Brought to you by Citrin Cooperman's Architecture & Engineering Practice, leaders from Citrin Cooperman, Smith Brothers, and Updike, Kelly & Spellacey, PC discuss critical tax and contract issues that A&E industry leaders should know.
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Laying Down the Groundwork for Financial Stability for Architecture & Engineering Firms
1. PRESENTED BY
GilbertWatkins, CPA, Partner
Citrin Cooperman
Scott Smith, Principal
Smith Brothers
DonaldW. Doeg, JD, Principal
Updike, Kelly & Spellacy, P.C. 1
Laying Down
the Groundwork
for Financial
Stability
FEBRUARY 7, 2017
5. A & E Selected Key Financial Indicators
Utilization (Chargeability) Rate
Net Effective Labor Multiplier
Total Payroll Multiplier (Revenue Factor)
Overhead Rate (Excluding Bonuses)
Net Revenue Per Employee
Profitability as a % of net fee
All should be based on accurate accrual basis financial statements.
5
6. Direct Labor $ / Total Payroll $ x 100%
Indicator of how efficiently and effectively people are utilized.
Productivity indicated by measuring the direct payroll dollars spent on
billable projects in relation to the total payroll costs (includes all staff).
Can be tracked on hours but the standard is to use dollars which reflect the
trust labor cost utilization.
Can also be tracked for technical/professionals only:
Direct Technical Labor $ / Total Technical Payroll $ x 100%
Goal: Overall 60-65%. For professional/technical only 70-85%.
Utilization (Chargeability) Rate
6
7. Net Fee Revenue / Direct Labor
Indicator of productivity and project profitability.
Measures net revenue earned for each direct labor dollar spent on projects.
Indicates the realized mark-up on direct labor.
Goal: 3.0 or better.
Net Effective Labor Multiplier
7
8. Net Fee Revenue / Total Payroll
This indicator combines the Utilization and Net Labor Multiplier.
Probably the most consistent single indicator of operating performance.
Provides a clearer measure of how well a firm converts labor to revenue.
Goal: 1.8 or better.
Total Payroll Multiplier (Revenue Factor)
8
9. Total Overhead / Direct Labor x 100%
(Overhead includes indirect labor costs, general and administrative expenses)
Indicates the overhead incurred for each direct labor dollar that needs to be
covered in your rates and fees.
Critical in determining firm breakeven rates, billing rates and project fees.
Goal: 150-170% is a good range.
Overhead Rate (Excluding Bonuses)
9
10. Annual Net Revenue / Average Total Employees
Good indicator of firm’s financial performance and how efficiently employees
are utilized.
Useful in projecting a realistic range of future annual net revenue.
Net Revenue Per Employee
10
11. Breakeven Multiplier = Total Overhead Factor + 1
Indicates the multiple required per dollar of direct labor to cover all overhead
costs and direct labor.
Target Multiplier = Breakeven Multiplier / (100% - Profit % Desired)
Used to determine hourly billing rates to achieve desired net profit %.
Current Ratio = Current Assets / Current Liabilities
Measures liquidity and the ability to meet short term liabilities.
Benchmark: 2.7
Other Useful Metrics
11
12. Working Capital to Net Fees = Average Working Capital / Net Fees
Measures how well a firm uses its working capital to support fees generated.
Benchmark: 20% to 25%
Average Collection Period = Average A/R / (Gross Revenue / 365)
Calculates the average # days it takes to collect A/R from the billing date. Also a
measure of liquidity and indicates the quality of A/R and current ratio.
Benchmark: 75 days
Debt to Equity Ratio = Total Liabilities / Equity
Measures how leveraged a firm is and its long term ability to pay its liabilities.
