Florida Senate - 2020                              CS for SB 246
       
       
        
       By the Committee on Governmental Oversight and Accountability;
       and Senator Hooper
       
       
       
       
       585-00860-20                                           2020246c1
    1                        A bill to be entitled                      
    2         An act relating to public construction; amending s.
    3         218.735, F.S.; revising the amount of retainage that
    4         certain local governmental entities and contractors
    5         may withhold from progress payments for any
    6         construction services contract; conforming a provision
    7         to changes made by the act; amending s. 255.05, F.S.;
    8         revising requirements for Department of Management
    9         Services rules governing certain contracts; amending
   10         s. 255.077, F.S.; conforming a cross-reference;
   11         amending s. 255.078, F.S.; revising the amounts of
   12         retainage that certain public entities and contractors
   13         may withhold from progress payments for any
   14         construction services contract; conforming a provision
   15         to changes made by the act; providing applicability;
   16         providing an effective date.
   17          
   18  Be It Enacted by the Legislature of the State of Florida:
   19  
   20         Section 1. Paragraph (i) of subsection (7) and subsection
   21  (8) of section 218.735, Florida Statutes, are amended to read:
   22         218.735 Timely payment for purchases of construction
   23  services.—
   24         (7) Each contract for construction services between a local
   25  governmental entity and a contractor must provide for the
   26  development of a single list of items required to render
   27  complete, satisfactory, and acceptable the construction services
   28  purchased by the local governmental entity.
   29         (i) If a local governmental entity fails to comply with its
   30  responsibilities to develop the list required under paragraph
   31  (a) or paragraph (b) within the time limitations provided in
   32  paragraph (a), the contractor may submit a payment request for
   33  all remaining retainage withheld by the local governmental
   34  entity pursuant to this section; and payment of any remaining
   35  undisputed contract amount, less any amount withheld pursuant to
   36  the contract for incomplete or uncorrected work, must be paid
   37  within 20 business days after receipt of a proper invoice or
   38  payment request. If the local governmental entity has provided
   39  written notice to the contractor specifying the failure of the
   40  contractor to meet contract requirements in the development of
   41  the list of items to be completed, the local governmental entity
   42  need not pay or process any payment request for retainage if the
   43  contractor has, in whole or in part, failed to cooperate with
   44  the local governmental entity in the development of the list or
   45  to perform its contractual responsibilities, if any, with regard
   46  to the development of the list or if paragraph (8)(c) (8)(f)
   47  applies.
   48         (8)(a) With regard to any contract for construction
   49  services, a local governmental entity may withhold from each
   50  progress payment made to the contractor an amount not exceeding
   51  5 10 percent of the payment as retainage until 50-percent
   52  completion of such services.
   53         (b)After 50-percent completion of the construction
   54  services purchased pursuant to the contract, the local
   55  governmental entity must reduce to 5 percent the amount of
   56  retainage withheld from each subsequent progress payment made to
   57  the contractor. For purposes of this subsection, the term “50
   58  percent completion” has the meaning set forth in the contract
   59  between the local governmental entity and the contractor or, if
   60  not defined in the contract, the point at which the local
   61  governmental entity has expended 50 percent of the total cost of
   62  the construction services purchased as identified in the
   63  contract together with all costs associated with existing change
   64  orders and other additions or modifications to the construction
   65  services provided for in the contract. However, notwithstanding
   66  this subsection, a municipality having a population of 25,000 or
   67  fewer, or a county having a population of 100,000 or fewer, may
   68  withhold retainage in an amount not exceeding 10 percent of each
   69  progress payment made to the contractor until final completion
   70  and acceptance of the project by the local governmental entity.
   71         (c)After 50-percent completion of the construction
   72  services purchased pursuant to the contract, the contractor may
   73  elect to withhold retainage from payments to its subcontractors
   74  at a rate higher than 5 percent. The specific amount to be
   75  withheld must be determined on a case-by-case basis and must be
   76  based on the contractor’s assessment of the subcontractor’s past
   77  performance, the likelihood that such performance will continue,
   78  and the contractor’s ability to rely on other safeguards. The
   79  contractor shall notify the subcontractor, in writing, of its
   80  determination to withhold more than 5 percent of the progress
   81  payment and the reasons for making that determination, and the
   82  contractor may not request the release of such retained funds
   83  from the local governmental entity.
