HBA-MPM C.S.H.B. 2850 77(R)    BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 2850
By: Brimer
Business & Industry
4/17/2001
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Currently, contractors and subcontractors may not be adequately protected
from a decision by an owner who contracts for repair or improvements to
withhold or delay retainage payments.  Retainage is the amount of a
contract payment that is not required to be paid to a contractor or
subcontractor who performs labor, furnishes material, or delivers specially
fabricated material within a specified time period.  C.S.H.B. 2850 sets
deadlines for interest payments for the amount of interest charged on
overdue payments. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

ANALYSIS

C.S.H.B. 2850 amends the Government Code to require a governmental entity
to deposit the retainage of a public works contract in an account that
bears interest at a rate not less than the pool rate rather than more that
five percent.  The pool rate:  

_for a state agency is the interest rate established for the investment
pool managed by the comptroller known as the state treasury pool; and  

_for all other governmental entities is the interest rate yield as
determined by the comptroller of the investment pool managed by the
comptroller known as TexPool. 
  
The bill requires a prime contractor to pay to a subcontractor from whom
retainage is withheld the percentage of interest received from a
governmental entity that is attributable to the subcontractor's work. A
subcontractor is required to pay to its subcontractor from whom retainage
is withheld the percentage of the interest received from the prime
contractor that is attributable to its subcontractor's work.  The bill
requires the person paying the interest to do so within the period
prescribed for payment by law.  The bill provides that if a governmental
entity is obligated to pay interest and does not make the interest payments
within the specified period, interest accrues at a rate of one percent each
month, less interest at the pool rate.  If a prime contractor or
subcontractor is obligated to pay interest and does not make the interest
payments within the specified period, interest accrues at the rate of one
percent each month.  The bill specifies that a provision of this bill may
not be waived by contract or otherwise. 

EFFECTIVE DATE

September 1, 2001.

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. 2850 differs from the original bill by amending the Government
Code rather than the Business & Commerce Code.  The substitute requires a
governmental entity to deposit the retainage of a public  works contract in
an account that bears interest at a rate not less than the pool rate, and
specifies the amount of interest a prime contractor is required to pay to
its subcontractor and that a subcontractor is required to pay its
subcontractor from whom retainage is withheld.  The substitute sets forth a
deadline for the payment of interest and provides for interest on overdue
interest payments from a governmental entity, prime contractor, or
subcontractor.   

The original bill provided that retainage withheld under a construction
contract principally for the construction or repair of improvements to real
property accrues interest at the prime rate, with the exception that any
retainage withheld after the 45th day after the work is completed accrues
interest at 11/2 percent each month.  The original bill provided that
interest on retainage begins accruing on the date payment is due for the
labor performed, material furnished, or specially fabricated material
delivered and specified the time periods when interest stops accruing on
retainage owed by the owner of real property or another person.