Benchmark: 0.80 to 0.90
Other Useful Metrics
12
13. Selected Key Performance Indicators (KPI’s)
Median Values Clarity/Deltek
All Firms 2015
2013 2014 2015 Top 25% All Others
Utilization Rate 59.4% 60.0% 60.9% 65.0% 60.0%
Net Effective Labor
Multiplier
2.99 2.97 2.96 3.52 2.80
Total Payroll Multiplier
(Revenue Factor)
1.74 1.77 1.79 2.21 1.71
Overhead Rate (ex-
bonuses)
161.10% 160.00% 155.20% 149.00% 156.00%
Net Revenue Per Employee $127,098 $129,689 $139,042 $159,444 $131,622
Operating Profit on Net
Revenue
(Pre bonuses taxes)
11.10% 11.80% 12.80% 28.30% 9.60%
(a) Deltek/Clarity 37th Annual Reports
386 US and Canadian A&E firms (responses Feb-April 2016)
A&E Key Performance Indicators – Current Trends
13
14. Selected Key Performance Indicators (KPI’s)
Median Values Clarity/Deltek
10 Year All Firms 2015
Best 2013 2014 2015 Top 25% All Others
Utilization Rate 61.2% 59.4% 60.0% 60.9% 65.0% 60.0%
Net Effective Labor
Multiplier
3.07 2.99 2.97 2.96 3.52 2.80
Total Payroll Multiplier
(Revenue Factor)
1.84 1.74 1.77 1.79 2.21 1.71
Overhead Rate (ex-
bonuses)
151.00% 161.10% 160.00% 155.20% 149.00% 156.00%
Net Revenue Per Employee $141,067 * $127,098 $129,689 $139,042 $159,444 $131,622
Operating Profit on Net
Revenue
(Pre bonuses taxes)
13.90% 11.10% 11.80% 12.80% 28.30% 9.60%
* inflation adjusted (2008 adjusted by CPI)
(a) Deltek/Clarity 37th Annual Reports
386 US and Canadian A&E firms (responses Feb-April 2016)
A&E Key Performance Indicators – Current Trends
14
15. Selected Key Performance Indicators (KPI’s)
Median Values Clarity/Deltek Zweig
10 Year All Firms 2015 Group
Best 2013 2014 2015 Top 25% All Others 2015
Utilization Rate 61.2% 59.4% 60.0% 60.9% 65.0% 60.0% 60.0%
Net Effective Labor
Multiplier
3.07 2.99 2.97 2.96 3.52 2.80 3.12
Total Payroll Multiplier
(Revenue Factor)
1.84 1.74 1.77 1.79 2.21 1.71 1.87
Overhead Rate (ex-
bonuses)
151.00% 161.10% 160.00% 155.20% 149.00% 156.00% 165.50%
Net Revenue Per Employee $141,067 * $127,098 $129,689 $139,042 $159,444 $131,622 $137,113
Operating Profit on Net
Revenue
(Pre bonuses taxes)
13.90% 11.10% 11.80% 12.80% 28.30% 9.60% 12.80%
* inflation adjusted (2008 adjusted CPI)
(a) Deltek/Clarity 37th Annual Reports
386 US and Canadian A&E firms (responses Feb-April 2016)
(b) Zweig Group 2016 Financial Performance Survey
of AEP and Environmental Consulting Firms
A&E Key Performance Indicators – Current Trends
15
16. Selected Key Performance Indicators (KPI’s)
Median Values Clarity/Deltek Zweig Citrin
10 Year All Firms 2015 White Cooperman Benchmark
Best 2013 2014 2015 Top 25% All
Others
2015 2015
Utilization Rate to
Total Labor
61.2% 59.4% 60.0% 60.9% 65.0% 60.0% 60.0% 66.06% 60 - 65%
Net Effective Labor
Multiplier
3.07 2.99 2.97 2.96 3.52 2.80 3.12 3.25 3.0 or better
Total Payroll
Multiplier (Revenue
Factor)
1.84 1.74 1.77 1.79 2.21 1.71 1.87 1.96 1.8 or better
Overhead Rate (ex-
bonuses)
151.00% 161.10% 160.00% 155.20% 149.00% 156.00% 165.50% 142.31% 150 - 170%
Net Revenue Per
Employee
$141,067 * $127,098 $129,689 $139,042 $159,444 $131,622 $137,113 $176,140 -
Operating Profit on
Net Revenue
(Pre bonuses taxes)
13.90% 11.10% 11.80% 12.80% 28.30% 9.60% 12.80% 13.39% 12.5%
* inflation adjusted (2008 adjusted CPI)
(a) Deltek/Clarity 37th Annual Reports
386 US and Canadian A&E firms (responses Feb-April
2016)
(b) Zweig Group 2016 Financial Performance
Survey
of AEP and Environmental Consulting Firms
(c) Citrin Cooperman informal survey of 10 A&E firms in the
NY Metro area.
