Colorado § 24-91-103 - Public entity - contracts - partial payments.

§ 24-91-103. Public entity - contracts - partial payments.

(1) (a) A public entity awarding a contract exceeding one hundred fifty thousand dollars for the construction, alteration, or repair of any highway, public building, public work, or public improvement, structure, or system, including real property as defined in section 24-30-1301 (15), shall authorize partial payments of the amount due under such contract at the end of each calendar month, or as soon thereafter as practicable, to the contractor, if the contractor is satisfactorily performing the contract. The public entity shall pay at least ninety-five percent of the calculated value of completed work. The withheld percentage of the contract price of any contracted work, improvement, or construction may be retained until the contract is completed satisfactorily and finally accepted by the public entity.

(b) The public entity shall make a final settlement in accordance with section 38-26-107, C.R.S., within sixty days after the contract is completed satisfactorily and finally accepted by the public entity.

(c) If the public entity finds that satisfactory progress is being made in any phase of the contract, it may, upon written request by the contractor, authorize final payment from the withheld percentage to the contractor or subcontractors who have completed their work in a manner finally acceptable to the public entity. Before the payment is made, the public entity shall determine that satisfactory and substantial reasons exist for the payment and shall require written approval from any surety furnishing bonds for the contract work.

(2) Whenever a contractor receives payment pursuant to this section, the contractor shall make payments to each of his subcontractors of any amounts actually received which were included in the contractor's request for payment to the public entity for such subcontracts. The contractor shall make such payments within seven calendar days of receipt of payment from the public entity in the same manner as the public entity is required to pay the contractor under this section if the subcontractor is satisfactorily performing under his contract with the contractor. The subcontractor shall pay all suppliers, sub-subcontractors, laborers, and any other persons who provide goods, materials, labor, or equipment to the subcontractor any amounts actually received which were included in the subcontractor's request for payment to the contractor for such persons, in the same manner set forth in this subsection (2) regarding payments by the contractor to the subcontractor. If the subcontractor fails to make such payments in the required manner, the subcontractor shall pay said suppliers, sub-subcontractors, and laborers interest in the same manner set forth in this subsection (2) regarding payments by the contractor to the subcontractor. At the time the subcontractor submits a request for payment to the contractor, the subcontractor shall also submit to the contractor a list of the subcontractor's suppliers, sub-subcontractors, and laborers. The contractor shall be relieved of the requirements of this subsection (2) regarding payment in seven days and interest payment until the subcontractor submits such list. If the contractor fails to make timely payments to the subcontractor as required by this section, the contractor shall pay the subcontractor interest as specified by contract or at the rate of fifteen percent per annum whichever is higher, on the amount of the payment which was not made in a timely manner. The interest shall accrue for the period from the required payment date to the date on which payment is made. Nothing in this subsection (2) shall be construed to affect the retention provisions of any contract.

(3) (Deleted by amendment, L. 2011, (HB 11-1115), ch. 211, p. 912, § 2, effective August 10, 2011.)

Source: L. 79: Entire article added, p. 996, § 1, effective July 1. L. 91: Entire section amended, p. 904, § 1, effective July 1. L. 2004: (1) amended, p. 227, § 1, effective August 4. L. 2011: (1) and (3) amended, (HB 11-1115), ch. 211, p. 912, § 2, effective August 10. L. 2014: (1)(a) amended, (HB 14-1387), ch. 378, p. 1851, § 58, effective June 6.

Cross references: (1) For the legislative declaration in the 2011 act amending subsections (1) and (3), see section 1 of chapter 211, Session Laws of Colorado 2011.

(2) For the legislative declaration in HB 14-1387, see section 1 of chapter 378, Session Laws of Colorado 2014.

ANNOTATION

Section requires a contractor to pay a subcontractor within seven days of the contractor actually receiving a payment from a public entity. Trial court erred by calculating the penalty interest from the date a project was completed. New Design Constr. Co. v. Hamon Contractors, Inc., 215 P.3d 1172 (Colo. App. 2008).

Penalty interest does not compound annually. To the extent there is a conflict, this section prevails over the more general default interest statute. New Design Constr. Co. v. Hamon Contractors, Inc., 215 P.3d 1172 (Colo. App. 2008).

Penalty interest continues to accrue until the outstanding contract balance is paid regardless of whether a judgment has been appealed. However, the interest should be calculated based on the contract balance and not the entire judgment amount. To the extent there is a conflict, the prompt payment section prevails over the more general postjudgment interest statute. New Design Constr. Co. v. Hamon Contractors, Inc., 215 P.3d 1172 (Colo. App. 2008).