28-411. Prompt payment; progress payment;
consultants and contractors; subconsultants and subcontractors
A. The department shall make progress payments pursuant to the terms of an
agreement with a consultant or contractor on the basis of an invoice for work already
performed. All progress payments shall be paid on or before the twenty-first day after
the date the department receives the invoice unless the department does not approve and
certify the invoice pursuant to subsection B of this section.
B. Any invoice from a consultant or contractor for progress payments shall be
deemed approved and certified by the department unless within seven days from the date
the department receives the invoice the department sends the consultant or contractor
written notice by first class mail of those items that the department does not approve
and certify under the terms of the agreement.
C. On or before the seventh day after the date the department makes a progress
payment, if the consultant or contractor contracted with subconsultants or subcontractors
to perform the work for which the department made the progress payment, the consultant or
contractor shall pay the subconsultants or subcontractors for the work performed to the
extent of each subconsultant's or subcontractor's contractual interest in the progress
payment. If any subconsultant or subcontractor contests the amount paid by a consultant
or contractor from a progress payment made under subsection A of this section, the
subconsultant or subcontractor shall notify the department in writing within thirty days
after receiving the payment from the consultant or contractor. This subsection does not
apply if the contract between the consultant or contractor and the subconsultant or
subcontractor expressly provides that the prompt payment provisions of this subsection do
not apply to the agreement between the consultant or contractor and the subconsultant or
subcontractor.
D. If a consultant or contractor fails to pay a subconsultant or subcontractor
within seven days of receiving a progress payment from the department, the consultant or
contractor shall pay the subconsultant or subcontractor interest on the unpaid balance,
beginning on the eighth day at the rate of one per cent per month or fraction of a month.
This subsection does not apply if the contract between the consultant or contractor and
the subconsultant or subcontractor expressly provides that the prompt payment provisions
of this subsection do not apply to the agreement between the consultant or contractor and
the subconsultant or subcontractor.
E. A subconsultant or subcontractor may submit a written request to the department
asking the department to notify the subconsultant or subcontractor of each subsequent
progress payment made to the consultant or contractor. If the department receives a
written request under this subsection, the department shall send the requesting party a
written notice by first class mail of each subsequent progress payment within five days
of making the progress payment.
F. Agreements with the department for consultant or contractor services do not
alter the rights of any consultant or contractor to receive prompt and timely payment as
provided under this section.
G. To the extent that this section conflicts with section 28-6924, section 28-6924
controls any agreement between the department and a contractor for highway construction
projects.
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