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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
A bill to be entitled 1
An act relating to public construction; amending s. 2
218.735, F.S.; revising provisions relating to 3
payments for purchases of construction services by 4
local governmental entities; amending s. 218.76, F.S.; 5
revising the time periods within which certain 6
proceedings must be commenced and concluded; amending 7
s. 255.073, F.S.; providing dates by which the 8
undisputed portion of certain payment requests must be 9
paid; amending s. 255.074, F.S.; revising the date by 10
which a public entity must submit certain payment 11
requests to the Chief Financial Officer; amending s. 12
255.077, F.S.; revising provisions relating to 13
payments for purchases of construction services by 14
public entities; amending s. 255.078, F.S.; revising 15
applicability; amending s. 255.0992, F.S.; revising 16
the definition of the term "public works project"; 17
prohibiting a political subdivision from requiring an 18
entity to dedicate funds to or make expenditures fo r 19
art in public places in excess of a certain amount 20
except in certain circumstances; providing 21
applicability; providing an effective date. 22
23
Be It Enacted by the Legislature of the State of Florida: 24
25
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
Section 1. Subsection (7) and paragraph (c) of s ubsection 26
(8) of section 218.735, Florida Statutes, are amended to read: 27
218.735 Timely payment for purchases of construction 28
services.— 29
(7) Each contract for construction services between a 30
local governmental entity and a contractor must provide for t he 31
development of a single list of items that contains the 32
estimated cost to complete each item required to render 33
complete, satisfactory, and acceptable the construction services 34
purchased by the local governmental entity. 35
(a) The contract must specify the process for developing 36
the list and determining the estimated cost to complete each 37
item, including the responsibilities of the local governmental 38
entity and the contractor in developing and reviewing the list 39
and a reasonable time for developing the l ist: 40
1. For construction projects having an estimated cost of 41
Less than $10 million, within 30 calendar days after reaching 42
substantial completion of the construction services purchased as 43
defined in the contract, or, if not defined in the contract, 44
upon reaching beneficial occupancy or use; or 45
2. For construction projects having an estimated cost of 46
$10 million or more, within 30 calendar days, or, if extended by 47
contract, up to 60 calendar days after reaching substantial 48
completion of the construction services purchased as defined in 49
the contract, or, if not defined in the contract, upon reaching 50
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beneficial occupancy or use. 51
52
The contract must also specify a date for the delivery of the 53
list of items, not to exceed 5 days after the list of items has 54
been developed and reviewed in accordance with the time periods 55
set forth in subparagraphs 1. and 2. 56
(b) If the contract between the local governmental entity 57
and the contractor relates to the purchase of construction 58
services on more than one building or structure, or involves a 59
multiphased project, the contract must provide for the 60
development of a list of items required to render complete, 61
satisfactory, and acceptable all the construction services 62
purchased pursuant to the contract for each building, str ucture, 63
or phase of the project within the time limitations provided in 64
paragraph (a). 65
(c) The final contract completion date must be at least 30 66
days after the delivery of the list of items. If the list is not 67
provided to the contractor by the agreed up on date for delivery 68
of the list, the contract time for completion must be extended 69
by the number of days the local governmental entity exceeded the 70
delivery date. Damages may not be assessed against a contractor 71
for failing to complete a project within th e time required by 72
the contract, unless the contractor failed to complete the 73
project within the contract period as extended under this 74
paragraph. 75
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(d) The failure to include any corrective work or pending 76
items not yet completed on the list does not alte r the 77
responsibility of the contractor to complete all the 78
construction services purchased pursuant to the contract. 79
(e) Within 20 business days after the list is developed, 80
the local governmental entity shall pay the contractor the 81
remaining balance of the contract, including any remaining 82
retainage withheld by the local governmental entity, less an 83
amount equal to 150 percent of the estimated cost to complete 84
the items on the list. 85
(f)(e) Upon completion of all items on the list, the 86
contractor may submit a payment request for the amount all 87
remaining retainage withheld by the local governmental entity 88
pursuant to paragraph (e) this section. If a good faith dispute 89
exists as to whether one or more items identified on the list 90
have been completed pursua nt to the contract, the local 91
governmental entity may continue to withhold up to 150 percent 92
of the total costs to complete such items. 93
(g)(f) All items that require correction under the 94
