60D-5.0041. Waiver of Bond Requirements

(1)(a) An agency, pursuant to Section 255.05, F.S., may request delegation of authority from the Secretary to exempt the requirement for performance bond and labor and material bond on a specific project for more than $100,000 but not more than $200,000, in writing, by furnishing the following to the Division prior to the public advertisement for bids:

1. Copy of the project legislative budget request in the capital improvement plan;

2. Statement containing the chronology of the project anticipated bid date, completion date and final construction cost.

3. Statement from the project’s design professional that the exemption of the requirement for performance bond and labor and payment bond will increase the probability of securing competitive bids within the project construction budget.

4. Copies of the approved construction documents for the project, including plans and specifications.

(b) The Agency, in its public advertisement, shall notify bidders that the project has been exempted from the requirement for the performance bond and labor and material bond.

(2) In all cases where a performance and payment bond is not provided, the following procedures shall be followed:

(a) At any time prior to final completion of a contract exempted from bond requirements, the contracting authority shall not authorize or make payment to the contractor in excess of ninety percent (90%) of the amount due on the contract on the basis of the work suitably completed and material suitably stored on the site.

(b) In case of default by the contractor, the laborers, materialmen, and subcontractors, as defined in Section 713.01, F.S., making claims for unpaid bills, will be paid from the ten percent (10%) retainage on a pro rata basis as follows:

1. The sum of all claims made shall be divided into each individual claim thereby deriving a percentage value for each claim. The total retainage will then be multiplied by the percentage value and the result shall be the pro rata share of the retainage to be paid to the claimant; however, the payment shall not be more than the claim.

2. The final payment of retainage shall not be made until the project has been inspected by the Architect/Engineer or other person designated by the contracting authority for that purpose and until they have issued a written certificate that the project has been constructed in accordance with the approved plans, specifications and approved change orders and until the contracting authority has accepted the project, and until the contractor has supplied the contracting authority with signed and dated statements from all laborers, materialmen, and subcontractors as defined in Section 713.01, F.S., and identified under subparagraph 4., hereinafter, that they have no claims against the contractor for the work under the contract. Said statements shall identify the project by name and project number.

3. The contractor, before beginning work or within two workdays thereafter, shall post in a conspicuous place on the project site the following notice:

“Notice is hereby made to all those concerned and affected that ___ (CONTRACTOR’S NAME) is performing ___ (PROJECT NAME), ___ (PROJECT NUMBER) at ___ (LOCATION). All parties furnishing labor and/or materials to said project are to provide notice of such in writing by certified mail to the (AGENCY) within twenty days of first providing such labor and/or materials.”

4. The contractor shall provide a certified list of all sub-contractors, laborers and material suppliers to the Agency within thirty days of its receiving its notice to proceed with the work. This list shall be updated thereafter each month with a certified statement that the list and its updates include the names and addresses of all of those sub-contractors, laborers, and material suppliers furnishing labor and/or material for the project.

5. The contractor shall provide a written statement with each pay request to the Agency which indicates how each payment requested will be distributed. This pay request breakdown shall define the disbursement intended for all of the funds requested.

6. When a contractor receives any payment it shall pay such moneys received to each sub-contractor and material supplier in accordance with Section 287.0585, F.S.

7. The contractor shall provide a written statement with all but the first payment request from each of the subcontractors, laborers and material suppliers indicated in subparagraph 4., above, that they have in fact received payment as indicated in the preceding statements. In the event any payment is not made as indicated on a prior statement noted in subparagraph 5., above, the contractor shall furnish an explanation as to the reasons for such deviation and shall request approval from the Agency.

(3) On or before 3/17/2027, the Department shall initiate a review of this rule to determine if it is duplicative, outdated, obsolete, overly burdensome, or imposes excessive costs, and thereafter amend the rule as necessary.

Rulemaking Authority 255.05, 255.29 FS. Law Implemented 255.05, 255.29 FS. History–New 5-26-76, Amended 6-7-77, 7-14-81, Formerly 13D-11.04(3), Amended 7-7-83, Formerly 13D-11.041, Amended 6-11-86, 11-5-91, Formerly 13D-11.0041, Amended 8-28-96, 12-3-14, 3-17-22.