Learning Center Webinars Understanding Retainage in the Construction Industry
Understanding Retainage in the Construction Industry
Credit Manager
Experts in this video
Thea Dudley
Matt Viator
Lori Drake
"Oh, it's retainage – the STAIN on your A/R!"
Retainage. Possibly the most misunderstood (right behind mechanics liens) and frustrating aspects of the credit and collections process. The issue of retainage leaves many credit managers feeling powerless and destined watch the cash equivalent of paint drying on the AR in the form a receivable. Think this is the way it has to be? Think again!
Join Thea Dudley and Matt Viator for a candid discussion on how to turn the tide on the never ending story that is retainage. It all starts with knowledge and the contract. Learn where to push and how to reduce your collection time in the retainage game.
Register for this webinar to learn:
History of retainage; why it exists and the rules and regulations involved and how to leverage your rights
How to overcome the cash flow challenges, plan for the impacts and emerge profitable
Tips and Tricks to manage the impact
Speaker 1 (00:04):
We will go ahead and get started. If you haven't answered our icebreaker yet, please go ahead and put in your chat box. What you hope to learn from today's webinar, or if you have any questions on routine edge. Thank you for joining us this afternoon. I know it's been a crazy time and we will. We do appreciate you joining us right after the holiday weekend. Today we're gonna talk about retainage in the construction industry and as the says, oh, it's retainage the stain on your AR it should be a great one. My name is Lori and I am the payment professionals, community manager here at level set. If you don't know what level set does we basically handled compliance for construction dealing with liens waivers, any payment issues. We now have a community that provides education. Like the webinar that you're watching today. We do articles, events recognition for credit managers. We also have contractor profiles, new risk reports, which is the financing side, lots of information. So if you'd like to find out more, please go to level set.com. And today we are joined by the Dudley and Matt by thank you for joining us today.
Thanks for having me.
I will let the, if you wanna introduce yourself and Matt, you as well, and then go ahead and take it from here.
Thank you, Lori. And thanks everyone for spending some time with us this afternoon. I am the Dudley. I have spent 35 years in the construction LBM industry as a credit manager, leading credit teams to greatness. Sometimes we didn't feel very great, but retention is one of the, those things that when it comes up, it's like retention don't even bother, but we are going to turn that all around and at that, I'm gonna turn it over to Matt and let him introduce himself. Although I think he's wonderful and I love the guide that you wrote.
I appreciate it. Yeah. So I'm Matt Viator. I'm I'm on the level sets legal team. And so far, my career has been committed to helping construction businesses speed up their payment recovery timelines typically that's through lie rights management at least from our end. And but we've also been focusing on things like prompt, payment laws, retainage laws, and just overall strategies for you know, speeding up that payment timeline.
And I'm gonna jump back in really quick. The, I wanted to mention to everybody how we came up with this topic. I was so excited. It had to be before Christmas. It might have even been before Thanksgiving last year. The, and I were talking about her book that she wrote, which we'll talk about more at the end of the webinar, but we were talking about different subjects that were in and retention and retainage came up and she just jumped out, oh my gosh, I read this article by I'm Matt. We gotta do it with Matt. I would love to interview him, go back and forth. So we finally got it on the calendar and that's what you get to watch today.
Well, I thank you so much. We're gonna go ahead and get started. I know everybody's got, I saw a bunch of questions or, or ideas they wanna kind of draw from topics coming in. So this is kind of what we're gonna cover. And Matt, I'm gonna, I'm gonna start with who started this and why, and, you know, it's, it's not very fun. Just to kinda look at some, ArcHa what I consider an archaic idea. It just stuck. It's, it's, it's a pet peeve of mine. So Laurie, you didn't turn over just, you know, hit the button cuz you
Makes lot the next slide. Well, no. So I was gonna say that, you know, archaic the right word. You know, at least as far as we've being able to track it back advantage really started to take hold in the 1840s it's in great Britain is they're building the railroad. And essentially there were a lot more tradespeople coming into the, into the industry, which led to and obviously anytime that it's a hot market, you have a lot of businesses competing for the business. And some of these people didn't necessarily have the best qualifications. They didn't have the necessarily have the best workmanship. And on top of that, you know, some of them, you know, they were jumping on to different jobs, right. And there needed to be an incentive for one to make sure that all the work being done was done in a Workman, like manner and two to make sure that everybody was seeing seeing things out to the, into the job.
So it's a pretty logical, you know, academically and logically, it makes sense why retainage, you know, the concept, why it exists, right. You know, you're withholding some portion of what's owed, saving that to the end to make sure that everything's done right. And that everything you know, gets completed. Obviously, you know, we wouldn't be having this webinar if it worked out like the way that it's supposed to. Yeah. And so it it's one of those things, you know, kind of like how some mechanics lie rights or mechanics lie, laws are a bit arcane. It's one of those ideas that stuck through the test of time without as much revision as it probably needed. And it's one of those things that it's always been done this way. So we're gonna continue to do it that way. And unfortunately, you know, that's, that's how we got to where we are today.
So Lori hit that slide please. Okay. So fast forward 182 years. And like med said, now it's, it's baked into our DNA and we're some of us feel like we're stuck with it. And when I, I go into companies and we look at their AR and talk about what's out there, I come up to something that, you know, is 240 days old or 500 and some odd days old. And it's like, Hey, what is this? Oh, it's retention. Like that just explains it away. So Lori slightest, so that comes up with the two questions that I always have to ask is how much and how long, and that's where, that's, where it starts to get sticky. And it kind of goes off the rails because how much are they holding and for how long, and those are, are those two topics are probably gonna take up most of our time. So, you know, yes, I'd love to say that everything is spelled out clearly, but Matt, I'm sure you agree. It, it really starts in the initial contract.
Yes. There are some laws out there, but you, you gotta start defining that in the contract. Do you wanna expound on that a little bit?
