Florida Senate - 2023 SB 346 By Senator DiCeglie 18-00397-23 2023346__ 1 A bill to be entitled 2 An act relating to public construction; amending s. 3 166.033, F.S.; providing that applications for 4 approval of a development permit or development order 5 which are under review by a municipality are deemed 6 approved after a specified timeframe; amending s. 7 218.735, F.S.; requiring a certain list to include a 8 dollar valuation using reasonable market rates of the 9 estimated cost to complete items on the list; deleting 10 a provision authorizing an extension by contract for 11 construction projects of less than $10 million; 12 requiring a local governmental entity to pay a 13 contractor the remaining contract balance within a 14 specified timeframe; revising the conditions that 15 would require a local governmental entity to pay 16 unpaid contract sums to a contractor if a specified 17 list is not developed; requiring a local governmental 18 entity to pay the remaining contract balance if the 19 local governmental entity provided a certain written 20 notice to the contractor; revising the conditions that 21 require a local governmental entity to pay or release 22 amounts subject to certain disputes or claims; 23 amending s. 218.76, F.S.; revising the timeframe 24 within which proceedings must commence to resolve 25 disputes between vendors and local governmental 26 entities; revising the timeframe for such proceedings 27 to conclude; amending s. 255.073, F.S.; requiring 28 undisputed portions of payment requests to be paid 29 within a specified timeframe; amending s. 255.074, 30 F.S.; revising the timeframe for a public entity to 31 submit a payment request to the Chief Financial 32 Officer; amending s. 255.077, F.S.; requiring a 33 certain list to include a dollar valuation using 34 reasonable market rates of the estimated costs to 35 complete the items on the list; requiring the public 36 entity to pay the contractor the remaining contract 37 balance within a specified timeframe; requiring a 38 public entity to pay all remaining retainage if the 39 public entity has not developed a specified list; 40 amending s. 255.078, F.S.; revising the conditions 41 that require a public entity to pay or release amounts 42 subject to certain disputes or claims; amending s. 43 255.0992, F.S.; revising the definition of the term 44 public works project; providing an effective date. 45 46 Be It Enacted by the Legislature of the State of Florida: 47 48 Section 1.Paragraph (f) is added to subsection (2) of 49 section 166.033, Florida Statutes, to read: 50 166.033Development permits and orders. 51 (2) 52 (f)Notwithstanding any agreement between both parties to 53 extend deadlines established in this section, if an application 54 is under review 180 days after submission, the municipality must 55 deem the application approved. 56 Section 2.Subsection (7) and paragraph (c) of subsection 57 (8) of section 218.735, Florida Statutes, are amended to read: 58 218.735Timely payment for purchases of construction 59 services. 60 (7)Each contract for construction services between a local 61 governmental entity and a contractor must provide for the 62 development of a single list of items required to render 63 complete, satisfactory, and acceptable the construction services 64 purchased by the local governmental entity. The list must 65 include a dollar valuation using reasonable market rates of the 66 estimated cost to complete the items on the list. 67 (a)The contract must specify the process for developing 68 the list, including the responsibilities of the local 69 governmental entity and the contractor in developing and 70 reviewing the list and a reasonable time for developing the 71 list: 72 1.For construction projects having an estimated cost of 73 less than $10 million, within 30 calendar days after reaching 74 substantial completion of the construction services purchased as 75 defined in the contract, or, if not defined in the contract, 76 upon reaching beneficial occupancy or use; or 77 2.For construction projects having an estimated cost of 78 $10 million or more, within 30 calendar days, or, if extended by 79 contract, up to 60 calendar days after reaching substantial 80 completion of the construction services purchased as defined in 81 the contract, or, if not defined in the contract, upon reaching 82 beneficial occupancy or use. 83 84 The contract must also specify a date for the delivery of the 85 list of items, not to exceed 5 days after the list of items has 86 been developed and reviewed in accordance with the time periods 87 set forth in subparagraphs 1. and 2. 88 (b)If the contract between the local governmental entity 89 and the contractor relates to the purchase of construction 90 services on more than one building or structure, or involves a 91 multiphased project, the contract must provide for the 92 development of a list of items required to render complete, 93 satisfactory, and acceptable all the construction services 94 purchased pursuant to the contract for each building, structure, 95 or phase of the project within the time limitations provided in 96 paragraph (a). 