Chapter
3
STATE
BOARD OF Contractors
SEC.
·
31-3-2. Declaration of
purpose.
·
31-3-3. Composition of
board.
·
31-3-5. Organization and
administration.
·
31-3-9. Compensation of
members.
·
31-1-11.
Executive secretary.
·
31-3-14. Construction Education Fund
·
31-3-15. Certificates of
responsibility required for bid.
·
31-3-17. Special
privilege license tax levied.
·
31-3-19. Application and
payment of special privilege tax.
§
The
following words, as used in this chapter, shall have the meanings specified
below:
"Board": The State
Board of Contractors created under this chapter.
"Contractor":
Any person contracting or undertaking as prime contractor, subcontractor or
sub-subcontractor of any tier to do any erection, building, construction,
reconstruction, repair, maintenance or related work on any public or private
project, however "contractor" shall not include any owner of a
dwelling or other structure to be constructed, altered, repaired or improved
and not for sale, lease, public use or assembly. It is further provided that
nothing herein shall apply to:
(a) Any
contract or undertaking on a public project by a prime contractor,
subcontractor, or sub-subcontractor of any tier involving erection, building,
construction, reconstruction, repair, maintenance or related work where such
contract, subcontract or undertaking is less than Fifty Thousand Dollars
($50,000.00);
(b) Any
contract or undertaking on a private project by a prime contractor,
subcontractor or sub-subcontractor of any tier involving erection, building,
construction, reconstruction, repair, maintenance or related work where such
contract, subcontract or undertaking is less than One Hundred Thousand Dollars
($100,000.00);
(c) Highway
construction, highway bridges, overpasses and any other project incidental to
the construction of highways which are designated as federal aid projects and in
which federal funds are involved;
(d) A
residential project to be occupied by fifty (50) or fewer families and not more
than three (3) stories in height;
(e) A residential
subdivision where the contractor is developing either single-family or
multi-family lots;
(f) A new
commercial construction project not exceeding seven thousand five hundred
(7,500) square feet and not more than two(2) stories in height; undertaken by an
individual or entity licensed under the provisions of Section 73-59-1 et. seq
(g) Erection of a microwave tower
built for the purpose of telecommunication transmissions
(h) Any contract or
undertaking on a public project by a prime contractor, subcontractor or
sub-subcontractor of any tier involving the construction, reconstruction,
repair or maintenance of fire protection systems where such contract,
subcontract or undertaking is less than Five Thousand Dollars ($5,000.00);
(i) Any contract or undertaking on a private
project by a prime contractor, subcontractor or sub-subcontractor of any tier
involving the construction, reconstruction, repair or maintenance of fire
protection systems where such contract, subcontract or undertaking is less than
Ten Thousand Dollars ($10,000.00); or
(j) Any contract or undertaking on a private or public project by a
prime contractor, subcontractor or sub-subcontractor of any tier involving the
construction, reconstruction, repair or maintenance of technically specialized
installations if performed by a Mississippi contractor who has been in the
business of installing fire protection sprinkler systems on or before July 1,
2000
“Certificate of
responsibility": A certificate numbered held by a contractor issued by the
board under the provisions of this chapter after payment of the special
privilege license tax therefore levied under this chapter.
“Person":
Any person, firm, corporation, partnership, association or other type of
business entity.
“Private
project": Any project for erection, building, construction,
reconstruction, repair, maintenance or related work which is not funded in
whole or in part with public funds.
“Public
agency": Any board, commission, council or agency of the State of
Mississippi or any district, county or municipality thereof, including school,
hospital, airport and all other types of governing agencies created by or operating
under the laws of this state.
“Public
funds": Monies of public agencies, whether obtained from taxation,
donation or otherwise; or monies being expended by public agencies for the
purpose for which such public agencies exist.
"Public
project": Any project for erection, building, construction,
reconstruction, repair, maintenance or related work which is funded in whole or
in part with public funds.
31-3-2. Declaration of purpose.
The purpose of Chapter 3, title 31, Mississippi Code of
1972 is to protect the health, safety and general welfare of all persons
dealing with those who are engaged in the vocation of contracting and to afford
such persons an effective and practical protection against incompetent,
inexperienced, unlawful and fraudulent acts of contractors.
§ 31~3-3. Composition of Board.
