Senate Bill 1464c1

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    Florida Senate - 2000                           CS for SB 1464

    By the Committee on Regulated Industries and Senator Webster





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  1                      A bill to be entitled

  2         An act relating to prompt payment and retainage

  3         reform; amending s. 218.72, F.S.; redefining

  4         the terms "local governmental entity,"

  5         "purchase," and "construction services" and

  6         defining the terms "payment request" and

  7         "agent" for the purpose of the Florida Prompt

  8         Payment Act; amending s. 218.73, F.S.;

  9         providing for timely payment for

10         nonconstruction services; amending s. 218.735,

11         F.S.; revising provisions governing the timely

12         payment for purchases of construction services;

13         amending s. 218.74, F.S.; revising provisions

14         relating to procedures for calculation of

15         payment due dates; amending s. 218.75, F.S.;

16         revising provisions relating to mandatory

17         interest; amending s. 218.76, F.S.; revising

18         provisions relating to improper invoices and

19         resolution of disputes; providing for the

20         recovery of court costs and attorney's fees

21         under certain circumstances; amending s.

22         255.05, F.S.; revising provisions relating to

23         the bond of a contractor constructing public

24         buildings; requiring the Office of Program

25         Policy Analysis and Government Accountability,

26         in consultation with the Legislative Committee

27         on Intergovernmental Relations, to conduct a

28         study of construction retainage methods;

29         specifying areas to be examined; requiring

30         study conclusions and recommendations;

31         requiring a report; providing effective dates.

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  1  Be It Enacted by the Legislature of the State of Florida:

  2

  3         Section 1.  Subsections (2), (5), and (7) of section

  4  218.72, Florida Statutes, are amended, and subsections (8) and

  5  (9) are added to that section, to read:

  6         218.72  Definitions.--As used in this part:

  7         (2)  "Local governmental entity" means a county or

  8  municipal government, school board, school district,

  9  authority, special taxing district, other political

10  subdivision, community college, or any office, board, bureau,

11  commission, department, branch, division, or institution

12  thereof or any project supported by county or municipal funds.

13         (5)  "Purchase" means the purchase of goods, or

14  services, or construction services, the purchase or lease of

15  personal property, or the lease of real property by a local

16  governmental entity.

17         (7)  "Construction services" means all labor, services,

18  and materials provided performed in connection with the

19  construction, alteration, repair, demolition, reconstruction,

20  or any other improvements to real property that require a

21  license under parts I and II of chapter 489.

22         (8)  "Payment request" means a request for payment for

23  construction services which conforms with all statutory

24  requirements and with all requirements specified by the local

25  governmental entity to which the payment request is submitted,

26  if:

27         (a)  Such requirements have been adopted by formal

28  action of the local governmental entity taken prior to the

29  transaction to which the payment request applies.

30         (b)  The local governmental entity made such

31  requirements available to vendors.

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  1         (9)  "Agent" means project architect, project engineer,

  2  or any other agency or person acting on behalf of the local

  3  governmental entity.

  4         Section 2.  Section 218.73, Florida Statutes, is

  5  amended to read:

  6         218.73  Timely payment for nonconstruction

  7  services.--The time at which payment is due for a purchase,

  8  other than a purchase of construction services, by a local

  9  governmental entity, except for the purchase of construction

10  services, is due must be calculated from:

11         (1)  The date on which a proper invoice is received by

12  the chief disbursement officer of the local governmental

13  entity after approval by the governing body, if required; or

14         (2)  If a proper invoice is not received by the local

15  governmental entity, the date:

16         (a)  On which delivery of personal property is accepted

17  by the local governmental entity;

18         (b)  On which services are completed;

19         (c)  On which the rental period begins; or

20         (d)  On which the local governmental entity and vendor

21  agree in a contract that provides dates relative to payment

22  periods;

23

24  whichever date is latest.

25         Section 3.  Section 281.735, Florida Statutes, is

26  amended to read:

27         218.735  Timely payment for purchases of construction

28  services.--

29         (1)  The due date for payment for the purchase of

30  construction services by a local governmental entity is

31  determined as follows:

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  1         (a)  If an agent the project architect or project

  2  engineer must approve the payment request or invoice prior to

  3  the payment request or invoice being submitted to the local

  4  governmental entity, payment is due 25 20 business days after

  5  the date on which the payment request or architect or engineer

  6  approves the invoice and the invoice is stamped as received as

  7  provided in s. 218.74(1).

