Hammer:Anvil::Contract Retainage Provision:Statutory Bond Deadline

I recently had occasion to become acquainted with Florida's statutory scheme governing payment bond claims, and found that Florida's legislature had inserted some clever, common-sense language to resolve a problem commonly found in statutory payment bond schemes nationwide. The problem is best illustrated with a common example:

You are the lawyer for the rough grading subcontractor. Your client finished its work two weeks ago, and submitted its application for final payment. The general contractor paid, but withheld the traditional ten percent retainage. In a phone call following up on what they regarded as a short-pay, your client was told that their subcontract allows the GC to withhold retainage from all subs until the end of the project, and the GC intends to do so. Your review of the subcontract confirms this interpretation. The project will be completed in approximately 13 months. Your client has told you they are very concerned with the stability of the GC, and want to file a payment bond claim if at all possible.

In many states, the sub's lawyer will find himself or herself in a bit of a pickle. State statutory rules governing payment bond claims typically require such claims to be submitted within 90 or 120 days after the last day work or materials were provided. But if your client completes its work early in the project, the statutory deadline may come and go before your client is ever contractually entitled to receive the retainage payment. What do you do? Do you allow the deadline to run and forfeit the bond claim? Do you submit a certified claim under oath (as most sureties require) that says the sub is owed money when you know that, contractually, they are not owed money yet?

Florida's statute governing payment bond claims resolves this issue in the simplest and most straight-forward manner: by creating an exemption for retainage payments. Florida's statute provides: "The failure of a lienor to receive retainage sums not in excess of 10 percent of the value of labor, services, or materials furnished by the lienor is not considered a nonpayment requiring the service of the notice provided under this paragraph." [Fla.Stat. 713.23(d).] Thus, the failure to receive retention does not trigger the deadline for filing a notice of claim, and the parties can wait until the end of the project for their retainage (as they are contractually required to do).

Some states have resolved this issue through case law, some (like Florida) through legislation, but not every state has addressed the problem. Why not?