Bill Text: FL S1056 | 2010 | Regular Session | Comm Sub
Bill Title: Local Government Prompt Payment Act [CPSC]
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2010-04-27 - Placed on Special Order Calendar; Read 2nd time -SJ 00919; Amendment(s) adopted (495022, 482460) -SJ 00919; Substituted CS/HB 1157 -SJ 00919; Laid on Table, companion bill(s) passed, see CS/HB 1157 (Ch. 2010-111) -SJ 00919 [S1056 Detail]
Download: Florida-2010-S1056-Comm_Sub.html
Florida Senate - 2010 CS for CS for SB 1056 By the Committees on Judiciary; and Community Affairs; and Senator Baker 590-05219A-10 20101056c2 1 A bill to be entitled 2 An act relating to the Local Government Prompt Payment 3 Act; amending s. 218.72, F.S.; revising definitions; 4 amending s. 218.735, F.S.; revising provisions 5 relating to the timely payment for purchases of 6 construction services; providing that a payment 7 request or invoice that is not rejected within a 8 certain time after an overdue notice is sent is deemed 9 accepted; requiring a local governmental entity to 10 identify in a construction contract the agent or 11 employee or facility or office to which a contractor 12 may submit its payment request or invoice; requiring 13 that an ordinance providing dispute resolution 14 procedures applicable to a construction contract be 15 referenced in the contract; requiring construction 16 contracts to specify a date for the delivery of a list 17 of items required to render complete, satisfactory, 18 and acceptable the construction services purchased by 19 a local governmental entity; providing for the 20 extension of the contract if the list of items 21 remaining to complete is not timely provided to the 22 contractor; specifying the time for paying any 23 remaining undisputed contract amount; amending s. 24 218.76, F.S.; revising provisions relating to the 25 resolution of disputes concerning an improper payment 26 request or invoice; providing that a local 27 governmental entity waives its objection in a payment 28 dispute if it fails to commence the dispute resolution 29 procedure within a certain time and after receiving 30 notice from the contractor; providing an effective 31 date. 32 33 Be It Enacted by the Legislature of the State of Florida: 34 35 Section 1. Section 218.72, Florida Statutes, is reordered 36 and amended to read: 37 218.72 Definitions.—As used in this part, the term: 38 (8)(1)“Proper invoice” means an invoice thatwhich39 conforms with all statutory requirements andwithall 40 requirementsthat have beenspecified by the local governmental 41 entity to which the invoice is submitted. Such requirements must 42 be included in the contract for the project for which the 43 invoice is submitted. 44 (5)(2)“Local governmental entity” means a county or 45 municipal government, school board, school district, authority, 46 special taxing district, other political subdivision, or any 47 office, board, bureau, commission, department, branch, division, 48 or institution thereof. 49 (4)(3)“County” means a political subdivision of the state 50 established pursuant to s. 1, Art. VIII of the State 51 Constitution. 52 (6)(4)“Municipality” means a municipality created pursuant 53 to general or special law and metropolitan and consolidated 54 governments as provided in s. 6(e) and (f), Art. VIII of the 55 State Constitution. 56 (9)(5)“Purchase” means the purchase of goods, services, or 57 construction services; the purchase or lease of personal 58 property; or the lease of real property by a local governmental 59 entity. 60 (10)(6)“Vendor” means any person who sells goods or 61 services, sells or leases personal property, or leases real 62 property directly to a local governmental entity. The term 63 includes any person who provides waste hauling services to 64 residents or businesses located within the boundaries of a local 65 government pursuant to a contract or local ordinance. 66 (2)(7)“Construction services” means all labor, services, 67 and materials provided in connection with the construction, 68 alteration, repair, demolition, reconstruction, oranyother 69 improvements to real property. 70 (7)(8)“Payment request” means a request for payment for 71 construction services which conforms with all statutory 72 requirements andwithall requirements specified by the local 73 governmental entity to which the payment request is submitted. 74 Such requirements must be included in the contract for the 75 project for which payment is requested. 76 (1)(9)“Agent” means the project architect, project 77 engineer, oranyother agency or person acting on behalf of the 78 local governmental entity. The agent who is required to review 79 invoices or payment requests must be identified in accordance 80 with s. 218.735(2). 81 (3)(10)“Contractor” or “provider of construction services” 82 means theanyperson who contracts directly with a local 83 governmental entity to provide construction services. 