Sure. Yeah. And to, to do a very quick overview of the, how much, how long, how much it's very typically five to 10% how long it usually at some specified amount of time after substantial completion, typically, you know, GCs wanna pay out retainage after they receive retainage the themselves, which OB for obvious reasons that could be much later than certain specialty trades or suppliers have, you know, finished their participation in the project. In terms of how the legal systems works surrounding retainage much like lean laws. It is different in every state. It's also, you know, it can be different for public versus private projects within the same state. So it's another one of those legal systems or, you know, systems of law where you, you really have to focus in on exactly where the work is being done.
A as far as how those laws typically work, it's it generally they'll put a cap on the amount of retainage that can be withheld for these certain project types. And they will dictate when exactly that retainage must be released. And they'll set up different triggers some of the better lean law, or I'm sorry, retainage law systems will even phase out retainage throughout the lifetime of the job. You know, say you're, you know, if you finish an, a certain percentage of the job, you're supposed to be paid a certain percentage of the retainage that's been withheld to date. But again, I think, I think the would agree strongly with this, what the law says or what the, what you think should happen based on the laws versus reality. There can be a huge gap and there, there, there, a lot of times there is,
Okay, so the reality I live in, and I'm not sure what everybody on the webinars experiences is that you get that contract and it's, it's a little squishy. And when it comes to first of all, when it comes to payment dates, and then when it comes to that retainage piece, and typically what I see is everyone just goes with, oh, it's 10%. If there's, there's a bunch of misnomers out there that is 10% and it's to, you know, the end of time and, and we don't ever touch it. And those are, I, I think your biggest benefit that you can help with yourself is to be able to be educated on it and to push back and challenge because most, most generals and most subs don't know the laws in their state. They don't know where to go to look or they can, it bad information or worse yet. They're just like, eh, it's retainage and they just kind of throw their hands up. So Lori slide us.
Yeah. And I couldn't agree more. And, and I actually, I meant to, I meant to send this earlier, so I'm gonna do it now. I'm about to post in the chat level sets, kind of retainage homepage. If you scroll down to the middle of that page, you'll find a breakdown. Like you'll find a map where you can click a specific state and reel on.
Now, this just tells me that you did not pay attention to your homework. Cause this map is on here.
Oh, I saw the map, but they can use this one in click. They can click through
This one. You can't click on our WebEx, but you can click on the map. But so that kinda, that does, I wanna back up where Matt wrote this really amazing comprehensive guide to retainage. And that's like Lori said, how we got started was I recommend it to a lot of people because even though I can go and, and tell you, look, here's little bits and pieces for your state or here's how I would negotiate it, or here are some tools to help you use. I like to be I'm, I'm a find it myself kind of person. So I wanna go out there and look at it and be able to click on the links within it, to take me down a rabbit hole for stuff that's pertinent to what I'm trying to find. So that really has helped me quite a bit. And again, if you, if, if you haven't had a chance when you're done with don't do it while we're, while we're talking now, but when you get a chance go out there and you can grab that, but there's a couple of different areas I wanna talk about first, let's talk about government because that that's a little bit different just like with, with lie law.
So there's federal, and then there's, there's, you know, some county and state and municipal portions of it. So Matt, why don't you go ahead and fill us in a little bit on federal?
Absolutely. So the federal acquisition act it's been passed. Everyone knows it as the federal acquisition regulations or far that dictates, you know, how retainage can be used on federal jobs. And so between the project owner, you know, the public entity, that's in charge of the job and their contractor, the, the prime contractor, there's actually, there's not a set percentage that is withheld on every job. However, the party letting that contract, they are able to kind of dictate when withholding is going to have happen on the job based on, you know, what's going on with the job. So if they have, if they have reason to have concern about, oh, the project might be going past schedule or might be going over budget, or if they have some other concern on the job, they have the the leeway to dictate that, okay, retainage will be withheld from this prime contractor.
Anyone that's ever worked on any construction job knows that there's always gonna be something that goes wrong. Something that looks wonky, you know, the, the, the budget and the schedule tend to be more flexible than in other industries. So it really gives them a lot of opportunity to kind of wield that power to dictate. So, yeah, so they have a lot of flexibility there. Now that prime con tractor is entitled to withhold retainage from their subs and down the line. And so on federal jobs, it would not be uncommon at all for there to be withholding. That being said, generally the prime contractor is not able to bill amounts that are going to be retained from their subs from their subs invoices. Right? So while they say, they may say, okay, we are going to withhold 5% from each of these from each of these payouts.
They're not able to, just to build the, the government for that money and then hold onto that money. Instead, what they must do is, okay, then here's, we're requesting 95% payout of this invoice. And then towards the end of the project, there will be that lump sum that's later billed and added for state jobs. There's it, there's a lot more guidance. I, I sent that, that link earlier to the state breakdown, and there's a map later on like the mentioned, but each, each state generally dictates how much retainage can be withheld. Very typically that's a cap either, you know, somewhere like to five to 10%, sometimes it's discussed as a reasonable amount, which will generally be five to 10%. And then you even have a state well, yeah. So yeah, so state jobs, county jobs, municipal jobs, they typically all follow the same framework where whereby retention is allowed, but maybe capped.
So federal, I think is capped at five and then it's, it kind of goes from there. But I, I really loathe when states do that thing where it's, Hey, I'm gonna allow you to be reasonable or what I think is reasonable versus somebody else. It's never reasonable when you're messing with my money,
A hundred percent,
We did the work. We, we allowed the materials to go out. We had our crews go out there, whatever it was. I I'm I'm, I don't like squishy. So in any of those, I'm a big fan of, if you give of me a piece of paper and it has to do with, with the rules of the road, I'm gonna mark it up. If I don't understand it, or I, I can cut a better deal. So I know we're gonna talk a little bit more about that. Lori hit that side girl. So let's talk private and commercial where most of us play, you know, has a little bit more structure to it. You know, private is really like the wild west. It, it reminds me a lot of, of liens where every state's a little different, some have better laws. Some don't have any, I, I think I was just looking at Virginia the other day and it it's basically, it it's just a free state do whatever you want and you really have to pay attention to what's in that contract and what you're allowing.
