes, riv-ers and streams remains unfulfilled.

According to the report “[s]tormwater, burst pipes and antiquated infrastructure turn manholes into geysers and basements into fetid pools of sludge—all due to accidental overflows. But the largest assault on our waterways is a design fault hidden underground: old sewage systems that mix storm runoff with raw sewage and propel the contaminated combination, untreated, into rivers, streams, harbors, and bays. In 2011, approximately 2.8 billion gallons of sewage water spilled through 181 pipes throughout the state.” The NECIR inves-tigation determined more than 7 billion gallons spewed into waterways across New England, the first such compilation of an annual total.

The US Environmental Protection Agency has identified 772 communities across the coun-try which routinely discharge sewage into water. The NECIR investigation found 65 of those towns and municipalities in New England had sewage overflows through 450 pipes in 2011, the latest year for which data was obtainable from most states. In 2011, sewage system operators in New England reported more than 7,700 instances when raw sewage, mixed with dirty stormwater, bypassed treatment facilities and was dumped into rivers, bays and the ocean.

In identifying a potential cause for inadvertent discharges, the report identifies the fact that the Clean Water Act turned out to be far more costly than expected when passed in 1972. In 2008 the EPA es-timated that another $64 billion is needed to fix the combined sewer problems, $4.2 billion of that in New England.

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Primaries for United States Senator and1st Suffolk State Senate Seat Completed

With the June 25 general election on the ho-rizon, voters across the Commonwealth went to the polls for the Democratic and

Republican primaries on April 30. On the Democratic side, Congressman Ed Markey (MA-5th) squared off against Congressman Stephen Lynch (MA-9th) for the Democratic nomination. By a result of 57% to 43%, Congressman Markey defeated Congressman Lynch to advance to the general election. On the Republican side, State Representative and former judge, Dan Winslow, faced off against former United States Attorney Michael Sullivan, and veteran busi-nessman Gabriel Gomez. In a battle largely fought in the shadow of the Democratic primary, Mr. Gomez bested the Republican field by a margin of 51% to 36% for Sullivan and 13% for Winslow.

Voters within the 1st Suffolk State Senate Dis-trict had the opportunity to vote in the primary to fill the seat vacated by former State Senator Jack Hart. Representative Nick Collins (D-South Boston) went head-to-head with Representative Linda Dorcena Forry (D-Dorchester) and Maureen Dahill (South Boston) in the closely watched race. Representative Forry won the primary with a final count of 47% to 45.26% for Collins, and 7.3% for Dahill. The election was closely watched as it represented the first time in years that the seat, traditionally held by someone from South Boston, was being actively contested by a resident from Dorchester. The general election for the 1st Suffolk State Senate seat will coincide with the statewide general election for United States Senate on June 25.

Attorney General Announces New Appointments

On May 2, Attorney General Martha Coakley announced new appointments to lead her Fair Labor Division. In two recent staffing

changes at the AG’s Office, Assistant Attorney Gen-eral Matthew Berge has been appointed as the Fair Labor Division Chief. Deputy Division Chief Jocelyn Jones will continue in her role as Deputy Division Chief with the additional appointment as Special Counsel for Fair Labor Policy.

According to the Attorney General’s Office, Berge has been an Assistant Attorney General with the office for 15 years, assigned most recently as a prosecutor in the Criminal Bureau’s Fraud and Financial Crimes Division. Prior to that, he was assigned to the Government Bureau’s Trial Divi-sion. In 2009, he was made senior litigation coun-sel in the Government Bureau for tobacco litiga-tion and, in that role, prosecuted Massachusetts’s claims and assumed a leadership role on behalf of 47 states in a nationwide arbitration of the states’ claims against Big Tobacco under the landmark 1998 Tobacco Master Settlement Agreement. Pre-vious to that, he served as Director of the Attorney General’s Abandoned Housing Initiative, a program that assists cities and towns address blight created by abandoned and foreclosed properties through health and safety code enforcement. Prior to join-

ing the Attorney General’s Office, Berge practiced law in Newark, New Jersey, concentrating in com-mercial litigation and employment matters. Berge, a Dorchester resident, is a graduate of Fordham Law School.

Deputy Division Chief Jocelyn Jones will now serve as Deputy Division Chief and Special Coun-sel for Fair Labor Policy. Appointed Deputy Chief in 2007, Jones has managed division policy and out-reach, directed the public construction bidding unit and child labor enforcement program, and assisted in overseeing wage and hour enforcement and liti-gation. Prior to her appointment as Deputy Division Chief, Jones served for nearly seven years as an Assistant Attorney General in the Fair Labor Divi-sion focusing on prevailing wage, overtime, vaca-tion, minimum wage, and public construction bid-ding matters. Before joining the Attorney General’s Office, Jones was a staff attorney and an investi-gatory hearing officer at the former Massachusetts Labor Relations Commission (now Division of Labor Relations) and an attorney at the labor law firm San-dulli, Grace, P.C. Jones, a Northampton resident, is a graduate of Colby College, the Program for Women in Politics and Government at Boston Col-lege Graduate School, and Northeastern University School of Law. n

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MassDEP Releases Final CY2013 Clean Water & Drinking Water SRF Lists

Totaling Over $512.3 Million

$391.4 MILLION FOR CLEAN WATER SRF IN 2013

Table 1Clean Water State Revolving Fund

CY2013 Intended Use Plan

Massachusetts DEP is pleased to present the Final 2013 Intended Use Plan (IUP), which details the projects, borrowers, and amounts

that will be financed through the Clean Water State Revolving Fund (CWSRF) program. The CWSRF is a joint federal-state financing program that provides subsidized interest loans to improve or protect water quality in the Commonwealth.

As noted in Table 1, Massachusetts is offering approximately $391.4 million to finance clean water

projects across the Commonwealth. Approximately $361.1 million will fund 35 new construction projects, and an additional $10.5 million will be allocated to-wards funding previously approved multi-year proj-ects. Also, $5 million will be directed to the Com-munity Septic Management Program to remediate failed septic systems in participating communities. The Final IUP contains an additional $12.8 million for proposed planning projects and $2 million for an emergency set-aside account.

NEW PROJECTS 2013Rating Applicant SRF ID Project Project Cost IUP Cost



TABLE 1CLEAN WATER STATE REVOLVING FUNDCalendar Year 2013 CWSRF Intended Use Plan

NEW PROJECTSRating Applicant SRF ID Project Project Cost 2013 IUP Cost

137 NEW BEDFORD (EJ)(RE)# 3799 CSO Abatement Program $178,500,000 $32,000,000

124 FALL RIVER (EJ) 3790 CSO Abatement Program $24,450,000 $24,450,000

122 CHICOPEE (EJ)# 3750 Wastewater, WWTF and Stormwater Improvements $4,430,000 $4,430,000

120 MARION 3792 Wastewater and Stormwater Improvement $19,310,000 $10,000,000

117 TAUNTON (EJ) 3793 SSES Phases 10-12 $15,000,000 $15,000,000

116 SAUGUS (EJ) 3807 SSO Reduction Subsystem 6 $3,246,000 $3,246,000

114 LOWELL (EJ)# 3828 Phase IA CSO Control Project $38,500,000 $25,000,000

111 MWRA 3824 CSO Phase 14 $29,237,000 $16,700,000

110 REVERE (EJ) 3832 Collection System Improvements $14,850,000 $14,850,000

109 CAMBRIDGE (EJ) 3819 Huron B Sewer Separation Project $35,507,000 $22,000,000

108 WORCESTER (EJ) 3763 Lake Ave Sewer I/I $1,475,000 $1,475,000

107 FRAMINGHAM (EJ) 3810 Pump Station Removal $16,181,000 $16,181,000

104 SHREWSBURY # 3760 Sewer I/I and Pump Station Improvement $4,350,000 $4,350,000

97 WAREHAM (EJ) 3802 Sewer System Extension $4,400,000 $4,400,000

93 YARMOUTH (EJ)(RE)# 3804 WW Improvements Program $55,000,000 $15,000,000

92 FITCHBURG (EJ) 3765 Combined Sewer Separation Area 4D $17,997,000 $17,997,000

91 GLOUCESTER (EJ)# 3830 West Gloucester WW System Improvements $3,973,000 $3,973,000

86 GROTON 3752 CWMP Phase 1 Lost Lake Needs Area $11,880,000 $11,880,000

85 WESTBOROUGH 3774 Sewer Extensions $26,550,000 $15,000,000

85 CRPCD # 3759 WWF Improvements Phase C $25,070,000 $25,070,000

84 MALDEN (EJ) 3838 Sewer Improvements $5,000,000 $5,000,000

84 NORWOOD (EJ) 3801 Meadowbrook Area Sewer Rehab $2,700,000 $2,700,000

84 CHATHAM 3795 Collection System Extension and Improvements $24,240,000 $15,000,000

81 LOWELL (EJ)# 3827 Phase IC WWTF & Collection System CIP $6,000,000 $6,000,000

81 PALMER (EJ) 3748 Sewer Replacement $6,090,000 $6,090,000

80 MWRA 3822 Clinton WWTP $3,300,000 $3,300,000

73 FRAMINGHAM (EJ) 3829 Sewer Main Replacement $4,780,000 $4,780,000

69 TYNGSBOROUGH 3818 Phase I and II Sewers $8,834,000 $5,000,000

64 BROCKTON (EJ) 3805 Wastewater System Improvements $1,300,000 $1,300,000


DEP/SRF continued from page 17

(Count: 35) (Average Rating: 93.14)

(EJ) - Environmental Justice Communities(RE) - Potential Renewable Energy Projects# - Projects contains Energy Efficiency, Renewable Energy, and/or meets EPA's definition of a Green Project (http://water.epa.gov/aboutow/eparecovery/index.cfm)

MULTI-YEAR CARRYOVER AND STATUTORY PROJECTSApplicant SRF ID Project Project Cost 2012 IUP Cost

MWRA 1762 Plant Optimization/Ancillary Modifications $26,657,515 $3,000,000

MWRA 3134 Deer Island Treatment Plant Improvements $81,559,117 $3,000,000

MWRA 2885 Wastewater Treatment Plant and Sewer $44,461,788 $3,000,000Improvements

MWRA 2870 Electrical Upgrades $73,215,641 $3,000,000

SOUTHBRIDGE (EJ) 3100 Brownfields Redevelopment $4,846,160 $1,700,000

TAUNTON (EJ) 3580 Phases 8 - 9 SSES and Pump Station Upgrades $10,000,000 $4,000,000