84 Section 2. Present subsections (8) and (9) of section 85 218.735, Florida Statutes, are redesignated as subsections (9) 86 and (10), respectively, and present subsections (1) through (7) 87 of that section are amended, to read: 88 218.735 Timely payment for purchases of construction 89 services.— 90 (1) The due date for payment for the purchase of 91 construction services by a local governmental entity is 92 determined as follows: 93 (a) If an agent must approve the payment request or invoice 94 beforeprior tothe payment request or invoice isbeing95 submitted to the local governmental entity, payment is due 25 96 business days after the date on which the payment request or 97 invoice is stamped as received as provided in s. 218.74(1). The 98 contractor may send the local government an overdue notice. If 99 the payment request or invoice is not rejected within 2 business 100 days after delivery of the overdue notice, the payment request 101 or invoice is deemed accepted, except for any portion that is 102 fraudulent or misleading. 103 (b) If an agent need not approve the payment request or 104 invoicewhich issubmitted by the contractor, payment is due 20 105 business days after the dateon whichthe payment request or 106 invoice is stamped as received as provided in s. 218.74(1). 107 (2) A local governmental entity shall identify the agent or 108 employee of the local governmental entity, or the facility or 109 office, to which the contractor may submit its payment request 110 or invoice. 111 (a) This requirement must be included in the contract 112 between the local governmental entity and contractor, or, as 113 required by the contract, must be provided by the local 114 governmental entity through a separate written notice within 10 115 days after the contract award. 116 (b) A contractor’s submission of a payment request or 117 invoice to the identified agent, employee, facility, or office 118 of the local governmental entity must be stamped as received as 119 provided in s. 218.74(1), and commences the time periods for 120 payment or rejection of a payment request or invoice as provided 121 in this subsection and subsection (3). 122 (3)(2)If a payment request or invoice does not meet the 123 contract requirements, the local governmental entity mustmay124 reject the payment request or invoice within 20 business days 125 after the date on which the payment request or invoice is 126 stamped as received as provided in s. 218.74(1). The rejection 127 must be written and must specify the deficiencyin the payment128request or invoiceand the action necessary to make the payment 129 request or invoice proper. 130 (4)(3)If a payment request or an invoice is rejected under 131 subsection (3)(2)and the contractor submits acorrected132 payment request or invoice thatwhichcorrects the deficiency 133specified in writing by the local governmental entity, the 134 corrected payment request or invoice must be paid or rejected on 135 the later of: 136 (a) Ten business days after the date the corrected payment 137 request or invoice is stamped as received as provided in s. 138 218.74(1); or 139 (b) If the local governmental entitygoverning bodyis 140 required by ordinance, charter, or other law to approve or 141 reject the corrected payment request or invoice, the first 142 business day after the next regularly scheduled meeting of the 143 local governmental entitygoverning bodyheld after the 144 corrected payment request or invoice is stamped as received as 145 provided in s. 218.74(1). 146 (5)(4)If a dispute between the local governmental entity 147 and the contractor cannot be resolved by the procedure in 148 subsection (4)(3), the dispute must be resolved in accordance 149 with the dispute resolution procedure prescribed in the 150 construction contract or in any applicable ordinance, which must 151 be referenced in the contract. In the absence of a prescribed 152 procedure, the dispute must be resolved by the procedure 153 specified in s. 218.76(2). 154 (6)(5)If a local governmental entity disputes a portion of 155 a payment request or an invoice, the undisputed portion shall be 156 paid timely, in accordance with subsection (1). 157 (7)(6)IfWhena contractor receives payment from a local 158 governmental entity for labor, services, or materials furnished 159 by subcontractors and suppliers hired by the contractor, the 160 contractor mustshallremit payment due to those subcontractors 161 and suppliers within 10 days after the contractor’s receipt of 162 payment. IfWhena subcontractor receives payment from a 163 contractor for labor, services, or materials furnished by 164 subcontractors and suppliers hired by the subcontractor, the 165 subcontractor mustshallremit payment due to those 166 subcontractors and suppliers within 7 days after the 167 subcontractor’s receipt of payment. This subsection does not 168Nothing herein shallprohibit a contractor or subcontractor from 169 disputing, pursuant to the terms of the relevant contract, all 170 or any portion of a payment alleged to be due to another party 171 if the contractor or subcontractor notifies the party whose 172 payment is disputed, in writing, of the amount in dispute and 173 the actions required to cure the dispute. The contractor or 174 subcontractor must pay all undisputed amounts due within the 175 time limits imposed by this section. 