article: SECTION 1. SHORT TITLE. This Act may be cited as the ``Construction Subcontractors Payment Protection Enhancement Act of 1998''. SEC. 2. ADDITIONAL RESPONSIBILITIES OF THE ADMINISTRATOR FOR FEDERAL PROCUREMENT POLICY. Section 6(d) of the Office of Federal Procurement Policy Act (41 U.S.C. 405(d)) is amended-- (1) by redesignating paragraphs (9), (10), (11), (12), and (13), as paragraphs (10), (11), (12), (13), and (14), respectively; and (2) by inserting after paragraph (8) the following new paragraph: ``(9) establishing appropriate Government-wide policies and assuring Government-wide implementation through the Federal Acquisition Regulation of statutes and policies assuring the timely payment of contractors, subcontractors, and suppliers, including chapter 39 of title 31, United States Code (commonly known as the ``Prompt Payment Act''), the Miller Act (40 U.S.C. 270a-270d-1), and section 2091 of the Federal Acquisition Streamlining Act of 1994 (Pub. Law 103-355; 108 Stat. 3306);''. SEC. 3. IMPLEMENTATION THROUGH THE GOVERNMENT-WIDE PROCUREMENT REGULATIONS. (a) Proposed Regulations.--Proposed revisions to the Government- wide Federal Acquisition Regulation to implement the amendments made by this Act shall be published not later than 120 days after the date of the enactment of this Act and provide not less than 60 days for public comment. (b) Final Regulations.--Final regulations shall be published not less than 180 days after the date of the enactment of this Act and shall be effective on the date that is 30 days after the date of publication. SEC. 4. RELATED AMENDMENTS TO THE MILLER ACT. (a) Improvement of Payment Bond Protection.--Subsection (a)(2) of the first section of the Miller Act (40 U.S.C. 270a(2)) is amended by striking the second, third, and fourth sentences and inserting in lieu thereof the following new sentence: ``The amount of the payment bond shall be equal to the amount of the performance bond.''. (b) Payment Bond Protection for Progress Payments.--Section 2(a) of the Miller Act (40 U.S.C. 270b(a)) is amended in the first sentence by striking ``who has not been paid in full therefor'' and inserting in lieu thereof the following: ``(1) who has not been paid in full for a progress payment before the expiration of a period of seven days after the due date of the progress payment, or (2) who has not been paid in full for the labor or material''. (c) Extension of Payment Bond Protection to All Subcontractors and Suppliers.--Section 2(a) of the Miller Act (40 U.S.C. 270b(a)) is further amended-- (1) by striking ``performed by him'' and inserting ``performed by the person''; (2) by striking ``supplied by him'' and inserting in lieu thereof ``supplied by the person''; and (3) by striking ``him: Provided, however,'' and all that follows through ``within ninety days from'' and inserting in lieu thereof ``the person. Any person who institutes such a suit shall give notice of such suit to the contractor who furnished such payment bond not later than 90 days after''. (d) Preservation of Payment Bond Protection.--The first section of the Miller Act (40 U.S.C. 270a) is further amended by adding at the end the following new subsection: ``(e) No waiver of any protection afforded to a person by a payment bond required by this Act shall be valid unless the waiver is in writing and is made after the date such person may institute a suit under section 2 with respect to such bond.''. (e) Modernization of Service of Payment Bond Claims.--Section 2(a) of the Miller Act (40 U.S.C. 270b(a)) is further amended in the sentence beginning with ``Such notice'' by striking ``by mailing'' and all that follows through ``or his residence'' and inserting in lieu thereof ``to the contractor at any place the contractor conducts business through any delivery service that provides proof of receipt, including the United States Postal Service, a private express delivery service, or delivery by any form of electronic means,''. (f) Elimination of Delays in Payment Bond Protection.--Section 2 of the Miller Act (40 U.S.C. 270b) is further amended-- (1) in the second paragraph, by inserting ``(b)'' before ``Every suit instituted''; and (2) by adding at the end the following new subsection: ``(c) A suit instituted under this section shall not be dismissed on the grounds that it was filed before the expiration of a period of ninety days after the date on which the last of the labor was done or performed or material was furnished or supplied if the person who instituted the suit has received from the contractor who furnished the bond a denial in writing that payment is due, in whole or in part.''. (g) Discouragement of Frivolous Payment Bond Litigation.--Section 2 of the Miller Act is further amended by adding at the end the following new subsection: ``(d)(1) A court may award the prevailing party in a suit instituted under this section court costs, attorneys' fees, and interest, if the court determines that such an award is appropriate and that-- ``(A) the suit is frivolous or a defense that is asserted in the suit is groundless; or ``(B) such an award is needed to preserve the protections of this Act with respect to a small claim, in an amount not exceeding the simplified acquisition threshold (as defined in section 4(11) of the Office of Federal Procurement Policy Act; 41 U.S.C. 403(11)).''. ``(2) Interest awarded under this subsection shall be calculated for the period beginning on the date the claim is made and ending on the date of payment, using the interest rates applicable to late payment interest penalties pursuant to section 3902 of title 31, United States Code (commonly referred to as the ``Prompt Payment Act'').''. (h) Accountability of Contracting Officers.--The first section of the Miller Act (40 U.S.C. 270a) is further amended by adding at the end the following new subsection: ``(f)(1) The contracting officer for a contract shall be responsible for-- ``(A) obtaining from the contractor the payment bond required under subsection (a); and ``(B) ensuring that the payment bond remains in effect during the administration of the contract. ``(2) In any case in which a person brings suit pursuant to section 2 and the court determines that the required payment bond is not in effect because the contracting officer has failed to perform the responsibilities required by paragraph (1), upon petition of the person who brought the suit the court may authorize such person to bring suit against the United States for the amount that the person would have sued for under section 2.''.
summary: Construction Subcontractors Payment Protection Enhancement Act of 1998 - Amends the Office of Federal Procurement Policy Act to provide for the establishment of policies assuring the timely payment of contractors, subcontractors, and suppliers. Amends the Miller Act to revise provisions concerning payment bonds.