senate Bill S980

Amended

Prohibits the retention of any amount of payment due and owing for materials delivered and accepted for a public or private construction project

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 09 / Jan / 2013
    • REFERRED TO FINANCE
  • 30 / Apr / 2013
    • 1ST REPORT CAL.518
  • 01 / May / 2013
    • 2ND REPORT CAL.
  • 06 / May / 2013
    • ADVANCED TO THIRD READING
  • 20 / Jun / 2013
    • PASSED SENATE
  • 20 / Jun / 2013
    • DELIVERED TO ASSEMBLY
  • 20 / Jun / 2013
    • REFERRED TO GOVERNMENTAL OPERATIONS
  • 08 / Jan / 2014
    • DIED IN ASSEMBLY
  • 08 / Jan / 2014
    • RETURNED TO SENATE
  • 08 / Jan / 2014
    • REFERRED TO FINANCE
  • 13 / Jun / 2014
    • AMEND AND RECOMMIT TO FINANCE
  • 13 / Jun / 2014
    • PRINT NUMBER 980A

Summary

Prohibits the retention of any amount of payment due and owing for materials delivered and accepted for a public or private construction project.

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Bill Details

Versions:
S980
S980A
Legislative Cycle:
2013-2014
Current Committee:
Senate Finance
Law Section:
State Finance Law
Laws Affected:
Amd §139-f, St Fin L; amd §106-b, Gen Muni L; amd §756-c, Gen Bus L
Versions Introduced in 2011-2012 Legislative Cycle:
S6158A

Sponsor Memo

BILL NUMBER:S980

TITLE OF BILL: An act to amend the state finance law and the general
municipal law, in relation to requiring full payment for delivered and
accepted materials pertaining to public work projects; and to amend
the general business law, in relation to prohibiting the retention of
any payment due and owing a material supplier for a construction
project

PURPOSE OR GENERAL IDEA OF BILL:
This bill amends the state finance and general municipal laws, in
relation to requiring full payment for delivered materials pertaining
to public works projects; and to amend the general business law, in
relation to prohibiting the retention of any payment due and owing a
material supplier for a construction project.

SUMMARY OF SPECIFIC PROVISIONS:
Section 1: Amends the state finance law to clarify that materialmen
are not subject to retainage.

Section 2: Amends the general municipal law to clarify that
materialmen are not subject to retainage.

Section 3: Amends the current law to clarify that an owner,
contractor, or subcontractor may not retain any portion of any payment
due to a material supplier, except as set forth in subsection one of
the law.

JUSTIFICATION:
Currently, retainage is withheld on construction jobs to ensure that
the owner is happy with the finished product. Retainage is withheld
by the owner from the contractor, who, as a result of not receiving
funds from the owner, withholds payment from the subcontractors and
materialmen. Once a material supplier has delivered its goods and has
been accepted by the contractor or subcontractor, the supplier has
completed its job and should not be held liable for subsequent work
performance. This legislation would remove materialmen from inclusion
under current retainage laws.

PRIOR LEGISISLATIVE HISTORY:
S.6158: Committed to Rules

FISCAL IMPLICATIONS:
None to the State.

EFFECTIVE DATE:
This act shall take effect on the thirtieth day after it shall become
law and shall apply to materials deliver on or after such date.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   980

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sen.  LIBOUS -- read twice and ordered printed, and when
  printed to be committed to the Committee on Finance

AN ACT to amend the state finance law and the general municipal law,  in
  relation  to requiring full payment for delivered and accepted materi-
  als pertaining to public work projects; and to amend the general busi-
  ness law, in relation to prohibiting the retention of any payment  due
  and owing a material supplier for a construction project

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivisions 1 and 2 of section 139-f of the state  finance
law,  subdivision  1  as  added  by  chapter 769 of the laws of 1978 and
subdivision 2 as amended by section 16 of part MM of chapter 57  of  the
laws of 2008, are amended to read as follows:
  1. Payment by public owners to contractors. The contractor shall peri-
odically,  in  accordance  with the terms of the contract, submit to the
public owner and/or [his] ITS agent a requisition for a progress payment
for the work performed and/or materials furnished to  the  date  of  the
requisition,  less  any  amount  previously  paid to the contractor. The
public owner shall in accordance with the terms of the contract  approve
and promptly pay the requisition for the progress payment less an amount
necessary to satisfy any claims, liens or judgments against the contrac-
tor which have not been suitably discharged and less any retained amount
as hereafter described. The public owner shall retain not more than five
per centum of each progress payment, NOT INCLUDING ANY PAYMENT FOR MATE-
RIALS  PERTINENT  TO THE PROJECT WHICH HAVE BEEN DELIVERED AND ACCEPTED,
to the contractor except that the public owner may retain in  excess  of
five  per  centum  but  not  more  than  ten per centum of each progress
payment, NOT INCLUDING  ANY  PAYMENT  FOR  MATERIALS  PERTINENT  TO  THE
PROJECT  WHICH  HAVE  BEEN  DELIVERED  AND  ACCEPTED,  to the contractor
provided that there are no requirements by  the  public  owner  for  the