TOTAL OF MULTI-YEAR CARRYOVER AND STATUTORY PROJECTS $240,740,221 $17,700,000

(Count: 6)

MassDEP PRIORITY PROJECTSApplicant SRF ID Project Project Cost 2012 IUP Cost

EMERGENCY SRF SET-A- 2977 $2,000,000 $2,000,000SIDE

TOTAL OF MassDEP PRIORITY PROJECTS $2,000,000 $2,000,000

(Count: 1)

PLANNING PROJECTSApplicant SRF ID Project Project Cost 2012 IUP Cost

BLACKSTONE (EJ) 3653 Stormwater Management Plan $400,000 $400,000

BOURNE (EJ) 3710 Stormwater Management Plan $300,000 $300,000

BOURNE (EJ) 3709 Comprehensive Wastewater and Nutrient Plan $350,000 $350,000

BRIDGEWATER (EJ) 3744 Water Resource Management Plan $250,000 $250,000

CANTON 3706 Stormwater Management Plan $491,000 $491,000

MELROSE 3671 Stormwater Fee and Management Plan $450,000 $450,000

NANTUCKET 3704 CWMP $685,000 $685,000

NORWOOD 3716 SSES/CMOM/Stormwater Planning $500,000 $500,000

PEMBROKE 3708 Stormwater Management Plan $340,000 $340,000

PLYMOUTH (EJ) 3707 CWMP $500,000 $500,000

REVERE (EJ) 3655 SSES Investigations $800,000 $800,000

RUTLAND 3646 CWMP $350,000 $350,000

SHERBORN 3660 Stormwater Management Plan $400,000 $400,000

WHITMAN 3718 Stormwater Management Plan $350,000 $350,000

TOTAL OF PLANNING PROJECTS $6,166,000 $6,166,000

(Count: 14)

TOTAL OF INTENDED USE PLAN $865,834,821 $303,027,600

TOTAL OF NEW PROJECTS $629,146,500 $361,085,500(Count: 35) (Average Rating: 89.6)

NEW PROJECTS (cont.) 2013Rating Applicant SRF ID Project Project Cost IUP Cost

62 DRACUT (EJ) 3826 Contract No. 32 Sewer Extensions $4,610,000 $4,610,000

61 NORTON 3803 Norton Center Sewer Extension $14,685,000 $10,000,000

56 MONTAGUE (EJ)# 3747 Pumping Station Replacement $7,000,000 $5,000,000

48 MWRA 3823 Caruso Pump Station $2,398,000 $1,000,000

48 BRIDGEWATER 3794 Inspection, Cleaning and Lining of Sewers $4,760,500 $4,760,500

33 QUINCY (EJ)# 3808 Fort Square Pumping Station Rehab $3,543,000 $3,543,000

TOTAL OF NEW PROJECTS $629,146,500 $361,085,500

(Count: 35) (Average Rating: 89.6)

(EJ) - Environmental Justice Communities(RE) - Potential Renewable Energy Projects# - Projects contains Energy Efficiency, Renewable Energy, and/or meets EPA's definition of a Green Project (http://water.epa.gov/aboutow/eparecovery/index.cfm)

TABLE 1CLEAN WATER STATE REVOLVING FUNDCalendar Year 2013 CWSRF Intended Use Plan


137 NEW BEDFORD (EJ)(RE)# 3799 CSO Abatement Program $178,500,000 $32,000,000

124 FALL RIVER (EJ) 3790 CSO Abatement Program $24,450,000 $24,450,000

122 CHICOPEE (EJ)# 3750 Wastewater, WWTF and Stormwater Improvements $4,430,000 $4,430,000

120 MARION 3792 Wastewater and Stormwater Improvement $19,310,000 $10,000,000

117 TAUNTON (EJ) 3793 SSES Phases 10-12 $15,000,000 $15,000,000

116 SAUGUS (EJ) 3807 SSO Reduction Subsystem 6 $3,246,000 $3,246,000

114 LOWELL (EJ)# 3828 Phase IA CSO Control Project $38,500,000 $25,000,000

111 MWRA 3824 CSO Phase 14 $29,237,000 $16,700,000

110 REVERE (EJ) 3832 Collection System Improvements $14,850,000 $14,850,000

109 CAMBRIDGE (EJ) 3819 Huron B Sewer Separation Project $35,507,000 $22,000,000

108 WORCESTER (EJ) 3763 Lake Ave Sewer I/I $1,475,000 $1,475,000

107 FRAMINGHAM (EJ) 3810 Pump Station Removal $16,181,000 $16,181,000

104 SHREWSBURY # 3760 Sewer I/I and Pump Station Improvement $4,350,000 $4,350,000

97 WAREHAM (EJ) 3802 Sewer System Extension $4,400,000 $4,400,000

93 YARMOUTH (EJ)(RE)# 3804 WW Improvements Program $55,000,000 $15,000,000

92 FITCHBURG (EJ) 3765 Combined Sewer Separation Area 4D $17,997,000 $17,997,000

91 GLOUCESTER (EJ)# 3830 West Gloucester WW System Improvements $3,973,000 $3,973,000

86 GROTON 3752 CWMP Phase 1 Lost Lake Needs Area $11,880,000 $11,880,000

85 WESTBOROUGH 3774 Sewer Extensions $26,550,000 $15,000,000

85 CRPCD # 3759 WWF Improvements Phase C $25,070,000 $25,070,000

84 MALDEN (EJ) 3838 Sewer Improvements $5,000,000 $5,000,000

84 NORWOOD (EJ) 3801 Meadowbrook Area Sewer Rehab $2,700,000 $2,700,000

84 CHATHAM 3795 Collection System Extension and Improvements $24,240,000 $15,000,000

81 LOWELL (EJ)# 3827 Phase IC WWTF & Collection System CIP $6,000,000 $6,000,000

81 PALMER (EJ) 3748 Sewer Replacement $6,090,000 $6,090,000

80 MWRA 3822 Clinton WWTP $3,300,000 $3,300,000

73 FRAMINGHAM (EJ) 3829 Sewer Main Replacement $4,780,000 $4,780,000

69 TYNGSBOROUGH 3818 Phase I and II Sewers $8,834,000 $5,000,000

64 BROCKTON (EJ) 3805 Wastewater System Improvements $1,300,000 $1,300,000

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TOTAL OF MassDEP PRIORITY PROJECTS $7,000,000 $7,000,000(Count: 2)


TOTAL OF PLANNING PROJECTS $12,815,000 $12,815,000(Count: 15)


MULTI-YEAR CARRYOVER AND STATUTORY PROJECTS

Applicant SRF ID Project Project Cost 2013 IUP Cost

MassDEP PRIORITY PROJECTSApplicant SRF ID Project Cost 2013 IUP Cost

TOTAL OF MULTI-YEAR CARRYOVER AND STATUTORY PROJECTS $209,673,141 $10,500,000(Count: 4)




MWRA 3668 Nut Island Headworks Electrical & Conveyor Improv. $8,700,000 $4,700,000


MWRA 2885 Wastewater Treatment Plant and Sewer Improvements $46,198,383 $2,000,000



(Count: 4)


COMMUNITY SEPTIC 3850 $5,000,000 $5,000,000MANAGEMENT PROGRAM

EMERGENCY SRF SET-A-SIDE 2977 $2,000,000 $2,000,000


(Count: 2)


ABINGTON 3797 CWMP $725,000 $725,000

BROCKTON 3806 Stormwater Management Plan $200,000 $200,000

CHICOPEE 3751 IMSWRMP $1,000,000 $1,000,000

EASTHAMPTON 3749 IWRMP $1,100,000 $1,100,000

GLOUCESTER 3820 WW & SW System Inventory $1,000,000 $1,000,000

LAWRENCE 3809 CMOM and SSES $1,920,000 $1,920,000

MALDEN 3839 Stormwater Management Plan $500,000 $500,000

MELROSE 3821 Stormwater Management Plan Implementation $473,000 $473,000

NEW BEDFORD 3798 Phase II WW and Stormwater plan $2,000,000 $2,000,000

NORWOOD 3800 Stormwater Planning $500,000 $500,000

PLAINVILLE 3796 I/I Program $225,000 $225,000

REVERE 3831 Field Investigation and Illicit Connection Detecti $1,500,000 $1,500,000

REVERE 3817 CMOM Program $300,000 $300,000

RUTLAND 3753 CWMP $350,000 $350,000

WORCESTER 3762 Lake Ave SSES $1,022,000 $1,022,000


(Count: 15)








(Count: 4)





(Count: 2)


ABINGTON 3797 CWMP $725,000 $725,000













RUTLAND 3753 CWMP $350,000 $350,000



(Count: 15)








(Count: 4)





(Count: 2)


ABINGTON 3797 CWMP $725,000 $725,000













RUTLAND 3753 CWMP $350,000 $350,000



(Count: 15)


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Massachusetts DEP is pleased to present the Final 2013 Intended Use Plan (IUP) which details the projects, borrowers, and amounts

that will be financed through the Drinking Water State Revolving Fund (DWSRF) program. The DWSRF is a joint federal-state financing program that provides subsidized interest loans to protect public health by improving water supply, infrastructure systems, and protecting drinking water in the Commonwealth.

Table 1Drinking Water State Revolving Fund

CY2013 Intended Use Plan

$120.9 MILLION FOR DRINKING WATER SRF IN 2013 As noted in Table 1, Massachusetts is offering

approximately $120.9 million to finance drinking wa-ter projects across the Commonwealth. Approximate-ly $101.7 million will fund 24 new projects and an ad-ditional $16.4 million will be allocated towards funding 9 previously approved multi-year projects. The Final IUP also contains $800,000 for 2 planning projects, and $2 million to fund an emergency set-aside ac-count.