There is hereby created the State Board of Contractors
of the State of
Upon the expiration of the term of office of any
member of the board, the Governor shall appoint a new member for a term of five
(5) years. such new appointments being made so as to maintain on the board two
2) building contractors; two (2) road contractors; one (1) plumbing or heating
and air conditioning contractor; one (1) electrical contractor; one1) water and
sewer contractor; and one (1) roofing contractor (. The Governor shall fill any
vacancy by appointment, such appointee to serve the
balance of the original appointees The Governor may remove many member of the
board for misconduct, incompetency or willful neglect
of duty.
§
The board
shall be assigned suitable office space at the seat of government and shall
elect one (1) of its members as chairman and one (1) as vice-chairman; and each
shall perform the usual duties of such offices. The board may adopt a seal.
Five (5) members of the board shall constitute a quorum, and a majority vote of
those present and voting at any meeting shall be necessary for the transaction
of any business coming before the board. Members must be present to cast votes
on any and all business. The executive secretary shall serve as secretary of
the board. The board is authorized to employ such personnel as shall be
necessary in the performance of its duties including sufficient administrative
and clerical staff to process and review applications for certificates of
responsibility, to prepare and administer tests therefor,
to investigate applications for certificates of responsibility and to inspect
work performed by contractors as may be necessary to enforce and carry out the
purpose of this chapter.
§
The board shall have four (4) regular meetings in each
year, one (1) on the second Wednesday in January, one (1) on the second
Wednesday in April, one (1) on the second Wednesday in July, and one (1) on the
second Wednesday in October, at its offices at the seat of government. If the
regular meeting day falls on a legal holiday, the board shall meet on the next
day. The board may hold such special meetings as it finds necessary. However,
before and special meeting is held, a notice stating the time, place and
primary purpose of such meeting shall be sent by certified or registered mail
from the chairman or vice-chairman of the board to the other members of the
board at least (5) days before such meeting. Certificates of responsibility
shall be considered, issued or rejected at regular meetings. All meetings shall
be held in the State of
§
The members of the board shall be entitled to receive
a per diem as provided in Section
§
The
board shall elect and fix the salary of an executive secretary and the board
may terminate the employment of such executive secretary at any time the board
deems the same advisable. The board shall require the executive secretary to
file bond in such amount as the board may deem necessary, and shall specify the
duties of such employee. The premium on any such bond shall be paid from the
funds provided by this chapter.
§
The board shall have the following powers and
responsibilities:
(a) To receive applications for certificates of
responsibility, to investigate and examine applicants for same by holding
hearings and securing information, to conduct examinations, and to issue
certificates of responsibility to such contractors as the board finds to be
responsible. One-fourth (1/4) of the certificates scheduled for renewal on the
last day of December, 1980, shall be reviewed by the board on the first Tuesday
in January, 1981. The remaining certificates shall be subject to renewal in the
following manner; One-fourth (1/4) on the first Tuesday in April, 1981,
one-fourth (1/4) on the first Tuesday in July 1981, and one fourth (1/4) on the
first Tuesday in October, 1981. The board is authorized to extend the dates of
expiration of certificates to coincide with the scheduled date of review of
individual contractors. Except for the certificates extended from
(i) Twenty-five Dollars
($25.00) if the date of renewal of the extended certificate is the first
Tuesday in April, 1981.;
(ii) Fifty Dollars ($50.00) if the date of renewal of
the extended certificate is the first Tuesday in July, 1981; and
(iii) Seventy-five Dollars
($75.00) if the date of renewal of the extended certificate is the first
Tuesday in October 1981.
The extended certificates renewed in compliance with
this paragraph (a) and all original certificates and renewals thereof issued on
or after
No certificate of responsibility or any renewal
thereof shall be issued until the applicant furnishes to the board his
The board shall conduct an objective, standardized
examination of an applicant for a certificate to ascertain the ability of the
applicant to make practical application of his knowledge of the profession or
business of construction in the category or categories for which he has applied
for a certificate of responsibility. The cost of the test and the cost of
administering the test shall be paid for by applicants for certificates of
responsibility at the time applications are filed. The board shall investigate
thoroughly the past record of all applicants, which will include an effort
toward ascertaining the qualifications of applicants in reading plans and
specifications, estimating costs, construction ethics, and other similar
matters. The board shall take all applicants under consideration after having
examined him or them and go thoroughly into the records and examinations, prior
to granting any certificate of responsibility. 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 members of the executive staff of the applicant's firm, according
to its own designation.