   84         (d)After 50-percent completion of the construction
   85  services purchased pursuant to the contract, the contractor may
   86  present to the local governmental entity a payment request for
   87  up to one-half of the retainage held by the local governmental
   88  entity. The local governmental entity shall promptly make
   89  payment to the contractor, unless the local governmental entity
   90  has grounds, pursuant to paragraph (f), for withholding the
   91  payment of retainage. If the local governmental entity makes
   92  payment of retainage to the contractor under this paragraph
   93  which is attributable to the labor, services, or materials
   94  supplied by one or more subcontractors or suppliers, the
   95  contractor shall timely remit payment of such retainage to those
   96  subcontractors and suppliers.
   97         (b)(e) This section does not prohibit a local governmental
   98  entity from withholding retainage at a rate less than 5 10
   99  percent of each progress payment, from incrementally reducing
  100  the rate of retainage pursuant to a schedule provided for in the
  101  contract, or from releasing at any point all or a portion of any
  102  retainage withheld by the local governmental entity which is
  103  attributable to the labor, services, or materials supplied by
  104  the contractor or by one or more subcontractors or suppliers. If
  105  a local governmental entity makes any payment of retainage to
  106  the contractor which is attributable to the labor, services, or
  107  materials supplied by one or more subcontractors or suppliers,
  108  the contractor must shall timely remit payment of such retainage
  109  to those subcontractors and suppliers.
  110         (c)(f) This section does not require the local governmental
  111  entity to pay or release any amounts that are the subject of a
  112  good faith dispute, the subject of a claim brought pursuant to
  113  s. 255.05, or otherwise the subject of a claim or demand by the
  114  local governmental entity or contractor.
  115         (d)(g) The time limitations set forth in this section for
  116  payment of payment requests apply to any payment request for
  117  retainage made pursuant to this section.
  118         (e)(h)Paragraph (a) does Paragraphs (a)-(d) do not apply
  119  to construction services purchased by a local governmental
  120  entity which are paid for, in whole or in part, with federal
  121  funds and are subject to federal grantor laws and regulations or
  122  requirements that are contrary to any provision of the Local
  123  Government Prompt Payment Act.
  124         (f)(i) This subsection does not apply to any construction
  125  services purchased by a local governmental entity if the total
  126  cost of the construction services purchased as identified in the
  127  contract is $200,000 or less.
  128         Section 2. Paragraph (f) of subsection (1) of section
  129  255.05, Florida Statutes, is amended to read:
  130         255.05 Bond of contractor constructing public buildings;
  131  form; action by claimants.—
  132         (1) A person entering into a formal contract with the state
  133  or any county, city, or political subdivision thereof, or other
  134  public authority or private entity, for the construction of a
  135  public building, for the prosecution and completion of a public
  136  work, or for repairs upon a public building or public work shall
  137  be required, before commencing the work or before recommencing
  138  the work after a default or abandonment, to execute and record
  139  in the public records of the county where the improvement is
  140  located, a payment and performance bond with a surety insurer
  141  authorized to do business in this state as surety. A public
  142  entity may not require a contractor to secure a surety bond
  143  under this section from a specific agent or bonding company.
  144         (f) The Department of Management Services shall adopt rules
  145  with respect to all contracts for $200,000 or less, to provide:
  146         1. Procedures for retaining up to 5 10 percent of each
  147  request for payment submitted by a contractor and procedures for
  148  determining disbursements from the amount retained on a pro rata
  149  basis to laborers, materialmen, and subcontractors, as defined
  150  in s. 713.01.
  151         2. Procedures for requiring certification from laborers,
  152  materialmen, and subcontractors, as defined in s. 713.01, before
  153  final payment to the contractor that such laborers, materialmen,
  154  and subcontractors have no claims against the contractor
  155  resulting from the completion of the work provided for in the
  156  contract.
  157  
  158  The state is not liable to any laborer, materialman, or
  159  subcontractor for any amounts greater than the pro rata share as
  160  determined under this section.
  161         Section 3. Subsection (8) of section 255.077, Florida
  162  Statutes, is amended to read:
  163         255.077 Project closeout and payment of retainage.—
  164         (8) If a public entity fails to comply with its
  165  responsibilities to develop the list required under subsection
  166  (1) or subsection (2), as defined in the contract, within the
  167  time limitations provided in subsection (1), the contractor may
  168  submit a payment request for all remaining retainage withheld by
  169  the public entity pursuant to s. 255.078. The public entity need
  170  not pay or process any payment request for retainage if the
  171  contractor has, in whole or in part, failed to cooperate with
  172  the public entity in the development of the list or failed to
  173  perform its contractual responsibilities, if any, with regard to
  174  the development of the list or if s. 255.078(3) s. 255.078(6)
  175  applies.