Yep. Yeah. So on private jobs typically that's where we see the most retention withheld because it is generally the least regulated. But even, even still, it's typically five, 10% you'll have random states like a New Mexico where withholding is actually not allowed. You'll have states in like Texas where withholding is required. But very typically it's the five to 10% range as well. But we're talking about here, there may, there's some states where it's a reasonable amount what's reasonable to, you may not be reasonable to me, especially if I'm having to wait for you to pay me what I've already earned. But varied, typically it will fall in that five to 10% range. And, and I, I would like to add as well, that in all these in, in virtually all of these states and all these scenarios where the retainage is, there is some retainage law on the books that caps retainage. That doesn't mean that you're automatically entitled to withhold that percentage, no matter what, what it means is that your contract can have retainage in it, but it can only be up to that 5% cap or that 10% cap or that reasonable amount cap. And so if the contract is totally silent on retainage, then retainage, generally shouldn't be withheld. Now that doesn't necessarily mean that your customer will see it that way, but you know, having, having the law on your side can be pretty helpful.
It, it can, but don't get me started on that.
I was, I was talking to someone just, just day about being right. Isn't enough being beyond reproach is, is what's necessary a lot of the time.
And then you gotta get him in front of the judge and you gotta get that there. Lori, can you slight us? Okay. So here's the map that Matt was, is talking about. And so one of the, one of the big challenges is, again, it all starts with your contract. So when you see where it's retained, spell out exactly what the amount is and then know what it is in your state. So, you know, the unregulated states are, are the ones that are a little, I, I keep using the word squishy. It's more like free all, and you'll see different triggers in there. So for me, when, when we are done, you know, what, whatever entity I'm working with, whether it's insulation, roofing, you know, drywall, landscape, carpeting, whatever you are that, that you're being held retained on. As you're kind of going into that and you're are you're looking at all right?
Here's, here's where I finished my project. I wanna look at the wording in that contract where it says retainage will be held until the project is complete. Well, the project for me is complete. So now we start arguing about the, the verbiage on it. So I like to have that really locked down where it says, when I am complete past, you know, 120 days, cuz you're gonna know what's wrong with it. From, from what I would have caused a problem on, I don't wanna be responsible for every other trade on the job site. I don't wanna be responsible for other dealers. I don't wanna have that kind of, of responsibility. So I wanna make sure that it's spelled out and yes, I've, I've been, I've been called some not very nice names for being so picky and finite about it. But if you don't lay that out, you end up holding it for 549 days.
So Matt, if you had to, if you had to give people the, what is a, when you say reasonable amount, I know what's reasonable in my book and that's, here's X number of days when I'm finished, you're gonna release 5% or when we're at this point and then, you know, total end of the project, honey, I'm way gone by then. I'm not waiting on that. And then do they, do they allow interest or are we going to, you know, what are some things that we can put in there? So Lori hit that slide girl. Oh, and yes, New Mexico is my favorite state, not just for the food, but because they don't allow retainage, come on, you gotta love a state that says, no, you can't keep my money for free. If you have an issue, come at me, bro. So I, I definitely like that.
So what is a subcontractor to do in that? And again, we started talking about the contract. So, you know, I, I pulled out some of my favorite things from the retention guide. I, I wondered if there is some things you can kind of expand on with, with this approach, like how most, most people aren't comfortable cutting up somebody's contract. Right. I don't have an issue with it, but you also have to be able to back it up with here's what this looks like. Here's why I'm calling this out and here's my logic behind it.
Absolutely. It, so the, the, the very first thing I'll say, which, you know, yeah, I think it's fair is that more important than the actual percentage of retainage is the process by which like, you'll be able to sit, you'll be able to prove that it's it's due, right. So you'll say you maybe, maybe that the contract will say that, you know, upon and review an inspection, maybe you'll call for them to specifically go in and look at your work and, and approve it. And maybe, you know, it will require that specific punch work or you know, specific, specific fixes will be done in the timely manner in order to make sure that, you know, all the work's done, been done, satisfactorily all the work be and approved, and that without a doubt, that retainage is owed. And so she, she, Leah talks about squishy contracts.
We want that to be laid out. We want it to, we want each line to be, to be you know, to be really explicit about, okay, what are the steps that I can actually, you know, actively take to be, you know, to recover my retainage and you know, a lot of, it's not that uncommon to have the conversation beforehand about, you know, what's gonna be required, but you want it to be there in the contract that way later on whenever it's. Oh well, I'm not sure if we can release it yet. We have this going on, we have that going on. This other work, no, you, this is in my contract. These are the things that I need to achieve. I've done these things. I need to be paid my retainage. But yeah, so definitely talking about retainage at the very start of the job or before you you've even got the contract signed, hopefully is, is the best way of going about it.
The longer the project goes on, the more awkward that retainage conversation is gonna be. And and so if, if you're already having that without from your checks, or if you're at the end of the project, wondering where's my retainage payment it's, it's going to be an uncomfortable conversation. So if you can have that to words beginning of the job before the job's even before you've even signed a contract, that's, that's ideal. You wanna make sure that, that contract's not squishy. It has, it has, you know, items laid out that you can do to be paid with your road. And you obviously, you wanna make sure that it's in line with your state law you know, there's resources online, including level. So that's where it can be pretty quick and easy to determine, okay, here are the limits on what can be withheld.
If this contract isn't in line with it, I'm not gonna sign the contract. That's, that's not legal. That's, you know, the law exists for a reason is there to protect me, is there to protect you. It's there to to lay out to some degree what's fair. And so you're gonna wanna make sure that your contract is in line with those statutory caps nailing down the detail details of how it'll be held escrow earning interest. That's obviously gonna be one of those items that's gonna be in, in reality is probably gonna be less negotiable. Contractors aren't gonna wanna, you know, put that in into an account that's earning interest. But you know, may maybe, maybe, you know, that that's, that's one of the things you use to negotiate a quicker retainage release, or maybe it's something that you use to negotiate.
