City of Atlanta v

United Elec. Co., 202 Ga. App. 239, 414 S.E.2d 251 (1991) (decided under former O.C.G.A. § 13-10-1 prior to its 2001 amendment). County had a duty to require a contractor to procure a payment bond which was not procured; thus, a subcontractor had a right to sue the county for materials furnished because of the county’s failure to require the payment bond. Kelly Energy Sys. v. Board of Comm’rs,, 196 Ga. App. 519, 396 S.E.2d 498, cert. denied, 196 Ga. App. 908, 396 S.E.2d 498 (1990) (decided under former O.C.G.A. § 13-10-1 prior to its 2001 amendment). Claim including obligations to third tier subcontractors. — Sub-subcontractor who provided goods and services for a public works contract could include in the sub-subcontractor’s claim against the payment bond the amounts which the sub-subcontractor was contractually obligated to pay the sub-subcontractors third tier subcontractors. Sunderland v. Vertex Assocs., 199 Ga. App. 278, 404 S.E.2d 574 (1990), cert. denied, 199 Ga. App. 907, 404 S.E.2d 574 (1991) (decided under former O.C.G.A. § 13-10-1 prior to its 2001 amendment). 2. Applicability Supplier of materials to subcontractor protected. — When the general contractor on a government construction contract subcontracted the procurement of certain materials to a subcontractor, which in turn 613 T.13, C.10, A.1, P.4 CONTRACTS Payment Bonds (Cont’d) 2. Applicability (Cont’d) purchased the materials from plaintiff supplier, the plaintiff was not too remote a supplier to recover under the general contractor’s statutory payment bond. Barton Malow Co. v. Metro Mfg., Inc., 214 Ga. App. 56, 446 S.E.2d 785 (1994) (decided under former O.C.G.A. § 13-10-1 prior to its 2001 amendment). 3. Machinery and Equipment Costs Recoverable Cost of repairs ‘‘consumed’’ in performing work is recoverable. — Repair costs are recoverable under a statutory surety bond if the repairs were ‘‘consumed’’ in the prosecution of the work covered by the bond, in the sense that the repairs specially contributed to the pending work only and were not of particular use in other unrelated work. Sims’ Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033 (S.D. Ga. 1981), aff ’d, 667 F.2d 30 (11th Cir. 1982) (decided under former O.C.G.A. § 13-10-1 prior to its 2001 amendment). Rental value of machinery is properly considered within protection of bond. — Rental value of machinery owing to a lessor materialman of a subcontractor is properly considered an item within the intended protection of the surety’s promise, required by the obligees, to pay all persons furnishing materials consumed in the general contract. Sims’ Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033 (S.D. Ga. 1981), aff ’d, 667 F.2d 30 (11th Cir. 1982) (decided under former O.C.G.A. § 13-10-1 prior to its 2001 amendment). Distinction between those equipment and machinery costs covered by bond and those excluded from coverage. — Determinative distinction is between items going into work, or specially contributing to its execution and nothing else, and those properly chargeable to plant and equipment of contractor and available not only for pending work but for other work as well. Moore v. Standard Accident Ins. Co., 48 Ga. App. 508, 173 S.E. 481 (1934); Western Cas. & Sur. Co. v. Fulton Supply Co., 60 Ga. App. 710, 4 S.E.2d 690 (1939) (decided under former O.C.G.A. § 13-10-1 prior to its 2001 amendment). While there may be a recovery on a public T.13, C.10, A.1, P.4 contractor’s bond for material and labor used in incidental and current repairs to the contractor’s machinery, there can be none for major repairs involving the replacement of old with new parts, in the absence of proof that the new parts were consumed in the work covered by the bond. The determinative distinction is between the items going into the work, or specially contributing to the execution of the contract and nothing else, and those properly chargeable to the plant and equipment of the contractor, and available not only for the pending work but for other work as well. Sims’ Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033 (S.D. Ga. 1981), aff ’d, 667 F.2d 30 (11th Cir. 1982) (decided under former O.C.G.A. § 13-10-1 prior to its 2001 amendment). 4. Role of County Clarification by 1991 amendment. — The 1991 amendment which provides that the required payment bond be approved as to form and as to the solvency of the surety by the officer of the public entity who negotiates the contract on behalf of the public entity, clarified the previously implicit understanding that a surety is not ‘‘good and sufficient’’ unless the surety is solvent. J & A Pipeline Co. v. DeKalb County, 208 Ga. App. 123, 430 S.E.2d 13, modified on other grounds, DeKalb County v. J & A Pipeline Co., 263 Ga. 645, 437 S.E.2d 327 (1993) (decided under former O.C.G.A. § 13-10-1 prior to its 2001 amendment). Retroactive application of 1991 amendment. — See Atlanta Mechanical, Inc. v. DeKalb County, 209 Ga. App. 307, 434 S.E.2d 494 (1993) (decided under former O.C.G.A. § 13-10-1 prior to its 2001 amendment). Obtaining an affidavit from a surety is intended to be in addition to rather than instead of the requirement for a county that the surety be approved as ‘‘good and sufficient.’’ J & A Pipeline Co. v. DeKalb County, 208 Ga. App. 123, 430 S.E.2d 13, modified on other grounds, DeKalb County v. J & A Pipeline Co., 263 Ga. 645, 437 S.E.2d 327 (1993) (decided under former O.C.G.A. § 13-10-1 prior to its 2001 amendment). County school board. — County school board was a public body within the meaning of former O.C.G.A. § 13-10-1 and § 36-82-102, and it could therefore be held 614 T.13, C.10, A.1, P.4 CONTRACTS FOR PUBLIC WORKS liable under the latter section for failure to investigate the solvency of a surety as required by subsection (f ) of former § 13-10-1. Hall County Sch.