  176         Section 4. Section 255.078, Florida Statutes, is amended to
  177  read:
  178         255.078 Public construction retainage.—
  179         (1) With regard to any contract for construction services,
  180  a public entity may withhold from each progress payment made to
  181  the contractor an amount not exceeding 5 10 percent of the
  182  payment as retainage until 50-percent completion of such
  183  services.
  184         (2)After 50-percent completion of the construction
  185  services purchased pursuant to the contract, the public entity
  186  must reduce to 5 percent the amount of retainage withheld from
  187  each subsequent progress payment made to the contractor. For
  188  purposes of this section, the term “50-percent completion” has
  189  the meaning set forth in the contract between the public entity
  190  and the contractor or, if not defined in the contract, the point
  191  at which the public entity has expended 50 percent of the total
  192  cost of the construction services purchased as identified in the
  193  contract together with all costs associated with existing change
  194  orders and other additions or modifications to the construction
  195  services provided for in the contract.
  196         (3)After 50-percent completion of the construction
  197  services purchased pursuant to the contract, the contractor may
  198  elect to withhold retainage from payments to its subcontractors
  199  at a rate higher than 5 percent. The specific amount to be
  200  withheld must be determined on a case-by-case basis and must be
  201  based on the contractor’s assessment of the subcontractor’s past
  202  performance, the likelihood that such performance will continue,
  203  and the contractor’s ability to rely on other safeguards. The
  204  contractor shall notify the subcontractor, in writing, of its
  205  determination to withhold more than 5 percent of the progress
  206  payment and the reasons for making that determination, and the
  207  contractor may not request the release of such retained funds
  208  from the public entity.
  209         (4)After 50-percent completion of the construction
  210  services purchased pursuant to the contract, the contractor may
  211  present to the public entity a payment request for up to one
  212  half of the retainage held by the public entity. The public
  213  entity shall promptly make payment to the contractor, unless the
  214  public entity has grounds, pursuant to subsection (6), for
  215  withholding the payment of retainage. If the public entity makes
  216  payment of retainage to the contractor under this subsection
  217  which is attributable to the labor, services, or materials
  218  supplied by one or more subcontractors or suppliers, the
  219  contractor shall timely remit payment of such retainage to those
  220  subcontractors and suppliers.
  221         (2)(5)Neither This section and nor s. 255.077 do not
  222  prohibit prohibits a public entity from withholding retainage at
  223  a rate less than 5 10 percent of each progress payment, from
  224  incrementally reducing the rate of retainage pursuant to a
  225  schedule provided for in the contract, or from releasing at any
  226  point all or a portion of any retainage withheld by the public
  227  entity which is attributable to the labor, services, or
  228  materials supplied by the contractor or by one or more
  229  subcontractors or suppliers. If a public entity makes any
  230  payment of retainage to the contractor which is attributable to
  231  the labor, services, or materials supplied by one or more
  232  subcontractors or suppliers, the contractor must shall timely
  233  remit payment of such retainage to those subcontractors and
  234  suppliers.
  235         (3)(6)Neither This section and nor s. 255.077 do not
  236  require requires the public entity to pay or release any amounts
  237  that are the subject of a good faith dispute, the subject of a
  238  claim brought pursuant to s. 255.05, or otherwise the subject of
  239  a claim or demand by the public entity or contractor.
  240         (4)(7) The same time limits for payment of a payment
  241  request apply regardless of whether the payment request is for,
  242  or includes, retainage.
  243         (5)(8)Subsection (1) does Subsections (1)-(4) do not apply
  244  to construction services purchased by a public entity which are
  245  paid for, in whole or in part, with federal funds and are
  246  subject to federal grantor laws and regulations or requirements
  247  that are contrary to any provision of the Florida Prompt Payment
  248  Act.
  249         (6)(9) This section does not apply to any construction
  250  services purchased by a public entity if the total cost of the
  251  construction services purchased as identified in the contract is
  252  $200,000 or less.
  253         Section 5. (1)This act does not apply to any contract for
  254  construction services which is entered into or is pending
  255  approval by a public entity, as defined in s. 255.072, Florida
  256  Statutes, or by a local governmental entity, as defined in s.
  257  218.72, Florida Statutes, or to any construction services
  258  project advertised for bid by the public entity or local
  259  governmental entity, on or before October 1, 2020.
  260         (2)The amendments made to ss. 255.05 and 255.078, Florida
  261  Statutes, by this act do not apply to contracts executed under
  262  chapter 337, Florida Statutes.
  263         Section 6. This act shall take effect October 1, 2020.