Florida Senate - 2023                        COMMITTEE AMENDMENT
       Bill No. CS for SB 346
       
       
       
       
       
       
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                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/29/2023           .                                
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       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.