NEW PROJECTS 2013Rating Applicant SRF ID Project Project Cost IUP Cost


TABLE 1DRINKING WATER STATE REVOLVING FUND

Calendar Year 2013 DWSRF Intended Use Plan


92.0 BELLINGHAM 3771 New Water Treatment Plants $15,350,000 $10,000,000

73.0 LAWRENCE (EJ)# 3814 Water Main Replacement $21,895,000 $10,000,000

70.0 TRI-TOWN WATER BOARD (EJ)# 3783 New Replacement Regional Water Treatment $45,000,000 $1,000,000

69.0 *CHESTER 3766 Water Treatment Plant Improvements $375,000 $375,000

62.0 RANDOLPH (EJ) 3777 Water System Improvements $5,545,000 $5,545,000

60.0 FALL RIVER (EJ) 3787 Water Main Improvements Phase 13 $1,075,000 $1,075,000

59.0 *COHASSET (RE)# 3776 install solar tank mixers, new roof and pv panels $1,400,000 $1,400,000

55.0 MEDWAY 3768 Water Main Replacement $2,000,000 $2,000,000

52.0 NORTON (RE)# 3786 Water Treatment Plant $6,700,000 $6,700,000

51.0 MALDEN (EJ)# 3837 Water Distribution Systems Improvements $9,315,000 $9,315,000

51.0 SCITUATE WATER DIVISION 3785 Pump Station Improvements and Greesand Filter Plan $3,590,000 $3,590,000(RE)#

51.0 BARNSTABLE (EJ) 3780 Hyannis Water System Improvements $3,170,000 $3,170,000

51.0 LOWELL (EJ)# 3769 Redundant Transmission Main $7,957,000 $7,957,000

50.0 SPRINGFIELD WSC (EJ) 3756 South Water Transmission Main Replacement $28,200,000 $14,000,000

50.0 WEBSTER (EJ) 3761 Water Main $2,140,000 $2,140,000

49.0 LOWELL (EJ)# 3811 Meter Replacement and AMR System $9,750,000 $5,000,000

48.0 CHICOPEE (EJ)# 3758 Meter Infrastructure Project $8,161,000 $4,000,000

48.0 SPRINGFIELD WSC (EJ) 3767 Redundant Chicopee River Water Transmission Main $2,970,000 $2,970,000

48.0 HARWICH (EJ)(RE)# 3781 Water Treatment Plant $1,960,000 $1,960,000

48.0 LYNN WATER & SEWER COMM 3816 Low Service Reservior Improvements $520,000 $520,000 (EJ)

47.0 KINGSTON (RE)# 3782 Trackle Pond WTF Upgrades $6,863,000 $4,000,000

46.0 BROCKTON (EJ) 3784 Water Main Replacement $3,400,000 $2,000,000

46.0 FALL RIVER (EJ) 3788 Airport Road High Service Area Improvements $3,835,000 $2,000,000

44.0 *TURNERS FALLS 3755 Hannegan Brook Well Pump Station $935,000 $935,000


(Count: 24) (Average Rating: 55.)

* - Small System(EJ) - Environmental Justice Communities(RE) - Potential Renewable Energy Projects# - Projects contains Energy Efficiency, Renewable Energy, and/or meets EPA's definition of a Green Project (http://water.epa.gov/aboutow/eparecovery/index.cfm)


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MassDEP PRIORITY PROJECTS

Applicant SRF ID Project Cost 2013 IUP Cost

TOTAL OF MassDEP PRIORITY PROJECTS $2,000,000 $2,000,000(Count: 1)

TOTAL OF NEW PROJECTS $192,106,000 $101,652,000(Count: 24) (Average Rating: 55)

NEW PROJECTS (cont.) 2013Rating Applicant SRF ID Project Project Cost IUP Cost





(Count: 1)


CHERRY VALLEY & ROCHDALE 3691 Modification to Water Treatment Plant $1,882,300 $1,882,300 WATER DISTRICT #

LAWRENCE (EJ)(RE)# 3719 Water Infrastructure Improvement $8,522,025 $4,522,025

MWRA 3160 NHS - Revere & Malden Pipeline $10,457,816 $1,000,000

MWRA 3050 Northern Low Service Area Rehabilitation $18,346,655 $1,000,000

MWRA 3049 New Connecting Mains $47,880,847 $1,500,000

MWRA 3048 Lower Hultman Aqueduct Rehabilitation $53,112,388 $1,500,000

MWRA 1680 Southern Spine Distribution Mains $65,685,888 $1,000,000

MWRA 1679 Blue Hills Covered Storage $40,687,106 $1,500,000

MWRA # 3727 Low Service Storage $67,851,000 $2,500,000


(Count: 9)


REVERE WATER DEPT. 3852 Water Distribution System and Hydraulic Model $550,000 $550,000

REVERE WATER DEPT. 3851 GIS Implementation of AMR Program $250,000 $250,000

TOTAL OF PLANNING PROJECTS $800,000 $800,000

(Count: 2)






























































MULTI-YEAR CARRYOVER AND STATUTORY PROJECTS


TOTAL OF MULTI-YEAR CARRYOVER AND STATUTORY PROJECTS $314,426,025 $16,404,325(Count: 9)




(Count: 1)












(Count: 9)





(Count: 2)





(Count: 1)












(Count: 9)





(Count: 2)


PLANNING PROJECTS


TOTAL OF PLANNING PROJECTS $800,000 $800,000(Count: 2)


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With great sorrow, we mourn the loss of UCANE mem-ber and friend, John Amo-

rello, Sr. (J. E. Amorello, Inc.) who passed away on April 3, 2013 at the age of 89.

John is survived by his three chil-dren, Irene, Janet, and Edward, and seven grandchildren. He was prede-ceased by his wife Louise, and two children, Carol and John Jr.

After serving in the Army Air Corps/Air Force during WWII, John went to work for the A. Amorello Con-struction Company, which was start-ed by his father in 1914. In 1995 he became the founder and owner of J. E. Amorello, Inc.

John was a life long mem-ber of Our Lady of Mt. Carmel-St. Ann Church, and belonged to Lo-cal 4-IUOE. He was also a member of the Worcester Art Museum, The American Legion Post 201 East Side, the Air Force Association, and was a 4th Degree Knight of Columbus. John was an Overseer at Sturbridge Village and a member of the Pope John Council XXIII Knights.

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Recent Bid Protest Decisions:Bidder Responsibility and Project Experience

Editor’s Note: I would like to acknowledge the assistance of my colleague, Luke Conrad, who prepared this article. Luke is an Associate in the Construction and Public Contracts Group in Hartford, CT.

Attorney General’s Office issued its decision in response to a recent bid protest against an awarding authority with respect to an airport

project (“Project”). A general contractor submitted a protest because of the awarding authorities deci-sion to reject the general contractor’s low bid on the Project. The basis for the rejection of the bid was that the awarding authority concluded that the gen-eral contractor was not a responsible bidder because the qualification specification required bidders with at least five (5) years of continuous experience as a prime contractor on public works projects with a contract amount over $500,000 and a scope of work similar to the proposed work.

The general contractor submitted the low bid of $1,630,400. The second low bidder submitted a bid of $1,667,900. For its similar project experience, the general contractor listed road relocations on the ac-cess roads and miscellaneous utility work. Addition-ally, the low bidder listed projects with contract values under $100,000, and a road project in Connecticut, with a contract value of approximately $600,000; however, the general contractor omitted experience on a large transit project.

The Office of the Attorney General has issued a series of bid protest decisions over the past year that involve the determination of whether a bidder is “responsible” and “eligible” to be awarded a public construction contract. Specifically, three recent decisions consider the sufficiency of the project experience submitted by prospective bidders in statements of qualifications.

On June 15, 2012, the awarding authority in-formed the general contractor that it had decided to award the contract to the second bidder. The general contractor sought reconsideration, supplying infor-mation regarding a $950,000 contract for a roadway relocation and the large transit contract. The award-ing authority was not swayed by the general contrac-tor’s request for reconsideration and determined that while the second bidder did not have extensive apron experience, it did have extensive bridge experience which the awarding authority deemed to be similar to the apron work. The awarding authority’s engineer reviewed the Massachusetts Department of Trans-portation (“MassDOT”) model bridge specifications and determined that bridge work requires much of the same placement, testing, grading, joints and cur-ing as apron work, and therefore, determined that the second bidder’s experience was superior to that of the general contractor.

By statute, public contracts are awarded in Mas-sachusetts to the lowest responsive and eligible bid-der and a protesting bidder bears the burden to prove that the rejection of its bid was illegal or arbitrary.


Legal Corner continued from page 27

The Attorney General, in this deci-sion, determined that the general contractor had not met its burden because the explanation for the awarding authority’s rejection of its bid – that its experience was not five years of continuous expe-rience with respect to a scope of work similar to the proposed work – was not arbitrary and represented a plausible and sustainable decision of the awarding authority. While the decision by the Attorney General was not brimming with support for the second bidder’s experience, the decision reflects the tenet that the awarding authority is given a wide berth for determinations of the low-est responsive and eligible bidder, and therefore, the awarding author-ity’s decision to reject the general contractor’s bid was upheld.

On December 7, 2012, the At-torney General issued a decision with respect to a project put out to bid by an awarding authority for a roof repair project (“Project”). The protest was filed by the gen-eral contractor, the low bidder. The awarding authority determined that the general contractor was not a responsible bidder because it did not have similar project experience to perform the Project.

The estimated construction cost for the Project was $90,000 – the general contractor’s bid was $78,898. In submitting its bid, the general contractor listed a series of repair projects valued between $9,000 and $55,000. These projects involved: roofing repair, PVC trim work, siding repair and historic masonry repairs.

The awarding authority rejected the general contractor’s bid on the basis that the nature of the company’s past projects was not indicative of the experience it sought for the Project. Moreover, the awarding authority found that all of the projects that the general contractor listed on its bid form were re-pair projects and were of a lesser contract value than on the awarding authority’s project. In upholding the awarding authority’s determination that it would reject the general contractor’s bid, the Attorney General noted that the decision could not be said to be ar-

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UCANE half 1.12 color.indd 1 1/6/12 2:56 PMbitrary and/or capricious as the explanation for the rejection was both plausible and sustainable – that the general contractor did not have the required ren-ovation experience with projects of a similar value.

On September 10, 2012, the Attorney General is-sued a bid protest decision regarding an awarding authority’s decision to reject the low bid on a city pav-ing project (“Project”). The Project included street resurfacing and had an estimated construction cost of $1 million. The awarding authority concluded that the general contractor was not a responsible bidder for this particular project because it did not have com-parable public experience as a general contractor for



projects of similar scope and size to the Project.

When bids opened on August 9, 2012, the gen-eral contractor was the low bidder, approximately $10,000 below the second bidder. In its bid form, however, the general contractor listed mostly private projects, save for a curb repair, a paving and sidewalk project. The general contractor also listed nine con-tracts in which it was a subcontractor, not a general contractor. The awarding authority noted in its analy-sis of general contractor’s experience that it had per-formed work on static roadways and parking lots, not on major roads as would be required by this project. In rejecting the general contractor’s bid, the awarding authority noted that there was a significant difference in potential liability and the risk factor with respect to performing work as a general contractor in com-parison to working as a subcontractor. An additional factor in the rejection was that the general contractor also failed to provide a list of current project informa-tion, the experience of its principals and a WBE/MBE subcontracting plan.