  8         (b)  If an agent the project architect or project

  9  engineer need not approve the payment request or invoice which

10  is submitted by the contractor, payment is due 20 business

11  days after the date on which the payment request or invoice is

12  stamped as received as provided in s. 218.74(1).

13         (2)  The local governmental entity may reject the

14  payment request or invoice within 20 business days after the

15  date on which the payment request or invoice is stamped as

16  received as provided in s. 218.74(1).  The rejection must be

17  written and must specify the deficiency in the payment request

18  or invoice and the action necessary to make the payment

19  request or invoice proper.

20         (3)  If a payment request or an invoice is rejected

21  under subsection (2) or this subsection and the contractor

22  submits a corrected payment request or invoice that corrects

23  the deficiency specified in writing by the local governmental

24  entity, the corrected payment request or invoice must be paid

25  or rejected on the later of:

26         (a)  Ten business days after the date the corrected

27  payment request or invoice is stamped as received as provided

28  in s. 218.74(1); or

29         (b)  If the governing body is required by ordinance,

30  charter, or other law to approve or reject the corrected

31  payment request or invoice, the first business day after the

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  1  next regularly scheduled meeting of the governing body held

  2  after the corrected payment request or invoice is stamped as

  3  received as provided in s. 218.74(1).

  4         (4)  If a dispute between the local governmental entity

  5  and the contractor cannot be resolved by the procedure in

  6  subsection (3), the dispute must be resolved in accordance

  7  with the dispute resolution procedure prescribed in the

  8  construction contract or in any applicable ordinance.  In the

  9  absence of a prescribed procedure, the dispute must be

10  resolved by the procedure specified in s. 218.76(2).

11         (5)  If a local governmental entity disputes a portion

12  of a payment request or invoice, the undisputed portion must

13  be paid timely in accordance with subsection (1). The payment

14  time periods provided in this section for construction

15  services purchased by a local governmental entity shall not

16  affect contractual provisions or contractual covenants of a

17  local governmental entity in effect on September 30, 1995.

18         (6)  When a contractor receives payment from a local

19  governmental entity for labor, services, and materials

20  furnished by subcontractors and suppliers hired by the

21  contractor, the contractor shall remit payment to those

22  subcontractors and suppliers within 10 days after the

23  contractor's receipt of payment.

24         (7)(6)  All payments due under this section from a

25  local governmental entity and not made within the time periods

26  period specified by this section shall bear interest at the

27  rate of 1 percent per month or the rate specified by contract,

28  whichever is greater as specified in s. 218.74(4).

29         Section 4.  Section 218.74, Florida Statutes, is

30  amended to read:

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    Florida Senate - 2000                           CS for SB 1464
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  1         218.74  Procedures for calculation of payment due

  2  dates.--

  3         (1)  Each local governmental entity shall establish

  4  procedures whereby each payment request or invoice received by

  5  the local governmental entity is marked as received on the

  6  date on which it is delivered to an agent or employee of the

  7  local governmental entity or of a facility or office of the

  8  local governmental entity.

  9         (2)  The payment due date for a local governmental

10  entity for the purchase of goods or services other than

11  construction services is 45 days after the date specified in

12  s. 218.73.  The payment due date for the purchase of

13  construction services is specified in s. 218.735.

14         (3)  If the terms under which a purchase is made allow

15  for partial deliveries and a payment request or proper invoice

16  is submitted for a partial delivery, the time for payment for

17  the partial delivery must be calculated from the time of the

18  partial delivery and the submission of the payment request or

19  invoice in the same manner as provided in s. 218.73 or s.

20  218.735.

21         (4)  All payments, other than payments for construction

22  services, due from a local governmental entity and not made

23  within the time specified by this section bear interest from

24  30 days after the due date at the rate of 1 percent per month

25  on the unpaid balance. The vendor must invoice the local

26  governmental entity for any interest accrued in order to

27  receive the interest payment.  Any overdue period of less than

28  1 month is considered as 1 month in computing interest.

29  Unpaid interest is compounded monthly.  With respect to each

30  past due payment, interest ceases to accrue after interest on

31  that payment has accrued for 12 months. For the purposes of

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  1  this section, the term "1 month" means a period beginning on

  2  any day of one month and ending on the same day of the

  3  following month.