(b) To conduct thorough investigations of all
applicants seeking renewal of their licenses and of all complaints filed with
the board concerning the performance of a contractor on a public or private
project.
(c) To obtain information concerning the
responsibility of any applicant for a certificate of responsibility or a holder
of a certificate of responsibility under this chapter. Such information may be
obtained by investigation, by hearings, or by any other reasonable and lawful
means. The board shall keep such information appropriately filed and shall
disseminate it to any interested person. The board shall have the power of
subpoena.
(d) To maintain a list of contractors to whom
certificates of responsibility are issued, refused, revoked or suspended, which
list shall be available to any interested person. Such
list shall indicate the kind or kinds of works or projects for which a
certificate of responsibility was issued, refused, revoked or suspended.
(e) To revoke by order entered on its minutes a
certificate of responsibility upon a finding by the board that a particular
contractor is not responsible, and to suspend such certificate of
responsibility in particular cases pending investigation, upon cause to be
stated in the board's order of suspension. No such revocation or suspension
shall be ordered without a hearing conducted upon not less than ten (10) days'
notice to such certificate holder by certified or registered mail, wherein the
holder of the certificate of responsibility shall be given an opportunity to
present all lawful evidence which he may offer.
(I) To adopt rules and regulations setting forth the
requirements for certificates of responsibility, the revocation of suspension
thereof, and all other matters concerning same; rules and regulations governing
the conduct of the business of the board and its employees; and such other
rules and regulations as the board finds necessary for the proper
administration of this chapter, including those for the conduct of its hearings
on the revocation or suspension of certificates of responsibility. Such rules
and regulations shall not conflict with the provisions of this chapter.
(g) The board shall have the power and responsibility
to classify the kind or kinds of works or projects that a contractor is
qualified and entitled to perform under the certificate or responsibility
issued to him. Such classification shall be specified in the certificate of
responsibility.
The powers of the State Board of Contractors shall not
extend to fixing a maximum limit in the bid amount of any contractor, or the
bonding capacity, or a maximum amount of work which a contractor may have under
contract at any time, except as stated in paragraph (a) of this section; and
the Board of Contractors shall not have jurisdiction or the power or authority
to determine the maximum bond a contractor may be capable of obtaining. The
board, in determining the qualifications of any applicant for an original
certificate or responsibility or any renewal thereof, shall among other things,
take into consideration the following: (1) experience and ability, (2)
character, (3) the manner of performance of pervious contracts, (4) financial
condition, (5) equipment, (6) personnel, (7) work completed, (8) work on hand,
(9) ability to perform satisfactorily work under contract at the time of an
application for a certificate of responsibility or a renewal thereof, (10)
default in complying with provisions of this law or any other law of the state,
and (11) the results of objective, standardized examinations. A record shall be
made and preserved by the board of each examination of an applicant and the
findings of the board thereon, and a certified copy of the record and findings
shall be furnished to any applicant desiring to appeal Mom any order or
decision of the board.
(h) The board shall enter upon its minutes an order or
decision upon each application filed with it, and it may state in such order or
decision the reason or reasons for its order or decision.
Upon failure of the board to enter an order or
decision upon its minutes as to any application within one hundred eighty (180)
days from the date of filing such application, the applicant shall have the
right of appeal as otherwise provided by this chapter.
The holder of any valid certificate of responsibility
issued by the Board of Contractors prior to
§
(1) In addition to the fees
required for application and renewal for certification and registration of all
contractors in Section 31‑3‑13, all holders of a certificate of
responsibility shall pay a fee equal to One Hundred Dollars ($100.00) at the
time of application or renewal of certificates of responsibility. Any residential builder licensed under the
provisions of Section 73‑59‑1
et seq., Mississippi Code of 1972, shall be exempt from the fee imposed under
this section. The revenue derived from
such additional fees shall be deposited into a fund to be known as the "Construction Education Fund," a
special fund created in the State
Treasury, and distributed by the State Board of Contractors created in Section 31‑3‑3, to the
Mississippi Construction Education Foundation,
public high schools and community colleges that participate in the
Mississippi Construction Education Foundation's "school‑to‑work"
program, state universities that have construction technology programs, the
Mississippi Housing Institute and certain construction educational trusts
approved by the State Board of Contractors in the manner hereinafter provided
to offer courses for construction education and construction craft training to
meet the needs of the construction industry of the State of Mississippi.
