ABC of Indiana/Kentucky - The Merit Contractor Connection Magazine, Winter 2021

06Infrastructure Investment and Jobs Act Chapter Craft Championships 10 O F F I C I A L PUB L I CAT I ON O F A S SOC I AT E D BU I L D E R S & CON T R AC T OR S O F I ND I ANA / K E N T UCK Y WINTER 2021 THE MERIT

06 FEATURES DEPARTMENTS 04 From the Chairman 05 From the President 14 Welcome New Members 06 I nfrastructure Investment and Jobs Act 08 W hen it Comes to Contract Clauses, the Order DOES Matter 10 C hapter Craft Championships WINTER 2021 THE MERIT PUBLISHED FOR Associated Builders and Contractors Indiana / Kentucky Chapter 4201 Parnell Avenue Fort Wayne, IN 46805 p. (317) 596-4950 f. (317) 596-4957 To submit editorial or request information please contact Felisha at (317) 596-4950 or PUBLISHED BY E&M Consulting, Inc. p. 800.572.0011 MANAGERS Caleb Tindal Kayla Grams LAYOUT & DESIGN Katie Kruzel COPY EDITOR Kristin Allman PLEASE NOTE: Editorial and contents of this magazine reflect the records of the Associated Builders and Contractors Indiana/Kentucky Chapter. ABC Indiana/ Kentucky has done their best to provide useful and accurate information, but please take into account that some information does change. E&M Consulting, Inc., publishers, and ABC Indiana/Kentucky take no responsibility for the accuracy of the information printed, inadvertent omissions, printing errors, nor do they endorse products and services. We take no responsibility regarding representations or warranties concerning the content of advertisements of products/ services for a particular use, including all information, graphics, copyrighted materials, and assertions included in the advertisements. The reader is advised to independently check all information before basing decisions on such information. Any views or opinions expressed in this publication are those of the authors and do not necessarily reflect the views of E&M Consulting, Inc., publishers. For information regarding advertising, please contact us at or 800.572.0011 x8005. 08 The MERIT CONTRACTOR CONNECTION WINTER 2021 3

We began the year talking about “sticking together” — both professionally and personal ly — and navigating the continuing pandemic issues for all of us, as well as the political and economic uncertainties rolling into 2021. And we did that. We stuck together as a Chapter, receiving over 92% renewal by members for 2021, and gaining new members along the way — and we’re definitely going to need that for 2022. It’s an exciting time going into the new political season, but there are also very uncertain economic conditions going forward. ABC National is pushing many initiatives to stay in front of the continuing onslaught coming out of Washington — from COVID mandates to OSHA oversight and even the FBI spending way too much time investigating parents who are just standing up for their kids. The challenges we face will never stop. We must maintain our solidified front moving forward to defend Merit Shop — for our families, our employees, and our future. The last couple of years have proven that who we surround ourselves with — in person or virtually — matters, both for our businesses and our personal lives. Associated Builders & Contractors delivers the bond that we all need to succeed in both arenas. Having support from a solid group when times are tough and changing can mean the difference between success and failure. Finish Strong is not just an “end-of-year” statement — it’s everything we do; it’s Merit Shop. Let’s keep the pressure on to maintain our way of life and our beliefs, and let’s support all of those who continue to support us along the way. As my year as Board Chairman winds down, I want to extend a special “thank you” to a very solid group — the wonderful staff we have at our Indiana/Kentucky Chapter. It is impossible to accomplish all of the great things that we do every year without you, so thank you to each of you. Thank you for allowing me this opportunity to be Chairman of the Board for your Chapter; it was truly my honor. Finish Strong. Jake Gibson Jake Gibson, Gibson Commercial Construction Chairman of the Board, ABC Indiana/Kentucky Chapter From the Chairman FINISH STRONG 4 The MERIT CONTRACTOR CONNECTION WINTER 2021