All have less than 200 employees.
A&E Key Performance Indicators – Current Trends
16
17. Monitoring and managing your firm by using KPIs will give you a better insight
into your business. Used properly they will help you to:
Better manage projects
Charge higher fees
Be more profitable
Reward and retain your best people
Plan ahead no matter what the economic conditions are
Keys:
Make sure you have or develop a good reporting process.
Focus on a few select KPI’s that give a balanced view of what’s happening.
Understand them and react accordingly.
KPI Summary
17
18. The deduction is now at 9% of qualified production activity income
Significant (costless) tax benefit
Costs to calculate are generally insignificant, relative to the tax savings
“NO BRAINER”
Section 199 – The Domestic Production Activities Deduction
18
19. For A&E firms to qualify:
Must have domestic production gross receipts (“DPGR”) from engineering or
architectural services performed in the US for US real property
construction projects.
The deduction is allowed for all types of entities.
Partnerships and S Corporations: the deduction is taken by the partners and
shareholders on their individual tax returns.
Section 199 – The Domestic Production Activities Deduction
19
20. The Section 199 deduction calculation in a nutshell:
Domestic Production Gross Receipts (“DPGR”)
- Allocable Cost of Goods Sold
- Other expenses, losses and deductions properly allocable
= Qualified Production Activity Income (“QPAI”)
The deduction is equal to the lesser of:
9% of QPAI for the tax year
9% of taxable income for the tax year (for individuals, trust and Estates use
AGI)
50% of W-2 Wages allocable to the DPGR
Available for Federal taxable income (for regular tax and alternative minimum tax).
NYS, NYC and CT do not allow the deduction.
Section 199 – The Domestic Production Activities Deduction
20
21. Incentive for building owners to focus on energy efficiency.
Created by the Energy Policy Act of 2005.
Applies to construction of new high-efficiency commercial buildings and
upgrades to existing buildings in the US.
Relates to costs to install building envelope, interior lighting, HVAC and/or
hot water systems, that reduce total building power and energy costs by
50% or more per year vs. certain minimum standards.
Deduction can be up to $1.80 per square foot of the cost of qualifying
systems in the year they are placed in service. There are ways to partially
qualify in the three component systems.
The Energy Efficient Commercial Building Tax
Deduction – Section 179D
21
22. 179D also encourages federal, state and local governments to build energy-efficient
buildings.
Since governments don’t receive a tax deduction, the statute allows the government
entity to transfer the tax deduction to the architect or engineer that designed the
building.
Typically, that is the architect/engineer primarily responsible for designing the property.
However, the benefit could be allocated to more than one designer.
The deduction does not apply to property placed in service after December 31, 2016.
Section 179D Benefits for Architects & Engineers
22
23. If a firm is incurring expenses associated with the development of unique functional and
energy-efficient designs, there is a strong possibility that they could benefit from an R&D
Tax credit.
Can provide a dollar-for-dollar reduction for federal tax liability.
Beginning in 2016, “small businesses” can offset AMT with research credits.
Credit not allowed for NYS or CT.
For A&E firms, this means cash is retained in their business by claiming current year
credits or amending prior year’s returns for a cash refund.
The analysis and computation of the credit is complex, but in general the credit is
about 4-7 percent of the total qualifying research expenditures.
Potential tax benefit can be substantial.
Research and Development Tax Credit for A&E Firms
23
24. The R&D tax credit benefit was made permanent by legislation at the end of
2015.
Start-up small businesses can elect to apply a portion of the research credit
against payroll tax.
Status of R&D credit
24
25. If you are performing services on projects outside your Firm’s home state, there
are two critical issues that must be considered:
1. Make sure the Architects and Engineers are properly licensed
individually and the firm is registered in that state.
Failure:
Can be grounds for sanctioning from the State’s licensing Board
Opens you up to lawsuits from the Client
Could lose your ability to sue (e.g. collections) you can only defend against
a lawsuit
2. Make sure you are reviewing states tax filing requirements and how
income should be apportioned.
States have different requirements and use different methods to apportion
income.
