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.

Where in the Mississippi Procurement Statutes does it require subcontractors to be listed with a bid?  The correct answer is NO WHERE!!  So why use it to decide whether to award the contract to a prime contractor who is the low bidder with a valid certificate of responsibility from the Mississippi State Board of Contractors?

Rule 12 of the Mississippi State Board of Contractor’s Rules and Regulations states:

… the Prime Contractor on or before the date of being awarded the prime Contract, shall submit to the awarding agency a list of all subcontracts, exceeding Fifty Thousand Dollars ($50,000.00) with respect to public projects…

(Emphasis added.)

The Department of Finance and Administration’s Procurement Manual provides as follows concerning the requirement for the listing of subcontractors:

600.55

SUBCONTRACTOR’S LIST

The Contractor will submit to the Bureau a list of all Subcontractors to be used on the Project within seven (7) days after written notice of contract award. Any Subcontractor listed must be acceptable to the Bureau. [Miss Code 1972, Annotated, Sections 31-3-1 through 31-3-23.]

(Emphasis added.)

And, when the City of Vicksburg questioned whether it could award the contract to the apparent low bidder that had not listed its subcontractors as required on the Bid Form, the Attorney General opined as follows:

In response to your first inquiry, previous opinions have stated that a waiver of an irregularity in a bid received would not be improper in cases where (1) the irregularity does not destroy the competitive character of the bid by affecting the amount of the bid thereby giving the bidder an advantage or benefit over other bidders and (2) the irregularity does not involve noncompliance with a statutory or regulatory requirement. See MS AG Op., Dees (June 7, 1995) and MS Ag Op., Kilpatrick, December 19, 1997). See also Parker Construction Company v. Board of Aldermen of the City of Natchez, 721 So.2d 671 (Miss. App. 1998). In your first inquiry, the irregularity was the failure to list the names of subcontractors on the bid form. We have previously opined that there is no statutory or regulatory requirement that a contractor submit a list of subcontractors upon the submission of his or her bid.  MS AG Op., Dees (June 7, 1995).  In fact, as you have stated, the Rules and Regulations of the State Board of Contractors, Rule 12, specifies that "the Prime Contractor, on or before the date of being awarded the prime contract, shall submit to the awarding agency a list of all sub-contracts, exceeding Fifty Thousand Dollars ($50,000.00) with respect to public projects…" It is the responsibility of the awarding authority, however, to make a final determination whether an irregularity in a bid may be waived.

(Emphasis added). Mississippi Attorney General Opinion, dated September 22, 2000, addressed to Nancy D. Thomas. See also, Mississippi Attorney General Opinion, date June 7, 1995, addressed to A.J. "Buddy" Dees, Jr. (public agency permitted to award contract where prime contractor’s bid document listed subcontractor did not have a certificate of responsibility but prime contractor substituted licensed subcontractor prior to award).

Nonetheless, the design professionals for most public projects require the listing of subcontractors. Then, when a prime contractor fails to list its subcontractors or makes an error in listing its subcontractor, the design professional and/or public agency decide whether to reject the bid or waive the "irregularity". What are the criteria for deciding which of the two options will be exercised? You tell me.

If the public agency requires the listing of subcontractors it should state in the Instructions to Bidders that the bid will be rejected if subcontractors are not listed properly. It is just that simple. In addition, public agencies should change their rules and regulations to state listing of subcontractors must be submitted with the bid to be considered for award. This would mean that everyone would know the rules for listing of subcontractors. Will this happen? It is doubtful. It appears design professionals and public agencies prefer the flexibility afforded by such an ambiguity in the bidding process rather than the objectivity associated with clear Instructions to Bidders.

Contractors, subcontractors, suppliers and even owners can become frustrated at the length of time it takes to have a dispute reach the courthouse.  Their lawyers are also frequently concerned about whether jurors will be able to understand the complex issues associated with a construction dispute.  One way to address this problem is to agree to a bench trial.  If the parties can agree to a bench trial, Miss. Code Ann. § 11-1-18 (Supp. 2008) provides as follows:

If the parties to a cause of action agree, any claim filed alleging damages may receive a bench trial which shall be conducted in two hundred seventy (270) days or less after the cause of action has been filed. The cause of action shall be a priority item in the court.

Emphasis added.  This statute is frequently overlooked but could be just the answer for a contractor that wants a timely resolution of its dispute.