BIENNIAL REPORT OF THE ATTORNEY GENERAL 21

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1 BENNAL REPORT OF THE ATTORNEY GENERAL January 27, 1961 PUBLC WORKS PERFORMANCE BONDS, ROAD CONTRACTORS-CONSTRUC TON OF , F. S.; UNPAD CLAMS OF SUB CONTRACTORS To: Ray E. Green, State Comptroller, Tallahassee QUESTONS: 1. Should the comptroller withhold p.ayment of earned consideration due a road contractor, upon the filing with the state treasurer, by a person supplying labor, materials or supplies to the contractor, of a claim therefor as provided in and by , F.S.? 2. What is the duty of the comptroller in this same connection where the contract between the contractor and the state road department, through its inclusion of socalled standard specifications or otherwise, where the contractor is, prior to receiving final payment, required to file with or furnish the said department with a sworn "affidavit to the effect that all bills are paid and no suits are pending in connection with the work done under" the contract? We gather. from the file handed us, with your request for opinion, that around May 29, 1956, the ndustrial Construction Co. entered into a contract with the state road department under which the said construction company agreed to perform certain construction services for the road department for an agreed compensation. We further gather from said record that the work and services required under the said construction agreement have been completed, and that there remains the sum of $46, due and unpaid to the contractor. However, it appears that one C. P. Burgess, a subcontractor under the said ndustrial Construction Co., has filed with the state treasurer an affidavit (around Sept. 3, 1959) reciting that the said ndustrial Construction Co. "has failed and refused to pay to him the balance of $7, which is justly due him," evidently under a subcontract with the said construction company. On or about July 15, 1960, the ndustrial Construction Co., by and through one A. A. Sehin, filed with the state road department an affidavit stating that "there are no bills remaining unpaid for labor, materials or otherwise, in connection with said contract and work, and that there are no suits pending against said firm or anyone in connection with the work done or materials furnished or otherwise under said contract." There appears in the file no evidence of the payment or other settlement of the Burgess claim, so that, so far as the record reveals, the said claim remains unpaid. The performance bond appears to have been made and filed under and pursuant to , F. S., and as required thereby. Such bonds, in addition to the usual requirements, are required, by the said , to contain "the additional obligations that such contractor shall promptly make payments to all persons supplying him labor, material and supplies, used directly or indirectly by the said contractor, or subcontractors, in the prosecution of the work provided for in said contract; and any person, making application therefor, and furnishing affidavit to the treasurer of the state, or

2 22 BENNAL REPORT OF THE ATTORNEY GENERAL any city, county, political subdivision, or o~her public. authority, having charge of said work, that labor, m~teral o~ supples for the prosecution of such work has been suppled by hm, and payment for which has not been made, shall be furnished with certified copy of said contract and bond, upon which, said person, supplying such labor, material or supplies shall have a right of action, and may bring suit in the name of the state, or the city, county, or political subdivision, prosecuting said work, for his use and benefit, against said contractor, and sureties, and to prosecute the same to final judgment and execution; provided, that such action, and its prosecution, shall not involve the state, any county, city or other political subdivision, in any expense. "Any person supplying labor, material or supplies used directly or indirectly in the prosecution of the work to any subcontractor and who has not received payment therefor, shall, within 90 days after performance of the labor, or after complete delivery of materials and supplies, deliver to the contractor written notice of the performance of such labor or delivery of such materials and supplies and the nonpayment therefor, and no action or suit for such labor or for such materials and supplies may be instituted or prosecuted against' the contractor unless such notice has been given. No action or suit shall be instituted or prosecuted against the contractor or against the surety on the bond required in this section after one year from the performance of the labor or completion of delivery of the materials and supplies." We find no provision in said providing for the withholding of compensation due the contractor, upon the filing of the above mentioned affidavit with the state treasurer. The remedy of persons supplying labor, materials or services to the contractor, upon default of the contractor to pay therefor, appears to be to file the claim (affidavit) with the state treasurer who is, thereupon, required to furnish the claimant with a certified copy of the contractor's bond, who may "bring suit in the name of the state... for his use and benefit, against said contractor and sureties, and to prosecute the same to final judgment and execution..." There are certain limitations of time in this connection set out in the said section; however, these limitations will not be here discussed or construed as they do not appear to be before us. We find nothing in said section giving a laborer, materialman or subcontractor any lien or charge upon the compensation due the contractor by the state, etc. t has been stated that the "broad general purpose of the statute (Ch. 255, F. S.) is to afford a means of protection to those supplying labor and materials in public work in lieu of the lien afforded by other statutes on private works." (Fulghum v. State, 92 Fla. 662, 109 So. 644, text 647 and 648; see also Fulghum v. State, 94 Fla. 274, 114 So. 367, text 370). n Phoenix ndemnity Co. v. Board of Public nstr., Fla. App., 114 So. 2d 478, text 480, the district court of appeal, 1st Dist., referring to the first above Fulghum v. State case, stated that the purpose of the statute was "the broad legislative intent to afford to those supplying labor and materials on public works projects a means of protection in lieu of the lien afforded to them on private works as provided by other statutes." (See also Collins v. Nat'l Fire ns. Co., Fla. App., 105 So. 2d 190, text 193, and Woodalls, nc. v. Yarn, Fla. App., 106 So. 2d 634, text 636.) The above authorities show that our statutes providing for