(2) The State Board of
Contractors shall, on an annual basis, solicit from the Mississippi state
institutions of higher learning, all the public community and junior colleges,
the Mississippi Construction Education Foundation, public high schools that
participate in the Mississippi Construction Education Foundation's "school‑to‑work"
program and certain construction educational trusts, applications for the use
of such funds in construction education and craft training programs in a manner
prescribed by the board. The board may
appoint a technical advisory committee to advise the board on the most needed
areas of construction education and craft training, continuing education or
research relating to the construction education and craft training in the
state, based on significant changes in the construction industry's practices,
economic development or on problems costing public or private contractors
substantial waste. The board shall
ensure that the monies distributed from this fund are properly spent to promote
construction education and craft training in programs in the state which are approved by the board. At least seventy-five percent (75%) of the
monies distributed by the board, pursuant to this section, must be used for
construction craft training with the exception of the Mississippi Housing
Institute.
(3) Each university, junior college, community
college, the Mississippi Construction Education Foundation, public high schools
that participate in the foundation's "school‑to‑work"
program or construction educational trust receiving funds pursuant to this
section for construction education or construction craft training programs
shall utilize such funds only for construction education and craft training
curricula and program development, faculty development, equipment, student
scholarships, student assistantships, and for continuing education programs
related to construction education and craft training. Such funds shall not be commingled with the
normal operating funds of the educational institution, regardless of the source
of such funds.
(4) The State Board of
Contractors shall ensure the distribution of reports and the availability of
construction education programs established pursuant to this section to all
segments of the construction industry that are subject to the fee provided
under this section. The board shall
cause a report to be made to the Legislature in October of each year,
summarizing the allocation of funds by institution or program and summarizing
the new projects funded and the status of previously funded projects.
(5) All monies deposited
into the "Construction Education Fund" shall be used exclusively for
construction education and craft training and any unspent funds at the end of
the fiscal year shall not revert to the General Fund of the State Treasury but
shall be available for construction education and craft training in subsequent
fiscal years.
(6) All expenditures from
the "Construction Education Fund" shall be by requisition to the
State Auditor, signed by the executive secretary of the board and countersigned
by the chairman or vice chairman of the board, and the
State Treasurer shall issue his warrants there on.
§
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 at the time of the submission of the bid,
or a similar certificate issued by a similar board of another state which
recognizes certificates issued by said board. Any contract issued or awarded in
violation of this section shall be null and void.
§
There is hereby levied, in addition to any taxes otherwise provided for by law, a special privilege license tax of One Hundred Dollars ($100.00) on each contractor who applies for a certificate of responsibility issued under this chapter; and said tax shall be paid to the executive secretary of the board upon making application in this state. The board may levy and additional fee not to exceed Fifty Dollars ($50.00) for each additional classification for which a contractor applies and is found to be qualified. Said executive secretary shall promptly deposit all monies received under this chapter in the State Treasury, and all of such monies shall be kept in a special fund in said State Treasury known as the; ‘State Board of Contractors Fund.' and shall be used only for the purposes of this chapter. Said funds shall not lapse at the end of each fiscal year, but all monies in said fund in excess of the sum of fifty percent (50%) of the approved budget for the fiscal year shall be paid over into the General Fund of the State Treasury. from said Board of Contractors Fund shall be by requisition to the State Auditor, signed by the executive secretary of the board and countersigned by the chairman or vice chairman of the board, and the State Treasurer shall issue his warrants thereon.
§
It shall be unlawful for any person who does not hold
a certificate of responsibility issued under this chapter, or a similar
certificate issued by another state recognizing such certificate issued by the
State of Mississippi, to submit a bid, enter into a contract, or otherwise
engage in or continue in this state in the business of a contractor, as defined
in this chapter. Any bid which is submitted without a certificate of
responsibility number issued under this chapter and without that number
appearing on the exterior of the bid envelope, as and if herein required, at
the time designated for the opening of such bid. Shall not be considered
further, and the person or public agency soliciting bids shall not enter into a
contract with a contractor submitting a bid in violation of this section. In
addition, any person violating this section by knowingly and willfully
submitting a bid for projects without having a certificate of responsibility
number issued under this chapter. as and if herein required, at the time of the
submission or opening of such bid shall be guilty of a misdemeanor and, upon
conviction, shall be punished by a fine of not more than One Thousand Dollars
($1,000.00), or imprisonment for not more than six (6) months, or by both such
fine and imprisonment.