ABC was founded on, and has become a family of, like-minded, liberty-loving entrepreneurs who support each other in protecting our businesses. By doing that, we collectively support the greater cause of the Merit Shop. I am proud to carry the banner of liberty and freedom as a spokesperson for ABC Indiana/Kentucky. One of my goals this year in the articles I have written, and the places I have spoken, is to clearly articulate what ABC and Merit Shop believe, and why we feel the way we do. We have allowed the far-left liberals to define who we are, and then we appear weak in our own defense. What can be done about these assaults on our liberty, businesses, family and country? All of us need to be more engaged in the public arena, whether it is with your school boards and local officials, or with state and national elected officials who represent you. We have to tell them how the policies that they vote on affect our lives. As much as this is foreign ground to many of us, by staying silent or assuming they will figure it out, we leave space for radical activists to fill that void with their loud voices. We also have to make an intentional effort within our families to tell of the exceptionalism and innovation that our country has fostered. We need to explain how capitalism works and why the ideas of socialism, which are being cleverly repackaged, harm our society. As a way to encourage all of you, here are some words by Thomas Paine. He wrote to George Washington’s troops who, in December of 1776, were feeling hopeless about their circumstances and prospects of winning the Revolutionary War. “These are times to try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country. What we obtain too cheap, we esteem too lightly. I call not upon a few, but upon all; lay your shoulders to the wheel; better have too much force than too little when so great is the object of our freedoms which are at stake.” ABC is proud to lead in proclaiming liberty with you and on your behalf. J.R. Gaylor J.R. Gaylor, President ABC Indiana/Kentucky Chapter We Choose LIBERTY From the President The MERIT CONTRACTOR CONNECTION WINTER 2021 5

Infrastructure Investment and Jobs Act The employee retention credit will now only apply to wages paid before October 1, 2021. Therefore, the third quarter of 2021 is the last quarter eligible for the credit. The fourth quarter will NOT be eligible unless you are a recovery start-up business. A recovery start-up business is one that began carrying on any trade or business after February 15, 2020, and has average annual gross receipts not exceeding $1 million for the three-tax-year period that precedes the calendar quarter for which the employee retention credit is determined. Digital assets such as cryptocurrency valued at over $10,000 will now be treated like cash for reporting purposes. A person engaged in a trade or business who receives more than $10,000 in cash or digital assets (in one or more related transactions) in the course of that trade or business must file an information return with the IRS and furnish the payor with a statement. It’s important to know that Congress is still trying to pass additional legislation that would have a significant tax impact on certain individuals and businesses. One potential provision within this additional legislation is the expansion of the 3.8% net investment income surtax to all pass-through entities whose owners have greater than $400,000 ($500,000 for a married couple filing jointly) in taxable income. Another potential provision is that the 1202 stock exemption rules (75% and 100%) would no longer apply to taxpayers with AGI exceeding $400,000. Additionally, there could be a one-year extension on the increase in the Child Tax Credit. Advance payments would only be allowable for taxpayers with incomes below $150,000 MFJ using prior year tax info. Further, there could be a 5% surtax on income over $10 million and an additional 3% for income over $25 million; a 15% global income tax on foreign profits of U.S. companies; and a 15% corporate minimum tax on companies with over $1 billion in profits. Tax experts at Somerset CPAs and Advisors monitor legislation closely and are available to assist with questions regarding the impact of the Infrastructure Investment and Jobs Act on your business. For additional information, contact your Somerset Advisor, or reach out to us at By Shaun M. Heinzelman, CPA, Somerset CPAs and Advisors On November 15, 2021, President Biden signed into law the $1 trillion Infrastructure Investment and Jobs Act. The passing of this Act will have an effect on many businesses. A couple provisions within the Act to keep in mind now include Employee Retention Credit eligibility and digital asset reporting. 6 The MERIT CONTRACTOR CONNECTION WINTER 2021 Feature

