Florida Senate - 2023 COMMITTEE AMENDMENT
Bill No. CS for SB 346
Ì570730zÎ570730
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
03/29/2023 .
.
.
.
—————————————————————————————————————————————————————————————————
—————————————————————————————————————————————————————————————————
The Committee on Governmental Oversight and Accountability
(DiCeglie) recommended the following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Subsection (7) and paragraph (c) of subsection
6 (8) of section 218.735, Florida Statutes, are amended to read:
7 218.735 Timely payment for purchases of construction
8 services.—
9 (7) Each contract for construction services between a local
10 governmental entity and a contractor must provide for the
11 development of a single list of items and the estimated cost to
12 complete each item on the list required to render complete,
13 satisfactory, and acceptable the construction services purchased
14 by the local governmental entity.
15 (a) The contract must specify the process for developing
16 the list and for determining the cost to complete each item on
17 the list, and should include, including the responsibilities of
18 the local governmental entity and the contractor in developing
19 and reviewing the list and a reasonable time for developing the
20 list:
21 1. For construction projects having an estimated cost of
22 less than $10 million, within 30 calendar days after reaching
23 substantial completion of the construction services purchased as
24 defined in the contract, or, if not defined in the contract,
25 upon reaching beneficial occupancy or use; or
26 2. For construction projects having an estimated cost of
27 $10 million or more, within 30 calendar days, or, if extended by
28 contract, up to 45 60 calendar days after reaching substantial
29 completion of the construction services purchased as defined in
30 the contract, or, if not defined in the contract, upon reaching
31 beneficial occupancy or use.
32
33 The contract must also specify a date for the delivery of the
34 list of items, not to exceed 5 days after the list of items has
35 been developed and reviewed in accordance with the time periods
36 set forth in subparagraphs 1. and 2.
37 (b) If the contract between the local governmental entity
38 and the contractor relates to the purchase of construction
39 services on more than one building or structure, or involves a
40 multiphased project, the contract must provide for the
41 development of a list of items required to render complete,
42 satisfactory, and acceptable all the construction services
43 purchased pursuant to the contract for each building, structure,
44 or phase of the project within the time limitations provided in
45 paragraph (a).
46 (c) The final contract completion date must be at least 30
47 days after the delivery of the list of items. If the list is not
48 provided to the contractor by the agreed upon date for delivery
49 of the list, the contract time for completion must be extended
50 by the number of days the local governmental entity exceeded the
51 delivery date. Damages may not be assessed against a contractor
52 for failing to complete a project within the time required by
53 the contract, unless the contractor failed to complete the
54 project within the contract period as extended under this
55 paragraph.
56 (d) The failure to include any corrective work or pending
57 items not yet completed on the list does not alter the
58 responsibility of the contractor to complete all the
59 construction services purchased pursuant to the contract.
60 (e) Within 20 business days after the list is created, the
61 local governmental entity must pay the contractor the remaining
62 contract balance that includes all retainage previously withheld
63 by the local governmental entity less an amount equal to 150
64 percent of the estimated cost to complete the items on the list.
65 (f) Upon completion of all items on the list, the
66 contractor may submit a payment request for the amount all
67 remaining retainage withheld by the local governmental entity
68 pursuant to paragraph (e) this section. If a good faith dispute
69 exists as to whether one or more items identified on the list
70 have been completed pursuant to the contract, the local
71 governmental entity may continue to withhold up to 150 percent
72 of the total costs to complete such items.
73 (g)(f) All items that require correction under the contract
74 which and that are identified after the preparation and delivery
75 of the list remain the obligation of the contractor as defined
76 by the contract.
77 (h)(g) Warranty items or items not included in the list of
78 items required under paragraph (a) may not affect the final
79 payment of retainage as provided in paragraph (a) this section
80 or as provided in the contract between the contractor and its
81 subcontractors and suppliers.
82 (i)(h) Retainage may not be held by a local governmental
83 entity or a contractor to secure payment of insurance premiums
84 under a consolidated insurance program or series of insurance
85 policies issued to a local governmental entity or a contractor
86 for a project or group of projects, and the final payment of
87 retainage as provided in this section may not be delayed pending
88 a final audit by the local governmental entity’s or contractor’s
89 insurance provider.