contract and that are identified after the preparation and 95
delivery of the list remain the obligation of the contractor as 96
defined by the contract. 97
(h)(g) Warranty items or items not included in the list of 98
items required under paragraph (a) may not affect the final 99
payment of retainage as provided in this section or as provided 100
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in the contract between the contractor and its subcontractors 101
and suppliers. 102
(i)(h) Retainage may not be held by a local government al 103
entity or a contractor to secure payment of insurance premiums 104
under a consolidated insurance program or series of insurance 105
policies issued to a local governmental entity or a contractor 106
for a project or group of projects, and the final payment of 107
retainage as provided in this section may not be delayed pending 108
a final audit by the local governmental entity's or contractor's 109
insurance provider. 110
(j)(i) If a local governmental entity fails to comply with 111
its responsibilities to develop the list required under 112
paragraph (a) or paragraph (b) within the time limitations 113
provided in paragraph (a), the contractor may submit a payment 114
request to the local governmental entity for the remaining 115
balance of the contract, including all remaining retainage 116
withheld by the local governmental entity . The local 117
governmental entity shall pay the contractor pursuant to this 118
section; and payment of any remaining undisputed contract 119
amount, less any amount withheld pursuant to the contract for 120
incomplete or uncorrected work , must be paid within 20 business 121
days after receipt of a proper invoice or payment request. If 122
the local governmental entity has provided written notice to the 123
contractor specifying the failure of the contractor to meet 124
contract requirements in the develo pment of the list of items to 125
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be completed, the local governmental entity shall pay the 126
contractor the remaining balance of the contract, less an amount 127
equal to 150 percent of the estimated cost to complete the items 128
that the local governmental entity int ended to include on the 129
list need not pay or process any payment request for retainage 130
if the contractor has, in whole or in part, failed to cooperate 131
with the local governmental entity in the development of the 132
list or to perform its contractual responsib ilities, if any, 133
with regard to the development of the list or if paragraph 134
(8)(c) applies. 135
(8) 136
(c) This section does not require the local governmental 137
entity to pay or release any amounts that are the subject of a 138
good faith dispute made in writing pursuant to the contract or , 139
the subject of a claim brought pursuant to s. 255.05 , or 140
otherwise the subject of a claim or demand by the local 141
governmental entity or contractor . 142
Section 2. Paragraph (a) of subsection (2) of section 143
218.76, Florida Statute s, is amended to read: 144
218.76 Improper payment request or invoice; resolution of 145
disputes.— 146
(2)(a) If a dispute arises between a vendor and a local 147
governmental entity concerning payment of a payment request or 148
invoice, the dispute shall be finally det ermined by the local 149
governmental entity pursuant to a dispute resolution procedure 150
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established by the local governmental entity. Such procedure 151
must provide that proceedings to resolve the dispute are 152
commenced within 30 45 days after the date the payment request 153
or proper invoice was received by the local governmental entity 154
and concluded by final decision of the local governmental entity 155
within 45 60 days after the date the payment request or proper 156
invoice was received by the local governmental entity. Such 157
procedures are not subject to chapter 120 and do not constitute 158
an administrative proceeding that prohibits a court from 159
deciding de novo any action arising out of the dispute. If the 160
dispute is resolved in favor of the local governmental entity, 161
interest charges begin to accrue 15 days after the local 162
governmental entity's final decision. If the dispute is resolved 163
in favor of the vendor, interest begins to accrue as of the 164
original date the payment became due. 165
Section 3. Subsection (2) of section 255.073, Florida 166
Statutes, is amended to read: 167
255.073 Timely payment for purchases of construction 168
services.— 169
(2) If a public entity disputes a portion of a payment 170
request, the undisputed portion must be timely paid by the date 171
required under the co ntract or by 20 business days after receipt 172
of the request, whichever is earlier . 173
Section 4. Subsection (3) of section 255.074, Florida 174
Statutes, is amended to read: 175
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255.074 Procedures for calculation of payment due dates. — 176
(3) A public entity must submit a payment request to the 177
Chief Financial Officer for payment no more than 14 20 days 178
after receipt of the payment request. 179
Section 5. Subsections (4) through (8) of section 255.077, 180
Florida Statutes, are renumbered as subsections (5) through (9 ), 181
respectively, subsection (1) and present subsections (4) and (8) 182
are amended, and a new subsection (4) is added to that section, 183
to read: 184