The complexity of construction projects has increased over time — with a corresponding expansion of the contract documents utilized to build the job. With this expansion comes an increased risk of conflict and/or ambiguity within the contract documents themselves. Since a flawless project manual may be as elusive as a surprise-free job, the contractor is often left with a dilemma as to which specification controls. Most times the issue can be resolved at the project level. But what if the size or scope of the ambiguity proves too impactful to resolve in this informal manner? What controls? The answer can be provided by an order of precedence clause, which identifies the order in which the various contract documents are prioritized when resolving a conflict or ambiguity by and between the requirements of those contract documents. The goal of a precedence clause is to create certainty in the resolution of a conflict or ambiguity in the contract documents. In theory, there is a contractual “tie break” so to speak, thus, never leaving the matter unsettled. Of course, sometimes that certainty comes at the cost of the equitable resolution. One of the challenges in deciding whether to include an order of precedence clause, and how to prioritize the contract documents within that clause, is the difficulty of determining how that priority will affect the outcome of a dispute. Imagine a set of drawings that depict the design of a distribution center. The civil drawings identify 50 engine block heaters installed throughout the site to warm truck engines during the winter months. The electrical site drawings identify 40 engine block heaters. The electrical site drawings are much more specific regarding the number and location of the engine block heaters, even identifying each circuit within the electrical panels that serve the 40 engine block heaters. The project owner, a developer, demands that the general contractor install an additional 10 engine block heaters as shown on the civil drawings. The owner points to the order of precedence clause in the contract that gives precedence to larger-scale drawings over smaller-scale drawings. It just so happens that the civil drawings are drawn on a larger scale than the electrical site drawings. They also may be prepared by different designers—the lead architect firm and the separately engaged electrical consultant. In reference to the issue of the engine block heaters, the general contractor argues that the more specific, detailed drawing should control over the more general drawing. Who wins? Basic deductive reasoning suggests that the intent of the design is for 40 engine block heaters to be installed, but should the order of precedence clause be applied anyway? After all, the order of precedence clause typically does not require any analysis or interpretation; rather, it provides the road map for reaching the contractually determined conclusion. In so doing, the precedence clause eliminates any subjectivity in determining the outcome. The question for judges, arbitrators, and even initial decision-makers is when the order of precedence clause should be invoked. Should it be the first authority consulted any time there is a difference between or among the contract documents? Or, is there a preliminary analysis that must take place using rules of contract interpretation, which have developed over decades of case law and provide the framework for the contract analysis in the absence of an order of precedence clause? While many construction professionals, such as the developer in the example above, will immediately look to the order of precedence clause as the controlling authority, courts will often attempt to interpret the terms of the contract prior to (or at least in conjunction with) applying the order of precedence clause. One of the primary rules of contract interpretation is the court's attempts to determine the intent of the parties from the four corners of the contract. If the joint intent of the parties can be ascertained from the actual contractual language, then that language controls. In other words, if the contract can be applied to avoid inconsistencies between clauses, there is no need to refer to the order of precedence clause. Courts will seek interpretations By Dan Drewry, Drewry Simmons Vornehm, LLP When it Comes to Contract Clauses, THE ORDER DOES MATTER 8 The MERIT CONTRACTOR CONNECTION WINTER 2021 Feature

inferable from them as being necessary to produce the indicated results.” § 1.2.1, AIA A201 – 2017. Given these clauses and the applicable case law, the decision-maker (whether a court, arbitrator, architect, or other initial decision-maker) should attempt to resolve any internal conflicts using traditional contract interpretation rules first before invoking the order of precedence clause. Interestingly, of the two primary standard form contracts used in building construction, ConsensusDocs and AIA, only ConsensusDocs contains an order of precedence clause. AIA, quite famously, recommends against incorporating an order of precedence clause in the contract documents. Their reasoning is that it is the architect’s responsibility to interpret the contract documents and an artificial hierarchy would interfere with the proper criteria for the architect’s interpretation. ConsensusDocs, on the other hand, desires the certainty created by the inclusion of an order of precedence clause. §§ 14.2.2, 14.2.3 ConsensusDocs 200 ©. The two approaches are quite different and are both good examples of how one may choose to address order of precedence clauses in construction contracts. If you choose to include an order of precedence clause or have to negotiate the specific language of an order of precedence clause, consider whether to include language requiring the decisionmaker to first undertake an analysis using traditional contract interpretation techniques in an effort to determine the intent of the parties as a precursor to invoking the order of precedence clause. While doing so may interject some measure of subjectivity into an otherwise mechanical interpretation, doing so may avoid inequitable results (and unnecessary disputes). Dan Drewry is a partner with the law firm of Drewry Simmons Vornehm, LLP, ( with offices in Carmel, Indianapolis and Crown Point, Indiana. Dan is Chapter Counsel for ABC of Indiana/Kentucky. that harmonize provisions, rather than those that require you to read out or ignore conflicting terms. Additionally, when in conflict, specific language or terms control over more general language. A common term in construction contracts reinforces this process. Most sophisticated construction contracts contain a term that requires the contract documents to be read together in conjunction with one another in order to determine the extent of the contractor’s obligations. “The drawings and specifications are complementary. If work is shown only on one but not on the other, constructor shall perform the work as though fully described on both.” § 14.2.1, ConsensusDocs 200 © 2011, Revised June 2019. “The Contract Documents are complementary, and what is required by one shall be as binding as if required by all; performance by the Contractor shall be required only to the extent consistent with the Contract Documents and reasonably The MERIT CONTRACTOR CONNECTION WINTER 2021 9

