Mississippi procurement statutes are clear and unambiguous with regard to the requirement for the listing of a contractor’s certificate of responsibility on the outside of the bid envelope, if the bid is more than $50,000.00. It is also critical to remember the contractor’s name of the bid must be the name recorded as the holder of the Certificate of Responsibility with the Mississippi State Board of Contractors. On a number of occasions, contractors have made the fatal error of submitting their bid using an improper or incomplete corporate name. The result can be the rejection of a contractor’s bid because the entity signing the bid has no Certificate of Responsibility. Paying attention to this one small detail can save your bid from being rejected.
Public agencies may use past performance to award a contract to the lowest and best bidder or reject a bid. Occasionally, construction companies may dissolve or form new companies. The reasons for a change in a company’s corporate structure may vary. However, the good and/or the bad may follow the newly formed company. This issue was addressed a number of years ago by the Mississippi Attorney General and the position explained as follows:
[I]f a bidder presenting a valid COR number is a company with which DFA/BOB has no past experience or past performance history, DFA/BOB may consider past experience with or past performance of the company from which the bidder originated, the bidder’s parent company, or the company with which the bidder merged, partnered, or changed names.
The Attorney General went on to state that a public agency can also reject an apparent low bidder "who submits a bid under the same COR number as its predecessor, predecessor in name, parent company, or merger/partner" where the public agency considers a poor past performer. [Link to AG Opinion No. 2003-649].
The important point to understand is that good and/or poor past performance follows the COR number which is held by the qualifying party.
The 2015 Mississippi Legislature has made a number of changes to the statutes governing the Mississippi State Board of Contractors, Miss. Code Ann. §§ 31-3-1, et seq. and Miss. Code Ann. §§ 73-59-1, et seq. The enumerated changes are found in Senate Bill 2508 [click here for SB 2508], which have been sent to the Governor for his signature. Listed below are some of the changes:
- Demolition is added to the list of activities covered by the statute for which a certificate of responsibility will be required.
- The thirty (30) day waiting period for an application for a Certificate of Responsibility has been removed.
- The number of entities for which a qualifying party may appear is limited to three (3) unless special permission is granted.
- Grants the Board of Contractors to issue citations to any commercial or residential contractor preforming work with a Certificate of Responsibility and may order the work to be stopped.
- The definition of "resident contractor" has been clarified to include a nonresident person, firm or corporation that has been qualified to do business in this state and has maintained a permanent full-time office in the State of Mississippi for two (2) years prior to submission of the bid.
- Board of Contractors now has the authority to issue public reprimands for violations of the statutes and/or regulations.
- The appeal process for commercial and residential contractors from a decision of State Board of Contractors has been clarified and defines content of administrative record which is to be considered on appeal.
- The Board of Contractors has that authority to require residential builders and remodelers issued licenses after July 1, 2015, to have two (2) hours of continuing education per year.
Commercial and residential contractors and subcontractors should read these amended statutes and check the website for the Mississippi State Board of Contractors at http://www.msboc.us/ for any changes to its Rules and Regulations resulting from these legislative changes.
On May 28, 2013, I published a blog entitled "No Certificate of Responsibility—No Payment for Work Performed" based upon a May 21, 2013, decision from the Mississippi Court of Appeals. [click here for decision] On June 6, 2013, the Mississippi Supreme Court issued a decision suggesting that an unlicensed contractor may be entitled to recovery under the theory of quantum meruit or unjust enrichment. [click here for decision]
In Ground Control, LLC v. Capsco Industries, Inc., et al., the general contractor was W.G. Yates and Sons Construction Company ("Yates"), the subcontractor was Capsco Industries, Inc. ("Capsco") and its subcontractor was Ground Control, LLC ("Ground Control"). Neither Capsco nor Ground Control held a Certificate of Responsibility from the Mississippi State Board of Contractors. Neither Yates nor the Owner was a party to the contract between Capsco/Ground Control. Yates terminated Ground Control for default due to safety issues and Ground Control sued for payment of work performed under its contract with Capsco. The trial court had determined that because the contract was null and void under Miss. Code Ann. § 31-5-15, Ground Control was not entitled to payment for the work it had performed. Ground Control appealed.
The Mississippi Supreme Court began its analysis by stating that "[t]his Court has never determined whether a party to an illegal contract is barred from recovery under theories of unjust enrichment or quantum meruit." It went on to find as follows:
Capsco knowingly solicited Ground Control to enter into an unlawful contract, allowed Ground Control to perform a substantial part of the work, made an interim payment to Ground Control, and obtained payment from Yates for Ground Control’s work. To allow Capsco to use the void contract to shield itself from any obligation to pay for the work performed by Ground Control is unconscionable. Enforcing the statute in such a way as to preclude any recover is inequitable, invites fraudulent activity, and violated the Remedy Clause of our State Constitution. See Miss. Const. art. 3, § 24.