  4         Section 5.  Section 218.75, Florida Statutes, is

  5  amended to read:

  6         218.75  Mandatory interest.--No contract between a

  7  local governmental entity and a vendor or a provider of

  8  construction services shall prohibit the collection of vendor

  9  from invoicing the local governmental entity for late payment

10  interest charges allowable under this part.

11         Section 6.  Section 218.76, Florida Statutes, is

12  amended to read:

13         218.76  Improper invoice; resolution of disputes.--

14         (1)  In any case in which an improper payment request

15  or invoice is submitted by a vendor, the local governmental

16  entity shall, within 10 days after the improper payment

17  request or invoice is received by it, notify the vendor that

18  the payment request or invoice is improper and indicate what

19  corrective action on the part of the vendor is needed to make

20  the payment request or invoice proper.

21         (2)  In the event a dispute occurs between a vendor and

22  a local governmental entity concerning payment of a payment

23  request or an invoice, such disagreement shall be finally

24  determined by the local governmental entity as provided in

25  this section.  Each local governmental entity shall establish

26  a dispute resolution procedure to be followed by the local

27  governmental entity in cases of such disputes.  Such procedure

28  shall provide that proceedings to resolve the dispute shall be

29  commenced not later than 45 days after the date on which the

30  payment request or proper invoice was received by the local

31  governmental entity and shall be concluded by final decision

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  1  of the local governmental entity not later than 60 days after

  2  the date on which the payment request or proper invoice was

  3  received by the local governmental entity.  Such procedures

  4  shall not be subject to chapter 120, and such procedures shall

  5  not constitute an administrative proceeding which prohibits a

  6  court from deciding de novo any action arising out of the

  7  dispute.  If the dispute is resolved in favor of the local

  8  governmental entity, then interest charges shall begin to

  9  accrue 10 15 days after the local governmental entity's final

10  decision.  If the dispute is resolved in favor of the vendor,

11  then interest shall begin to accrue as of the original date

12  the payment became due.

13         (3)  In an action to recover amounts due under ss.

14  218.70-218.75, the prevailing party is entitled to recover

15  court costs and attorney's fees at trial and on appeal.

16         Section 7.  Paragraph (a) of subsection (1) and

17  paragraph (a) of subsection (2) of section 255.05, Florida

18  Statutes, are amended to read:

19         255.05  Bond of contractor constructing public

20  buildings; form; action by materialmen.--

21         (1)(a)  Any person entering into a formal contract with

22  the state or any county, city, or political subdivision

23  thereof, or other public authority, for the construction of a

24  public building, for the prosecution and completion of a

25  public work, or for repairs upon a public building or public

26  work shall be required, before commencing the work or before

27  recommencing the work after a default or abandonment, to

28  execute, deliver to the public owner, and record in the public

29  records of the county where the improvement is located, a

30  payment and performance bond with a surety insurer authorized

31  to do business in this state as surety. The bond must state on

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  1  its front page: the name, principal business address, and

  2  phone number of the contractor, the surety, the owner of the

  3  property being improved, and, if different from the owner, the

  4  contracting public entity; the contract number assigned by the

  5  contracting public entity; and a description of the project

  6  sufficient to identify it, such as including, if applicable, a

  7  legal description or and the street address of the property

  8  being improved, and a general description of the improvement.

  9  Such bond shall be conditioned solely upon the contractor's

10  performance of the construction work that the contractor

11  perform the contract in the time and manner prescribed in the

12  contract and the contractor's prompt payment promptly make

13  payments to all persons defined in s. 713.01 who furnished

14  labor, services, or materials for whose claims derive directly

15  or indirectly from the prosecution of the work provided for in

16  the contract. Any claimant may apply to the governmental

17  entity having charge of the work for copies of the contract

18  and bond and shall thereupon be furnished with a certified

19  copy of the contract and bond. The claimant shall have a right

20  of action against the contractor and surety for the amount due

21  him or her, including unpaid finance charges due under the

22  claimant's contract. Such action shall not involve the public

23  authority in any expense. When such work is done for the state

24  and the contract is for $100,000 or less, no payment and

25  performance bond shall be required. At the discretion of the

26  official or board awarding such contract when such work is

27  done for any county, city, political subdivision, or public

28  authority, any person entering into such a contract which is

29  for $200,000 or less may be exempted from executing the

30  payment and performance bond. When such work is done for the

31  state, the Secretary of the Department of Management Services

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  1  may delegate to state agencies the authority to exempt any