CHAPTER CRAFT CHAMPIONSHIPS The Chapter Craft Championships gives all third- and fourth-year apprentices the opportunity to compete in a competition to find the best of the best in each trade. The competition starts with a written exam given to all apprentices. The top scoring apprentices are then invited to ABC Indiana/Kentucky Headquarters to compete in a practical performance test. First place winners are awarded with an all-expenses paid trip to the ABC National competition, this year in San Antonio, Texas. We invited 37 apprentices to compete in seven different trades. SAFETY AWARD WINNER James Rahrer Sterling Electric - Fort Wayne CARPENTRY WINNERS 1st Sean Dailey CDR Construction - Elkhart 2nd Marcus Poland DJ Construction Co., Inc. - Goshen 3rd Henry Irvin Meyer Najem Construction, LLC - Fishers SHEET METAL WINNER 1st Jason Sloan Metal Masters, Inc. - Indianapolis POWERLINE WORKER WINNER 1st Raymond Dean Gaylor Electric Inc. - Indianapolis 10 The MERIT CONTRACTOR CONNECTION WINTER 2021

PLUMBING WINNERS 1st James Perry TPC Mechanical Contractors, LLC - Carmel 2nd Shelby Block Triple J Plumbing LLC - New Castle 3rd Chase Seals John Fowler Plumbing - Indianapolis HVAC WINNERS 1st Will Larrabee Ellis Mechanical & Electrical - Indianapolis 2nd Jose Lagunas Mercado Commercial Trade Source - Indianapolis ELECTRICAL: RESIDENTIAL COMMERCIAL WINNERS 1st Aaron Swisher Gaylor Electric, Inc. - Lafayette 2nd Tyler Ridge Gaylor Electric, Inc. - Lafayette 3rd Kagan Cipolla Gaylor Electric Inc. - Muncie ELECTRICAL: COMMERCIAL INDUSTRIAL WINNERS 1st James Rahrer Sterling Electric - Fort Wayne 2nd Alan Rich Gaylor Electric, Inc. - Elkhart 3rd Aaron Didion Kissinger Electric, Inc. - Columbia City THANK YOU, SPONSORS The MERIT CONTRACTOR CONNECTION WINTER 2021 11

Chapter Officers Chairman of the Board of Directors Jake Gibson, Gibson Commercial Construction Past Chairman of the Board Chuck Goodrich, Gaylor Electric, Inc. Chair Appointment for Treasurer Ken J. Hedlund, Somerset CPAs, P.C. Apprenticeship Trust Chair Rob Griffith, Gaylor Electric Inc. Chapter Attorneys Dan Drewry and Mike Drewry, Drewry Simmons Vornehm, LLP Chair Elect Steve Kidwell, Design & Build Electrical Engineering & Contractors, Inc. Council Appointees Kentuckiana Council Ryan Gobert, Total Tool Supply North Central Council Tyler Kingdon, Custom Concrete Co., Inc. Northeast Council Chuck Henry, Sr., Henry Electric, Inc. Northwest Council Rick Slagle, Majority Builders, Inc. Southwest Council G. Michael Murphy, Scott, Murphy & Daniel Board Members Kentuckiana John Kraft, MAC Construction & Excavating, Inc. Billy Palmer, Palmer Roofing & Sheet Metal Angela Richie, Gordon & Rees Scully Mansukhani, LLP Joe Salsman, KCC Mechanical Jean Terry, Gordon & Rees Scully Mansukhani, LLP North Central Rob Baumgartner, M J Insurance, Inc. Joe Burgess, Wurster Construction Co., Inc. Chase Cooper, S & B Construction Group LLC Ryan Ellis, Professional Labor Support, LLC Tom Goecker, Goecker Construction, Inc. Jason Gordon, Gordon Plumbing, Inc. Mark Hildebrandt, Dilling Group, Inc. John D. Roop, Jr., Capitol City Fence Co., Inc. Andrew Waggoner, Ferguson Construction Company Adam Windler, Meyer Najem Construction Northeast Charles Henry, Henry Electric, Inc. Northwest Kevin Berger, Easterday Construction Co., Inc. Don Windler, WINCO Construction Company, Inc. Southeast Patrick McCowan, Gray Construction Cam Ruddell, Wehr Constructors, Inc. Southwest Mike Wagner, Green Mechanical Construction, Inc.