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04256-01-3

S. 980                              2

contractor  to  provide a performance bond and a labor and material bond
both in the full amount of the contract. The public owner shall  pay  IN
FULL,  upon requisition from the contractor, for ALL materials pertinent
to  the project which have been delivered to the site or off-site by the
contractor and/or subcontractor  and  suitably  stored  and  secured  as
required  by  the  public owner and the contractor [provided, the public
owner may limit such payment  to  materials  in  short  and/or  critical
supply  and  materials  specially  fabricated  for  the  project each as
defined in the contract]. When the work or  major  portions  thereof  as
contemplated  by  the terms of the contract are substantially completed,
the contractor shall submit to the public owner and/or [his] ITS agent a
requisition for payment of the remaining amount of the contract balance.
Upon receipt of such requisition the  public  owner  shall  approve  and
promptly pay the remaining amount of the contract balance less two times
the value of any remaining items to be completed and an amount necessary
to  satisfy  any claims, liens or judgments against the contractor which
have not been suitably discharged. As the remaining items  of  work  are
satisfactorily  completed  or corrected, the public owner shall promptly
pay, upon receipt of a requisition, for these remaining  items  less  an
amount  necessary  to satisfy any claims, liens or judgments against the
contractor which have not been suitably discharged.  Any  claims,  liens
and  judgments  referred to in this section shall pertain to the project
and shall be filed in  accordance  with  the  terms  of  the  applicable
contract and/or applicable laws.
  2.  Payment  by  contractors  to subcontractors. Within seven calendar
days of the receipt of any payment from the public owner, the contractor
shall pay each of [his] ITS subcontractors and materialmen the  proceeds
from  the  payment  representing  the value of the work performed and/or
materials furnished by the subcontractor and/or materialman and reflect-
ing  the  percentage  of  the  subcontractor's  work  completed  or  the
materialman's material supplied in the requisition approved by the owner
and  based  upon  the  actual value of the subcontract or purchase order
less an amount necessary to  satisfy  any  claims,  liens  or  judgments
against  the  subcontractor  or materialman which have not been suitably
discharged and, WITH REGARD TO SUBCONTRACTORS, less any retained  amount
as hereafter described. Failure by the contractor to pay any subcontrac-
tor  or  materialman  within  seven  calendar days of the receipt of any
payment from the public owner  shall  result  in  the  commencement  and
accrual  of interest on amounts due to such subcontractor or materialman
for the period beginning on the day immediately following the expiration
of such seven calendar day period  and  ending  on  the  date  on  which
payment  is made by the contractor to such subcontractor or materialman.
Such interest payment shall be the sole responsibility of  the  contrac-
tor,  and  shall  be  paid at the rate of interest in effect on the date
payment is made by the contractor.  Notwithstanding any other  provision
of  law  to  the contrary, interest shall be computed at the rate estab-
lished in paragraph (b) of subdivision  one  of  section  seven  hundred
fifty-six-b of the general business law. The contractor shall retain not
more  than  five per centum of each payment to the subcontractor [and/or
materialman] except that the contractor may retain in excess of five per
centum but not more than ten per centum of each payment to  the  subcon-
tractor  provided  that  prior  to  entering into a subcontract with the
contractor, the subcontractor  is  unable  or  unwilling  to  provide  a
performance  bond and a labor and material bond, both in the full amount
of the subcontract, at the request of the contractor.    THE  CONTRACTOR
SHALL  PAY  IN FULL, UPON PAYMENT BY THE PUBLIC OWNER, FOR ALL MATERIALS