Okay. Well, if I'm not gonna be earning interest on this, I need to know how to get it. So gimme these detailed line items that I can that I can do if you can get them to put the payment in escrow. Great. That mean, you know, that way, you know, the money's there, they're not, they're not, you know, performing some accounting tricks to pay other bills with your money while you're still waiting on it. That would be awesome. If you can get an escrow, it'd be great if you can get an earning interest, but in reality, it's, it's gonna be one of those things that your customer's gonna be very real locked in to do. I, I think you'd agree the, I see you nodding well,
I, I do, but you know, it's, it's like you said, it's, if I don't ask, I don't get absolutely. And if I put lots of options out there and it's, Hey, you know, how is this, is it gonna be earning interest? And they're, they're coming back with, well, no, it's not. It's like, okay, so you're holding my money for, you want me to hold it till the end of the project? You anticipate this project is gonna go for how long, 18 months I'm, you know, the drywall. So I'm early in on this, this project. So tell me at what are the trigger points? So I should be out of this by here. So, you know, if, if that's not the case and we're going, and you know, the full Monty on this one, then, you know, where's, where's my interest on this because, you know, I want some assurance that you're gonna be solid when, when we're done here.
And yeah, it is an uncomfortable conversation because typically what happens is the GC bows up and says, well, you know, you're just a sub, you know, it's like you are too proud to ask me for 30 grand, you know, to, to, you know, or 120 grand or whatever this contract is. So I think it's how you frame it and how you go about it. And as you look at people and, and tell 'em look, here's what I'm willing to negotiate. I really wanna work with you on this, but this seems unreasonable because most of the time, your profit as a subcontractor and, you know, also as a dealer there, you know, I can't forget about our, our dealers that, that with get in this situation where they're held with retention as well, but that's where most of your profit ends, I don't wanna be, you know, we're not married. I don't wanna carry you for the next, you know, five years because you couldn't figure out how to bring this project to a close, or I've allowed you to pick my pocket to cover somebody else's mistakes on this. I'm, I'm willing to pay for what I've done. And, and if my guys, you know, muck it up, that's we'll work, but I'm, I'm not, I'm not indemnifying the entire thing.
Absolutely. Yeah. And, and, and I'll add as part of negotiating lower percentage or shortened timeframes, like Dave was mentioning earlier, you, if you, especially, if you're one of the specialty trades that's doing work, you know, towards the beginning of the project, or if you're supplying materials that are gonna be delivered and installed towards the beginning of the project you wanna do your best to negotiate retainage terms that, that recognize that that say, okay, after X days of my completion of my work on the project, that's when my retainage will be paid to me. And, and if, if, if they're uncomfortable with that say, okay, then let's, let's inspect the work or I'll, you know, we'll, we'll get somebody out here to come look at this to make sure that everything was up to snuff. But that this timeframe is just not gonna work for me if it's indeterminate
Well, and then Lori, if you'll hit the slide, please the other part is a lot of credit managers are uncomfortable calling for retainage because they're like, well, I don't really know it's in the contract, that's in another area of our company, or, you know, I read it, but it just says completion of the project, the project's still going. It's like, when did we, we put the roof on, nobody could do anything until the roof was on our, we were the framers. So, you know, we did the trusses, we were very early on. So now I'm, you know, 167 days into this. And that's, that's just, again, not going to just, you're letting it just hang out there. You you've gotta reel that in. So I, I think one of the biggest challenges is getting people to change that mindset, where they do call and they do call more often.
It's like, Hey, gimme your ETA. What's going on? So, you know, you keep asking, you'd be surprised, a lot of, a lot of contractors and, and this shouldn't surprise anyone, but a lot of contractors don't release that money until you Squaw. Even if there's a trigger in there that they're supposed to release it on a certain time. And I'm not trying to, to, to paint GCs in a bad light or prime contractors, but you it's just a, as we, as we've talked about, it's, it's just baked into the DNA. Unfortunately, stereotypes exist for a reason. And this one exists because it's happened
A hundred percent.
Nope. Back up, Lori, there you go. So, you know, again, we're, we're kind of talking through, you know, the actual collection piece of it and timeframes are a huge thing. Even if you, even if you're in the middle of some contracts and you didn't bake those in, you can definitely go back in and start calling and saying, okay, what does this look like when you say end of the contract at I've even, well, I, I'm sorry, we're interpreting this contract different because end of my contract was, you know, three months ago, has there been any problem with my work, the building hasn't falled down the it's structurally sound. So my framing was fine. So what's the hold up here? How can we get this out? Well, how about you? You held 10%. How about releasing and, you know, start pushing it that way. Never be afraid to ask for your money or not begging it's yours, and then get the name of who you're dealing with.
And, you know, when we talked about signing stuff, don't doing any work before the contract, as you're kind of going through it's well, you know, the guy out here on the job and, you know, Fred Smith is, is the field supervisor. It's like, honey, he may be gone. I, I don't want, you know, Fred's great. I'm sure, but I need someone who can ink this deal. And I also need, you know, somebody in the office who I'm gonna be able to go back to. So, you know, getting, getting lots of, of contact information with who you can hold accountable and then yeah, you have to stay educated on when the retainage percentages drop, cuz in a lot of states, there are triggers for those. And, and then my favorite is the, the lean question and that's a, that's a big one, Matt. So I wanted to spend some time on that as well, where the, it always becomes a question of, well, can I file the lean because they're holding and technically the money's not due, but I'm gonna lose lie rights, but the money's not due. Yep. It's like, no, pull the trigger, lean it.
Sure. Yeah. I'm
Gonna let you go to town on this one.