Accredited Safety Solutions Inc. Robert Clouse 1581 Blue Phlox Drive Avon, IN 46123 Phone: (317) 995-7759 Other Technical and Trade Schools Supplier - Under $3 million Crane Certification Training Adams Architectural Photo & Video Joshua Adams 619 Landis Ridge Drive Louisville, KY 40245 Phone: (502) 251-3970 Other Activities Related to Real Estate Architectural Services Other Services Related to Advertising Advertising Material Distribution Services Associate - 0 to 24 employees Marketing photos, videos, drone services, virtual tours, and more Best Supply Inc. Matt Ward 9215 East 33rd Street Indianapolis, IN 46235 Phone: (317) 762-2400 Other Building Material Dealers Supplier - Over $3 million Supply of interior building materials Buffalo Construction Inc. Tim Fishburn 12700 Otto Knop Drive Louisville, KY 40299 Phone: (502) 327-4686 tim.fishburn@ General Requirements >$100 million to $250 million General Contractor Coopers Water Conditioning Inc. Kris Griffith 10830 Bennet Parkway, Suite H Zionsville, IN 46077 Phone: (317) 870-7773 kris.griffith@coopers www.coopers All Other Support Services Supplier - Under $3 million Water Softeners, RO Systems, Bottled Water, Salt, Sales/ Installation/Service FallTech Adam Neyhart 5395 West Gasline Road Frankfort, IN 46041 Phone: (765) 652-8011 All Other Miscellaneous Manufacturing All Other Miscellaneous Textile Product Mills Supplier - Over $3 million Call us single-minded, but fall protection is our one and only passion. For us, making the workplace safer is everything — because what we do today saves lives tomorrow. Palmer Trucks Scott Mammolenti 3099 Element Lane Louisville, KY 40299 Phone: (502) 381-2438 smammolenti@ New Car Dealers Truck, Utility Trailer, and RV (Recreational Vehicle) Rental and Leasing General Automotive Repair Associate - 25 or more employees Truck Sales & Service Smash My Trash Jeremy Dunlap 17437 Carey Road, Suite #164 Westfield, IN 46074 Phone: (844) 762-7400 jeremy.dunlap@ Recyclable material collection services Supplier - Over $3 million Compacting VanMor Agency, LLC Curt Parrott P.O. Box 231 Vincennes, IN 47591 Street Address 1278 Spring Lake Drive Brownsburg, IN 46112 Phone: (317) 374-2299 Other Scientific and Technical Consulting Services Supplier - Under $3 million Industrial Level Rescue/Safety/ OSHA Training/Industrial Hygiene/CPR and FA/Hydrostatic for portable cylinders including Fire extinguisher maintenance, Fire hose/Safety oversight Welcome NEW MEMBERS 14 The MERIT CONTRACTOR CONNECTION WINTER 2021

ATS, All Trades Staffing, Inc. Baumgartner & Company Asphalt Services Berline Construction, Inc. Blue & Co., LLC Boyle Construction Management, Inc. Brandt Construction, Inc. Capitol City Fence Co., Inc. CMS Corporation Comfort Systems USA Indiana Commercial Trade Source D & K Electric, Inc. Delaware Glass & Mirror Co., Inc. Dimond Bros Insurance, LLC Drewry Simmons Vornehm, LLP F. W. Owens Company, Inc. FCCI Insurance Group Ferguson Construction Company Ferrer Mechanical Services, Inc. Freije Engineered Solutions Company Gaylor Electric, Inc. Gibson Goecker Construction, Inc. Gordon Plumbing, Inc. Henry Electric, Inc. James Babcock, Inc. Liberty Developing, Inc. M.J. Schuetz Insurance Services, Inc. McGowan Insurance Group, Inc. Professional Labor Support, LLC ResCom Management Systems, Inc. Robert D. Young Construction, Inc. Rock n Dirt Excavating, LLC Royal Flush Inc. Runnebohm Construction Co. Safety Management Group/SMG Sikich, LLP Somerset CPAs and Advisors Summit Construction Co., Inc. T&W Corporation Tradesmen International, LLC WINCO Construction Co., Inc. Wurster Construction Co., Inc. Contact Felisha Anderson at (317) 596-4950 or via email at to learn more about the many benefits of being an Executive Club member! ABC of Indiana/Kentucky Welcomes 2021 Executive Club Members The MERIT CONTRACTOR CONNECTION WINTER 2021 15