The general contractor also argued that the awarding authority improperly considered the distinc-tion between general contracting work and subcon-tracting work; MassDOT, it argued, when prequali-fying contractors for Chapter 90 work, takes into

Legal Corner continued from page 28 consideration subcontracting experience as well as general contracting experience. In reviewing the awarding authority’s decision not to award the con-tract to the general contractor, the Attorney General again determined that absent illegal or arbitrary acts by the awarding authority, their discretion would be upheld. Finally, according to the Attorney General, just because MassDOT prequalifies a general con-tractor, it does not preclude the awarding authority from determining the lowest responsible and eligible bidder for its project.

Contractors submitting bids for pub-lic projects in Massachusetts should en-sure that the prior project experience or statement of qualifications sections in bid forms highlight relevant experience and work on similar projects. The foregoing decisions emphasize the considerations and analyses performed by awarding au-thorities and demonstrate that failure to include relevant project experience by a contractor can result in losing the project. Contractors should ensure they present a thorough and thoughtful presentation of any and all relevant project experience. n

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Why and How to Revamp Your Performance Appraisal Process

The primary components of the performance review process that everyone should agree upon are:

1. Defining and clarifying job duties. The manager and the employee should each have a clear and consistent understanding of the employee’s job duties long before the per-formance review is written and presented.

2. Summarizing past performance. Constructive review and/or measurement of past performance should be designed to ensure that improved future performance (or continued high level performance) is the pri-mary goal.

3. Providing a blueprint for future per-formance. Managers should make a planned and concerted effort to help the employee un-derstand how success will be measured.

Understand Your OrganizationConsider your company’s unique culture. Is your

company comprised largely of managers and profes-sionals, with a lesser percentage of office and adminis-

BENEFITS & HR

Doug V. Mure, DirectorHR Consulting & Outsourcing, Pinnacle Financial Group

TRATEGIES

For many employers and employees, the performance review process is a little like do-ing taxes – an annual exercise to be trudged through at best (even if bonuses or other mon-etary rewards are on the line) and a source of potential liabilities at its worst. With very few exceptions, a revitalized, comprehensive per-formance appraisal process, with appropriate training and communication, will achieve sev-eral important objectives:

• Positively impact supervisor–subordinate relationships leading to increased productivity

• Enhance your company’s overall reputation as one that supports career development, goal setting, and rewards, which are key in recruiting the best talent

• Diminish liability through proper documentation in cases of employee underperformance

An effective performance management system should be based on an organization’s commitment to communicate openly and honestly about the expectations of manag-ers and the contributions of employees both before and after a performance review. It is a coaching tool, in addition to a potentially critical piece of legal documentation.

What follows is a blueprint of a system that will be beneficial for any organization looking to infuse their current performance manage-ment process with more meaning and value.

Benefits & HR Strategies continued from page 31



trative staff? Or, is your field workforce the bulk of your organization? Is tenure (long or short) a consideration?

Sample goals and considerations would be:

Goal: Managers and employees should talk about jobs and job performance regularly (not just once a year at review time).

Consideration: For your company, should the review process and forms be designed for this to happen quarterly, semi-annually, in addition to annu-ally? Individually and as teams?

Goal: Managers and employees should have opportunities and methods of providing constructive feedback to one another.

Consideration: Is your environment conducive to enabling employees to do self-evaluations or up-ward reviews (discussed in more detail below)?

Goal: Help employees grow professionally in their role with your company.

Consideration: Make sure your company’s over-all goals are clearly articulated at the top-level of the organization and work with managers to derive em-ployee goals from there.

While assessing the performance review process in the context of your organization, be sure to gather input and genuine support from the managers who perform the actual reviews. Do managers understand that a well-executed performance review process is integral to building a roadmap by which subordinates can contribute to achieving the agreed upon individual and/or team objectives (ultimately affecting perhaps the managers' own performance reviews)?

If your company uses self-evaluations as part of the review process, make sure that employees are aware ahead of time how their self-evaluations are incorporated into the review. Self-evaluations add a level of accountability and engagement to the em-ployee’s side of the review that is extremely valuable and important. Performance reviews should really be a conversation, not just a report card.

Some organizations go so far as to conduct up-ward reviews. In an upward review, employees are given the opportunity to provide constructive feed-back about their managers. The upward review can play a vital role in ensuring managers and employees are both taking the necessary steps to have as pro-ductive a relationship as possible.

Selling the New ProcessDetermine when a revised system needs to be in

place in time for the next review period. It is impor-tant that both employees and supervisors know that a change is in the works with the goal toward a more

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effective and meaningful review process at your com-pany. They should be well-informed of the objectives of an effective new system.

Consider soliciting employee and management feedback regarding the design of the new system to broaden investment in the revitalized process. If there are key managers that are perceived as potential “champions” of performance management, enlist their support to promote the value of the new review system.

Managers and Employees are Both Stakeholders

Training and awareness are an integral part of the successful implementation of a new system. Most organizations focus on training managers to understand the new system, assuming incorrectly that employees are passive participants in the pro-cess. This may be one of the biggest mistakes made in performance management. Employees should be given the opportunity to learn about the system and their role in it or they cannot be effective participants.

Here are some guidelines for getting both sides involved productively:

Manager TrainingA manager training program should be designed to

ensure that supervisors will be able to do the following:

1. Explain and discuss the primary reasons for conducting performance reviews

2. Work with employees to develop performance goals that are specific, measurable, and realistic


3. Invite, receive, and use employee input as part of planning and writing a performance review

4. Discuss performance feedback with employees in an objective, job-related manner

Employee Training

As a result of attending and participating in an awareness session, employees should be able to do the following:

1. Participate in a discussion with their manager to provide input on their work for the perfor-mance period

2. Plan to participate in a two-way discussion with their manager about feedback on their performance

3. Participate in establishment and understand-ing of performance goals and expectations for the future

4. Provide objective feedback on their experi-ence with your company

Performance Reviews & SalaryAs stated above, most companies conduct per-

formance reviews as part of the process toward granting annual pay increases at a specific time each year. Ideally, the performance management system would primarily focus on career development and advancement, with annual pay increases a sec-ondary factor. One of the most important issues is for both the manager and employee to understand how the system works. Despite all the theory about separating performance reviews and pay, most em-ployees come to the review thinking that the two are linked. The manager must be able to explain the link

or the lack thereof in clear, under-standable terms.

The FormThe form itself, as a perfor-

mance review tool, is less important than the accompanying instruc-tions and training. There are sev-eral approaches to developing the performance appraisal form. If you currently use a format that works somewhat effectively, tweaking the system to create a more interactive process may be all you need. Ulti-mately, you must design a system that will work for you.

One design that is often used is the Balanced Scorecard. It was originated by Dr. Robert Kaplan

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and Dr. David Norton as a performance measure-ment framework that added strategic non-financial performance measures to traditional financial metrics to give managers and executives a more 'balanced' view of organizational performance.

The Balanced Scorecard approach is designed to achieve the following:

• Increase focus on strategy and results

• Improve organizational performance by mea-suring what matters

• Align organization strategy with the work peo-ple do on a day-to-day basis

• Focus on the drivers of future performance

• Improve communication of the organization’s mission and strategy

• Prioritize projects/initiatives

There is No Perfect SystemThe goal is to provide both managers and

employees with a more interactive method within which to measure and develop employee perfor-mance, all with the expectation of making your organization more efficient, profitable and suc-cessful. n

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Please give our readers some insight into your background and how you got involved in politics.

My professional background is as a prosecu-tor, General Counsel for the Massachusetts Office of Child Care Services, and Chief of

the Policy Division for the Massachusetts Attorney Gen-eral. My first foray into elected politics was the Melrose School Committee in 2001. As the mother of small chil-dren, I wanted to help lead our school district. My time on the School Committee provided insight into the many challenges that our cities and towns face as they seek to provide vital services with constrained resources. I have brought that perspective to the legislature, where I was first elected in 2008 as a member of the Massachusetts House of Representatives. I have had the privilege of serv-ing in the State Senate since 2010, currently representing Malden, Melrose, Reading, Stoneham, Wakefield, and portions of Winchester. I currently serve as the Senate Chair of the Joint Committee on the Judiciary, Chair of the Steering and Policy Committee, Vice Chair of the Committee on Mental Health and Substance Abuse and the Committee on Post Audit & Oversight, and as a member of the Committees on Public Health and Public Safety & Homeland Security. As a legislator, my top priorities are local aid and funding for our schools, and critical investments in early education, transportation and infrastructure.

As Senator of a district with towns that have had recent challenges with water infrastruc-ture, you are aware that access to clean

drinking water and proper management of wastewater is critical, but that the debt burden on municipalities inter-feres with their ability to make needed improvements to water infrastructure. In light of the Senate President’s elevation of water infrastructure as a priority this session, please discuss your thoughts relative to the importance of maintaining water and wastewater infrastructure. How do you anticipate the legislature will work to address these issues? continued on page 39

Senator Katherine Clark

Q:

A:Q:

(D-Melrose)

Investing in our drinking water, wastewater, and storm water infrastructure is critical, not only for the health and wellness of residents,

but for economic growth and environmental sustainability as well. All the cities and towns in my district are MWRA communities, and we must continually improve and up-grade our infrastructure. We have seen the consequences of not making those investments. Much like the Common-wealth’s transportation system, when it comes to our water infrastructure, we are confronting increasing demand on an aging system, as well as a historic lack of investment and delayed maintenance. In 2009, the legislature established the Water Infrastructure Finance Commission, which is-sued its final report in 2012, and estimated a growing gap of up to $21.4 billion over the next 20 years between current funding for the state’s water infrastructure and wastewater systems and the amount of funding actually needed. I com-mend the Senate President’s leadership in making water and sewer infrastructure investment a priority during this session, and I look forward to working with her to move

A:


When I see new statistics – a change in the unemployment rate, for example, or budget statistics – those are not just numbers to me.

Those represent real people and their families, in my district and across the state. I know those people, I know their kids, and I hear their stories. I get it. If I don’t, I’m not doing my job. The point is, the most important influence on the work that we do in the legislature is – and must be – our constituents and the communities we represent. While it is also clear that while the Massachusetts economy is com-ing back, we are not there yet. We still have more work to do, we still have too many folks out of work, including in construction and the trades, and too many families who are struggling. Cities and towns are on the front lines, and many are still recovering fiscally from the recession. They must balance investment in infrastructure improvements of all types with ensuring reasonable user rates and local tax levels for families who may still be struggling.