Don’t get surprised! Make sure your firm is complying properly.
OUT OF STATE PROJECTS ALERT!
25
28. • WHAT – Contract language should address issues such as when payment is due, the
penalties for late payment (e.g., interest, collection costs) and your rights in the event
of non-payment (e.g., suspension or termination of services).
• WHY – The more precisely you define and adhere to your payment terms, the more
likely it is you’ll be paid promptly and avoid fee-related disputes. Such disputes are
often disagreeable and can even lead to the loss of future work from the same client.
• DON’T ACCEPT – Language that would permit your client to withhold payment of
disputed invoices.
• DON’T FORGET – One of the most effective payment collection devices is to withhold
submission of the client’s documents for plan check or permit approval or for use by
the client until you are fully paid.
1. BILLING AND PAYMENT
28
29. • WHAT – Your contract should never promise to assure the total accuracy of something
(e.g., a subcontractor’s HVAC installation) or confirm absolute compliance with a
standard (e.g., ADA Compliance).
• WHY – By certifying, guaranteeing or warranting something, you are assuming a level
of liability well beyond the legally required standard of care. Your professional liability
insurance is not intended to cover breach of contract or warranty, the assumption of
someone else’s liability or a promise to perform to a standard of care higher than legally
required. The smallest error, whether caused by you or someone else, could lead to a
claim of breach of warranty.
• DON’T ACCEPT – Other terms that, in effect, guarantee, such as “all”, “every”, “insure”,
“ensure”, “assure”, “state” or “declare.”
• DON’T FORGET
– You can substitute contract language that reduces your risk, doesn’t
jeopardize your professional liability insurance coverage and answers your
client’s concerns.
– Certifications, warranties and guarantees may also be found in the fine print
of a client’s purchase orders.
2. CERTIFICATIONS, GUARANTEES AND WARRANTIES
29
30. • WHAT – Your contract should include a Waiver for Consequential Damages, those
indirect expenses (e.g., loss of profit) that are remotely connected to a design
professional’s failure. This should include a provision that makes it clear that neither
you nor your client will be held responsible for consequential damages because of any
alleged failures by either party.
• WHY – If you are to be held responsible for consequential damages, you could be sued
for damages totally out of proportion to your fee or grossly exceeding the cost of
repairing the actual damage.
• DON’T ACCEPT – Any language in a client-drafted contract that would make you
responsible for consequential damages.
• DON’T FORGET
– If your contract remains silent about consequential damages, you can still be
sued for them.
– Having a negotiated limit of liability does not take the place of the additional
protection against liability for consequential damages. Be sure your Limitation
of Liability and Consequential Damages clauses are coordinated with each
other.
3. CONSEQUENTIAL DAMAGES
30
31. • WHAT – Your contract should include a Jobsite Safety provision that makes clear that
responsibility for site safety and construction means and methods remains with the
contractor, not the design professional.
• WHY – Assuming any responsibility for safety programs and safety procedures, either
by contract or by your actions, can have serious economic consequences.
• DON’T ACCEPT – Any language that calls for your “supervision” on a jobsite, or any
extreme contract language that calls for you to “assure strict compliance” with plans
and specifications or to provide services beyond the traditional standard of care. Delete
any client-provided contract clause that gives you control or charge of the contractor,
including the authority to stop work.
• DON’T FORGET
– What you say and do during the project could change the terms of the contract.
– You cannot ignore your duty as a licensed professional to step forward in the
face of imminent threats to life or safety about which you are aware,
contractual language of exoneration notwithstanding.
4. JOBSITE SAFETY
31
32. • WHAT – Include in your contract a Limitation of Liability clause, an agreement between
you and the client to establish the maximum liability you will be responsible for if there is
a claim by the client on the project.
• WHY – Any professional firm that continually accepts unlimited project risks can
eventually expect huge losses and, perhaps, financial disaster. An LoL allocates a
project’s risk in some reasonable proportion to the profits and other benefits to be derived
by each party.
• DON’T ACCEPT – As a general rule, any contract without an LoL. (Some exceptions are
projects for public entities, which almost never agree to an LoL.) Also, don’t use a
preprinted liability cap in your agreement, as it may weaken the premise that the clause
was negotiated.