S. 980                              3

PERTINENT TO THE PROJECT WHICH HAVE BEEN DELIVERED TO  AND  ACCEPTED  AT
THE  SITE  OR  OFF-SITE  BY A MATERIALMAN. However, the contractor shall
retain nothing  from  those  payments  representing  proceeds  owed  the
subcontractor and/or materialman from the public owner's payments to the
contractor for the remaining amounts of the contract balance as provided
in  subdivision  one  of  this  section. If the contractor has failed to
submit a requisition  for  payment  of  the  remaining  amounts  of  the
contract  balance  within  ninety  days  of  substantial  completion  as
provided in subdivision one of this section,  then  any  clause  in  the
subcontract  between the contractor and the subcontractor or materialman
which states that payment by the contractor  to  such  subcontractor  or
materialman  is  contingent  upon payment by the owner to the contractor
shall be deemed invalid. Within seven calendar days of  the  receipt  of
payment  from the contractor, the subcontractor and/or materialman shall
pay each of [his] ITS subcontractors and materialmen in the same  manner
as  the  contractor  has  paid  the subcontractor, including interest as
herein provided above. Nothing provided herein shall  create  any  obli-
gation  on  the part of the public owner to pay or to see to the payment
of any moneys to any subcontractor or materialman  from  any  contractor
nor  shall  anything provided herein serve to create any relationship in
contract or otherwise, implied or expressed, between  the  subcontractor
or materialman and the public owner.
  S 2. Paragraph (a) of subdivision 1 and subdivision 2 of section 106-b
of  the general municipal law, paragraph (a) of subdivision 1 as amended
by chapter 98 of the laws of  1995  and  subdivision  2  as  amended  by
section  15 of part MM of chapter 57 of the laws of 2008, are amended to
read as follows:
  (a) The contractor shall periodically, in accordance with the terms of
the contract, submit to the public owner and/or [his] ITS agent a requi-
sition for a progress payment for the work  performed  and/or  materials
furnished to the date of the requisition less any amount previously paid
to  the  contractor. The public owner shall in accordance with the terms
of the contract  approve  and  promptly  pay  the  requisition  for  the
progress  payment  less an amount necessary to satisfy any claims, liens
or judgments  against  the  contractor  which  have  not  been  suitably
discharged  and  less  any  retained  amount as hereafter described. The
public owner shall retain not more than five per centum of each progress
payment, NOT INCLUDING  ANY  PAYMENT  FOR  MATERIALS  PERTINENT  TO  THE
PROJECT WHICH HAVE BEEN DELIVERED AND ACCEPTED, to the contractor except
that  the  public  owner may retain in excess of five per centum but not
more than ten per centum of each progress  payment,  NOT  INCLUDING  ANY
PAYMENT FOR MATERIALS PERTINENT TO THE PROJECT WHICH HAVE BEEN DELIVERED
AND  ACCEPTED, to the contractor provided that there are no requirements
by the public owner for the contractor to provide a performance bond and
a labor and material bond both in the full amount of the  contract.  The
public  owner  shall  pay IN FULL, upon requisition from the contractor,
for ALL materials pertinent to the project which have been delivered  to
the site or off-site by the contractor and/or subcontractor and suitably
stored  and  secured  as required by the public owner and the contractor
[provided, the public owner may limit such payment to materials in short
and/or critical  supply  and  materials  specially  fabricated  for  the
project  each  as  defined  in  the  contract].  When  the work or major
portions thereof as contemplated  by  the  terms  of  the  contract  are
substantially completed, the contractor shall submit to the public owner
and/or [his] ITS agent a requisition for payment of the remaining amount
of  the  contract balance.   Upon receipt of such requisition the public