255.077 Project closeout and payment of retainage. — 185
(1) Each contract for construction services between a 186
public entity and a contractor must provide for the development 187
of a single list of items that contains the estimated cost to 188
complete each item required to render complete, satisfactory, 189
and acceptable the construction services purchased by the public 190
entity. The contract must specify the process for developing the 191
development of the list and determining the estimated cost to 192
complete each item, including responsibilities of the public 193
entity and the contractor in developing and reviewing the list 194
and a reasonable time for developing the list, as follows: 195
(a) For construction projects having an estimated cost of 196
less than $10 million, within 30 calendar days after reaching 197
substantial completion of the construction services purchased as 198
defined in the contract, or, if not defined in the contract, 199
upon reaching beneficial occupancy or use; or 200
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(b) For construction projects having an estimated cost of 201
$10 million or more, within 30 calendar days, unless otherwise 202
extended by contract not to exceed 60 cale ndar days, after 203
reaching substantial completion of the construction services 204
purchased as defined in the contract, or, if not defined in the 205
contract, upon reaching beneficial occupancy or use. 206
(4) Within 20 business days after the list is developed, 207
and after receipt of a proper invoice or payment request, the 208
public entity shall pay the contractor the remaining balance of 209
the contract, including any remaining retainage withheld by the 210
public entity pursuant to s. 255.078, less an amount equal to 211
150 percent of the estimated cost to complete the items on the 212
list. 213
(5)(4) Upon completion of all items on the list, the 214
contractor may submit a payment request for the amount all 215
remaining retainage withheld by the public entity pursuant to 216
subsection (4) s. 255.078. If a good faith dispute exists as to 217
whether one or more items identified on the list have been 218
completed pursuant to the contract, the public entity may 219
continue to withhold an amount not to exceed 150 percent of the 220
total costs to complete such items. 221
(9)(8) If a public entity fails to comply with its 222
responsibilities to develop the list required under subsection 223
(1) or subsection (2), as defined in the contract, within the 224
time limitations provided in subsection (1), the contractor may 225
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submit to the public entity a payment request for all remaining 226
retainage withheld by the public entity pursuant to s. 255.078. 227
The public entity shall pay the contractor within 20 business 228
days after receiving the payment request. However, the public 229
entity need not pay or process any payment request for retainage 230
if the contractor has , in whole or in part, failed to cooperate 231
with the public entity in the development of the list or failed 232
to perform its contractual responsibilities, if any, with regard 233
to the development of the list or if s. 255.078(3) applies. 234
Section 6. Subsection (3) of section 255.078, Florida 235
Statutes, is amended to read: 236
255.078 Public construction retainage. — 237
(3) This section and s. 255.077 do not require the public 238
entity to pay or release any amounts that are the subject of a 239
good faith dispute made in writing pursuant to the contract or , 240
the subject of a claim brought pursuant to s. 255.05 , or 241
otherwise the subject of a claim or demand by the public entity 242
or contractor. 243
Section 7. Subsection (3) of section 255.0992, Florida 244
Statutes, is renumbered as subsection (4), paragraph (b) of 245
subsection (1) and present subsection (3) are amended, and a new 246
subsection (3) is added to that section, to read: 247
255.0992 Public works proje cts; prohibited governmental 248
actions.— 249
(1) As used in this section, the term: 250
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(b) "Public works project" means an activity exceeding $1 251
million in value that is paid for with any state -appropriated 252
funds and which consists of the construction, maintenance, 253
repair, renovation, remodeling, or improvement of a building, 254
road, street, sewer, storm drain, water system, site 255
development, irrigation system, recl amation project, gas or 256
electrical distribution system, gas or electrical substation, or 257
other facility, project, or portion thereof that is owned in 258
whole or in part by any political subdivision. 259
(3) A political subdivision may not require any entity to 260
dedicate funds to or make expenditures for art in public places 261
in an amount that exceeds the amount required for the 262
acquisition of works of art under s. 255.043 except for the 263
original construction of a government building that provides 264
public access. 265
(4)(3) This section does not apply to the following: 266
(a) Contracts executed under chapter 337. 267
(b) A use authorized by s. 212.055(1) which is approved by 268
a majority vote of the electorate of the county or by a charter 269
amendment approved by a majority vote of the electorate of the 270
county. 271
(c) An independent special district as defined in s. 272
189.012. 273
Section 8. This act shall take effect July 1, 2023. 274