All bids submitted for public or private projects
where said bid is in excess of Fifty Thousand Dollars ($50,000.00) with respect
to public projects and in excess of One Hundred Thousand Dollars ($100,000.00)
with respect to private projects shall contain on the outside or exterior of
the envelope or container of such bid the contractor's current certificate
number, and no bid shall be opened or considered unless such contractor's
current certificate number appears on the outside or exterior of said envelope
or container, or unless there appears a statement on the outside or exterior of
such envelope or container to the effect that the bid enclosed therewith did
not exceed Fifty Thousand Dollars ($50,000.00) with respect to public projects
or One Hundred Thousand Dollars ($100,000.00) with respect to private projects.
In the letting of public contracts preference shall be
given to resident contractors, and a nonresident bidder domiciled in a state
having laws granting preference to local contractors shall be awarded
Mississippi public contracts only on the same basis as the nonresident bidder's
state awards contracts to Mississippi contractors bidding under similar
circumstances; and resident contractors actually domiciled in Mississippi, be
they corporate, individuals, or partnerships, are to be granted preference over
nonresidents in awarding of contracts in the same manner and to the same extent
as provided by the laws of the state of domicile of the nonresident. When a
nonresident contractor submits a bid for a public project, he shall attach
thereto a copy of his resident state's current law pertaining to such state's
treatment of nonresident contractors. As used in this section, the term
"resident contractors" includes 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 January 1, 1986, and the subsidiaries and affiliates of such a
person, firm or corporation. Any public agency awarding a contract shall
promptly report to the State tax Commission the following information:
(a) The amount of the contract.
(b) The name and address of the contractor reviewing
the contract.
(c) The name and location of the project.
In addition to any other penalties provided in this
chapter, and upon a finding of a violation of this chapter, the State board of
Contractors may, after notice and hearing, issue an order of abatement
directing the contractor to stop all work constituting violations of this
chapter until such time as the contractor complies with Mississippi state law,
and to pay to the board a civil penalty to be deposited into the State General
Fund of not more than three percent (3~0) of the total contract being performed
by the contractor.
§
Any person aggrieved by any order or decision of the
board may appeal within ten (10) days from the date of adjournment of the
session at which the board rendered such order or decision, and may embody the
facts, order and decision in a bill of exceptions which shall be signed by the
person acting as chairman of the board. The executive secretary shall transmit the
bill of exceptions to the chancery court of the court of residence of the
appellant, and the court or chancellor shall hear and determine the same either
in term time or in vacation, on the case as presented by the bill or
exceptions, as an appellate court, and shall affirm or reverse the judgment. If
the judgment be reversed, the chancery court of chancellor shall render such
order or judgment as the board ought to have rendered, and certify the same to
the board; and costs shall be awarded as in other cases. The board may employ
counsel to defend such appeals, to be paid out of the funds in the State Board
of Contractors Fund.
The remedies provided under this chapter for any
aggrieved applicant shall not be exclusive, but shall be cumulative of and
supplemental to any other remedies which he may otherwise have in law or in
equity, whether by injunction or otherwise.
OF
THE
STATE
BOARD OF CONTRACTORS
AS
AMENDED,
Pursuant to the powers and responsibilities
of the State Board of Contractors conferred by Section 8(f), Chapter 527,
General Laws of Mississippi - 1988 (Section 31-3-13(f) Mississippi Code of
1972, as amended), and in accordance with Sections 25-43-1 through 25-43-19,
Mississippi Code of 1972, as amended, known as the Mississippi Administrative
Procedures Law, the Board hereby adopts, establishes and promulgates the
following rules and regulations and directs that same be entered upon its
minutes and made available to all applicants for initial or renewed
Certificates of Responsibility issued by the Board and all other persons.
1. An applicant for a Certificate of Responsibility or
Renewal thereof shall observe the following requirements:
a. No certificate or any renewal thereof shall
be issued until an application has been on file with the Board for at least
thirty (30) days.
b. An application must be filed on a form provided by the
Board. No substitute will be accepted.
c. The Board's application form must be completed in ink
or with a typewriter. Only one copy need
be filed.
d. All questions must be answered. All schedules must be completed. Write "None" where applicable. No
application will be considered unless it is completed as directed on the
Board's form.
e. Additional information including
supplementary or explanatory notes considered necessary may be furnished by
inserting schedules where needed.
f. All signatures must be affixed where called
for and notarized where indicated.
g. A check in the amount of One Hundred Dollars
($100.00) made payable to the State Board of Contractors should accompany the
application but may be submitted separately.