97 (c)The final contract completion date must be at least 30 98 days after the delivery of the list of items. If the list is not 99 provided to the contractor by the agreed upon date for delivery 100 of the list, the contract time for completion must be extended 101 by the number of days the local governmental entity exceeded the 102 delivery date. Damages may not be assessed against a contractor 103 for failing to complete a project within the time required by 104 the contract, unless the contractor failed to complete the 105 project within the contract period as extended under this 106 paragraph. 107 (d)The failure to include any corrective work or pending 108 items not yet completed on the list does not alter the 109 responsibility of the contractor to complete all the 110 construction services purchased pursuant to the contract. 111 (e)Within 20 days after the date the list is created, the 112 local governmental entity must pay the contractor the remaining 113 contract balance that includes all retainage previously withheld 114 by the local governmental entity. The remaining contract balance 115 does not include the estimated costs to complete the items 116 included on the list. 117 (f)Upon completion of all items on the list, the 118 contractor may submit a payment request for all remaining 119 contract sums retainage withheld by the local governmental 120 entity pursuant to this section. If a good faith dispute exists 121 as to whether one or more items identified on the list have been 122 completed pursuant to the contract, the local governmental 123 entity may continue to withhold up to 150 percent of the total 124 costs to complete such items. 125 (g)(f)All items that require correction under the contract 126 which and that are identified after the preparation and delivery 127 of the list remain the obligation of the contractor as defined 128 by the contract. 129 (h)(g)Warranty items or items not included in the list of 130 items required under paragraph (a) may not affect the final 131 payment of retainage as provided in paragraph (e) this section 132 or as provided in the contract between the contractor and its 133 subcontractors and suppliers. 134 (i)(h)Retainage may not be held by a local governmental 135 entity or a contractor to secure payment of insurance premiums 136 under a consolidated insurance program or series of insurance 137 policies issued to a local governmental entity or a contractor 138 for a project or group of projects, and the final payment of 139 retainage as provided in paragraph (e) this section may not be 140 delayed pending a final audit by the local governmental entitys 141 or contractors insurance provider. 142 (j)(i)If a local governmental entity fails to comply with 143 its responsibilities to develop the list required under 144 paragraph (a) or paragraph (b) within the time limitations 145 provided in paragraph (a), the contractor may submit a payment 146 request for all remaining unpaid contract sums including 147 retainage withheld by the local governmental entity, and the 148 local governmental entity must pay the contractor all remaining 149 contract sums pursuant to this section; and payment of any 150 remaining undisputed contract amount, less any amount withheld 151 pursuant to the contract for incomplete or uncorrected work, 152 must be paid within 20 business days after receipt of a proper 153 invoice or payment request. If the local governmental entity has 154 provided written notice to the contractor specifying the failure 155 of the contractor to meet contract requirements in the 156 development of the list of items to be completed, the local 157 governmental entity must pay the contractor the remaining 158 contract balance that includes retainage previously withheld by 159 the local governmental entity. The remaining contract balance 160 does not include 150 percent of the estimated costs to complete 161 the items that the local governmental entity has included on its 162 version of the list need not pay or process any payment request 163 for retainage if the contractor has, in whole or in part, failed 164 to cooperate with the local governmental entity in the 165 development of the list or to perform its contractual 166 responsibilities, if any, with regard to the development of the 167 list or if paragraph (8)(c) applies. 168 (8) 169 (c)This section does not require the local governmental 170 entity to pay or release any amounts that are the subject of a 171 good faith dispute or, the subject of a claim brought pursuant 172 to s. 255.05, or otherwise the subject of a claim or demand by 173 the local governmental entity or contractor. 174 Section 3.Paragraph (a) of subsection (2) of section 175 218.76, Florida Statutes, is amended to read: 176 218.76Improper payment request or invoice; resolution of 177 disputes. 178 (2)(a)If a dispute arises between a vendor and a local 179 governmental entity concerning payment of a payment request or 180 an invoice, the dispute must shall be finally determined by the 181 local governmental entity pursuant to a dispute resolution 182 procedure established by the local governmental entity. Such 183 procedure must provide that proceedings to resolve the dispute 184 commence are commenced within 30 45 days after the date the 185 payment request or proper invoice was received by the local 186 governmental entity and conclude concluded by final decision of 187 the local governmental entity within 45 60 days after the date 188 the payment request or proper invoice was received by the local 189 governmental entity. Such procedures are not subject to chapter 190 120 and do not constitute an administrative proceeding that 191 prohibits a court from deciding de novo any action arising out 192 of the dispute. If the dispute is resolved in favor of the local 193 governmental entity, interest charges begin to accrue 15 days 194 after the local governmental entitys final decision. If the 195 dispute is resolved in favor of the vendor, interest begins to 196 accrue as of the original date the payment became due. 197 Section 4.Subsection (2) of section 255.073, Florida 198 Statutes, is amended to read: 199 255.073Timely payment for purchases of construction 200 services. 