The Commonwealth Sewer Rate Relief Fund is an important program in the state budget. These funds help to alleviate sewer rates

for municipalities throughout the Commonwealth. This program was once funded at $61 million, but in recent years the appropriation has been cut down to $500,000. Please discuss the importance of assisting communities by offsetting annual rate increases to water and sewer bills.

The MWRA continues to manage significant debt burden, with nearly 60% of its annual op-erating costs going to debt service from major

capital investments made over the years – like the Boston Harbor clean-up. We need to ensure that the MWRA, and all our cities and towns, have the flexibility both to responsibly manage debt and to make critical infrastructure improve-ments now. They must do so in a fiscally responsible way that takes into account the needs of rate-payers and the Commonwealth’s overall economic health. That is a tall order, but I believe it can be done. Programs like the Com-monwealth Sewer Rate Relief Fund are one important part of that equation. n

it forward. In addition, this session, I have co-sponsored An Act to mitigate water resource impacts (S945), which would allow cities and towns and water and sewer districts to establish a Sustainable Water Resource Fund to mitigate the impacts of water withdrawals, sewering, stormwater runoff, or impairment of recharge of groundwater on the environment.

The State Revolving Loan Fund (SRF) is an important state program that provides financial assistance, in the form of 2% low-

interest loans, to communities for critical wastewater and drinking water infrastructure projects. Please discuss the importance of this program.

Communities in my district served by the MWRA have certainly benefited from the Clean Water State Revolving Fund and Drink-

ing Water State Revolving Fund programs. Further, the Mas-sachusetts State Revolving Fund (SRF), run by MassDEP and serving both wastewater districts and municipalities, provides a low-cost funding mechanism to assist cities and towns in complying with water quality requirements. The Deer Island Treatment Plant improvements are one example, as is the planned project at the Northern High Service (Revere/Malden Pipeline), which among other things will involve the eventual replacement of an undersized pipe in Malden with a larger pipe to eliminate severe service restrictions.

Massachusetts, along with the rest of the country, continues to face economic hard-ship. Please give your thoughts on how the

state will continue to address these difficult financial times and the importance of finding novel ways to drive local aid to cities and towns to help support basic mu-nicipal services, specifically maintenance and needed improvements to water infrastructure.

A:

Q:

Q:

Interview continued from page 37

A:

Q:

A:

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Mystic River Clean Water Campaign Launched

By Beth MacBlane, MyRWA Outreach Coordinator

Let’s clean up the Mystic! Together with the newly established Clean Water Campaign Committee, MyRWA staff and volunteers embarked on a new initiative to enhance advocacy to improve water quality conditions in January 2013. Building upon the many years of available water quality data, the Campaign seeks to raise the profile of local water quality conditions through new communication and educational materials, increased media exposure, and by hosting educational events. While some of this work will be achieved through existing MyRWA programs, new efforts are underway to develop resi-dent advocacy initiatives and enhance collaboration with cities, towns and community groups. To attain the high goals set out in the Mystic River Watershed Association’s Water Quality Policy Statement, con-certed and coordinated action from residents, mu-nicipalities, regulators and legislators is required. It is important to engage all key stakeholders to develop appropriate clean-up and restoration plans and to se-cure funding to implement these efforts.

“This new resolution,” stated EkOngKar Singh Khalsa, MyRWA’s Executive Director, “underscores our commitment to working closely with cities and towns and with regional au-thorities on this issue and to step up our outreach to watershed residents to achieve the shared goal of a healthy Mystic River. The Mystic River has consistently received a “D” water qual-ity rating by the US EPA Boston region-al office. This grade is unacceptable to everyone who cares about clean wa-ter. With our partners and concerned residents we will work hard to resolve this issue and to bring environmental conditions in the Mystic in line with the cleanest urban rivers in Massachu-setts and the world. Although it will take time, this is entirely possible and will bring an enormous benefit to public

Mystic River Clean Water Campaign LaunchedBy Beth MacBlane, MyRWA Outreach Coordinator

Let’s clean up the Mystic! Together with the newly estab-lished Clean Water Campaign Committee, MyRWA staff and volunteers embarked on a new initiative to enhance advocacy to improve water quality conditions in January 2013. Build-ing upon the many years of available water quality data, the Campaign seeks to raise the profile of local water quality conditions through new communication and educational ma-terials, increased media exposure, and by hosting educational events. While some of this work will be achieved through exist-ing MyRWA programs, new efforts are underway to develop resident advocacy initiatives and enhance collaboration with cities, towns and community groups. To attain the high goals set out in the Mystic River Watershed Association’s Water Quality Policy Statement (detailed to the right), concerted and coordinated action from residents, municipalities, regulators and legislators is required. It is important to engage all key stakeholders to develop appropriate clean-up and restoration plans and to secure funding to implement these efforts. “This new resolution,” stated EkOngKar Singh Khalsa, MyRWA’s Executive Director, “underscores our commitment to working closely with cities and towns and with regional authori-ties on this issue and to step up our outreach to watershed residents to achieve the shared goal of a healthy Mystic River. The Mystic River has consistently received a “D” water quality rating by the US EPA Boston regional office. This grade is unacceptable to everyone who cares about clean water. With our part-ners and concerned residents we will work hard to resolve this issue and to bring environmental conditions in the Mystic in line with the cleanest urban rivers in Massachusetts and the world. Although it will take time, this is entirely possible and will bring an enormous benefit to public health and will help preserve an important recreational resource. At the end of the day, what is needed is to restore people’s confidence in a vital natural resource that we all share and have in common and which provides significant benefit and value to our communities.”For the first wave of the campaign we are focusing our efforts on the Alewife Brook sub-watershed. The Alewife represents an area where we can see considerable improvements. Alewife Brook impairments include consistently poor water quality, habitat deterioration, development pressures, flooding issues, sediment and flow concerns and Combined Sewer Overflows (CSOs). Mean- while, it is also an area with good work

underway – the City of Cambridge and MWRA are undertaking considerable renovations to the sewer system, there are active community groups advocat-ing for environmental concerns, and a new pedestrian-bike path is being built by MA Dept.of Conservation and Recre-ation. To commence our Alewife work, please join MyRWA, Friends of Alewife Reservation, and Green Cambridge for the Saturday, April 20th Earth Day and DCR Park Serve Day cleanup along Ale-wife Brook and Little River. Stay tuned for additional educational events and advocacy opportunities!Get involved! Volunteers are sought to participate in this campaign! Contact Beth at 781-316-3438 to help out. Join the Mystic River Clean Water Campaign Committee on the first Tuesday of the month at 7pm, Tufts University.

Mystic River Watershed Association’s WATER QUALITY POLICY STATEMENT

In order to ensure that water quality in the Mystic River Watershed is restored to a healthy condition and to ensure that this clean water is protected in the future, the Mystic River Watershed Association adopts the following goals and objectives for immediate implementation.

We are determined that:1.Human sewage will no longer be discharged to the

Mystic River, or its watershed lakes, tributaries or streams.

2.All stormwater discharges to the river shall meet water quality standards.

3.Historic industrial contamination of the river sedi-ments and on adjacent brownfield parcels will be thoroughly evaluated and addressed through appropri-ate remedial measures to protect public health and ensure safe recreational use.

*This graph is based on

bacterial counts.

health and will help preserve an important recreational resource. At the end of the day, what is needed is to restore people’s confidence in a vital natural resource that we all share and have in common and which pro-vides significant benefit and value to our communities.” For the first wave of the campaign we are focusing our efforts on the Alewife Brook sub-watershed. The Alewife represents an area where we can see con-siderable improvements. Alewife Brook impairments include consistently poor water quality, habitat deterio-ration, development pressures, flooding issues, sedi-ment and flow concerns and Combined Sewer Over-flows (CSOs). Meanwhile, it is also an area with good work underway – the City of Cambridge and MWRA are undertaking considerable renovations to the sewer system, there are active community groups advocat-ing for environmental concerns, and a new pedestrian-bike path is being built by MA Dept. of Conservation and Recreation. For more information please go to www.mysticriver.org.

Reprinted with permission from the Mystic River Watershed Association. n


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Rhiannon Campbell, Esq.Robin L. Main, Esq.

Environmental ViewpointHinckley Allen Snyder, LLP

Note: Robin L. Main is a Partner in Hinckley, Allen & Snyder LLP’s litiga-tion group and co-chair of the firm’s environmental practice group. Rhiannon A. Campbell is an Associate in Hinckley, Allen & Snyder LLP’s litigation and environmental practice groups.

Stormwater Pollution Prevention Plan Requirements

Stormwater runoff, which is generally rain or snowmelt that does not permeate the soil, picks up pollutants and sediments as it travels across surfaces, ultimately deposit-ing these materials in water bodies. Soil that is exposed by construction activities can be especially vulnerable to erosion by stormwater runoff. It is estimated that a con-struction site, even in a short period of time, can contribute more sediment to a stream than would be deposited naturally over several decades. Additionally, to the extent that spills or leaks of pollutants occur on construction sites, these impacts may be carried away by stormwater runoff. When these stormwater pollutants and sediments reach water bodies they can cloud water, smother aquatic habitats, impede navigation and cause other environmental harms.

Recognizing these impacts, the federal govern-ment seeks to mitigate them under the Clean Water Act (“CWA”). The CWA prohibits the

discharge of any pollutants to United States waters un-less that discharge is authorized by a National Pollut-ant Discharge Elimination System (“NPDES”) permit. Each state, or the Environmental Protection Agency (“EPA”) in the case of a state that does not have its own permitting program, issues a NPDES construc-tion general permit which covers all construction re-lated stormwater discharges in that state. If you are an operator of an individual construction site you must apply for coverage under this permit. To obtain cover-age under the state’s NPDES permit you will need a Stormwater Pollution Prevention Plan (“SWPPP”).

An SWPPP must identify control measures used on site to minimize spills, leaks or other releases that may come into contact with stormwater runoff. Your plan should identify both structural controls, such as erosion control blankets and silt fences, and non-structural controls including equipment maintenance and training procedures. At a minimum, an SWPPP should include the following: locations of any spill re-sponse plans, training plans, procedures for labeling containers that may be susceptible to spills or leaks, plans for barriers between material storage and work areas, procedures for material storage and handling, procedures for remedying spills and leaks, notifi-cation and reporting procedures for spills, and the


Environmental Viewpoint continued from page 43

identification of the individuals responsible for ensur-ing that spill kits are available. The location of each control, plan or procedure must be provided. The SWPPP should also include project contact informa-tion, a description of the site and construction activity, a site map, maintenance and inspection procedures, an identification of any potential pollutant sources, and records of any inspections.