No application will be acted upon until such check is received.
h. The privilege tax levied under this Chapter
is an annual tax. The Certificate holder
is under a duty to renew his
certificate annually, and the failure of the Board to notify the Certificate holder as to the date
of the expiration shall not excuse the Certificate holder from renewing his
certificate and paying the annual tax.
i. An applicant for a new certificate shall
furnish the Board with at a minimum a reviewed financial statement completed
within the prior twelve (12) months on a form prescribed by the Board, prepared
and signed by a certified public accountant, stating the assets, liabilities
and net worth of the person, firm, partnership, co-partnership, or
corporation. Such statement will be used
by the Board to determine the financial responsibility of the applicant to
perform work in the amount of Fifty Thousand Dollars ($50,000.00) or more with
respect to public projects or One Hundred Thousand Dollars ($100,000.00) or
more with respect to private projects.
Assets of applicants for major classifications must include a net worth
of at least Fifty Thousand Dollars ($50,000.00). Assets of all other applicants must include a
net worth of at least Twenty Thousand Dollars ($20,000.00). The financial statement and any information
contained therein, as well as any other financial information required to be
submitted by an applicant, shall be confidential. All applicants for renewal certificates shall
meet the same requirements set forth above except that the financial statement
need not be a reviewed statement, but it must be on a form(s) prescribed by the
Board. (amended
j. An
applicant must provide a certificate of insurance evidencing current minimum
coverage of Three Hundred Thousand Dollars ($300,000) per occurrence and Six
Hundred Thousand Dollars ($600,000) aggregate for general liability
purposes. An applicant must also provide
a certificate of insurance evidencing current workers' compensation coverage,
if state law requires such coverage. All
applicants for new and renewal certificates of responsibility shall supply the
information set forth herein. (amended
k. A foreign corporation or a corporation
domiciled outside the State of
l. A qualifying party is defined in Miss. Code
Ann. '
2. The Board will classify each applicant and
issue a Certificate of Responsibility for the type or types of contracts on which he may bid on the
following basis:
a. The applicant will not be
classified or permitted to bid on or perform a type or types of work not
included in his request.
b. The applicant shall state on the
application the classification of work he desires to perform and contract, such
classification to be selected and determined from the following list of major
classifications:
(1) Building
Construction
(2) Highway,
Street and Bridge Construction
(3) Heavy
Construction
(4) Municipal
and Public Works Construction
(5) Electrical
Work
(6) Mechanical
Work
(7) SPECIALTY
- A contractor performing work other than in the above major classification
must qualify as a specialty contractor.
3. All agencies having the authority to award a
contract involving public funds in the amount of Fifty Thousand Dollars
($50,000.00) or more, shall return, unopened, any bids submitted by a
contractor not having a Certificate of Responsibility required by Sections
31-3-1 - 31-3-23, Miss. Code Ann. (1972, as amended).
4. When the
total cost of a project is at least 50% of a particular classification of work,
as determined by the awarding entity or its engineer, architect or other
representative, the awarding entity shall allow the holder of the certificate
of responsibility in that particular classification to bid on or enter into a
contract to perform work on the project in its entirety. (amended
5. In any case in which a holder of a
Certificate of Responsibility has bid outside the classification contained in his, her or its
Certificate of Responsibility, the Executive Secretary of the State Board of
Contractors shall notify each holder to
appear before the Board at its next regular meeting and show cause, if
possible, why the holder's Certificate
of Responsibility shall not be suspended.
6. When separate bids are received, building contractors
having only the classification of "Building Construction" shall not
be permitted to bid on or be awarded the Mechanical or Electrical contracts;
likewise the Mechanical or Electrical Contractors shall not be permitted to bid
on the building portion of a project when the building costs are at least 50%
of the project. When combined building,
mechanical and electrical bids are received, nothing herein or in any other
rule or regulation, shall prohibit the holder of a certificate of
responsibility with the classification of building construction from submitting
a bid and/or entering into a contract to perform work on a project which consists
of at least 50% mechanical, electrical or other classification of work ;
provided, however, that the holder of a certificate of responsibility with the
classification of building construction shall also have the appropriate
classification necessary to perform themechanical,electrical
or other classification of work. (amended
7. In the event a contractor bids on a job
covered by this act without first having obtained a Certificate of
Responsibility from the Mississippi State Board of Contractors, his, her or its
application for a Certificate of Responsibility shall not be acted upon until a
minimum period of ninety (90) days after receipt.