201 (2)If a public entity disputes a portion of a payment 202 request, the undisputed portion must be timely paid within the 203 time required under the contract or within 20 days, whichever is 204 earlier. 205 Section 5.Subsection (3) of section 255.074, Florida 206 Statutes, is amended to read: 207 255.074Procedures for calculation of payment due dates. 208 (3)A public entity must submit a payment request to the 209 Chief Financial Officer for payment no later more than 14 20 210 days after receipt of the payment request. 211 Section 6. Present subsections (4) through (8) of section 212 255.077, Florida Statutes, are redesignated as subsections (5) 213 through (9), respectively, a new subsection (4) is added to that 214 section, and subsection (1) and present subsection (8) of that 215 section are amended, to read: 216 255.077Project closeout and payment of retainage. 217 (1)Each contract for construction services between a 218 public entity and a contractor must provide for the development 219 of a list of items required to render complete, satisfactory, 220 and acceptable the construction services purchased by the public 221 entity. The list must include a dollar valuation using 222 reasonable market rates of the estimated cost to complete the 223 items included on the list. The contract must specify the 224 process for the development of the list, including 225 responsibilities of the public entity and the contractor in 226 developing and reviewing the list and a reasonable time for 227 developing the list, as follows: 228 (a)For construction projects having an estimated cost of 229 less than $10 million, within 30 calendar days after reaching 230 substantial completion of the construction services purchased as 231 defined in the contract, or, if not defined in the contract, 232 upon reaching beneficial occupancy or use; or 233 (b)For construction projects having an estimated cost of 234 $10 million or more, within 30 calendar days, unless otherwise 235 extended by contract not to exceed 60 calendar days, after 236 reaching substantial completion of the construction services 237 purchased as defined in the contract, or, if not defined in the 238 contract, upon reaching beneficial occupancy or use. 239 (4)Within 20 days after the date the list is created, the 240 public entity must pay the contractor the remaining contract 241 balance that includes all retainage previously withheld by the 242 public entity. The remaining contract balance does not include 243 the costs to complete the items included on the list. 244 (9)(8)If a public entity fails to comply with its 245 responsibilities to develop the list required under subsection 246 (1) or subsection (2), as defined in the contract, within the 247 time limitations provided in subsection (1), the contractor may 248 submit a payment request for all remaining retainage withheld by 249 the public entity pursuant to s. 255.078 and the public entity 250 must pay the contractor all remaining retainage previously 251 withheld within 20 days after receipt of the payment request. 252 The public entity is not required to need not pay or process any 253 payment request for retainage if the contractor has, in whole or 254 in part, failed to cooperate with the public entity in the 255 development of the list or failed to perform its contractual 256 responsibilities, if any, with regard to the development of the 257 list or if s. 255.078(3) applies. 258 Section 7.Subsection (3) of section 255.078, Florida 259 Statutes, is amended to read: 260 255.078Public construction retainage. 261 (3)This section and s. 255.077 do not require the public 262 entity to pay or release any amounts that are the subject of a 263 good faith dispute or, the subject of a claim brought pursuant 264 to s. 255.05, or otherwise the subject of a claim or demand by 265 the public entity or contractor. 266 Section 8.Paragraph (b) of subsection (1) of section 267 255.0992, Florida Statutes, is amended to read: 268 255.0992Public works projects; prohibited governmental 269 actions. 270 (1)As used in this section, the term: 271 (b)Public works project means an activity exceeding $1 272 million in value that is paid for with any local or state 273 appropriated funds and that which consists of the construction, 274 maintenance, repair, renovation, remodeling, or improvement of a 275 building, road, street, sewer, storm drain, water system, site 276 development, irrigation system, reclamation project, gas or 277 electrical distribution system, gas or electrical substation, or 278 other facility, project, or portion thereof that is owned in 279 whole or in part by any political subdivision. 280 Section 9.This act shall take effect July 1, 2023.