The EPA provides, through its website, a full guide for the develop-ment of a SWPPP for your construc-tion site. The EPA also provides a template for the creation of your SWPPP and sample SWPPPs. This information can be found at http://cfpub.epa.gov/npdes/stormwater/swppp.cfm. Keep in mind that your state may have its own separate re-quirements for SWPPPs and you should carefully read your state’s construction general permit and fol-low its instructions. n

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The Connecticut Supreme CourtResurrects Stale Claims by the State

However, in Connecticut (and many other states), if the potential plaintiff is the State, the specter of a lawsuit may linger indefinitely. Recently,

in State v. Lombardo Bros. Mason Contractors, Inc., the Connecticut Supreme Court upheld the common law doctrine of Nullum Tempus Occurrit Regi (“no time runs against the king”). Under Nullum Tempus, stat-utes of limitations and oth-er time limitations do not apply to federal or state governments, unless their respective legislatures ex-pressly state otherwise.

Lombardo’s history can be traced back to 1996, to the completion of a new library on the Hart-ford campus of the University of Connecticut School of Law. Soon after taking occupancy of the newly-constructed building, the State encountered water in-trusion issues in the library, which progressively wors-ened. The State’s subsequent investigation uncovered several alleged defects in the library’s construction and design. The State retained design professionals and remediation contractors to design and perform corrective work costing more than $15 million.

In 2008, over 12 years after the library was origi-nally completed, the State commenced a lawsuit against the original contractors, sureties, and design professionals. The defendants naturally argued that the State’s claims were barred by the statutes of limi-tations and repose. The State’s original construction manager also asserted a contract-specific time-limi-

tation defense based on its contract with the State. The trial court agreed, and dismissed the State’s claims as time-barred. However, on appeal, the Connecticut Supreme Court reversed the trial court and held that under the doctrine of Nullum

Tempus, the State was immune from application of the statutes of limitations or repose.

Given the widespread application of Nullum Tempus throughout the country, the Connecticut Court’s affirmation of that doctrine was somewhat unsurprising. More troubling, however, was the Court’s concurrent ruling that the Department of Public Works lacked authority to waive the protec-



Picture this scenario: You are a contractor, surety, or design professional. You completed a construction project for the State over a decade ago. The State accepted the project and raised no claims regarding your work. Surely you have no need to worry about the State's bringing a lawsuit for a construction or de-sign defect, because any claims would be time-barred, right? Ordinarily, the an-swer would be a resounding yes – the statutes of limitations and repose would have long since expired.

Peter J. MartinJared Cohane

The King is Dead; Long Live the King:

Hinckley Allen Snyder, LLP

Under Nullum Tempus, statutes of limitationsandothertimelimitationsdonotapplytofederalor state governments, unless their respectivelegislaturesexpresslystateotherwise.

tion of Nullem Tempus by contract. It is now the law in Connecticut that an explicit time limitation in a contract signed by a state agency is invalid and unenforceable unless the agency has obtained ex-press authority to agree to such a provision. This ruling raises obvious concerns for contractors who previously sought to limit liability through limita-tion provisions in their contracts with the State. It might even call into question the enforceability of other contractual provisions in such contracts that could be construed as time limitations, such as re-quirements related to the proper timing for notice of claims and backcharges.

In the wake of the Lombardo decision, contrac-tors, and their sureties and insurers that do busi-ness with the State are at risk for potential liability for stale claims by the State that may have accrued years after expiration of the ordinary statutes of limitations and repose. Contractors must know and account for these risks before doing business with the State. Key to this goal is proper and adequate insurance coverage: Contractors should make sure they are sufficiently insured so that potential liabil-ity is covered for periods well beyond the ordinary limitation timeframe. Likewise, contractors should require their subcontractors and indemnitors to have similarly-protective levels (and periods) of coverage. Finally, industry groups can lobby their state’s law-makers, since Lombardo clarifies that the only way to expunge or limit the doctrine of Nullum Tempus is by legislative action. (In several states, including New York and Massachusetts, the state legislatures have expressly made their statutes of limitation and repose applicable to the government.)

In the meantime, the State of Con-necticut may rejoice in Lombardo’s exaltation of State sovereignty. The King may not live forever, but the kingdom’s right to sue, for now, ap-pears to be eternal. n

Construction Law continued from page 45

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Tax-Exemption for BondsThreatened by DC

As the Obama administration and Congress look for revenue to reduce the deficit and fund the federal bud-

get, proposals have surfaced from the president and some legislators to restrict or strip cities and towns of their ability to issue tax-exempt municipal bonds.

Simply put, this is a terrible idea.

No matter how it is packaged, limit-ing or ending the tax exemption for inter-est on municipal bonds would impose a massive new cost on cities, towns, and local taxpayers. Once fully implemented, these proposals could drive up the cost of vital local infrastructure projects in Massachusetts by as much as $525 million a year.

The tax-exemption for municipal bonds has been in place for 100 years, as long as the federal income tax. These instruments are the primary financing mechanism for state and local infrastructure projects. There are more than $3.7 trillion in outstanding tax-exempt bonds, issued by 30,000 separate govern-mental units at the local, county, and state level.

Local governments save an average of 25% to 50% on interest costs by using tax-exempt municipal bonds, compared to what communities would have to pay if they sold taxable bonds. That’s because inves-tors are willing to accept lower interest on tax-exempt bonds due to the tax benefit.

Proposals to end or undermine the use of tax-exempt bonds would shatter a system that is a spec-tacular success and would represent a money-grab by the federal government that would harm cities, towns, and local taxpayers.

If the exemption is limited or eliminated, inves-tors will demand higher interest payments to offset

their new tax liabilities, forcing states and localities to pay more to finance projects. This federal cost shift would lead to less infrastructure investment, fewer jobs, and greater burdens on citizens who would then have to pay higher local taxes and utility fees.

This is why the MMA has joined the National League of Cities, the U.S. Con-ference of Mayors, the National Gover-nors Association, and more than 50 ma-jor organizations to urge Congress and the president to respect the principles of fiscal federalism by maintaining the tax-exempt status of municipal bonds and

providing stability and predictability to state and local governments and the investment community.

The need for infrastructure investment—and the jobs that come with it—is acute. Tax-exempt munici-pal bonds finance roads and bridges, schools, police stations, fire stations, libraries, town and city halls, senior centers, parks, drinking water treatment fa-cilities, sewage treatment plants, and much more. Eliminating or limiting tax-exempt financing will drive up the cost of all of these infrastructure investments, which will reduce the scope of projects and impose a much higher burden on local taxpayers.

So far, several legislative proposals have been offered to curtail or eliminate the federal tax exemp-tion for municipal bond interest. One proposal put forward in President Barack Obama’s budget would impose a tax-benefit cap of 28% for certain taxpayers on many itemized deductions and exclusions, includ-ing tax-exempt interest. The effect would be a partial tax on interest that would otherwise be exempt from

Geoff BeckwithMMA Executive

Director



MMA continued from page 49

the income tax. In effect, the tax-exempt bond market would no longer be entirely tax-exempt.

If this 28% benefit cap on tax-exempt inter-est had been in effect during the last decade, it would have cost states and localities an esti-mated $173 billion in added interest expenses for infrastructure projects, according to an analysis jointly published by the National League of Cit-ies, the U.S. Conference of Mayors, and the Na-tional Association of Counties.

For an investor in the 39.6% federal tax bracket, the tax benefit cap proposal would equate to an 11.6% tax on municipal bond interest income (the difference between the tax rate and the benefit cap). While it may appear that this tax would fall on high-bracket taxpayers, in effect, it would be borne almost exclu-sively by state and local governments in the form of higher interest rates on their borrowing.

Market analysts have estimated that this pro-posed tax on municipal bond interest would raise state and local borrowing costs by up to 70 ba-sis points (seven-tenths of a percentage point) or more. Because the tax would apply not only to new state and local borrowing but also to all outstand-ing bonds, investors would be taxed on investment

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that they reasonably expected would be tax-exempt as long as they are outstanding, an unprecedent-ed form of retroactive taxation. As a result, inves-tors would face the new risk that Congress could tax interest on outstanding bonds even more in the future, a risk that would raise state and local bor-rowing costs even more and create unprecedented uncertainty for investors in the municipal securities market.

Some have proposed an even more onerous full federal income tax on municipal bond interest. The Simpson-Bowles Commission, in its 2010 deficit-re-duction recommendations, proposed full taxation for state and local interest for all newly issued bonds. If this proposal had been in place during the 2003–2012 period, it would have cost governments an ad-ditional $495 billion in interest expenses.

Partially or fully taxing the interest on municipal borrowing would have a direct effect on state and local budgets in the form of increased interest ex-penses. Taxing the interest on municipal borrowing for investors would have the same effect as taxing state and local governments directly, as these costs would be passed on from the bondholders to the bond issuers.

With the current tax exemption, cities, towns, and continued on page 51


states can issue bonds with interest payments that are 2 percentage points lower than on taxable bonds in normal market conditions. (The margin is likely about 80 basis points today in a suppressed inter-est environment, but that would end as the economy returns to typical conditions).

The MMA estimates that each year, cities and towns in Massachusetts issue $3 billion in tax-ex-empt bonds and notes. Under current interest rate conditions, repealing the tax-exempt debt authority of cities and towns would add approximately 80 ba-sis points to an issuance, which would translate into $225 million in additional costs to local taxpayers in Massachusetts over the life of a 20-year bond. Un-der typical or normal market conditions, repealing the tax-exempt debt authority of cities and towns would add as much as 2 full percentage points to an issu-ance, leading to approximately $525 million or more in additional costs to local taxpayers in Massachu-setts over the life of a 20-year bond.

At the end of 20 years, if tax-exempt financing is repealed, the annual burden on Massachusetts tax-payers would be $525 million, a massive cost-shift. Even a partial repeal, such as the president’s pro-posed 28% tax-benefit cap, would result in an annual burden on Massachusetts cities and towns of more than $200 million.

Massachusetts is fortunate to have a Congres-sional delegation that is fighting for cities and towns. Sens. Elizabeth Warren and Mo Cowan have pledged their opposition to any attack on tax-exempt financ-ing, and Congressman Richard Neal is the primary sponsor of a resolution in the House that calls atten-tion to the importance of tax-exempt bonds. When Sen. Cowan steps down in June, it will be imperative for his replacement to immediately stand with local government leaders on this matter.

Massachusetts is on the verge of enacting a

MMA continued from page 50 sweeping new transportation tax package, and is planning to ramp up infrastructure investments by billions of dollars over the next several years. We applaud our partners on Beacon Hill for this commitment and this bold leadership. But we need Washington to recognize the attack on tax-exempt financing for what it is – a money grab that would hit local taxpayers, stop infrastructure investment in its tracks, and harm our economy now and for years to come.

