(1) Any person engaged in the construction industry, as provided in s. 440.02, who loses a competitive bid for a contract shall have a cause of action for damages against the person awarded the contract for which the bid was made, if the person making the losing bid establishes that the winning bidder knew or should have known that he or she was in violation of s. 440.10, s. 440.105, or s. 440.38 while performing the work under the contract.

(2) To recover in an action brought under this section, a party must establish a violation of s. 440.10, s. 440.105, or s. 440.38 by a preponderance of the evidence.

(3) Upon establishing that the winning bidder knew or should have known of the violation, the person shall recover as liquidated damages 30 percent of the total amount bid on the contract by the person bringing the action, or $15,000, whichever is greater.

(4) In any action under this section, the prevailing party is entitled to an award of reasonable attorney’s fees.

(5) An action under this section must be commenced within 2 years after the performance of activities involving any building, clearing, filling, or execution contract, or the substantial improvement in the size or use of any structure, or the appearance of any land.

(6) A person may not recover any amounts under this section if the defendant in the action establishes by a preponderance of the evidence that the plaintiff:

(a) Was in violation of s. 440.10, s. 440.105, or s. 440.38 at the time of making the bid on the contract; or

(b) Was in violation of s. 440.10, s. 440.105, or s. 440.38 with respect to any contract performed by the plaintiff within 1 year before making the bid on the contract.

(7)(a) Any person who loses a competitive bid may petition the court to join in a suit brought under this section by another person against the winning bidder on the same contract and shall be joined in such suit. If more than one person is joined against the winning bidder and such persons prevail in the suit, the court must enter judgment dividing damages recoverable under this section between the parties equally.

(b) Any person who receives notice of a suit filed under this section and fails, within 20 days after receipt of such notice, to petition the court to join as a party to the suit is barred from bringing a cause of action under this section against the winning bidder on the contract at issue. For purposes of this subsection, publication in accordance with s. 49.10 constitutes sufficient notice.

History.—s. 11, ch. 93-415; s. 6, ch. 98-174; s. 18, ch. 2002-194.