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H0139...........................................................by BUSINESS
PUBLIC CONTRACTORS - Amends existing law relating to public contractors to
provide civil and criminal sanctions for knowingly failing to comply with
certain provisions of Idaho Code; to require a general contractor
self-performing plumbing, HVAC work or electrical work to be properly
licensed and to list the license number on the bid form; and to provide
that failure to do so shall render any bid submitted by a general
contractor unresponsive and void.
02/08 House intro - 1st rdg - to printing
02/09 Rpt prt - to Bus
02/16 Rpt out - rec d/p - to 2nd rdg
02/19 2nd rdg - to 3rd rdg
02/22 3rd rdg - PASSED - 67-3-0
AYES -- Anderson, Andrus, Bayer, Bedke, Bell, Bilbao, Black, Block,
Bock, Boe, Bolz, Brackett, Bradford, Chadderdon, Chavez, Chew, Clark,
Collins, Crane, Durst, Edmunson, Eskridge, Hagedorn, Hart, Henbest,
Henderson, Jaquet, Killen, King, Kren, Labrador, Lake, LeFavour,
Loertscher, Luker, Marriott, Mathews, McGeachin, Mortimer, Moyle,
Nielsen, Nonini, Pasley-Stuart, Patrick, Pence, Raybould, Ring,
Ringo, Roberts, Ruchti, Rusche, Sayler, Schaefer, Shepherd(2),
Shepherd(8), Shirley, Shively, Smith(30), Smith(24), Snodgrass,
Stevenson, Thayn, Trail, Vander Woude, Wills, Wood(27), Mr. Speaker
NAYS -- Barrett, Harwood, Wood(35)
Absent and excused -- None
Floor Sponsor - Collins
Title apvd - to Senate
02/23 Senate intro - 1st rdg - to Com/HuRes
03/07 Rpt out - rec d/p - to 2nd rdg
03/08 2nd rdg - to 3rd rdg
03/14 3rd rdg - PASSED - 33-0-2
AYES -- Andreason, Bair, Bastian, Bilyeu, Broadsword, Burkett,
Cameron, Coiner, Darrington, Davis, Fulcher, Gannon, Geddes, Goedde,
Hammond, Heinrich, Jorgenson, Kelly, Keough, Langhorst, Little,
Lodge, Malepeai, McGee, McKague, McKenzie, Pearce, Richardson,
Schroeder, Siddoway, Stegner, Stennett, Werk
NAYS -- None
Absent and excused -- Corder, Hill
Floor Sponsor - Goedde
Title apvd - to House
03/15 To enrol - Rpt enrol - Sp signed - Pres signed
03/16 To Governor
03/21 Governor signed
Session Law Chapter 127
Effective: 07/01/07
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-ninth Legislature First Regular Session - 2007
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 139
BY BUSINESS COMMITTEE
1 AN ACT
2 RELATING TO PUBLIC CONTRACTORS; AMENDING SECTION 54-1914, IDAHO CODE, TO PRO-
3 VIDE CIVIL SANCTIONS FOR KNOWINGLY FAILING TO COMPLY WITH CERTAIN PROVI-
4 SIONS OF IDAHO CODE; AMENDING SECTION 54-1920, IDAHO CODE, TO PROVIDE
5 CRIMINAL SANCTIONS FOR KNOWINGLY FAILING TO COMPLY WITH CERTAIN PROVISIONS
6 OF IDAHO CODE; AND AMENDING SECTION 67-2310, IDAHO CODE, TO REQUIRE A GEN-
7 ERAL CONTRACTOR SELF-PERFORMING PLUMBING, HVAC WORK OR ELECTRICAL WORK TO
8 BE PROPERLY LICENSED AND TO LIST THE LICENSE NUMBER ON THE BID FORM, TO
9 PROVIDE THAT FAILURE TO DO SO SHALL RENDER ANY BID SUBMITTED BY A GENERAL
10 CONTRACTOR UNRESPONSIVE AND VOID AND TO PROVIDE CORRECT TERMINOLOGY.
11 Be It Enacted by the Legislature of the State of Idaho:
12 SECTION 1. That Section 54-1914, Idaho Code, be, and the same is hereby
13 amended to read as follows:
14 54-1914. ADMINISTRATIVE ENFORCEMENT PROCEEDINGS. (1) The administrator
15 may upon his own motion or at the direction of the board, and shall upon the
16 verified complaint in writing of any person, investigate the actions of any
17 public works contractor within the state and may undertake to reclassify,
18 retype, place on probation, defer or precondition licensure, impose an admin-
19 istrative fine not to exceed twenty thousand dollars ($20,000) per violation,
20 impose the administrative costs of bringing the action including, but not lim-
21 ited to, hearing officer fees, expert witness fees, attorney's fees, costs of
22 hearing transcripts and copies, temporarily suspend or permanently revoke any
23 license if the holder, while a licensee or applicant hereunder, is guilty of
24 or commits any one (1) or more of the following acts or omissions:
25 (a) Abandonment without legal excuse of any construction project or oper-
26 ation engaged in or undertaken by the licensee as a contractor.