S. 980                              4

owner shall approve  and  promptly  pay  the  remaining  amount  of  the
contract  balance  less two times the value of any remaining items to be
completed and an amount necessary to satisfy any claims, liens or  judg-
ments against the contractor which have not been suitably discharged. As
the  remaining  items of work are satisfactorily completed or corrected,
the public owner shall promptly pay, upon receipt of a requisition,  for
these  items  less  an  amount necessary to satisfy any claims, liens or
judgments  against  the  contractor  which  have   not   been   suitably
discharged.  Any claims, liens and judgments referred to in this section
shall pertain to the project and shall be filed in accordance  with  the
terms  of  the  applicable  contract  and/or  applicable laws. Where the
public owner is other than the city of New York, the term "promptly pay"
shall mean payment within thirty  days,  excluding  legal  holidays,  of
receipt  of the requisition unless such requisition is not approvable in
accordance with the terms of the contract. Notwithstanding  the  forego-
ing,  where the public owner is other than the city of New York and is a
municipal corporation which requires  an  elected  official  to  approve
progress  payments,  "promptly pay" shall mean payment within forty-five
days, excluding legal holidays, of receipt  of  the  requisition  unless
such  requisition  is not approvable in accordance with the terms of the
contract.
  2. Payment by contractors to  subcontractors.  Within  seven  calendar
days of the receipt of any payment from the public owner, the contractor
shall  pay each of [his] ITS subcontractors and materialmen the proceeds
from the payment representing the value of  the  work  performed  and/or
materials furnished by the subcontractor and/or materialman and reflect-
ing  the  percentage  of  the  subcontractor's  work  completed  or  the
materialman's material supplied in the requisition approved by the owner
and based upon the actual value of the  subcontract  or  purchase  order
less  an  amount  necessary  to  satisfy  any claims, liens or judgments
against the subcontractor or materialman which have  not  been  suitably
discharged  and, WITH REGARD TO SUBCONTRACTORS, less any retained amount
as hereafter described. Failure by the contractor to make  any  payment,
including  any  remaining amounts of the contract balance as hereinafter
described, to any subcontractor or  materialman  within  seven  calendar
days of the receipt of any payment from the public owner shall result in
the  commencement and accrual of interest on amounts due to such subcon-
tractor or materialman for the period beginning on the  day  immediately
following the expiration of such seven calendar day period and ending on
the  date on which payment is made by the contractor to such subcontrac-
tor or materialman. Such interest shall be the  sole  responsibility  of
the  contractor,  and shall be paid at the rate of interest in effect on
the date payment is made by the contractor.  Notwithstanding  any  other
provision of law to the contrary, interest shall be computed at the rate
established in paragraph (b) of subdivision one of section seven hundred
fifty-six-b of the general business law. The contractor shall retain not
more  than  five per centum of each payment to the subcontractor [and/or
materialman] except that the contractor may retain in excess of five per
centum but not more than ten per centum of each payment to  the  subcon-
tractor  provided  that  prior  to  entering into a subcontract with the
contractor, the subcontractor  is  unable  or  unwilling  to  provide  a
performance  bond  and a labor and material bond both in the full amount
of the subcontract at the request  of  the  contractor.  THE  CONTRACTOR
SHALL  PAY  IN FULL, UPON PAYMENT BY THE PUBLIC OWNER, FOR ALL MATERIALS
PERTINENT TO THE PROJECT WHICH HAVE BEEN DELIVERED TO  AND  ACCEPTED  AT
THE  SITE  OR  OFF-SITE  BY A MATERIALMAN. However, the contractor shall

S. 980                              5

retain nothing  from  those  payments  representing  proceeds  owed  the
subcontractor and/or materialman from the public owner's payments to the
contractor for the remaining amounts of the contract balance as provided
in  subdivision  one  of  this  section. If the contractor has failed to
submit a requisition  for  payment  of  the  remaining  amounts  of  the
contract  balance  within  ninety  days  of  substantial  completion  as
provided in subdivision one of this section,  then  any  clause  in  the
subcontract  between the contractor and the subcontractor or materialman
which states that payment by the contractor  to  such  subcontractor  or
materialman  is  contingent  upon payment by the owner to the contractor
shall be deemed invalid. Within seven calendar days of  the  receipt  of
payment  from the contractor, the subcontractor and/or materialman shall
pay each of [his] ITS subcontractors and materialmen in the same  manner
as  the  contractor  has  paid  the subcontractor, including interest as
herein provided above.  Nothing provided herein shall create  any  obli-
gation  on  the part of the public owner to pay or to see to the payment
of any moneys to any subcontractor or materialman  from  any  contractor
nor  shall  anything provided herein serve to create any relationship in
contract or otherwise, implied or expressed, between  the  subcontractor
or materialman and the public owner.
  S  3.  Section  756-c of the general business law, as added by chapter
127 of the laws of 2002, is amended to read as follows:
  S 756-c. Retention. 1. By mutual agreement of the relevant parties  an
owner may retain a reasonable amount of the contract sum as retainage. A
contractor  or  subcontractor  may  also  retain a reasonable amount for
retainage so long as the amount does not exceed  the  actual  percentage
retained  by  the owner. Retainage shall be released by the owner to the
contractor no later than thirty days after the  final  approval  of  the
work  under a construction contract. In the event that an owner fails to
release retainage as required by this  article,  or  the  contractor  or
subcontractor  fails  to  release a proportionate amount of retainage to
the relevant parties after receipt of  retainage  from  the  owner,  the
owner,  contractor,  or  subcontractor,  as  the  case  may be, shall be
subject to the payment of interest at the rate of one percent per  month
on the date retention was due and owing.
  2.  NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION,
NO PORTION OF ANY PAYMENT DUE AND OWING TO A MATERIAL SUPPLIER FOR MATE-
RIALS WHICH HAVE BEEN DELIVERED AND ACCEPTED SHALL  BE  RETAINED  BY  AN
OWNER, CONTRACTOR OR SUBCONTRACTOR.
  S  4.  This  act shall take effect on the thirtieth day after it shall
have become a law and shall apply to materials delivered and accepted on
or after such date.

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