176 (8)(7)(a)Each contract for construction services between a 177 local governmental entity and a contractor must provide for the 178 development of a single list of items required to render 179 complete, satisfactory, and acceptable the construction services 180 purchased by the local governmental entity. 181 (a) The contract must specify the process for developing 182the development ofthe list, including the responsibilities of 183 the local governmental entity and the contractor in developing 184 and reviewing the list and a reasonable time for developing the 185 list, as follows: 186 1. For construction projects having an estimated cost of 187 Less than $10 million, within 30 calendar days after reaching 188 substantial completion of the construction services purchased as 189 defined in the contract, or, if not defined in the contract, 190 upon reaching beneficial occupancy or use; or 191 2. For construction projects having an estimated cost of 192 $10 million or more, within 30 calendar days, or, ifunless193otherwiseextended by contract, up tonot to exceed60 calendar 194 days,after reaching substantial completion of the construction 195 services purchased as defined in the contract, or, if not 196 defined in the contract, upon reaching beneficial occupancy or 197 use. 198 (b) The contract must also specify a date for the delivery 199 of the list of items, not to exceed 5 days after the list of 200 items has been developed and reviewed in accordance with the 201 time periods set forth in paragraph (a). 202 (c)(b)If the contract between the local governmental 203 entity and the contractor relates to the purchase of 204 construction services on more than one building or structure, or 205 involves a multiphased project, the contract must provide for 206 the development of a list of items required to render complete, 207 satisfactory, and acceptable all the construction services 208 purchased pursuant to the contract for each building, structure, 209 or phase of the project within the time limitations provided in 210 paragraph (a). 211 (d) The final contract completion date must be at least 30 212 days after the delivery of the list of items. If the list is not 213 provided to the contractor by the agreed date, the contract time 214 for completion must be extended by the number of days the local 215 governmental entity exceeded the delivery date. Damages may not 216 be assessed against a contractor for failing to complete a 217 project within the time required by the contract, unless the 218 contractor failed to complete the project within the contract 219 period as extended pursuant to this paragraph. 220 (e)(c)The failure to include any corrective work or 221 pending items not yet completed on the listdeveloped pursuant222to this subsectiondoes not alter the responsibility of the 223 contractor to complete all the construction services purchased 224 pursuant to the contract. 225 (f)(d)Upon completion of all items on the list, the 226 contractor may submit a payment request for all remaining 227 retainage withheld by the local governmental entity pursuant to 228 this section. If a good faith dispute exists as to whether one 229 or more items identified on the list have been completed 230 pursuant to the contract, the local governmental entity may 231 continue to withhold up toan amount not to exceed150 percent 232 of the total costs to complete such items. 233 (g)(e)All items that require correction under the contract 234 and that are identified after the preparation and delivery of 235 the list remain the obligation of the contractor as defined by 236 the contract. 237 (h)(f)Warranty items or items not included in the list of 238 items may not affect the final payment of retainage as provided 239 in this section or as provided in the contract between the 240 contractor and its subcontractors and suppliers. 241 (i)(g)Retainage may not be held by a local governmental 242 entity or a contractor to secure payment of insurance premiums 243 under a consolidated insurance program or series of insurance 244 policies issued to a local governmental entity or a contractor 245 for a project or group of projects, and the final payment of 246 retainage as provided in this section may not be delayed pending 247 a final audit by the local governmental entity’s or contractor’s 248 insurance provider. 