27 (b) Diversion of funds or property received under express agreement for
28 prosecution or completion of a specific construction project or operation,
29 or for a specified purpose in the prosecution or completion of any con-
30 struction project or operation, and their application or use for any other
31 construction project or operation, obligation or purpose, with intent to
32 defraud or deceive creditors or the owner.
33 (c) Willful departure from or disregard of, plans or specifications in
34 any material respect, and prejudicial to another, without consent of the
35 owner or his duly authorized representative, and without the consent of
36 the person entitled to have the particular construction project or opera-
37 tion completed in accordance with such plans and specifications.
38 (d) Willful or deliberate disregard and violation of valid building laws
39 of the state, or of any political subdivision thereof, or of the safety
40 laws or labor laws or compensation insurance laws of the state.
41 (e) Misrepresentation of a material fact by an applicant in obtaining a
42 license.
43 (f) Aiding or abetting an unlicensed person to evade the provisions of
2
1 this chapter or conspiring with an unlicensed person, or allowing one's
2 license to be used by an unlicensed person, or acting as agent or partner
3 or associate or otherwise, of an unlicensed person with the intent to
4 evade the provisions of this chapter.
5 (g) Failure in any material respect to comply with the provisions of this
6 chapter.
7 (h) Acting in the capacity of a contractor under any license issued here-
8 under except: (1) in the name of the licensee as set forth upon the
9 license, or (2) in accordance with the personnel of the licensee as set
10 forth in the application for such license, or as later changed as provided
11 in this chapter.
12 (i) Knowingly accepting a bid from, or entering into a contract with
13 another contractor for a portion of a public works project if at that time
14 such contractor does not possess the appropriate license to do that work
15 as provided in this chapter.
16 (j) Willful failure or refusal without legal excuse on the part of a
17 licensee as a contractor to finish a construction project or operation
18 with reasonable diligence, causing material injury to another.
19 (k) Willful or deliberate failure by any licensee, or agent or officer
20 thereof, to pay any moneys when due, for any materials or services ren-
21 dered in connection with his operations as a contractor, when he has the
22 capacity to pay or when he has received sufficient funds therefor as pay-
23 ment for the particular construction work, project or operation for which
24 the services or materials were rendered or purchased; or denial of any
25 such amount due or the validity of the claim thereof with intent to secure
26 for himself, his employer, or other person, any discount upon such indebt-
27 edness or with intent to hinder, delay or defraud the person to whom such
28 indebtedness is due.
29 (l) Suffers a change in financial circumstances which may impair the
30 licensee's financial responsibility.
31 (m) Holding oneself or one's firm out as a public works contractor by
32 engaging in any act meeting the definition or character of a public works
33 contractor as defined herein without a legally required license.
34 (n) Failure to comply with subsection (1), (2) or (3) of section 67-2310,
35 Idaho Code.
36 (2) The administrator may upon his own motion or at the direction of the
37 board, and shall upon the verified complaint in writing of any licensed public
38 works contractor eligible to perform public works contracting duties, investi-
39 gate the actions of any public entity within the state and may impose an
40 administrative fine not to exceed five thousand dollars ($5,000) per violation
41 or impose the administrative costs of bringing the action including, but not
42 limited to, hearing officer fees, expert witness fees, attorney's fees, costs
43 of hearing transcripts and copies, if the public agency contracts for public
44 works construction with an unlicensed or improperly licensed contractor or
45 knowingly awards a contract based upon a bid or proposal not in compliance
46 with subsection (1) or (2) of section 67-2310, Idaho Code.
47 SECTION 2. That Section 54-1920, Idaho Code, be, and the same is hereby
48 amended to read as follows:
49 54-1920. PENALTIES -- INJUNCTION. (1) Any person, firm, copartnership,
50 corporation, limited liability company, limited liability partnership, associ-
51 ation or other organization acting in the capacity of a public works contrac-
52 tor within the meaning of this chapter, without a license as herein provided
53 or fails to comply with the provisions of subsection (1), (2) or (3) of sec-
3
1 tion 67-2310, Idaho Code, shall be guilty of a misdemeanor and shall, upon
2 conviction thereof, be punished by a fine not to exceed five thousand dollars
3 ($5,000) or by imprisonment in the county jail for a term not to exceed one
4 (1) year or by both such fine and imprisonment, at the discretion of the
5 court. The same penalties shall apply, upon conviction to any member of a
6 copartnership, or to any construction, managing or directing officer of any
7 corporation, limited liability company or limited liability partnership, or
8 other organization consenting to, participating in, or aiding or abetting any
9 such violation of this chapter.