• DON’T FORGET
– You may have more success in obtaining a Limitation of Liability from your
client if you use a preprinted form that contains an LoL provision with a blank
space you can use to specify the liability cap.
– Be sure to select a limit that is meaningful (e.g., an amount tied to your project
fees) and takes into account potential damages on a project.
5. LIMITATION OF LIABILITY (LOL)
32
33. • WHAT – Mediation is an approach to dispute resolution, typically voluntary, that helps
disputing parties reach agreement among themselves, thus maintaining or reopening
their communications. Your contract should include a clause that calls for mediation as
the first step in settling disputes.
• WHY – Litigation and arbitration proceedings can be both expensive and time
consuming, cutting into a firm’s billable hours, hurting morale and lowering productivity.
These adversarial processes can also destroy client-consultant relationships.
• DON’T ACCEPT – A contract that doesn’t call for mediation as the first step in dispute
resolution. Otherwise, you’ll have a difficult time convincing a client to use mediation
when the two of you are in the middle of a dispute.
• DON’T FORGET – Mediation has a remarkable track record, especially when employed
at the appropriate stage of the dispute. The average rate of settlement in mediated
cases is nearly 85 percent.
1 A Guide to Mediation and Arbitration for Business People (New York: American Arbitration Association, 2003)
6. MEDIATION
33
34. • WHAT – The scope of services is a detailed description of those services you will
provide to the client, those you can provide for an additional fee and those you will not
provide. It should be as precise and complete as possible. It should leave no ambiguity
or question as to whether or not some duty or deliverable item is included within your
basic fee.
• WHY – Unless your scope is carefully defined, you may not be able to differentiate
included services from extra services not contemplated in your basic fee. This makes it
difficult to charge for any additional services you are required to perform.
• DON’T ACCEPT – Any client-drafted clauses that ask you to agree (or even certify) that
the scope of services proposed will be “adequate to meet the project needs,” that you
will “provide any and all professional services necessary for completion of the project”
or similar sweeping language.
• DON’T FORGET – Detailed checklists of all potential services can help you avoid
overlooking scope items. You can use the scope of services lists in the AIA, EJCDC or
other professional association agreements.
7. SCOPE OF SERVICES
34
35. • WHAT – Your contract should include a clause that affirmatively defines the standard of
care to which you will perform. The standard of care for design professionals requires
only that you perform your services with the degree of skill and care ordinarily exercised
by other members of your profession under similar circumstances, at the same time
and in the same or a similar locale.
• WHY – Any contract language that seeks to raise your standard of care increases your
risk. Your professional liability insurance will not cover you for this increased exposure,
since it represents an assumption of additional liability for which you would not
otherwise be responsible.
• DON’T ACCEPT – A client’s contract language that requires you to “perform to the
highest standard of practice.” Nor should you accept broad or ambiguous language
such as “appropriate” or “necessary,” or provisions that would have the client making a
unilateral determination as to the performance of your services, such as “to the
satisfaction of the Client,” or “in the Client’s sole judgment.”
• DON’T FORGET – Nowhere in the Standard of Care doctrine or definition is there any
mention of “perfection.”
8. STANDARD OF CARE
35
36. • WHAT – Your contract should include a termination clause that defines the
circumstances (e.g., nonpayment of fees) under which either party may end its
legal relationship and, depending on who initiates the action, specify the rights that
each party has when the termination occurs.
• WHY – A contract that does not adequately address the subject of termination is an
invitation to a dispute. Reasons you may want to terminate include: client’s breach
of any material condition, inability to reach agreement on additional services,
changes in the parties or substantially changed conditions.
• DON’T ACCEPT – Language that permits only the client to terminate or that
transfers the ownership of documents.
• DON’T FORGET
– Your firm will incur substantial shutdown costs if you are terminated
prematurely from a project to which you have heavily committed your
resources.
– You might prefer to have the option to temporarily suspend your services
and keep the contract in force until the client cures the breach.
9. TERMINATION
36
37. • WHAT – Your contract should include a provision that addresses the issue of third-party
claims.
• WHY – If your negligence damages others who reasonably and foreseeably could have
been damaged, you may be liable to them. In most jurisdictions, they would not need to
contract with you in order to file a claim and win.
