73R3138 PB-F
By Martin H.B. No. 560
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the payment of certain laborers, workers, and mechanics
1-3 under public works contracts.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 2, Chapter 45, General Laws, Acts of the
1-6 43rd Legislature, Regular Session, 1933 (Article 5159a, Vernon's
1-7 Texas Civil Statutes), is amended to read as follows:
1-8 Sec. 2. (a) The public body awarding any contract for
1-9 public work on behalf of the State, or on behalf of any county,
1-10 city and county, city, town, district or other political
1-11 subdivision thereof, or otherwise undertaking any public work,
1-12 shall ascertain the general prevailing rate of per diem wages in
1-13 the locality in which the work is to be performed for each craft or
1-14 type of workman or mechanic needed to execute the contract, and
1-15 shall specify in the call for bids for said contract, and in the
1-16 contract itself, what the general prevailing rate of per diem wages
1-17 in the said locality is for each craft or type of workman needed to
1-18 execute the contract, also the prevailing rate for legal holiday
1-19 and overtime work, and it shall be mandatory upon the contractor to
1-20 whom the contract is awarded, and upon any subcontractor under him,
1-21 to pay not less than the said specified rates to all laborers,
1-22 workmen and mechanics employed by them in the execution of the
1-23 contract. Failure of the awarding body to ascertain and specify in
1-24 the call for the contract the prevailing wage rate in that locality
2-1 relieves the contractor or subcontractor from liability under this
2-2 Act.
2-3 (b) A contractor or subcontractor that the awarding body
2-4 determines to be in violation of this Act is liable for <The
2-5 contractor shall forfeit as> a penalty. That contractor or
2-6 subcontractor shall pay to the State, county, city and county,
2-7 city, town, district or other political subdivision on whose behalf
2-8 the contract is made or awarded, Sixty Dollars ($60.00) <Ten
2-9 Dollars ($10.00)> for each laborer, workman or mechanic employed,
2-10 for each calendar day, or portion thereof, such laborer, workman or
2-11 mechanic is paid less than the said stipulated rates for any work
2-12 done under said contract, <by him, or by any subcontractor under
2-13 him,> and the said public body awarding the contract shall cause to
2-14 be inserted in the contract a stipulation to this effect. The
2-15 money collected under this subsection shall be used by the awarding
2-16 body to offset the costs incurred in the administration of
2-17 Subsection (c) of this section.
2-18 (c) In addition to the penalty forfeited under Subsection
2-19 (b) of this section, and after notice of fourteen (14) days and an
2-20 opportunity for a hearing before a designee of the public body, the
2-21 public body shall retain any amounts due under the contract that
2-22 the public body determines to be owed to a laborer, workman, or
2-23 mechanic because of a failure to pay that person the general
2-24 prevailing rate of per diem wages established for the public works
2-25 project. The public body shall use any amounts retained under this
2-26 subsection to reimburse the laborer, workman, or mechanic for the
2-27 amount owed to that person because of the failure to pay the person
3-1 the general prevailing rate of per diem wages. The public body may
3-2 adopt rules, orders, or ordinances relating to the manner in which
3-3 the reimbursement is made to the laborer, workman, or mechanic.
3-4 After notice and an opportunity for a hearing, the public body may
3-5 assess against a contractor or subcontractor that the public body
3-6 determines to be in violation of this Act any reasonable costs
3-7 actually incurred by the public body in enforcing this Act against
3-8 the contractor or subcontractor. A contractor, subcontractor,
3-9 workman, laborer, or mechanic who is aggrieved by a decision of the
3-10 public body under this subsection is entitled to judicial review by
3-11 trial de novo in a court of competent jurisdiction. A workman,
3-12 laborer, or mechanic who prevails is entitled to recover reasonable
3-13 attorney's fees and court costs. An officer, agent, or employee of
3-14 a public body is not liable in a civil action for any act or
3-15 omission implementing or enforcing this Act unless the action was
3-16 made in bad faith. The contractor is entitled to rely on a
3-17 certificate by a subcontractor as to the payment of all sums due to
3-18 those working for and under that subcontractor until the contrary
3-19 has been determined.
3-20 (d) If the amounts withheld by the public body under
3-21 Subsection (c) of this section are insufficient to fully reimburse
3-22 the laborer, workman, or mechanic for amounts owed to that person
3-23 under the terms of this Act, that person has a right of action
3-24 against the contractor or subcontractor that the public body has
3-25 determined to be in violation of this Act, and the surety of that
3-26 person. It is not a defense in the action that the laborer,
3-27 workman, or mechanic voluntarily accepted or agreed to accept
4-1 payment at a rate less than the general prevailing rate of per diem
4-2 wages for that public works project or voluntarily refunded to the
4-3 contractor or subcontractor part of the wages paid.
4-4 (e) It shall be the duty of such public body awarding the
4-5 contract, and its agents and officers, to take cognizance of
4-6 complaints of all violations of the provisions of this Act
4-7 committed in the course of the execution of the contract, and, when
4-8 making payments to the contractor of monies becoming due under said
4-9 contract, to withhold and retain <therefrom> all sums and amounts
4-10 <which shall have been> forfeited or required to be retained under
4-11 this section <pursuant to the herein said stipulation and the terms
4-12 of this Act>; provided, however, that no sum shall be so withheld,
4-13 retained or forfeited, except from the final payment, without a
4-14 full investigation by the awarding body.
4-15 (f) It shall be lawful for any contractor to withhold from
4-16 any subcontractor under him sufficient sums to cover any amounts
4-17 <penalties> withheld from him by the awarding body on account of
4-18 the said subcontractor's failure to comply with the terms of this
4-19 Act, and if payment has already been made to the subcontractor,
4-20 <him> the contractor may withhold the amount from any future
4-21 payments owed to the subcontractor or recover from the
4-22 subcontractor or the subcontractor's surety in a suit at law <him>
4-23 the amount retained or forfeited <of the penalty or forfeiture in a
4-24 suit at law>.
4-25 SECTION 2. This Act takes effect September 1, 1993, and
4-26 applies only to a public works contract entered on or after that
4-27 date.
5-1 SECTION 3. The importance of this legislation and the
5-2 crowded condition of the calendars in both houses create an
5-3 emergency and an imperative public necessity that the
5-4 constitutional rule requiring bills to be read on three several
5-5 days in each house be suspended, and this rule is hereby suspended.