  2  person entering into such a contract amounting to more than

  3  $100,000 but less than $200,000 from executing the payment and

  4  performance bond. In the event such exemption is granted, the

  5  officer or officials shall not be personally liable to persons

  6  suffering loss because of granting such exemption. The

  7  Department of Management Services shall maintain information

  8  on the number of requests by state agencies for delegation of

  9  authority to waive the bond requirements by agency and project

10  number and whether any request for delegation was denied and

11  the justification for the denial.

12         (2)(a)1.  If a claimant is no longer furnishing labor,

13  services, or materials on a project, a contractor or the

14  contractor's agent or attorney may elect to shorten the

15  prescribed time in this paragraph within which an action to

16  enforce any claim against a payment bond provided pursuant to

17  this section may be commenced by recording in the clerk's

18  office a notice in substantially the following form:

19

20                    NOTICE OF CONTEST OF CLAIM

21                       AGAINST PAYMENT BOND

22

23

24  To: ...(Name and address of claimant)...

25         You are notified that the undersigned contests your

26  notice of nonpayment, dated ............, ........, and served

27  on the undersigned on ............, ........, and that the

28  time within which you may file suit to enforce your claim is

29  limited to 60 days after the date of service of this notice.

30

31         DATED on ............, .........

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  1

  2

  3  Signed:...(Contractor or Attorney)...

  4

  5

  6  The claim of any claimant upon whom such notice is served and

  7  who fails to institute a suit to enforce his or her claim

  8  against the payment bond within 60 days after service of such

  9  notice shall be extinguished automatically. The clerk shall

10  mail a copy of the notice of contest to the claimant at the

11  address shown in the notice of nonpayment or most recent

12  amendment thereto and shall certify to such service on the

13  face of such notice and record the notice. Service is complete

14  upon mailing.

15         2.  A claimant, except a laborer, who is not in privity

16  with the contractor shall, before commencing or not later than

17  45 days after commencing to furnish labor, materials, or

18  supplies for the prosecution of the work, furnish the

19  contractor with a notice that he or she intends to look to the

20  bond for protection. A claimant who is not in privity with the

21  contractor and who has not received payment for his or her

22  labor, materials, or supplies shall deliver to the contractor

23  and to the surety written notice of the performance of the

24  labor or delivery of the materials or supplies and of the

25  nonpayment. The notice of nonpayment may be served at any time

26  during the progress of the work or thereafter but not before

27  45 days after the first furnishing of labor, services, or

28  materials, and not later than 90 days after the final

29  furnishing of the labor, services, or materials by the

30  claimant or, with respect to rental equipment, not later than

31  90 days after the date that the rental equipment was last on

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  1  the job site available for use. No action for the labor,

  2  materials, or supplies may be instituted against the

  3  contractor or the surety unless both notices have been given.

  4  Notices required or permitted under this section may be served

  5  in accordance with s. 713.18. An action, except for an action

  6  exclusively for recovery of retainage, must be instituted

  7  against the contractor or the surety on the payment bond or

  8  the payment provisions of a combined payment and performance

  9  bond within 1 year after the performance of the labor or

10  completion of delivery of the materials or supplies. An action

11  exclusively for recovery of retainage must be instituted

12  against the contractor or the surety within 1 year after the

13  performance of the labor or completion of delivery of the

14  materials or supplies, or within 90 days after the

15  contractor's receipt of final payment (or the payment estimate

16  containing the owner's final reconciliation of quantities if

17  no further payment is earned and due as a result of deductive

18  adjustments) by the contractor or surety, whichever comes

19  last. A claimant may not waive in advance his or her right to

20  bring an action under the bond against the surety. In any

21  action brought to enforce a claim against a payment bond under

22  this section, the prevailing party is entitled to recover a

23  reasonable fee for the services of his or her attorney for

24  trial and appeal or for arbitration, in an amount to be

25  determined by the court, which fee must be taxed as part of

26  the prevailing party's costs, as allowed in equitable actions.

