CHAPTER 107

FORMERLY

SENATE BILL NO. 230

AN ACT TO AMEND TITLE 29, CHAPTER 69, DELAWARE CODE, RELATING TO PUBLIC WORKS CONTRACTS AND RETAINAGES.

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 §6919, Title 29, Delaware Code, by striking said Section in its entirety and substituting in lieu thereof the following:

"§6919. Retainages under Public Works Contracts with Agencies and Political Subdivisions; Investment of Retainages; Substitution and Depos t by Contractor of Securities for Retalnages; Procedures and Mechanisms; Payment of Interest and Income Earned, and of Principal; Expenses

(a) Any agency or political subdivision of the State is empowered, under any public works contract executed by it, to retain a percentage of monies to be paid to the contractor during the performance of the contract, provided that such percentage at any one time shall never exceed five percent (5%) of the monies due to the contractor under the contract as of that time, and provided further, that the contractor shall have been paid all that Is due to him under the contract as of that time except for the amount retained therefrom by the agency or the political subdivision, as the case may be. The agency or the political subdivision shall establish the percentage of the retainage for each particular contract in the bidding documents for that contract and such percentage and the provisions for its retainage shall be incorporated into the public works contract itself. The rate or amount of the retainage may be reduced by the agency or the political subdivision at any time and from time to time during the life of the contract.

(b) Each agency and political subdivision of the State which enters into pub/ie works contracts under which retainages are to be retained by the agency or the political subdivision, as the case may be, shall before the award of any such contract establish standard procedures and mechanisms pursuant to which the contractor-party to the public works contract can either (1) deposit securities as authorized by this §6919 in substitution for monies being withheld from him as retainage as provided for in subsections (e) and (f) hereof or (2) establish an interest-earning account in a banking or savings Institution as provided for in subsection (g) hereof.

(c) No agency or political subdivision of the State shall have any duty to invest monies being retained by it from a contractor under a public works contract In any Interest bearing account or to establish any procedures or mechanisms for any such investment, if it establishes and for so long as it maintains in effect standard procedures and mechanisms pursuant to which securities as authorized by this §6919 can be deposited and substituted by contractors in lieu of monies being retained from them by the agency or the political subdivision under public works contracts.

(d) Under any public works contract pursuant to which an agency or a political subdivision of the State is retaining a percentage of the monies being paid and to be paid to the contractor during the performance of the contract, the contractor shall have the right from time to time either (1) to withdraw and take all or portions of the monies being retained from him under the contract by depositing certain securities in substitution for such withdrawn retainages as authorized by this §6919 and in accordance with the provisions of subsections (e) and (f) hereof, or (2) to have the monies being retained from him invested in an interest-bearing account in accordance with the provisions of subsection (g) hereof.

(a) If an agency or political subdivision of the State establishes and maintains in effect standard procedures and mechanisms pursuant to which securities as authorized by this §6919 can be deposited and substituted by contractors in lieu of monies being retained from them by the agency or political subdivision under public works contracts, any contractor-party to a public works contract under which such agency or such political subdivision is retaining a percentage of the monies being paid and to be paid to him during the performance of the contract, may from time to time withdraw and take all or portions of the monies being retained from him under the contract, provided that before any such monies are withdrawn and taken by him he must deposit in lieu thereof with the agency or the political subdivision, as the case may be, or with an escrow agent designated by it, the contractor as the contractor alone shall determine, pursuant to and in accordance with the standard procedures and mechanisms therefor established and maintained by the agency or the political subdivision, and in the manner and form approved by the agency or political subdivision, securities as described and authorized In subsection (f) hereof, and provided further, however, that no monies being so retained shall be withdrawn and taken by a contractor at any particular time which shall be in excess of the aggregate market value of the securities being so deposited by him at such time. A contractor from time to time may substitute with an agency or political subdivision cash for and receive back all or part of the securities on deposit from him, provided that the cash substituted by him at any one time has a value at least as great as the aggregate market value of the securities received back by him from deposit at such time.

(f) If an agency or political subdivision of the State establishes and maintains in effect standard procedures and mechanisms pursuant to which securities as authorized by this §6919 can be deposited and substituted by contractors in lieu of monies being retained from them by the agency or political subdivision under public works contracts, and if a contractor-party to a public works contract under which such agency or political subdivision of the State is retaining a percentage of the monies being paid and to be paid to him during the performance of the contract, elects to withdraw and take such monies and deposit securities in lieu thereof as authorized by subsections (d) and (e) hereof, the contractor-party must deposit and the agency or political subdivision can accept, one or more of the following described types of securities only (1) United States Treasury Bonds, United States Treasury Notes, United States Treasury Certificates of Indebtedness or United States Treasury Bills; or (2) bond or notes of the State; or (3) bonds of any political subdivision of the State; or (4) certificates of deposit from State or national banks located in this State; or (5) any letter of credit or other security approved by the agency or political subdivision.

(g) If an agency or political subdivision of the State does not establish and maintain in effect standard procedures and mechanisms pursuant to which securities as authorized by this §6919 can be deposited and substituted by contractors in lieu of monies being retained from them under public works contracts by the agency or political subdivision, such agency or political subdivision, as the case may be, upon written request to it by the contractor-party to a public works contract under which the agency or political subdivision is retaining a percentage of the monies being paid and to be paid to him during the performance of the contract, shall deposit the monies being so retained and to be so retained by It with a banking institution or savings institution Insured by an insuring agency of the United States government in an account bearing interest at the rate then being paid by such institution on time, savings or other deposits approved by the agency or political subdivision. Such accounts shall be created and established by the contractor pursuant to the standard procedures and mechanisms established and maintained by, and in a manner and form approved by, the agency or the politcal subdivision, as the case may be.

(h) The contractor shall be entitled to receive, in all events and when and as collected, all interest and income earned on the bonds, notes, certificates of deposit, bills and securities deposited by him in substitution for cash monies being retained from him as provided for in subsections (e) and (f) hereof. If the securities deposited are in the form of coupon bonds, the agency or the political subdivision of the state, as the case may be, or the escrow agent designated by it and holding the deposited securities, shall deliver each coupon to the contractor as it matures. The contractor shall be entitled to collect and receive, in all events and at least as often as quarterly, all interest earned on any accounts established with banking and savings institutions as provided for in subsection (g) hereof.

(i) Any bonds, notes, certificates of deposit, bills, letters of credit and securities on deposit from a contractor in lieu of cash monies being retained from him as provided for in subsections (e) and (f) hereof, and the principal of any interest-bearing account established by the contractor as provided for in subsection (g) hereof, shall be released, delivered and paid over to the contractor at such Nine as cash monies being retained from him would have been released, delivered and paid over to him under the public works contract if there had been no substitution for the cash monies and if there had been no investment of the cash monies in an interest-bearing account.

(j) The cost of establishing and maintaining an interest-bearing account in a banking or savings institution and the cost of depositing and maintaining the deposits of bonds, notes, certificates of deposit, bills, letters of creclt and securities, all as provided for in this 56919, shall be borne by the contractor-party to the public works contract under which the account was established or the deposits made.

(k) Any public works contract executed by any agency or by any political subdivision of the State 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. When approved by the agency or the political subdivision, as the case may be, partial payments may include the values of tested and acceptable materials of a nonperishable or noncontaminative nature which have been produced or furnished for incorporation 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 or the political subdivision 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 or the political subdivision. The agency or the political subdivision, may, at its option, retain temporarily or permanently a small 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 July 6,1983.