10 (2) Every public officer who knowingly lets a public contract to any per-
11 son, firm, copartnership, corporation, limited liability company, limited lia-
12 bility partnership, association or other organization who does not hold a
13 license as required by the provisions of this chapter or knowingly fails to
14 comply with the provisions of subsection (1) or (2) of section 67-2310, Idaho
15 Code, shall be guilty of a misdemeanor and upon conviction, punishable as pro-
16 vided in this section, unless, however, there be no qualified bidder willing
17 to undertake the public works covered by the contract. No person engaged in
18 the business or acting in the capacity of a contractor, may bring or maintain
19 any action in any court of this state for the collection of compensation for
20 the performance of any act or contract for which a license is required by this
21 chapter without alleging and providing that he was a duly licensed contractor
22 at all times during the performance of such act or contract.
23 (3) In addition to any other penalties specified in this section, when-
24 ever any person violates the provisions of this chapter by acting as a public
25 works contractor without a license, the administrator may maintain an action
26 in the name of the state of Idaho to enjoin the person from any further viola-
27 tions. Such action may be brought either in the county in which the acts are
28 claimed to have been or are being committed, in the county where the defendant
29 resides or in Ada county. Upon the filing of a verified complaint in the dis-
30 trict court, the court, if satisfied that the acts complained of have been or
31 probably are being or may be committed, may issue a temporary restraining
32 order and/or preliminary injunction, without bond, enjoining the defendant
33 from the commission of any such act or acts constituting the violation. A copy
34 of the complaint shall be served upon the defendant and the proceedings shall
35 thereafter be conducted as in other similar civil actions. If the commission
36 of the act or acts is established, the court shall enter a decree permanently
37 enjoining the defendant from committing such act or acts. If an injunction
38 issued under the provisions of this section is violated, the court, or the
39 judge thereof at chambers, may summarily try and punish the offender for con-
40 tempt of court.
41 SECTION 3. That Section 67-2310, Idaho Code, be, and the same is hereby
42 amended to read as follows:
43 67-2310. SUBCONTRACTORS TO BE LISTED ON BID OF GENERAL CONTRACTOR --
44 EXCEPTIONS. (1) Hereafter, before the state of Idaho, the separate counties,
45 cities, towns, villages or school districts within the state of Idaho shall
46 let contracts for the construction, alteration or repair of any and all build-
47 ings, improvements or public works, and such construction, alteration or
48 repair requires plumbing, heating and air-conditioning HVAC work, or electri-
49 cal work, the general contractor shall be required to include in his bid the
50 name, or names and address, or addresses, of the subcontractors who shall, in
51 the event the contractor secures the contract, subcontract the plumbing, heat-
52 ing and air-conditioning HVAC work, and electrical work under the general con-
53 tract. In the event that the general contractor intends to self-perform the
4
1 plumbing, HVAC or electrical work, the general contractor must be properly
2 licensed by the state of Idaho to perform such work. The general contractor
3 shall demonstrate compliance with this requirement by listing the valid
4 contractor's license number for the plumbing, HVAC or electrical work to be
5 self-performed by the general contractor on the bid form.
6 (2) No general contractor shall name any subcontractor in his bid unless
7 the general contractor has received communication from the subcontractor. For
8 the purposes of this section, "communication" shall include telephone, mail,
9 facsimile machine, in person, or by computer using the internet or a bid ser-
10 vice.
11 (3) In the event a general contractor secures the contract, and if the
12 general contractor and a named subcontractor cannot finalize the terms of
13 agreement between them for any reason other than cost, the general contractor
14 shall name another subcontractor by written notification within ten (10) days
15 of being awarded the public works contract. The general contractor shall dis-
16 close to the public entity the cost for work to be performed by the substitute
17 subcontractor. If the amount of the substitute subcontractor's bid is less
18 than the original subcontractor's bid, the reduction in cost shall be passed
19 through to the benefit of the public entity which awarded the contract.
20 (4) This act shall not apply to the construction, alteration or repair of
21 public buildings under the jurisdiction of the board of regents of the Univer-
22 sity of Idaho.
23 (5) This act shall have no application to the preparation and submission
24 of plans and specifications pursuant to statute or local ordinance.
25 (6) Failure to name subcontractors or list the valid contractor's license
26 number for plumbing, HVAC or electrical work being self-performed by the gen-
27 eral contractor as required by subsection (1) of this section shall render any
28 bid submitted by a general contractor unresponsive and void.
29 (7) At the time subcontractors are named in accordance with the provi-
30 sions of this section, they must possess the appropriate licenses or certifi-
31 cates of competency issued by the state of Idaho covering the contractor work
32 classification in which each respective subcontractor is named.
STATEMENT OF PURPOSE
RS 16936
The naming law, 67-2310, is now referenced in Public Works
Chapter 54 in order to ensure that contractors and public officials
are aware of the requirement to name electrical, HVAC and plumbing
contractors in their bids for a public works project. This
legislation allows a qualified general contractor to perform HVAC,
electrical or plumbing if so qualified by his public works license.
It also provides for enforcement by the Public Works Board and the
Administrator of the Division of Building Safety.
FISCAL NOTE
None.
Contact
Name: Bob Corbell
Phone: 870-5817
STATEMENT OF PURPOSE/FISCAL NOTE H 139