Fiscal impact reports (FIRs) are prepared by the Legislative Finance Committee (LFC) for standing finance
committees of the NM Legislature. The LFC does not assume responsibility for the accuracy of these reports
if they are used for other purposes.
Current FIRs (in HTML & Adobe PDF formats) are a vailable on the NM Legislative Website (legis.state.nm.us).
Adobe PDF versions include all attachments, whereas HTML versions may not. Previously issued FIRs and
attachments may be obtained from the LFC in Suite 101 of the State Capitol Building North.
F I S C A L I M P A C T R E P O R T
SPONSOR Cisneros
ORIGINAL DATE
LAST UPDATED
2/23/2007
HB
SHORT TITLE Prohibit Certain Contract Agreements
SB 641
ANALYST Schuss
APPROPRIATION (dollars in thousands)
Appropriation
Recurring
or Non-Rec
Fund
Affected
FY07
FY08
NFI
(Parenthesis ( ) Indicate Expenditure Decreases)
SOURCES OF INFORMATION
LFC Files
Responses Received From
Regulation and Licensing Department (RLD)
Administrative Office of the Courts (AOC)
Attorney General’s Office (AGO)
SUMMARY
Synopsis of Bill
Senate Bill 641 would provide that “Payment by the owner to a contractor shall not be a
condition precedent for payment to a subcontractor, and payment by a contractor to a
subcontractor shall not be a condition precedent for payment to any other subcontractor. An
agreement to the contrary is void, unenforceable and against the public policy of the state."
FISCAL IMPLICATIONS
AOC notes that there will be a minimal administrative cost for statewide update, distribution and
documentation of statutory changes. Any additional fiscal impact on the judiciary would be
proportional to challenges to the law’s prohibition. New laws, amendments to existing laws and
new hearings have the potential to increase caseloads in the courts, thus requiring additional
resources to handle the increase.
pg_0002
Senate Bill 641 – Page
2
SIGNIFICANT ISSUES
AOC has included the following in their analysis:
Clauses in construction contracts that condition payment to the subcontractor on the
general contractor's receipt of payment from the owner are generally referred to as “pay when
paid" or “pay if paid" provisions. American courts differ on the enforceability and interpretation
of such clauses. There is a distinction to be made between the two types of provisions. As
attorneys associated with the International Association of Foundation Drilling explain:
Simply put, the difference between the two clauses is that, under a "pay-if-paid"
provision, the subcontractor will be paid only if the general contractor is first paid by the
owner, whereas under a "pay-when-paid" provision, the subcontractor will be paid when
the contractor is paid by the owner. A pay-if-paid provision creates a condition precedent
to the contractor’s duty to pay its subcontractor and the risk of an owner’s non-payment
is shared by the contractor and the subcontractor. With a pay-when-paid clause, the
contractor has a duty to pay the subcontractor whether or not the contractor receives
payment from the owner, and payment will be due the subcontractor within a reasonable
time after the owner should have paid the contractor.
It appears that SB 641 does not draw a distinction between “pay when paid" or “pay if
paid" provisions. If it did, and if it permitted “pay when paid" provisions calling for payment to
a subcontractor within a reasonable time after the owner should have paid the contractor, it
would be more likely to withstand legislative and legal challenge.
According to AGO, presumably the bill would apply to all contracts entered into between private
parties and governmental agencies. It does not restrict or define the agreements to which it
applies. Its prohibitions are not restricted to construction contracts, even though the bill uses
terms commonly found in those contracts.
The bill seems to require payment to subcontractors regardless of whether the primary contractor
has received payment from an “owner". This could be problematic for contractors with
insufficient funds available prior to receiving payment themselves. Although the bill appears
intended to prevent a primary contractor from granting payment priority to certain
subcontractors, it also prohibits subcontractors from withholding payment to their subcontractors
regardless of whether the primary contractor has paid the first subcontractor. This raises the same
issue regarding availability and sufficiency of funds.
BS/nt