8. Neither the Executive
Secretary, individually, nor the surety of his official bond shall be held
financially liable or responsible for any action taken by the Executive
Secretary when he is acting under direct instructions from the Board as shown
by the minutes of the Board.
9. No state recognizes the Certificate of Responsibility issued by
this Board. Therefore, no awarding agency of this state
shall consider any bid of a contractor who holds a Certificate of
Responsibility or license issued by another state, if the respective bidder
does not also have a Certificate of Responsibility issued by the Mississippi
State Board of Contractors.
10. Should
any information contained in any application or presented at an oral interview
for a Certificate of Responsibility be found by the State Board of Contractors
to be false, such Certificate of Responsibility so issued or application being
considered shall thereupon be terminated and withdrawn. No certificate holder or applicant shall be
issued a renewal of or an initial Certificate of Responsibility until a period
of five (5) years has
expired after the date of such termination or withdrawal.
11. On proof of
qualifications satisfactory to the Board, a Certificate holder may apply for
and receive a change in his classification.
12. It shall be unlawful and illegal for a
Primary Contractor, Contractor, Owner, Awarding Authority, Sub-Contractor, or
any other person to contract, or sub-contract, all or any portion of a public
or private construction
project regulated by Chapter 527, General Laws of Mississippi - 1988 (Sections
31-3-1 31-3-23, Miss. Code Ann.
(1972, as amended)), exceeding Fifty Thousand Dollars ($50,000.00) with respect
to public projects and exceeding One Hundred Thousand Dollars ($100,000.00)
with respect to private projects, to
any other Contractor, or Sub-Contractor, unless the Contractor, or
Subcontractor was duly licensed by this
Board as of the date fixed for the submission of bids on the work from the
Primary Contractor, to the Owner, or
Awarding Authority. It is further
provided 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 and One Hundred Thousand Dollars ($100,000.00) with respect to
private projects.
13. The
Board shall act in accordance with the following procedure before imposing a
monetary penalty upon any contractor
pursuant to Miss. Code Ann. '31-3-21:
a. Whenever the Board shall receive a sworn
affidavit charging a contractor with an act which is grounds for imposition of
a monetary penalty pursuant to '31-3-21, or whenever the Board or an employee
of the Board has reason to believe that a violation has occurred which is
grounds for imposition of a monetary penalty pursuant to '31-3-21, the Board
may cause a written complaint to be served upon the alleged violator or
violators.
b. The written complaint shall specify
the provisions of such statute, regulation or order alleged to be violated and
the facts alleged to constitute a violation thereof and shall require that the
alleged violator(s) appear before the Board at a time and place specified and
answer the charges complained of. The
time of appearance before the Board shall not be less than ten (10) days from
the date of the service of the complaint, unless the Board finds that the
health, safety and general welfare of all persons dealing with those against
whom charges are levied is in imminent danger, requiring that such hearing be
held at an earlier date. In no instance,
however, shall the Board ever require an alleged violator(s) to appear less
than five (5) days after the date of service of the complaint. Service of the complaint may be accomplished
by mailing a copy thereof by certified mail, return receipt requested, postage
prepaid to the last known mailing or residence address of the alleged
violator(s), or by other lawful means of service. (amended
c. The Board shall afford an
opportunity for a fair hearing to the alleged violator(s) at the time and place
specified in the complaint. The alleged
violator(s) may be represented by counsel, and may call witnesses and present
other competent evidence on its behalf.
The Board shall conduct an administrative hearing, and shall not be
bound by strict rules of civil procedure or strict rules of evidence in the
conduct of its proceedings. On the basis
of the evidence presented at the hearing, the Board shall make findings of fact
and conclusions of law and enter its order.