I mean that, I think that's if I had to distill it down, I would, I would've, that's, that's a good way of describing it. But so it, it can be really uncomfortable because you know, retainage laws are over here, lean laws are over here. They don't really communicate all that. Well, they don't really tie into each other, all that. Well, so your time, your timelines, your legal timelines for retainage and your, your retainage amounts, mechanics lean law, doesn't really take that into account most of the time. And so that lean deadline is the lean deadline, regardless of what anybody's telling you, regardless of what retainage is being withheld on the project, mechanics lie rights exist because work or materials were provided to the property that improved the property and they haven't been paid for retainage. It, it represents an amount that amount owed for work that has been done that hasn't been paid, it's being withheld for a reason, but it's still true that it has been done and it hasn't been paid for.
So retainage amounts, even if even if they're being withheld you know, based off of, you know, the contract or based off of, you know, whatever the lean deadline is, the lean deadline. And so you can't wait on promises. You can't listen to, oh, the check's in the mail or you can't listen to no, really just, just just wait one more week. I, I can't, as my mechanics scene rights, they are, you know, I I'm, I'm certainly biased, but mechanics lie rights tend to be the most powerful tool you have to force payment in the construction industry. They're even more powerful than waving your contract, because guess what, if you want to enforce that contract, you're gonna have to go to court, small claims court, whatever it may be. Mechanics liens provide an option where you can get paid, what you're owed without having to go through lawyers without having to go through the courts without having to pay a ton of money to, you know, just recover what you've already been paid.
Filing mechanics means is pretty quick and easy. And so if you're gonna throw out the quick, easy tool that makes everybody else really nervous us on the project why wouldn't you want that in your tool belt for recovery and not to mention once, once mechanics lean talk even comes into play, you know, whether that's a notice of intent to lean or, you know, threats to file a lean. If you're sending those out to parties that are beyond just your customer, right? If beyond just that one, wrong up the payment ladder. If the owner now knows, wait, someone's not been paid, there might be a lien filed if the lender knows that whoever, if other parties on the project realize, okay, this person is that they're gonna have to file this lien. If they aren't paid with their owed, they may speed up this payment timelines and they'd be smart to do so. So it's I agree strongly. You do not want to lose your mechanic scene rights, especially in a situation where it's just, oh wait one more week or, oh, the check's coming.
So that brings us to another question. Laurie hit that slide button, please. You know, it it's, it's unfortunate that I, you, we poor thing. So here here's one question that always comes up and it's like, okay, all that's owed on the project is the retention. And I'm, I'm coming up on my lean rights. What do I do? Is it the same go-to move. Do I go ahead and lean it? And they're like, well, but you agreed in the contract and they're 10 do. It's like, mm, yeah, I know, but you, my, my retention's like $18,000 and getting paid by you was, was kind of a, a, a bit of a, a hard sell. So, you know, where do you, where do you fall on that as an attorney?
So I'm, I'm an attorney and I think most people would agree that attorneys tend to be a little bit cold on these kinds of decisions.
So lead them is what I'm gonna hear you say.
So, yeah, I, I, if, if it were my client and if they were, if were in a bond and they really didn't believe that they were gonna be paid, and if that lean deadline was, was coming up you know, the odds are pretty good that I would advise them to, you know, lean the project, keep that tool intact. You can always talk to them after the lie's been filed or, you know, in anticipation the lean, tell them I I'm going to have to do this. Can be please work this out. I don't want to file a lean and screw up your whole, you don't want me to file a lean, let's figure this out. But yeah, obviously every situation is different. And like you, maybe you do have those certain relationships and those certain customers that you really truly believe in, and that you've built that relationship over years.
But you know, if there's, if there's any doubt that you're not gonna be able to bring that payment in, if this is a business and you're in it to make money and you're owed what you're owed. And so a mechanics lane is the best tool to make sure that you're paid, it's it, the, the right exists for a reason. And so don't be afraid to use it. But obviously, you know, you wanna be responsible. You wanna be respectful to a degree. And you know, that, that kind of goes back to the conversation aspect of, you know, you can talk, you, you can at least try to talk some of these things out before, you know, blindly filing a lie without, you know, mentioning that you're about to do that. Or, you know, at least sending a notice of intent or whatever it may be that, you know, that can ruffle some fetish. But if they know a Lean's gonna be filed, if you don't do this thing, they know that you're up against the dead on, you know, how can they fault you for it? They will fault you for it, but, you know, it's yeah,
Well, so it really comes up. Some of this comes down to your business relationship. So as you're kind of, as you're going through this, it's, you're picking and choosing, I, I know I sound like I'm a quick trigger. Let's lean into everybody and, you know, the minute we go, you know, with, with five days of, of me losing my lean rights, everybody's getting slapped, but you do have to pick and choose on some of those with, especially with the retention piece. Again, it goes back to what did I agree to? What's my communication. Like? So it, it still has a, that element of relationship, although you can't just totally be everything on relationship, it's gotta be that combination. So starting with that, that contract, how you're, how you're working it out, what you're putting in there, what your trigger points are, you know, what you're able to pull on. Yeah. So, you know, those are, and looking at the guide, those were the big things that I pulled out of 'em was, you know, making sure I've spelled everything out in advance.
Yeah. And, and to that point, you know, one of the things that we've, we've always recommended from day one is that, you know, your credit policy should, should talk about liens and retainage. You should have these, you know, that you should have your playbook way before it comes time to make the decision. You should have your written down rules of, okay, this it, you know, if this happens, then I'll respond this way. You know, if retain is being withheld and my lean deadline's coming up, this is what I'll do. Once you have those written out rules, you can decide whether to follow 'em or to break 'em, but at least you have that policy already written out. So you're not necessarily making emotional decisions and you, you can come into it with a cooled. And obviously all these situations are different. You know, I, I, this, none of this is legal advice, but there are general guidelines to, to follow
Laurie, please hit that slide button. So there's the, the websites to be able to go and, and grab some of the, the retainage and, and some of the blog. And there's a lot of questions in there as well. Lori, I know, I haven't been able to read the chat cuz you know, frankly, I'm not that talented where I can do multi, multi screen that way, but were there some questions that people had specifically for Matt
For both of you and absolutely. That's why I'm here to help. Right. The newest question is if you file a lie and cancel that lie, can you refile the lean at a later date?