3 !! f i : BENNAL REPORT OF THE ATTORNEY GENERAL 23 mechanics' and materialmen's liens (Chs , F. S.) have no application to public works within the purview of said F. S. The remedy of laborers, materialmen and subcontractors, in connection with public works within the purview of said , for labor, material and work done for or under the contractor, is through proceedings on the contractor's bond as provided in said section. So far as we are advised there is not here involved any dispute relative to the rate of wages for laborers, mechanics and apprentices employed on the public work by the said ndustrial Construction Company so as to raise any dispute under , justifying a withholding of the contractor's compensation under (3)(b),F.S.. An examination of the contract by and between the state road department of Florida and the ndustrial Constr. Co., dated May 29, 1956, (Road No. A--A, State Project, Job. No Contract No. 4068, Bridge) reveals that such contract was "to accompany the standard specifications approved and adopted April 1, 1954," a copy of which specifications has been exhibited to us. The form of contract appearing near the end of the bidding blank and referred to therein requires the work to be done "as shown by the attached special provisions and proposal, and the accompanying plans and standard specifications." The contract bond provides in part that "the condition of this obligation is such, that if the above bounden principal shall in all respects comply with the terms and conditions of said contract, and his obligations thereunder, including the standard specifications... " These provisions seem to make the said standard specifications part and parcel of the contract, as well as the performance bond, which is 9.8, P. 48 thereof (the same being the specifications adopted and approved April 1, 1954) and contains the following: "Whenever the improvement provided for under this contract shall have been completely performed on the part of the contractor, and the final inspection and final acceptance have been duly made by the engineer as provided in Art and 5.12, and subject to the terms of Art. 8.9, a final estimate showing the value of the work will be prepared by the engineer as soon as the necessary measurements and computations can be made. All prior estimates and payments shall be subject to correction in the final estimate and payment. The amount of this estimate, less any sums that may have been deducted or retained under the provisions of the contract, will be paid to the contractor within 30 days after the final estimate has been approved by the engineer, provided that the contractor has properly maintained the project as hereinbefore specified, and provided he has furnished to the department a sworn affidavit to the effect that all bills are paid and no suits are pending in connection with the work done under this contract, and further provided that the surety on the contract bond shall consent to such final payment and shall agree that the making of payment on such final estimate shall not relieve the surety of any of its obligations under said bond." (Emphasis supplied). Although there is no such requirement in the statutes, the performance contract bond, by reference to the standard specifications, requires that the department be furnished, by the contractor, a "sworn affidavit to the effect that all bills are paid and no suits are pending in connection with the work done" under the contract as a condition to payment. The contractor, by and through one A. A. Sehlin, by affidavit' of July 15, 1960, attested that "there are