Failure to appear at any such hearing, without prior authorization to do
so from the Board, may be taken by the Board as evidence of the facts alleged
in the formal complaint.
d. In determining the amount of a
monetary penalty, the Board shall consider at a minimum the following:
(1) The willfulness of the violation;
(2) Any cost of restoration and
abatement;
(3) Any economic benefit to the
violator(s) as a result of noncompliance;
(4) The seriousness of the violation,
including any harm to the environment and any harm to the health and safety of
the public; and
(5) Any prior violation by such
violator(s).
e. The Board shall render any order in
writing and notify the alleged violator(s) of
same by certified mail, to the last known mailing or residence address
of the alleged violator(s).
f. At any time before or after being
served with a complaint, any alleged violator(s) may waive its right to a
hearing before the Board and agree to an imposition of the civil penalty,
provided such waiver is in writing.
g. Any person aggrieved by any order
or decision of the board may appeal pursuant to Miss. Code Ann. '
14. If a regular or special meeting of the Board
has been recessed to reconvene on a day and time fixed and ordered by the Board
and entered upon its minutes, the recessed meeting thus held on the subsequent
date shall be considered a part of and continuation of the regular meeting or
special meeting, as the case may be, the same as if actions and proceedings then
taken had been taken at the initial regular meeting date or special meeting
date and any action authorized on such an initial date may be taken or
continued and passed upon at the later date or dates.
15. There will be a $50.00 fee charged for each additional
classification sought, and a $50.00 fee for each exam taken. Any waiver of an examination shall require a
$50.00 fee. There will also be a $50.00
fee for a name change and a $25.00 fee for any specialized information list.
16. Any corporation or other legal business
entity holding a valid Certificate of Responsibility shall immediately notify
the Board of any change of name or corporate structure by filing an application
with the Executive Secretary of the Board outlining the specific change and the
impact on the status of the entity. A
fee of $50.00 shall accompany each application filed pursuant to this
rule.
17. The
Executive Secretary may accept and adopt as the requisite objective,
standardized examination under Miss. Code Ann. ' 31-3-13(a) any comparable
examination passed by any applicant that holds a license or certificate in good
standing in a comparable classification in another state recognized as a
reciprocity state. (adopted
18. For all
purposes herein, "bid" is defined as an offer, whether written or
verbal, to perform all or part of a contract.
(adopted
19. Any
person or entity contracting or undertaking as prime contractor, subcontractor
or sub-subcontractor of any tier to do any work as a construction manager shall
have a certificate of responsibility in the specialty classification of
construction management orthe major classification of
Building Construction. (adopted
20. Either
all contractors making up a joint venture or the joint venture itself must hold
certificates of responsibility prior to submitting a bid or being awarded a
contract. When two or more contractors
comprising a joint venture all hold certificates of responsibility, such
certificates may be for different classifications of work, but the contract to
be awarded should include the classifications of work for which the individual
members of the joint venture hold certificates.
Further, contractors engaging in a joint venture should not perform work
that exceeds the statutory scope of their certificate(s). (See AG Opinion December 3, 1990 to
Harper; and AG Opinion dated April 5, 1991 to Cardin.) (adopted
When a joint venture submits
a bid on a public project in excess of Fifty Thousand Dollars ($50,000.00), and
the joint venture itself does not hold a certificate of responsibility, each
contractor comprising the joint venture shall place its certificate of responsibility
number on the outside of the envelope containing the bid as set forth in Miss.
Code Ann. ' 31-3-21(2), as amended. If
the joint venture itself holds a certificate of responsibility, then it shall
place its certificate number only on the outside of the envelope. (Adopted
21. Any of the foregoing Rules and Regulations
of the Board shall not apply to contracts involving federal funds if in
violation of federal requirements.
22. Any of the foregoing Rules and Regulations of the Board may be suspended and/or modified by a majority vote of the State Board of Contractors unless such suspension or modification is inconsistent with the general laws governing the Board and its operation. Such change or modification shall not be effective for a period of ninety (90) days after the date of such suspension or modification.
23. If any provision of any section of these
Rules and Regulations or the application thereof to any person or circumstances
is held invalid, such invalidity shall not affect any other provisions of that
section or application of the Rules and Regulations which can be given effect
without the invalid provisions or application, and to this end the provisions
of these Rules and Regulations are declared to be severable.
24. The
25. The Executive Secretary of the Board is
hereby granted authority to execute all Orders passed by the Board as set forth
in the official minutes of the Board. (
26. These
Rules and Regulations shall become effective thirty (30) days after
promulgation and filing with the Secretary of State.