I saw that one and I was actually, I, I was hoping to address that one. And so one of the, one of the main things to, to think about before you even get into the ultimate answer is that whenever you're releasing a mechanics, lie, the language on that lean release will very much dictate what your rights would be going forward. Right? So if you, if your lean release says, I have been paid for this work, my I no longer need a lie and you release it that way. Well, to go back and file a lie later you know that might be that might not be available to you if the lie says, you know, it's being released for other reasons, or if it doesn't specify, maybe you'd be more successful. Unfortunately this is one of those things, lean law, just like retainage is it's dictated separately, state by state.
I can say with confidence that there are definitely situations and states where that's possible to file a mechanics, lie, stall, lean, refile, Alene, it's possible in some states in some situations but I can't give a blanket yes or no, cuz in other situations, you know, it might not be possible. But I will tie in one of one thing I repeat all the time is that releasing your mechanics, lean rights releasing your mechanic lean claim after you've already had to file the lie. You, you always want to think three times about that. Not, not even just twice, three times before you do that because that's a powerful tool. You have to keep in mind the deadlines, you know, sometimes these are short timeframes, so maybe there won't even be time to refile that lien. Some people want to release the lean after partial payment as a sign of good faith. We generally say, if you aren't, if you haven't been paid in full for what you're owed I would be very reluctant to release a lien. And so that might get you, that might get to you before the point of releasing the lien and then refiling it. Maybe you don't even release it if you're still at money.
So just to clarify, so I'm understanding this it's been a while since I've done the credit side, but you can't refile unless you're still within your lie rights. Right.
So yeah, so I'll say that it, it's not necessarily black or white that you would be able to refile, but if their deadline is passed, you almost definitely won't be able to refile.
See, and I got something totally different out that Lori, for me, it's like, it's like marriage and divorce. You can't go, we're married, we're divorce, we're married, we're divorced. You wanna look at what does that say? What does that lean release say? What did I agree to? Did I just make a blanket? Yes, I've been paid or, and yet there's, there's an opportunity for me to go back in there. So until that, that cold hard cash is in my hand or that payment has cleared the, the bank. I'm not willing to release anything. They're expensive to file their, their they're time consuming. And you know, I, I don't wanna ever just make it a quick fix. So I mean, I get where there's times you're, you're stuck in that situation. It's just, I never wanna release it unless, you know, I've, I've got it all collected.
Absolutely. we do have a question from Claire. It says Thea you've said the word indemnify, what is that?
Oh, that that's my most hated thing in a contract for, for a credit application. And so Matt, you, you probably have a very different legal definition than I do of indemnification. I want to be that that's where the owner or the GC or, or, you know, bank or whoever is, is creating the, the contractual obligation is coming to you and saying, Hey, you're gonna be responsible for all of these things. And if there's a problem, we're gonna share it across, you know, we're gonna share the wealth and the bounty. It's like, no, no, no, no, I don't care. If somebody backed over your port potty ran over your dog, whatever it is, I'm only responsible for my little slice of the universe and I don't wanna be pulled into everyone. Else's dry. Is that Matt, you probably have a much, much better way to describe it, but I mean, that's the credit manager version of identification
When you, whenever you've agreed to indemnify someone, that means that you're going, you've agreed to, to take on obligations and take on yeah, no the responsibility to pay for certain things be the, the scope of that indem. You can limit it to specifically only things that you're working on. Typically it would be limited to just things that you have in your control, but you know, when given the option on whether or not to indemnify someone for something, you know, usually, you know, less responsibility on my business is something that I'm, I'm interested in.
I just, I, I start out crossing the entire thing off and then someone comes back and goes, well, you can't do that. It's like, well, then I am willing to indemnify what my company is responsible for. Again, I don't wanna be responsible for, you know, everybody else that did something. This is my little slice, whether it's roofing, insulation, drywall, framing, whatever, this is just what I'm doing. So, no,
Thank you. We got a question from Darnell. Can the contractor hold forage through the warranty period of a year or more seeing that trend in this environment
Generally they'll want to in, they'll try to. But typically no yeah, so for one that the, the lean deadline will be way before that. And so I would say that, you know, the lean deadline would dictate how I'm approaching, recovering my retainage in a lot of ways. So one, I, I, you know, I would never accept I would never accept those terms, but then, you know, I, I, I'm not, I'm not working, I'm not working in the same reality that some of you are no
I'm working in that reality, Matt. And I'm gonna tell you that seems really excessive and kind of egregious where it's just that's overreaching. And well who's warranty. Are they talking about, are they talking about my company's warranty for, you know, a workmanship, a warranty for like a year? Or are they, are they flying back to the manufacturer's warranty? And is it a five year warranty? It's like that, that seems excessive and yeah. Strike
And I'll add, and I'll add, this is that the point of the warranty is that you're providing the warranty. You will come back. Yeah. You'll come back and fix. So they, they want to, you know, it sounds like they want to double dip. They want to not pay you for it and call you back for it. No, no, no. The contract says, you know, this is, this is under warranty. So I'll come back and fix it. If there's an issue that doesn't mean that you necessarily just get to withhold it indefinitely and they hope you forget about it,
But that's a good way for that, that person to go back and say, you know, look, I, I, I see what you've done here, but now you, you have a little bit of it, an argument to go back with where it's like, that's what the warranty's for. It doesn't make sense. You know, you can throw out the double dipping and that, that at least gives you a good way to negotiate it out of there with using some logic and, and the resources behind you.
You're muted. Laurie.
Thank you. I keep trying to stop it from my dog barking. I apologize. Would it make sense for the GC to issue a bond, I guess, bond around the retainage?