Simply put, it’s a terrible idea.

Written by MMA Executive Director Geoff Beckwith. n

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From Bear Market to Bull Market

If the proverbial visitor from Mars had head-ed our way four years ago, this traveler might have beamed up the news reports

from Earth and decided to keep on going to a more promising destination. Why land on a world that apparently was coming to an end? Stock markets had crashed, major brokerage firms were endangered, and the entire finan-cial system seemed to be in jeopardy.

Today, that extraterrestrial traveler would be getting a very different message. Headlines announce that “Mutual Funds Are Breaking Records” and “S&P 500 Closes at Five-Year High.” Reports indicate that the average diver-sified U.S. stock fund is 10% higher than at the previous peak, reached in 2007.

Does this mean that stocks are heading still higher? Or that every bear market will be succeeded by a more powerful bull run? Not necessarily. The future is unknown, and that’s certainly true when it comes to investing in stocks.

However, reliable stock market records now go back about 85 years. Those decades have seen booms, busts, recessions, the Great Depression, wars, terror attacks, inflation, ris-ing debt levels, natural disasters, and count-less other crises. Yet, the U.S. stock market has continued to reward patient investors, de-spite this litany of setbacks.

Absorbing Future ShocksAs mentioned, future investment returns are unpre-

dictable. That said, you can learn some lessons from the recent and distant past. Basic, prudent steps in-clude the following:

• Diversify. Holding different types of assets can re-duce overall portfolio risk. An investor with a 50-50 portfolio, for example, between stocks and bonds, would have fared better than a 100% stock investor during the 2008–2009 crash. The diversified inves-tor might have been more likely to stay in stocks, and then benefitted from the subsequent rebound. Adding more asset classes may help to smooth out long-term volatility.

Smart Tax, Business & Planning Ideas from your Trusted Business Advisorsm

1

May 2013

What’s Inside

1 From Bear Market to Bull Market

2 New In-Plan Conversions

3 Using the Work Opportunity Tax Credit

4 Tax Calendar

Rising Revenues

The U.S. reported a federal budget

surplus (of $3 billion) in January 2013 for the first time in 5

years. The Treasury received an extra $9 billion in taxes

from the expiration of the 2% payroll tax reduction.

continued on page 2

From Bear Market to Bull Market

If the proverbial visitor from Mars had headed our way four years ago, this traveler might have beamed up the news reports from Earth and decided to keep on going to a more promising destination. Why land on a world that apparently was coming to an end? Stock markets had crashed, major brokerage firms were endangered, and the entire financial system seemed to be in jeopardy.

Today, that extraterrestrial traveler would be getting a very different message. Headlines announce that “Mutual Funds

Are Breaking Records” and “S&P 500 Closes at Five-Year High.” Reports indicate that the average diversified U.S. stock fund is 10% higher than at the previous peak, reached in 2007.

Does this mean that stocks are heading still higher? Or that every bear market will be succeeded by a more powerful bull run? Not necessarily. The future is unknown, and that’s certainly true when it comes to investing in stocks.

However, reliable stock market records now go back about 85 years. Those decades have seen booms, busts, recessions, the Great Depression, wars, terror attacks, inflation, rising debt levels, natural disasters, and countless other crises. Yet, the U.S. stock market has continued to reward patient investors, despite this litany of setbacks.

Absorbing future shocksAs mentioned, future investment returns are unpredictable. That said, you can learn some lessons from the recent and distant past. Basic, prudent steps include the following:

�Diversify. Holding different types of assets can reduce overall portfolio risk. An investor with a 50-50 portfolio, for example, between stocks and bonds, would have fared better than a 100% stock investor during the 2008–2009


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• Invest regularly. Some financial advisors ad-vocate a strategy of dollar cost averaging, in which you invest a fixed amount periodically, perhaps every month. If you save for retirement by invest-ing in your company’s 401(k) plan, you probably are using this approach.

With dollar cost averaging, you buy more fund shares or stock shares when prices are down, fewer shares when prices are up. Over time, this will lower your cost per share and can lead to high-er profits.

• Allocate and rebalance. You should have a plan for your investing, rather than relying on tips and rumors. Studies show that asset allocation is vital to a successful investment plan—you might aim to have certain portions of your portfolio in stocks, bonds, foreign securities, and perhaps in other asset classes as well.

From time to time, revisit your allocation and bring it back into line. If you want 60% exposure to U.S. stocks, for example, but a bull market brings that allocation up to 75%, you might sell some stocks and reinvest in other assets to get back to your desired position.

• Use tax tactics. Selling securities that have lost value can produce capital losses, which offer tax benefits. Those losses can offset capital gains you take, whereas net losses up to $3,000 can be deducted on your tax return each year. Excess losses carry over to future years, where they’ll de-liver the same tax benefits. Be sure not to reinvest in the security you’ve sold at a loss within 30 days. That’s considered a wash sale, which will deprive you of the tax benefit.

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Although traditional 401(k) plans have be-come widespread, many employers are adding Roth 401(k)s to their employee

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• Traditional 401(k)s are funded largely with pretax dollars. Withdrawals are fully or mostly subject to income tax.

• Roth 401(k)s are funded with after-tax dollars. Withdrawals are completely tax-free after you have had the account for 5 years and reach age 591⁄2.

New OpportunityUnder the new tax law (see the April 2013 Financial

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withdraw as much as she’d like without owing tax.

Arlene will pay a price for this future income stream. She’ll owe income tax on all the pretax money she moves from her traditional 401(k) to the Roth 401(k). Assuming Arlene’s traditional 401(k) is all pretax, she’ll add $80,000 to her taxable income for 2013, if she executes a full conversion this year.

Balancing the bracketsPerhaps most important, you should compare your present tax rate to your estimated future tax rate. Ideally, you’ll pay tax now at a relatively low tax rate, then take tax-free withdrawals at a

time when your tax rate would have been much higher.

The catch, of course, is that converting a traditional 401(k) to a Roth 401(k) will increase your income and may push you into a higher tax bracket in the year of the conversion.

Example 2: Suppose Arlene Baxter is single and

expects her taxable income this year, after deductions, to be around $75,000. In 2013, such income puts Arlene in the 25% federal tax bracket, which goes up to $87,850 of taxable income. If Arlene implements a full $80,000 conversion, she’ll move into the 28% bracket for the year and owe the higher rate on most of her conversion.

Arlene may not want to pay that much in tax, considering she has no idea of what her income or the tax rates will be when she’s age 59½. Therefore, Arlene decides to convert only $10,000 of her traditional 401(k) to a Roth 401(k) in 2013. She will stay in the 25% bracket, so the conversion will increase her tax bill by only $2,500 for the year: 25% of $10,000. Arlene is confident that she will be able to pay that tax without having to borrow from her 401(k) or tap her IRA.

You may decide that taking a series of partial conversions each year is a prudent way to build a tax-free retirement fund. However, the rules on Roth 401(k) plans are complex. For instance, such conversions are irrevocable, so they lack the flexibility of a Roth IRA conversion, which can be reversed. Our office can go over the outlook for an in-plan Roth conversion in your particular circumstances. g

Using the Work Opportunity Tax CreditAmong the business related provisions of the American Taxpayer Relief Act of 2013, the work opportunity tax credit (WOTC) was extended retroactively, for 2012, and also through 2013. Under the WOTC, employers can receive federal tax credits for hiring and retaining workers from specific groups of individuals that have been designated as facing significant barriers to employment.

Taking credit If your company hires a worker covered by the WOTC, the tax credit you can claim will depend on the target group of the individual, the amount you pay him or her for the first year of employment, and the number of hours that individual worked. Here are the basic rules. If an employee works

�at least 120 hours, you can claim a tax credit of 25% of the individual’s first year wages. �at least 400 hours, you can claim a tax credit of 40% of the individual’s first year wages.Generally, the maximum tax

credit is $2,400. That ceiling applies if you hire food stamp recipients, certain residents of a federally designated Enterprise Community, Renewal Community, Rural Renewal County or Empowerment Zone, individuals in certain vocational rehab programs, ex-felons, or recipients of Supplemental Security Income benefits. If you hire a qualified summer youth employee (i.e., a 16 or 17-year-old who lives in an Empowerment Zone, an Enterprise Community, or a Renewal Community) to work for

your company between May 1 and September 15, the maximum tax credit is $1,200.

As explained in the following paragraphs, two other categories of employees have higher maximum WOTC credits.

Hiring veteransYou may be able to claim the WOTC if your company hires a veteran who served on active duty (not including training) in the U.S. Armed Forces for more than 180 days or has been discharged or released from active duty because of a service related disability. That person must not have been on active duty (not including training) for more than 90 days within the 60-day period before being hired.

To get the tax credit, your company must hire a veteran who

continued on page 456 “BUY FROM THE ADVERTISERS IN CONSTRUCTION OUTLOOK” MAY, 2013



nated without a similar substitute in place. The new tax law permits current participants to convert without having to meet any of those requirements.

Example 1: Arlene Baxter, age 32, works for ABC Corp., where she participates in a traditional 401(k) plan. ABC also offers a Roth 401(k); in-plan conversions are allowed. Arlene, who has $80,000 in her 401(k), can convert any or all of that $80,000 from her traditional 401(k) to a Roth 401(k).

As mentioned, Arlene creates an opportunity to re-ceive tax-free cash flow in the future when she moves money into the Roth version. Once she reaches 591⁄2, Arlene will be beyond the 5-year mark so she can with-draw as much as she’d like without owing tax.

Arlene will pay a price for this future income stream. She’ll owe income tax on all the pretax mon-ey she moves from her traditional 401(k) to the Roth 401(k). Assuming Arlene’s traditional 401(k) is all pretax, she’ll add $80,000 to her taxable income for 2013, if she executes a full conversion this year.

Balancing the BracketsPerhaps most important, you should compare

your present tax rate to your estimated future tax rate. Ideally, you’ll pay tax now at a relatively low tax rate, then take tax-free withdrawals at a time when your tax rate would have been much higher.

The catch, of course, is that converting a tradi-tional 401(k) to a Roth 401(k) will increase your in-come and may push you into a higher tax bracket in the year of the conversion.

Example 2: Suppose Arlene Baxter is single and expects her taxable income this year, after deduc-tions, to be around $75,000. In 2013, such income puts Arlene in the 25% federal tax bracket, which goes up to $87,850 of taxable income. If Arlene im-plements a full $80,000 conversion, she’ll move into the 28% bracket for the year and owe the higher rate on most of her conversion.