Although the contract is void pursuant to Section 31-3-15, Ground Control should not be precluded from having the opportunity to proceed in court under a claim for the value of what it expended in labor and supplies on the project. We do not address the issue of other penalties, if any that may be appropriate for the trial court to address.
Interestingly, the Mississippi Supreme Court did not mention Ace Pipe Cleaning, Inc. v. Hemphill Const. Co., Inc. and Federal Ins. Co., but the Ground Control decision seems to suggest Ace Pipe Cleaning, Inc. is now overruled.
There is now a glimmer of hope for those who have failed to comply with the statutory requirement for a Certificate of Responsibility. However, recovery under quantum meruit may not be without the assessment of a civil penalty by the Mississippi State Board of Contractors under Miss. Code Ann. § 31-3-21(4) or criminal penalty or fine under Miss. Code Ann. § 31-3-21(1). [click here for statute]
When all the dust has settled, the rule of thumb remains that before soliciting bids or entering into a construction contract in Mississippi, check with the Mississippi Board of Contractors to determine if a Certificate of Responsibility is required.
How would you feel if you performed thousands of dollars of work on a construction project and were then told you would not be paid anything? That is exactly what has happened with a recent decision from the Mississippi Court of Appeals. The Court’s opinion makes it absolutely clear that any contract entered into in violation of Miss. Code Ann. §31-3-15 is null and void. [click here for decision] This means if a contractor does not have a Certificate of Responsibility (“COR”) from the Mississippi State Board of Contractors for work in excess of $50,000 on a private or public project, the contract is null and void and the contractor is not entitled to ANY compensation under ANY legal theory if it performed work without the appropriate COR.
In this particular case, the subcontractor did not have a COR but entered into a contract with the prime contractor. When the subcontractor sued for payment, the prime contractor claimed the subcontract was null and void and refused to pay the subcontractor. The trial court agreed and the Mississippi Court of Appeals affirmed the decision.
This decision is an important reminder for prime contractors and subcontractors at all tiers to make sure that you have the required COR for the work to be performed. If there is any doubt, contractors should contact the Mississippi State Board of Contractors at (601) 354-6161, (808) 880-6161 or visit their website at www.msboc.us.
On July 21, 2009, the Mississippi Court of Appeals made it clear that any contract entered into by a party with an unlicensed contractor is null and void. United Plumbing & Heating Company v. AmSouth Bank (Ct. App. No. 2007-CA-01194). This is the first reported decision that addresses the interpretation of Miss. Code Ann. § 31-3-15. This statute provides in pertinent part as follows:
No contract for public or private projects shall be issued or awarded to any contractor who did not have a current certificate of responsibility issued by said board [of contractors] at the time of submission of the bid…Any contract issued or awarded in violation of this section shall be null and void.
In United, the general contractor [United] entered into a contract with an owner [Wee Care] for the construction of a building. The contractor and its subcontractors were not paid for their work. The owner filed bankruptcy and the contractor filed suit against the lender [AmSouth] to recover its contract balance. AmSouth filed a motion for summary judgment arguing that because United did not have a valid certificate of responsibility, the contract was null and void. United argued that it did hold a certificate of responsibility, even though the certificate was issued in a classification different from the type of work being performed for Wee Care. The trial court granted summary judgment in favor of AmSouth. United appealed the decision but the Mississippi Court of Appeals affirmed the trial court’s ruling finding:
[T]he contract entered into between United and Wee Care was null and void because United failed to possess the appropriate certificate of responsibility for the type of work it undertook to perform. Having found that United’s contract with Wee Care was void, it follows that any contractual obligations AmSouth [the lender] may have owed [United or] the subcontractors are also void.
(emphasis added). If a contractor or subcontractor does not have a current certificate of responsibility, it may find itself in the position of having furnished labor and material on a project and not being paid. This could result in a financial disaster for one party and a windfall for the other party.
United makes it abundantly clear that owners, contractors and subcontractors should always check Mississippi State Board of Contractors to determine if the contractor or subcontractor holds a license for the work to be performed. It is also prudent for a party to confirm with the licensed entity that the qualifying party is currently an "owner, or a responsible managing employee, or a responsible managing officer, or a member of the executive staff…" See, Who Can be a "Qualifying Party" for a Contractor’s Certificate of Responsibility? Posted on this blog site by Christopher Solop, May 13, 2009. (The State Board of Contractors has recently proposed an amendment to Rule L shortening the period to replace a qualifying party after the individual holding the certificate of responsibility leaves the employment of the company from 180 days to 90 days. This change will take effect on October 8, 2009.)