I, it, so retainage bonds exist. And some people, you know, would say that if there's a bond on, in place, you know, why, why is retainage being withheld? I would say that, you know, like a payment bond or a performance bond, isn't necessarily a one-to-one replacement for retainage, but on the end of the retain of retainage bonds, they're not very common. But you know, there, there are, there are states where you're entitled to be paid your full retainage. If you provide a bond to your customer that, you know, under the terms of that bond, you know, if there was some issue for which they would normally pull from the retainage to cover that issue, they would instead be paid out from the bond. And then, you know, you would have to pay that sureity back. That's ex that's not very common at all. It makes a lot of sense why it's not common because, you know, you don't wanna pay a bond premium just to be paid where you're already owed. It, it, it, it's a lot of work for for a benefit that you should already be receiving. So retainage bonds aren't that common, but performance bonds or payment bonds, aren't necessarily a one to one replacement with retainage.
It's worth a shot though, to go back. And, you know, if, if something happens and the, the prime contractor or the GC, you know, hits a snag, maybe isn't proof it isn't, maybe they're just gone. You can go after that payment bond and take a run at
That. Absolutely.
So, Lori, would you forward the slide please?
Since we're. Oh, well that wasn't the slide I thought it was, but, okay. So what other questions do we have Laurie, or are
We we have more Doug wanted to add onto the bond sort of thing. So what do you suggest to a sub who leans a project, the developer or owner bonds around that lean, and then they default on the retention.
So, oh, go ahead, Leah. Yeah, no, no,
No, go Matt. I, I mean, logically, I'd be like, why don't I just that's what the bond is for? Why wouldn't I just attach the bond?
Yeah. That's that's the first thing comes to mind as well. So again, not legal advice, but generally speaking when Alina is bonded off the, the claim doesn't disappear and a lot, a lot of GCs, like, like to act that it does, but no the recovery process continues. So generally the claim is then made against that bond, which has been substituted for the lien. And so if your lien has been bonded off, and if those amounts are still outstanding you're generally entitled to make a claim against the bond, which has been substituted for the lien. So that, that, that process is just like a normal recovery on bond process. Typically that requires, you know, you see you, you notify the, the bond company that there's a claim. You, you give, you give your reasons why they'll probably come back to you with some questions so they can begin their investigation where, you know, they'll say, okay we want some receipts.
We want proof that youre on the job that for the, these dates, we won't proof the, you know, this and that and this and that. You provide that to 'em, they, they do their investigation and then they either approve or deny. But even if they do deny that claim, just like how, if you file a claim on a bond, on a payment bond for nonpayment you can later enforce that claim. If it's not paid out, you can file a lawsuit again, the bond you can do that as well. If the Lane's been bonded off.
Thank you. Just from our icebreaker that we had in the beginning, there's several people that were wanting to know verbiage for either how to avoid somebody, withholding, retainage, how to negotiate the retainage and how to collect on the retainage. Just, do you have any verbiage that you think is good to use? Just kind of across the board?
I think the will have more practical experience here in negotiating.
You know, if I first start out just, you know, when it retention, it depends on what, who you're working with, what you're trying to affect. You know, if you wanna cross it out, if you wanna call them back, you know, call whoever, you know, put the contract in front of you and say, listen, this 10% with no triggers, it seems a bit murky. Here's what I'm proposing and you write everything out or you can, you change it out. So when you're talking about the verbiage, you just basically cross it out. Like you would any other contract and, you know, put in there 5% trigger due due and payable by X date. You know, 60 days after my portion of the work is done. It's, it's, it's actually just like, you were talking to somebody, if you can talk it out, write it down, and then Finese it down to the, you know, a much smoother version than what just happened, you know, here on the fly.
But you know, here, here's what I'm asking for. You know, I'm, I'm reducing it to 5% and then it's gonna go to 2.5% after, you know, 60 days, you, 90 days, whatever the trigger is that I'm completed. So you can see that my, my work is, is, you know, is good. Everything is fine. And then, you know, release the other 2.5%, you know, at, you know, 30 days beyond that, but put in their very specific triggers. They're gonna come back and tell you, well, I can't do this well, what do you wanna do? Well, I wanna hold it till the entire end of the project. It's like, well, what is the end of the project for you? And then you get that conversation going. It's like, okay. So does it sound reasonable for me to wait for, you know, 529 days because your project's not gonna be done till then. And you're gonna be holding 10% of my money for, you know, the, until the end of time. So once you start that dialogue and just putting that, that information out there, it's, it's getting those what you want to happen.
Yeah. Anytime you, anytime you're able to add proposed language it makes it easier to get to a yes. Right. If, if they can simply say, okay, I can agree to that, or, okay. I let's tweak this a little bit. It's a lot easier get to yes. Than just saying I don't like the retainers thing. Let's scratch it out. Yeah.
You think is reasonable. Sorry, Lori.
No, you're good. You're good. And so the other most common one, they're saying, what is a realistic timeframe to collect retainage and how long after say they are waiting till the completion of the project and full, how long do they, until they have to pay you out for that?
When you say, how long do they, well, I guess a lot of it's your state and a lot of it's what your contract is. So, you know, I always default to that. If you look at contracts or credit applications, as rules of the, you know, rules of engagement, your contract is that rule of engagement. What did it say? What did I agree to? If you just left it open, ended where we're holding 10%, we're holding 10%. It's like, okay, that told me nothing. There's just nothing there. It doesn't tell me I'm a, it's the end of the project, but what did my state say? And I like to have it all buttoned down in there. I wanna go ahead and ask those hard questions. And as a credit manager, we talk about money all the time. So it's not that farfetched. It just is one of those conversations that hasn't been pushed.
So just like finding someone's credit app or, or getting someone to sign a contract, you have to go in there and push let's talk about this retention piece and what it looks like. And I, you know, I go for 60 days after my portion of completion, I start with what I want. I didn't say I'm going to get it, but here's what I want. I want 60 days after my guys have left the job and then what's my next trigger. I'd like, you know, a percentage of that. And then, you know, I'll let you hold it for another 30 days, depending on is, is there triggers that I need to help satisfy them on? What are they trying to do? I, I don't, I've had the argument used, well, you know, the, we have to be fair to all trades, you know? I, I don't work for all those other trades.