249 (j)(h)If a local governmental entity fails to comply with 250 its responsibilities to develop the list of items, including the 251 list required under paragraph (c), if applicable,(a) or252paragraph (b),as defined in the contract,within the time 253 limitations provided in paragraph (a), the contractor may submit 254 a payment request for all remaining retainage withheld by the 255 local governmental entity pursuant to this section. The payment 256 of any remaining undisputed contract amount, less any amount 257 withheld pursuant to the contract for incomplete or uncorrected 258 work, must be paid within 20 business days after receipt of a 259 proper invoice or payment request. If the local governmental 260 entity has provided written notice to the contractor specifying 261 the failure of the contractor to meet contract requirements in 262 developing the list of items to be completed, the local 263 governmental entity need not pay or process any payment request 264 for retainage if the contractor has, in whole or in part, failed 265 to cooperate with the local governmental entity in the 266 development of the list,orfailed to perform its contractual 267 responsibilities, if any, with regard to the development of the 268 list, or if paragraph (9)(f)(8)(f)applies. 269 Section 3. Section 218.76, Florida Statutes, is amended to 270 read: 271 218.76 Improper payment request or invoice; resolution of 272 disputes.— 273 (1) IfIn any case in whichan improper payment request or 274 invoice is submitted by a vendor, the local governmental entity 275 shall, within 10 days after the improper payment request or 276 invoice is receivedby it, notify the vendor, in writing, that 277 the payment request or invoice is improper and indicate what 278 corrective action on the part of the vendor is needed to make 279 the payment request or invoice proper. 280 (2) IfIn the eventa dispute arisesoccursbetween a 281 vendor and a local governmental entity concerning payment of a 282 payment request oraninvoice, the disputesuch disagreement283 shall be finally determined by the local governmental entity 284 pursuant toas provided in this section. Each local governmental285entity shall establisha dispute resolution procedure 286 establishedto be followedby the local governmental entityin287cases of such disputes. 288 (a) TheSuchprocedure mustshallprovide that proceedings 289 to resolve the dispute areshall becommenced withinnot later290than45 days after the dateon whichthe payment request or 291 proper invoice was received by the local governmental entity and 292shall beconcluded by final decision of the local governmental 293 entity withinnot later than60 days after the dateon whichthe 294 payment request or proper invoice was received by the local 295 governmental entity. Such procedures areshallnotbesubject to 296 chapter 120,and dosuch procedures shallnot constitute an 297 administrative proceeding thatwhichprohibits a court from 298 deciding de novo any action arising out of the dispute. If the 299 dispute is resolved in favor of the local governmental entity, 300theninterest chargesshallbegin to accrue 15 days after the 301 local governmental entity’s final decision. If the dispute is 302 resolved in favor of the vendor,theninterest beginsshall303beginto accrue as of the original date the payment became due. 304 (b) If the local governmental entity does not commence the 305 dispute resolution procedure within the time required, the 306 contractor may give written notice to the local governmental 307 entity of the failure to timely commence the dispute resolution 308 procedure. If the local governmental entity fails to commence 309 the dispute resolution procedure within 2 business days after 310 such notice: 311 1. Any amounts resolved in the contractor’s favor bear 312 mandatory interest, as set forth in s. 218.735(10), from the 313 date the payment request or invoice containing the disputed 314 amounts was submitted to the local governmental entity. 315 2. The objection to the payment request or invoice is 316 deemed waived. The waiver of such objection does not relieve a 317 contractor of its contractual obligations. 318 (3) In an action to recover amounts due under this partss.319218.70-218.80, the court shall award court costs and reasonable 320 attorney’s fees, including fees incurred throughanyappeal, to 321 the prevailing party, if the court finds that the nonprevailing322party withheld any portion of the payment that is the subject of323the action without any reasonable basis in law or fact to324dispute the prevailing party’s claim to those amounts. This 325 subsection does not apply to any litigation commenced before 326 October 1, 2010. 327 Section 4. This act shall take effect October 1, 2010.