Arlene may not want to pay that much in tax, con-sidering she has no idea of what her income or the tax rates will be when she’s age 591⁄2. Therefore, Ar-lene decides to convert only $10,000 of her traditional 401(k) to a Roth 401(k) in 2013. She will stay in the 25% bracket, so the conversion will increase her tax bill by only $2,500 for the year: 25% of $10,000. Arlene is confident that she will be able to pay that tax without having to borrow from her 401(k) or tap her IRA.

You may decide that taking a series of partial conversions each year is a prudent way to build a tax-free retirement fund. However, the rules on Roth 401(k) plans are complex. For instance, such conver-sions are irrevocable, so they lack the flexibility of a Roth IRA conversion, which can be reversed.

Lorusso Corporation3 Belcher St. • Plainville, MA 02762

Tel: 866-695-3252 • Fax: 508-699-2387email: [email protected]

Lorusso Corporation – for all your material and site needs.

QUALITY AND SERVICE

lorussocorp.com

PRODUCTS• Bituminous Concrete• Sand & Gravel • Crushed & Landscape Stone• Screened Loam & Compost • Recycled Aggregate Products

SERVICES• Paving• Trench Preparation & Repair • Roadway Construction• Material Recycling• Roll Off Containers

QUARRY & RECYCLING40 Cross Street • Plainville, MA

125 Tiffany Street • Attleboro, MA

ASPHALT PLANT635 Pleasant Street

Norwood, MA

P. O. Box 115Centerville, MA 02632

Meredith Allen OurRobert B. Our, III

• New Units with Hand Sanitizers• Specializing in Units for

Construction Sites • Handicapped Units Available

www.ourouthouses.com




Using the Work OpportunityTax Credit

Among the business related provisions of the American Taxpayer Relief Act of 2013, the work opportunity tax credit (WOTC)

was extended retroactively, for 2012, and also through 2013. Under the WOTC, employers can receive federal tax credits for hiring and retaining workers from specific groups of in-dividuals that have been designated as facing significant barriers to employment.

Taking CreditIf your company hires a worker covered by the

WOTC, the tax credit you can claim will depend on the target group of the individual, the amount you pay him or her for the first year of employment, and the number of hours that individual worked. Here are the basic rules. If an employee works

• at least 120 hours, you can claim a tax credit of 25% of the individual’s first year wages.

• at least 400 hours, you can claim a tax credit of 40% of the individual’s first year wages.

Generally, the maximum tax credit is $2,400. That ceiling applies if you hire food stamp recipients, certain residents of a federally designated Enterprise Community, Renewal Community, Rural Renewal County or Empowerment Zone, individuals in certain vocational rehab programs, ex-felons, or recipients of Supplemental Security Income benefits. If you hire a qualified summer youth employee (i.e., a 16 or 17-year-old who lives in an Empowerment Zone, an Enterprise Community, or a Renewal Community) to work for your company between May 1 and Septem-ber 15, the maximum tax credit is $1,200.

As explained in the following paragraphs, two other categories of employees have higher maximum WOTC credits.

Hiring VeteransYou may be able to claim the WOTC if your com-

pany hires a veteran who served on active duty (not including training) in the U.S. Armed Forces for more than 180 days or has been discharged or released from active duty because of a service related disabil-ity. That person must not have been on active duty (not including training) for more than 90 days within the 60-day period before being hired.

To get the tax credit, your company must hire a veteran who meets certain other criteria, such as be-

ing a member of a family receiving food stamps, hav-ing a service related disability, or having a lengthy peri-od of unemployment. The maximum WOTC is $2,400 for hiring a qualified veteran unemployed for at least 4 weeks but less than 6 months during the 1-year period ending on the hiring date. The maximum credit is in-creased to $5,600 for hiring a qualified veteran unem-ployed for at least 6 months or more during the 1-year period ending on the hiring date. For hiring a veteran who has been on food stamps for at least a 3-month period ending during the 12-month period ending on the hiring date, the maximum credit is $2,400.

Special rules apply to veterans entitled to com-pensation for a service related disability. If such a vet-eran is hired by your company within 1 year of leaving the service, your company can receive a tax credit up to $4,800. If such a veteran was unemployed for at least 6 months during the 1-year period ending on the date of hiring, you can receive a credit up to $9,600.

L. GUERINI GROUP, INC.SINCE 1917

Material Placement Specialists

34 Topalian StreetPO Box 260187Boston, MA 02126(617) 296-0290www.guerini.com

CONCRETE PUMPING EQUIPMENT“TELEBELT” MOBILE CONVEYORS

STONE SLINGER SERVICEPumpsUpTo200yds/hr•BoomsUpTo142’Reach

LinePumps•GroutPumpsMaterial Placement To 106’




Hiring Members of Needy FamiliesTemporary Assistance to Needy Families (TANF)

is a federal program. If you hire a short-term TANF re-cipient—any member of a family that received TANF benefits for 9 of the 18 months before being hired— the maximum WOTC is $2,400.

Your company also can hire a long-term TANF recipient. That’s someone from a family meeting any of the following conditions:

• The family received TANF benefits during the 18 month period ending on the hiring date.

• The family received TANF benefits for at least 18 months after August 5, 1997. The employ-ee’s hiring date must be no more than 2 years after the earliest 18-month period.

• The family stopped being eligible for TANF payments during the past two years because a federal or state law limited the time those payments could be made.

If your company hires an employee from the long-term TANF group, it can take the WOTC over two years.

• If the individual works at least 120 hours in the first year, the employer may claim a tax credit equal to 40% of first-year wages.

• If the individual works at least 400 hours in the second year, the employer may claim a tax credit equal to 50% of second-year wages.

Companies that hire long-term TANF recipients can take a WOTC up to a total of $9,000, over those two years.

To apply for the WOTC, your company must fill out and submit several IRS and Labor Dept. forms.

Reprinted from the CPA Client Bulletin. n

Veteran Target Group

Maximum Tax Credit

Receives food stamps $2,400

Entitled to compensation for service-connected disability

Hired one year from $4,800leaving service

Unemployed at least $9,6006 months

Unemployed

At least 4 weeks $2,400

At least 6 months $5,600

Source: U.S. Department Of Labor

GEOD CONSULTING Professional Land Surveyors & Engineers

Construction Surveying Specialists Engineering/CADD Services

GPS Consultants Providing Surveying, Engineering & CADD Services to construction companies in the New England area. Experienced in construction layout of highways, utilities, schools, bridges and site development.

24 Ray Avenue Burlington, MA 01803

Phone 781-273-3434 Fax: 781-273-3430

Expands Services to Include Subsurface Utility Mapping

CONSULTING

Engineering•Transportation•Surveying

24 Ray Avenue • Burlington, MA 01803Tel: 781.273.3434 • Fax: 781.273.3430

www.geodcorp.com

GEOD CONSULTING Professional Land Surveyors & Engineers

Construction Surveying Specialists Engineering/CADD Services

GPS Consultants Providing Surveying, Engineering & CADD Services to construction companies in the New England area. Experienced in construction layout of highways, utilities, schools, bridges and site development.

24 Ray Avenue Burlington, MA 01803

Phone 781-273-3434 Fax: 781-273-3430

SAND & STONE CORP.192 Plain St.

North Attleboro, MA 02760(508) 699-2911

www.borocorp.com

E.H. Perkins Construction, Inc.

& Subsidiaries

GRAVEL • SAND • STONEFILL AND LOAM

BITUMINOUS CONCRETE (PAVING)READY-MIX CONCRETE

PRECAST CONCRETE PRODUCTS

P.O. Box 301, Wayland, MA 01778(508) 358-6161 • (781) 890-6505

E H P

Advertisers’ IndexATS Equipment, Inc. ..........................................................14Adler Tank Rentals ...............................................................8Arruda Trenchless Construction .........................................51Boro Sand & Stone Corp. ....................................................59Dennis K. Burke, Inc. ..........................................................34Concrete Systems, Inc. ........................................................22Dagle Electrical Construction, Corp. ................................. 24Darmody, Merlino & Co., LLP............................................51DeSanctis Insurance Agency, Inc. ......................................18Dig Safe System, Inc..............................................................9The Driscoll Agency ...........................................................28EJ ........................................................................................ 40Eastern States Insurance Agency, Inc. ................................25T. L. Edwards, Inc................................................................39Ferguson Waterworks ............................................................7Ford Meter Box Co. .............................................................32Fringe Consulting ................................................................32Genalco, Inc. ........................................................................33Geod Consulting, Inc. ..........................................................59L. Guerini Group, Inc. .........................................................58HD Supply Waterworks .........................................................2A. H. Harris & Sons, Inc. ...................................................56Hinckley Allen Snyder, LLP ...............................................10P. J. Keating Company .........................................................20P. A. Landers, Inc.................................................................13Lawrence-Lynch Corp. ........................................................50Liddell Brothers Inc. ............................................................12Lorusso Corp. ......................................................................57Lorusso Heavy Equipment, LLC.........................................48Mabey, Inc. ......................................................................... 44Mass Broken Stone Company ..............................................55Milton CAT ..........................................................................26Our Outhouses, Inc. .............................................................57Palmer Paving Corporation .................................................54E. H. Perkins Construction Co., Inc. .................................. 60Podgurski Corp. ..................................................................54E. J. Prescott, Inc. ............................................ Ins. Front Cvr.Rain For Rent-New England ................................................38Read Custom Soils ................................................................9Rodman Ford .......................................................................30Rogers & Gray Insurance Agency, Inc. ...............................16Schmidt Equipment, Inc. ........................................ Back Cvr.The Scituate Companies .................................. Ins. Back Cvr.Shea Concrete Products .......................................................36Smith Print ...........................................................................54Social Mavens ......................................................................35Sunbelt Rentals Pump& Power Services ...............................4Systems Support Corporation ............................................. 46Taylor Oil Company ............................................................55Ti-SALES, Inc. ...................................................................29Albert J. Tonry & Co., Inc. ..................................................34Travelers .............................................................................. 44Tri-Products, LLC .............................................................. 46United Concrete Products, Inc. ...........................................11United Rentals Trench Safety ..............................................52C. N. Wood Co., Inc. ...........................................................42Woodco Machinery, Inc.........................................................6

QUINN-PERKINS S & G CO.Burlington

(781) 272-0200

PANDOLF-PERKINS CO.Sterling

(978) 422-8812 • (800) 339-3389

KANE-PERKINS CO. Hudson

(978) 562-3436 • (800) 287-3436

-PLANT LOCATIONS-


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Construction Outlook May 2013

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