I work for this trade and I asked if they didn't ask and negotiate a better deal. It's just like what you're getting paid for a living. I don't care what a coworker makes. I care what I make. That's the deal I cut. So I look at it the same way that I look at those contracts. It's what deal did eye cut. And if somebody else, they had the same opportunity that I did, if they chose not to that's on them. So I go for a, a quick, I put 60 days and let's see what they do.
Yeah. And yeah. And so I think it's all excellent. As, as the backstop, you know, you want to look to the lean dead line. You wanna look to what the state law says about retainage deadlines, if anything. And so you wanna say, you wanna do all these things and you want, know, you want to have these deadlines in mind, say, okay these, these are, these are my drop dead dates. And you maybe, and you know, maybe in those, in those phone calls, you know, the, was it, the squeaky, squeaky wheel gets the grease in those conversations when you bring it up, Hey, where's my retainage, Hey, where's my retainage. You have, maybe you have to start sprinkling in. Okay. I hear you, this is my deadline to do this. You know, neither of us want that. Let's, let's figure it out.
I've found that it works kind of the same as even just your regular collections. The more you annoy them, they're not gonna wanna hear from you anymore. So they're gonna pay you.
We don't, we don't set out to annoy people, although that's how they take it. But, you know, I mean, and it, it is true, but you're like, look, I, you know, I got a boss too. I gotta get a ETA on this money. And you just telling me, Hey, you know, we're, we're not done yet. Well, what's the ETA on this. And again, what did I agree to? Are you guys releasing any early? You know, I, I want more information, so, you know, I gotta go back and have something other than, oh, it's a it's, it's, it's retainage. It's not, it's, it's my profit that you're sitting on. And, you know, yes. I've, I've never been paid interest on retainage. Although I, I think it's about brilliant strategy. Unfortunately it, it kind of gets glossed over, like it's a given and it's not, and that's, I think where we have to keep reframing the conversation.
Absolutely. I don't don't know if that's the end of our questions. I don't know if you have any more you wanna add before I do your spiel on your book,
Matt. I'm good. How about you?
Yeah, I, I think we, we hit everything that, you know, I had written down that I really wanted to make sure that we touched on. Just, and like, obviously you and I don't, I don't think that, you know, this is, this is a credit conversation, but You know, never, never feel never
Fucking legal man.
Yeah, yeah, yeah, absolutely. But what I was gonna say is that like never feel guilty about, you know, pushing for your retainage, never feel you know, it it's money, it's money, you've earned it's money earned for work done, you know, they've received the benefit already. And on top of that, you know, trades are already put in a cash crunch, regardless of retainage there's, you're already floating, you know, materials at the beginning of the job, the mobilization costs like how many, how many people are actually getting mobilization deposits. You know, it, it it's, you know, not the majority, right. And so you have that on the front end and then, okay, when you do finally start getting paid, which you know, it's not the 30, it's probably the 60 or the 90. Once you do start getting paid, you have that percentage that's being taken out every time. And so these systems are already pretty harsh on subcontractors and especially trades. And so, you know, it, it's important to feel emboldened to, you know, to really go after what you're owed.
I will make two comments here. Diane adage. She said, when she's being called, not so nice names because she won't release a, a, a lie without payment. She quotes. I like you, but you owe me money. You know,
I love, I love this woman.
And then I also wanna get a shout out to Tracy she's from Hawaii and she is brand new into construction. So this was a nice one to jump right off
Too. Welcome, Tracy. Welcome. Welcome to the club. It's it's. It's great.
For those that I don't know already, Thea does offer a credit management academy. Course she does lean waivers. She does notices credit basics. I mean, there's tons of different courses in there. I think it's about four hours to go through all of them. And that's prior to
I spent four beautiful hours together. Not all at once though.
And they are fun, mean you're not gonna be bored. You do get certified, just some great information there. And then she also wrote a book it's the guide to credit and collections. And like I mentioned, in the beginning, this is where we came up with the topic for the retainage webinar. If you wanna just check it out, you can go to level set.com/the Dudley. It'll let you download the first 11 pages for free. And if it's something you're interested in, just shoot me a email and I'll see if I can get you a free copy on that.
Thank Lori.
One other thing we do with the community is of credit managers that are out there. Anybody that's being a hero for the company that goes above and beyond. Even if you're on this call, have your coworker nominate you for actually sitting through a webinar on retainage, great information.
I'll nominate you.
I mean, it's great information. It is a tough subject. So you just go to level set.com C M O M is credit manager of the month. I wanna thank you again, Matt, and the, for your time on this, it was a lot of information, great information. If anybody wants to ask any additional questions under Matt, we do direct you to the community. It's just CMC for credit management community. Otherwise there's, Tia's email there and she'd be happy to jump on with you and answer some more questions.
And Matt, thank you so much for again, letting me pick on you. I am a huge fan of this retainage guide. So if you guys get a chance, go check it out. I love that there are hyperlinks. So I can again go down any rabbit holes I want to and find out the information and, and continue to, to educate myself on some different subjects. It's always, retainage is always one of those that falls under lean waivers where they're there. There's so many questions and sometimes somebody tells you something you're like, well, that sounds, and, and you know, it's not right, but they're like I said, it was such conviction. It, it kind of sounds like it might be possible. I gotta go. I got a phone, a friend. I gotta figure this out.
Yeah, no. And thank, thank you guys for having me. I, you know, I approach a lot of this from, from an academic and from a from, you know, the, the legal standpoint. And I, I love being able to be a part of the practical angle of it as well. And every time I do one of these with you guys, I learn something. So it was great.
Well, we do as well.
I just let every know one know we will send out a copy of the recording tomorrow morning, as well as the link to Matt's article and more information on both Matt and the, for you to Peru. Thank you for taking the time outta your day today to join us. And we hope to see you at the next one.
You everyone.
Thanks, Joe.
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