27  The time periods for service of a notice of nonpayment or for

28  bringing an action against a contractor or a surety shall be

29  measured from the last day of furnishing labor, services, or

30  materials by the claimant and shall not be measured by other

31

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  1  standards, such as the issuance of a certificate of occupancy

  2  or the issuance of a certificate of substantial completion.

  3         Section 8.  Effective upon this act becoming a law, the

  4  Office of Program Policy Analysis and Government

  5  Accountability (OPPAGA), in consultation with the Legislative

  6  Committee on Intergovernmental Relations, shall:

  7         (1)  Conduct a study of construction retainage methods

  8  for public and private construction within this state. OPPAGA

  9  shall examine all relevant information, including, but not

10  limited to, the following:

11         (a)  Information from various state and local

12  governmental entities, public universities, and community

13  colleges within this state.

14         (b)  Information from the Federal Government and from

15  other states that have addressed construction payment or

16  retainage issues, including states that are comparable in size

17  to this state or that have a comparable amount of public or

18  private construction activity as this state.

19         (c)  Information from public and private owners,

20  general contractors, subcontractors, material suppliers,

21  construction managers, design-build professionals, architects,

22  and engineers.

23         (d)  Information from lenders and surety companies that

24  are involved in public and private construction.

25         (2)  Draw conclusions and make recommendations, as

26  appropriate, with regard to the following issues:

27         (a)  Whether the state should adopt new laws or modify

28  existing laws to address the specific issues set forth below,

29  and whether any existing statutes will require modification or

30  repeal.

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  1         (b)  The positive and negative effects of the current

  2  systems of retainage being used throughout the state, as

  3  applied to public-sector and private-sector construction

  4  contracts, and as between owners and contractors, between

  5  contractors and subcontractors, and between subcontractors and

  6  sub-subcontractors.

  7         (c)  Whether the traditional 10-percent-retainage

  8  practice in construction is equitable and whether there are

  9  viable alternatives to this practice.

10         (d)  What would be an appropriate percentage of

11  retainage to be held on all construction projects.

12         (e)  What the purposes of retainage are for

13  construction projects.

14         (f)  Whether it is appropriate to hold all retainage

15  until the end of a construction project or whether periodic

16  release of retainage or release of retainage for specific

17  divisions of work on a construction project is appropriate and

18  reasonably manageable.

19         (g)  What protections are currently in place for owners

20  to ensure that construction projects are progressing

21  satisfactorily, including, but not limited to, project

22  management techniques, periodic inspections, services of

23  project architects and engineers, and whether those

24  protections are being adequately and properly used.

25         (h)  What protections are currently in place or could

26  be adopted for owners, contractors, and subcontractors through

27  the use of construction payment and performance bonds.

28         (i)  Whether the documentation required for

29  construction projects contributes to delays in progress

30  payments, final payments, and release of retainage; whether

31  such requirements could be simplified or standardized to

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  1  streamline the process; and whether it is appropriate for the

  2  Legislature to address this issue.

  3         (j)  Whether the Legislature should limit the

  4  percentage of retainage that may be held on public or private

  5  construction projects.

  6         (k)  Whether the Legislature should provide for

  7  periodic release of retainage on public or private

  8  construction projects.

  9         (l)  Whether the Legislature should establish

10  requirements and time limits for owners and contractors to

11  release final payment and retainage on all construction

12  projects.

13         (3)  Present a report of its findings and

14  recommendations to the President of the Senate, the Speaker of

15  the House of Representatives, the minority leaders of the

16  Senate and the House of Representatives, the chair of the

17  House Business Regulation and Consumer Affairs Committee, and

18  the chair of the Senate Regulated Industries Committee by

19  January 1, 2001.

20         Section 9.  Except as otherwise specifically provided

21  in this act, this act shall take effect July 1, 2000, and

22  shall apply to construction contracts entered into on or after

23  the effective date.

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 1464

  3

  4  The Committee Substitute for Senate Bill 1464:

  5  -     Deletes provisions on retainage.

  6  -     Requires that the Office of Program Policy Analysis and
          Government Accountability, in consultation with the
  7        Legislative Committee on Intergovernmental Relations,
          conduct a study of and make recommendations relating to
  8        public and private construction retainage methods.

  9  -     Revises the definition of "payment request."

10  -     Provides that when a contractor receives a payment from
          a local governmental entity, the contractor must pay the
11        relevant subcontractors and suppliers within 10 days
          after receipt of payment.
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