4 24 BENNAL REPORT OF THE ATTORNEY GENERAL no bills remaining unpaid for labor, materials or otherwise, in connection with said contract and work, and that there are no suits pending... against the said contractor." By statement appended to the said affidavit the bonding company agrees "that the state road department of Florida may make full payment on the final estimate, including the retained percentage, to said contractor," and that such a payment "shall in no wise relieve the surety company of its obligations under the bond, as set forth in the specifications and contract... " Sometime around the first of September, 1959, it appears that one C. P. Burgess filed his affidavit with the state treasurer purporting to show that the ndustrial Construction Co. then owed him an unpaid balance of $7,699.63, which it had failed and refused to pay. The filing of this affidavit or claim was prior to the filing of the above affidavit for and in behalf of the contractor; the Burgess affidavit having been filed Sept. 1, 1959, and the construction company affidavit on July 15, 19~0, some nine months later. From aught appearing from the file the Burgess claim could have been settled and paid prior to the making of the affidavit of July 15, n conclusion, we find nothing in , F. S., requiring the state comptroller to withhold payment upon the filing of an affidavit, claim or demand against the contractor, with the state treasurer; the requirement is that the state treasurer furnish the claimant with a copy of the performance bond. The remedy of the claimant, under , is a suit on the bond; the claimant is given no right to require or have a withholding of compensation from the contractor by the state comptroller. The provisions in the standard specifications requiring that the contractor, as a con-. dition to settlement and final payment, furnish the state road department with an affidavit showing the payment of all bills and that no suit is pending does not seem to involve the state comptroller; said affidavit appears to be more in the nature of an absolute statement by the contractor that things required by the contract to be done, have in fact been done. nasmuch as no privity of contract exists between this state and subcontractors, materialmen, laborers, etc., on state construction projects, and those persons having no right to the protection of the provisions of the mechanics lien laws against' the state, it does not appear that contracting state agencies would be required to determine the correctness of the statements in a contractor's affidavit. Further, inasmuch as state officials have no authority to withhold final payments from the general contractor on state projects because of claims against the general contractor presented to said officials by subcontractors, materialmen, and laborers, it would appear that any dispute between such persons and a general contractor on a state project does not in any way involve the state. Hence, it does appear that such disputes must be resolved, if litigation be necessary, either in accordance with , F. S., viz., an action against the general contractor's bond, or under proper circumstances an action by the subcontractors, materialmen, or laborers against the general contractor for breach of contract. There is no obligation imposed by such an agreement on the state comptroller, who is not a party thereto, to withhold payment from the contractor or otherwise, or to require copies of the affidavit's furnished the department, when the bondsman has agreed to such payment in writing. The obligation of the department under its contract with the contractor containing such a requirement for -,

5 BENNAL REPORT OF THE ATTORNEY GENERAL 25 affidavit is a matter for its concern, not that of the comptroller, and one which may be taken up with its legal advisors in each particular case or contract. t being the duty of the state comptroller to pay vouchers certified by the department for payment, when in conformity with the constitution and statutes of the state, not being bound by the contract by and between the department and the contractor to which he is' not a party, he is entitled to rely on the requirements of , F. S., and the remedies thereunder provided to laborers, materialmen, and subcontractors, when processing vouchers approved by the department for payment. Therefore, question 1 is answered in the negative; and question 2 by stating that the comptroller, not being a party to the contract provision for affidavit, may pay the claim upon proper requisition for payment and may rely upon the provisions of , F. S., for the protection of laborers, materialmen and subcontractors, when the same is consented to by the bondsmen in writing, as in this case, under the terms of his performance bond January 30, 1961 COUNTY BOARDS OF PUBLC NSTRUCTON MLEAGE COMPENSATON-ESCAMBA COUNTY-CHAP TERS 26392, 1949, , LAWS OF FLORDA; , 112'.061, F. S. To: Bryan Willis, State Auditor, Tallahassee QUESTON: Should the members of the board of public instruction of Escambia county receive mileage for attending meetings under Ch , 1949 (extra session) or , F. s.? t is the opinion of this office that , F. S., is determinative of the mileage compensation for members of the board of public instruction of Escambia county. Section , F. S., was enacted in 1955, with the apparent intent of the legislature to make uniform the compensation of county school board members. n 1951 Escambia county increased its instructional units sufficiently to come within the limitations of Ch , 1949, and was still within these limitations in 1955 when , F. S., was enacted. Whether or not Ch is a population act or a general law with limited application, does not affect the opinion that , F. S., is controlling. Subsequent general and special laws in conflict with the provisions of this general law will of course be controlling as to this 1955 general act, and Ch is such an act. This special act, later in time, however, relates only to salary compensation and does not affect mileage compensation. Consequently the provisions of , F. S., relating to mileage compensation are still effective. Chapter did not repeal Ch , The provisions of this special act provided for the repeal of Ch , This is obviously an error as Ch is a 1947 act and does not relate to this subject matter. However, it is apparent that the intent of the legislature was to repeal Ch , 1949, said act being a population act relating to the salary compensation of school board members and applicable at the time of its enactment only to Escambia county. Chapter 26398, 1949, was,never effective because at