• DON’T ACCEPT – A contract that doesn’t address the issue, since, in the absence of
such a clause, a court may follow what it believes to be precedent or it may make new
law based on its predilections.
• DON’T FORGET – The legal obligations of design professionals to third parties are
difficult to interpret. Parties to a contract can establish many of their own rules to guide
judicial interpretation. As with all contract issues, however, be sure to consult with your
attorney and insurance agent or broker.
10. THIRD-PARTY BENEFICIARIES
37
38. • WHAT – Many agreements include indemnification provisions. Wording of those
provisions is critical. While some proposed provisions are fine, some clients may insist
upon language that may not be covered by your carrier.
• PREFERRED LANGUAGE: The Architect/Engineer shall, to the fullest extent permitted
by the law, indemnify and hold harmless the Owner from and against all damages,
liabilities or costs (including, without limitation, reasonable attorneys’ fees and defense
costs) to the extent caused by the Architect’s/Engineer’s negligent performance of
professional services under this Agreement.
• DON’T ACCEPT – A contract that requires you to “defend” the owner or your client.
Also, watch out for language other than “to the extent caused by” such as “arising from
or related to”.
• DON’T FORGET – This clause can give a design professional perhaps the most
uninsured exposure. As with all contract issues, be sure to consult with your attorney
and insurance agent or broker. Also remember that this clause can be made to be
reciprocal.
11. INDEMNIFICATION
38
39. • WHAT – The issue of who “owns” the drawings, and for what purpose they may be
used, is best defined in contract language. For instance, the issues of ownership for
present project, future work on facility, future work on other facilities and what happens
if the project is terminated are critical to address.
• WHY – Without contract clarification on the issue, it could be a long and costly legal
battle to decide. Use of your drawings on other projects, even without your knowledge,
could give you legal exposure long after the present project is completed.
• DON’T ACCEPT – A contract that is silent on this issue or allows the client to “own” the
drawings without any limitations.
• DON’T FORGET – If you allow the client to “own” the document, make sure you define
if/how the documents can be used in the future.
12. OWNERSHIP OF DOCUMENTS
39
40. • WHAT – Timing is a critical component of most aspects of a construction project: start
date and completion dates for design/construction (and/or particular phases of work);
responses to RFI’s, submittals, shop drawings, change requests…
• WHY – Project delay claims can be large and are often subjective. Contract clauses on
timing issues can reduce that risk.
• TRY TO AVOID– “Time is of the Essence” clauses
• DON’T FORGET – When using “days” as a measurement of time durations, be sure to
clarify whether they are “business days” or “calendar days”
13. PROJECT TIMEFRAMES/DEADLINES
40
41. • WHAT – If you provide cost estimates as part of your services, define the expected
level of accuracy of any cost estimates.
• WHY – Without proper qualifications, an owner may attempt to blame the design
professional in entirety for any cost overages.
• DON’T ACCEPT – A contract that requires precise estimates by the design team.
• DON’T FORGET – Encourage the owner to get a construction entirely involved in the
pricing of an early stage or alternatively have the owner retain its own cost estimates.
14. COST ESTIMATES
41
42. • WHAT – Particularly for projects that last a long duration, either in the design or
construction phases, define the codes that are applicable to the project.
• WHY – There is no single code, but instead projects are subject to multiple codes that
are revised and updated on a regular basis. Also, it is important that the design team
understands codes the other design team members are using so that there are no
inconsistencies. Questions may arise after the fact which may have significant
ramifications.
• BE WARY OF– Contract documents that don’t address the issue, since, in the absence
of clarity on the issue, a court may be swayed to believe that the design should have
complied with the existing codes at the time of trial, not those in place during the
project.
• CONSIDER – Having a section in the drawings or the specifications that lists the
applicable codes, including the year of those codes.
15. CODE COMPLIANCE
42
45. THANKYOU FOR ATTENDING
Please enjoy the networking reception!
CONTACT
GilWatkins
Citrin Cooperman
203.847.4068
gwatkins@citrincooperman.com
Scott Smith
Smith Brothers
860.430.3287
SSmith@SmithBrothersUSA.com
Don Doeg
Updike, Kelly & Spellacy, P.C.
860.548.2638
Ddoeg@uks.com