90 (j)(i) If a local governmental entity fails to comply with
91 its responsibilities to develop the list required under
92 paragraph (a) or paragraph (b) within the time limitations
93 provided in paragraph (a), the contractor may submit a payment
94 request to the local governmental entity for the all remaining
95 balance of the contract, including all remaining retainage
96 withheld by the local governmental entity. The local
97 governmental entity must pay the contractor pursuant to this
98 section; and payment of any remaining undisputed contract
99 amount, less any amount withheld pursuant to the contract for
100 incomplete or uncorrected work, must be paid within 20 business
101 days after receipt of a proper invoice or payment request. If
102 the local governmental entity has provided written notice to the
103 contractor specifying the failure of the contractor to meet
104 contract requirements in the development of the list of items to
105 be completed, the local governmental entity must pay the
106 contractor the remaining balance of the contract, less an amount
107 equal to 150 percent of the estimated cost to complete the items
108 that the local governmental entity intended to include on the
109 list need not pay or process any payment request for retainage
110 if the contractor has, in whole or in part, failed to cooperate
111 with the local governmental entity in the development of the
112 list or to perform its contractual responsibilities, if any,
113 with regard to the development of the list or if paragraph
114 (8)(c) applies.
115 (8)
116 (c) This section does not require the local governmental
117 entity to pay or release any amounts that are the subject of a
118 good faith dispute made in writing pursuant to the contract or,
119 the subject of a claim brought pursuant to s. 255.05, or
120 otherwise the subject of a claim or demand by the local
121 governmental entity or contractor.
122 Section 2. Paragraph (a) of subsection (2) of section
123 218.76, Florida Statutes, is amended to read:
124 218.76 Improper payment request or invoice; resolution of
125 disputes.—
126 (2)(a) If a dispute arises between a vendor and a local
127 governmental entity concerning payment of a payment request or
128 an invoice, the dispute must shall be finally determined by the
129 local governmental entity pursuant to a dispute resolution
130 procedure established by the local governmental entity. Such
131 procedure must provide that proceedings to resolve the dispute
132 commence are commenced within 30 45 days after the date the
133 payment request or proper invoice was received by the local
134 governmental entity and conclude concluded by final decision of
135 the local governmental entity within 45 60 days after the date
136 the payment request or proper invoice was received by the local
137 governmental entity. Such procedures are not subject to chapter
138 120 and do not constitute an administrative proceeding that
139 prohibits a court from deciding de novo any action arising out
140 of the dispute. If the dispute is resolved in favor of the local
141 governmental entity, interest charges begin to accrue 15 days
142 after the local governmental entity’s final decision. If the
143 dispute is resolved in favor of the vendor, interest begins to
144 accrue as of the original date the payment became due.
145 Section 3. Subsection (2) of section 255.073, Florida
146 Statutes, is amended to read:
147 255.073 Timely payment for purchases of construction
148 services.—
149 (2) If a public entity disputes a portion of a payment
150 request, the undisputed portion must be timely paid by the date
151 required under the contract or by 20 business days after receipt
152 of the request, whichever is earlier.
153 Section 4. Subsection (3) of section 255.074, Florida
154 Statutes, is amended to read:
155 255.074 Procedures for calculation of payment due dates.—
156 (3) A public entity must submit a payment request to the
157 Chief Financial Officer for payment no later more than 14 20
158 days after receipt of the payment request.
159 Section 5. Present subsections (4) through (8) of section
160 255.077, Florida Statutes, are redesignated as subsections (5)
161 through (9), respectively, a new subsection (4) is added to that
162 section, and subsection (1) and present subsection (8) of that
163 section are amended, to read:
164 255.077 Project closeout and payment of retainage.—
165 (1) Each contract for construction services between a
166 public entity and a contractor must provide for the development
167 of a list of items and the estimated cost to complete each item
168 on the list required to render complete, satisfactory, and
169 acceptable the construction services purchased by the public
170 entity. The contract must specify the process for the
171 development of the list and for determining the cost to complete
172 each item on the list, and should include the, including
173 responsibilities of the public entity and the contractor in
174 developing and reviewing the list and a reasonable time for
175 developing the list, as follows:
176 (a) For construction projects having an estimated cost of
177 less than $10 million, within 30 calendar days after reaching
178 substantial completion of the construction services purchased as
179 defined in the contract, or, if not defined in the contract,
180 upon reaching beneficial occupancy or use; or
181 (b) For construction projects having an estimated cost of
182 $10 million or more, within 30 calendar days, unless otherwise
183 extended by contract not to exceed 45 60 calendar days, after
184 reaching substantial completion of the construction services
185 purchased as defined in the contract, or, if not defined in the
186 contract, upon reaching beneficial occupancy or use.
