CHAPTER 205

FORMERLY

HOUSE BILL NO. 313

AS AMENDED BY HOUSE AMENDMENT NO. 2, HOUSE AMENDMENT NO. 1

TO HOUSE AMENDMENT NO. 2 AND HOUSE AMENDMENT NO. 3

AN ACT TO AMEND TITLE 29, DELAWARE CODE RELATING TO PUBLIC WORKS CONTRACTS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each House thereof concurring therein):

Section 1. Amend Section 6919, Title 29 of the Delaware Code by striking subsection (a) thereof and substituting in lieu thereof a new subsection (a) to read as follows:

"§6919. Substitution of Securities for Retainages on State Contracts; Interest Paid on Monies Retained; Partial Payments for Materials Stored on Site or in Secured Locations and Retalnage Thereon.

(a) Under any public works contract made or awarded by an agency or by any political sub-division of the State, the contractor may, from time to time, withdraw the whole or any portion of the total amount then being retained for payments to the contractor pursuant to the terms of the contract, upon depositing with the agency: (1) United States treasury bonds, United States treasury notes, United States treasury certificates of indebtedness or United States treasury bills; or (2) bonds or notes of the State; or (3) bonds of any political subdivision of this State; or (4) certificates of deposit from state or national banks located in this State; provided, however, that no amount shall be withdrawn by the contractor at any particular time which shall be in excess of the aggregate market value of the above-described securities so deposited at the time of an fn relation to such particular withdrawal or of the aggregate face value of such securities at such time, whichever shall be lower."

Section 2. Amend Section 6919(b) of Title 29 of Delaware Code by adding the following thereto:

"If the contractor does not deposit securities as provided in subsection (a), the monies being withheld by the agency shall promptly be deposited by the agency, with a banking institution or savings and loan association insured by an agency of the Federal government, in an account bearing interest at the rate currently being paid by such institutions or associations on time or savings deposits. The amount withheld and any interest accruing thereon shall be returned to such withholding. Any interest accruing on cash payments withheld for non-performance of work shall be credited to the agency.

All accounts created pursuant to this Section shall be established by the contractor in the manner and form approved by the agency. The contractor shall be entitled to collect all interest and/or income on the obligations from monies and/or securities withheld as retainage and shall be entitled to collect same at any time, in a manner approved by the agency, with all costs for such transactions to be borne by the contractor."

Section 3. Amend Section 6919 of Title 29 of the Delaware Code by adding new subsections (d) and (e) thereto to read as follows:

"(d) With respect to any public works contract described in subsection (a) of this section for which the contractor does not deposit securities as provided in said subsection (a), the agency many exclude retainage, but if retainage is required by an agency a ceiling of 5% of the amount due on each partial payment may be withheld by the agency pending completion of the contract or agreement.

(e) Any public works contract described in subsection (a) of this section may also provide for partial payments with respect to materials placed along or upon the sites or stored at secured locations, which are suitable for use in the execution of the contract or agreement. When approved by the agency, partial payments may include the values of tested and acceptable materials of a nonperishable or noncontaminative nature which have been produced or Punished for incoporation as a permanent part of work yet to be completed, provided acceptable provisions have been made for storage. Any allowance made for materials on hand will not exceed the delivered cost of the materials as verified by invoices furnished by the contractor, nor will it exceed the contract bid price for the material complete in place. Upon completion of the work under the contract, the agency may release 60% of the amount then retained. The balance of the amount retained will be held until all reports required of the contractor are received and final payment is authorized by the Agency. The Agency, may, at its option, retain temporarily or permanently a smaller amount and may cause the contractor to be paid temporarily or permanently, from time to time, such portion of the amount retained as it deems equitable."

Approved April 2, 1982.