To perform any public contract of at least $50,000 or private contract of at least $100,000, a contractor must hold a Certificate of Responsibility issued by the Mississippi State Board of Contractors. It makes no difference whether the "contract" to be performed is a prime contract or subcontract at any tier. Miss. Code Ann. 31-3-15.
Moverover, Mississippi law does not permit the "borrowing" of certificates of responsibility. Only a responsible managing officer, employee, or member of the executive staff of the applicant for the certificate can serve as its qualifying party. The statutes creating the State Board of Contractors, which governs the licensing of contractors, and that Board’s regulations implementing those statutes are designed to prevent one person from serving as the qualifying party for entities in which he or she has not personal or managerial stake or responsibility. To allow otherwise would dilute the requirements which are meant to ensure the integrity, financial capacity, and technical capability of all entities performing construction in Mississippi.
Miss. Code Ann. 31-3-1 defines a "certificate of responsibility" as a "certificate numbered held by a contractor issued by the board under the provisions of this chapter after the payment of the special privilege license tax…"
Miss. Code Ann. 31-3-13(a) defines who can be the "qualifying party" or an applicant of a certificate of responsibility, whether such application is for a new certificate or a renewal certificate. Specifically, it states:
The board shall take applicants under consideration after having examined him or them and go thoroughly into the records and examinations, prior to granting any certificate of responsiblity. If the applicant is an individual, examination may be taken by his personal appearance for examination or by the appearance for examination of one or more of his responsible managing employees; and if a co-partnership or corporation or any other combination or organization, by the examination of one or more of the responsible managing officers or memebers of the executive staff of the applicant’s firm, according to its own designation.
The intent clearly is that a qualifying party be a responsible managing employee for or officer of the applicant, whether it’s a sole proprietorship or corporation. The true "responsibility" for which the certificate is issued cannot be determined otherwise. In construing this requirement the State Board of Contractors promulgated the following regulation which, again, leaves no doubt that the "qualifying party" must be intimately involved in the management and/or ownership of the entity claiming him or her as their qualifying party. Rule L states:
When the qualifying party terminates employement with the Certificate holder, the Mississippi State Board of Contractors must be notified in writing, by the qualifying party and the Certificate holder, within thirty (30) days of the disassociation and another party must qualify within one hundred eighty (180) days or Certificate holder will be subject to suspension or revocation of its Certificate of Responsibility.
Thus, where a purposed "qualifying party" for Company A is neither a managerial employee nor an officer of that company but, in fact, owns or is the officer of another, unrelated Company B, but Company B routinely serves as a subcontractor to Company A, Company A and its purported "qualifying party" are in violation of MIssissippi law and the Rules and Regulations of the State Board of Contractors. (This is typically done where owners of two companies do not want to commingle business assets, finances, or interests, but they do want to pursue and perform contracts together.) Company A’s Certificate of Responsibility is null and void as a matter of law.
If you have ever been the apparent low bidder on a public construction project and had your bid rejected because of an irregularity in the bid documents, you are not alone. What is even more frustrating, and will make you fighting mad, is when the public agency decides to waive the same irregularity of a competitor when you are the second low bidder. Perhaps the best way to avoid this situation is to make sure that you have completed your bid in strict accordance with the instructions to bidders. I know it is difficult to focus on all the particulars when less than an hour before the bid is to be submitted subcontractors and suppliers are sending in prices or changing the ones previously provided. Here is a simple bid checklist that may help you avoid those last minute mistakes.
- Read the "Instruction to Bidders" when you obtain a copy of the solicitation to make sure that there are no unusual or different bid requirements.
- Pre-Bid Conference
- Bid Bond
- Site Visit
- Listing of Subcontractors
- Prepare the bid envelope in advance, identifying (1) the project, (2) the person to whom the bid is to be submitted, (3) the location where the bid is to be submitted and (4) the date and time for the submission of the bid. ALWAYS PLACE CERTIFICATE OF RESPONSIBILITY NUMBER ON THE OUTSIDE OF THE ENVELOPE.
- Complete the bid form and check to determine whether all the blank spaces for prices are completed with a dollar amount or a "—" or "-0-".
- Check your addition and multiplication for unit prices and total bid price.
- Acknowledge all Amendments/Addenda to the solicitation.
- List subcontractors, if required.
- Sign and date the bid documents.
- Check the bid bond, if required, to make sure that it is in the correct amount and proper form.
- Place bid documents and bid bond, if required, into envelope and submit.
In the event you are determined to be the apparent low bidder, and your bid is not more than ten percent (10%) above the amount of funds allocated for the project, it is likely that you will be awarded the contract.