187 (4) Within 20 business days after developing the list, and
188 after receipt of a proper invoice or payment request, the public
189 entity must pay the contractor the remaining balance of the
190 contract, including any remaining retainage withheld by the
191 public entity pursuant to s. 255.078, less an amount equal to
192 150 percent of the estimated cost to complete the items on the
193 list.
194 (9)(8) If a public entity fails to comply with its
195 responsibilities to develop the list required under subsection
196 (1) or subsection (2), as defined in the contract, within the
197 time limitations provided in subsection (1), the contractor may
198 submit a payment request for all remaining retainage withheld by
199 the public entity pursuant to s. 255.078 and the public entity
200 must pay the contractor all remaining retainage previously
201 withheld within 20 days after receipt of the payment request.
202 The public entity is not required to need not pay or process any
203 payment request for retainage if the contractor has, in whole or
204 in part, failed to cooperate with the public entity in the
205 development of the list or failed to perform its contractual
206 responsibilities, if any, with regard to the development of the
207 list or if s. 255.078(3) applies.
208 Section 6. Subsection (3) of section 255.078, Florida
209 Statutes, is amended to read:
210 255.078 Public construction retainage.—
211 (3) This section and s. 255.077 do not require the public
212 entity to pay or release any amounts that are the subject of a
213 good faith dispute made in writing pursuant to the contract or,
214 the subject of a claim brought pursuant to s. 255.05, or
215 otherwise the subject of a claim or demand by the public entity
216 or contractor.
217 Section 7. Paragraph (b) of subsection (1) of section
218 255.0992, Florida Statutes, is amended to read:
219 255.0992 Public works projects; prohibited governmental
220 actions.—
221 (1) As used in this section, the term:
222 (b) “Public works project” means an activity exceeding $1
223 million in value that is paid for with any state-appropriated
224 funds and that which consists of the construction, maintenance,
225 repair, renovation, remodeling, or improvement of a building,
226 road, street, sewer, storm drain, water system, site
227 development, irrigation system, reclamation project, gas or
228 electrical distribution system, gas or electrical substation, or
229 other facility, project, or portion thereof that is owned in
230 whole or in part by any political subdivision.
231 Section 8. This act shall take effect July 1, 2023.
232
233 ================= T I T L E A M E N D M E N T ================
234 And the title is amended as follows:
235 Delete everything before the enacting clause
236 and insert:
237 A bill to be entitled
238 An act relating to public construction; amending s.
239 218.735, F.S.; requiring that certain contracts
240 provide the estimated cost to complete each item on a
241 specified list; requiring that such contracts specify
242 the process for determining the cost to complete each
243 item on the list; revising the extension by contract
244 of a specified timeframe to develop and review a
245 specified list; requiring a local governmental entity
246 to pay a contractor the remaining contract balance
247 within a specified timeframe; authorizing the
248 contractor to submit a payment request for the amount
249 withheld by the local governmental entity under
250 specified conditions; authorizing a contractor to
251 submit a payment request to the local governmental
252 entity for the remaining balance of the contract,
253 under specified conditions; requiring a local
254 governmental entity to pay the contractor within a
255 specified timeframe; requiring the local governmental
256 entity to pay the remaining balance of the contract
257 under specified conditions; revising the conditions
258 that require a local governmental entity to pay or
259 release amounts subject to certain disputes or claims;
260 amending s. 218.76, F.S.; revising the timeframe
261 within which proceedings must commence to resolve
262 disputes between vendors and local governmental
263 entities; revising the timeframe for such proceedings
264 to conclude; amending s. 255.073, F.S.; requiring that
265 undisputed portions of payment requests be paid within
266 a specified timeframe; amending s. 255.074, F.S.;
267 revising the timeframe for a public entity to submit a
268 payment request to the Chief Financial Officer;
269 amending s. 255.077, F.S.; requiring that certain
270 contracts provide the estimated cost to complete each
271 item on a specified list; requiring that such
272 contracts specify the process for determining the cost
273 to complete the items on the list; revising the
274 extension authorized by contract to develop the
275 specified list; requiring the public entity to pay the
276 contractor the remaining balance of the contract
277 within a specified timeframe; requiring a public
278 entity to pay all remaining retainage if the public
279 entity has not developed a specified list; amending s.
280 255.078, F.S.; revising the conditions that require a
281 public entity to pay or release amounts subject to
282 certain disputes or claims; amending s. 255.0992,
283 F.S.; revising the definition of the term “public
284 works project”; providing an effective date.