MCA Chapter 5

in effect

Miss. Code Ann. § 31-5-1 Repealed.

Repealed by Laws 1980, ch. 520, § 5, eff from and after April 1, 1981. § 31-5-1 . [Codes, Hemingway’s 1921 Supp, § 2447a; 1930, § 5971; 1942, § 9014; Laws, 1918, ch. 217] Editor’s Notes — Former § 31-5-1 required a bond for payment of labor and contracts. Laws of 1980, ch 520, § 5, which repealed this section, provided in part that the section will apply and continue in full force and effect as to all bonds and contracts entered into prior to the effective date of the repeal.

Miss. Code Ann. § 31-5-3 Bond for payment of taxes, licenses, etc.

Any person, firm or corporation entering into a formal contract with this state, any county thereof, municipality therein, or any public board, department, commission, or political subdivision of this state, for the construction or maintenance of public buildings, works or projects or the doing of repairs to any public building, works or projects shall be required before commencing same to execute the usual bond with good and sufficient sureties, as required by law, with the additional obligation that such contractor shall promptly make payment of all taxes, licenses, assessments, contributions, damages, penalties, and interest thereon, when and as the same may lawfully be due this state, or any county, municipality, board, department, commission or political subdivision thereof, by reason of and directly connected with the performance of such contract or any part thereof. In default of the prompt payment of all such taxes, licenses, assessments, contributions, damages, penalties and interest thereon as may be due by any such contractor, a direct proceeding on said bond may be brought in any court of competent jurisdiction by the proper officer or agency having lawful authority so to do to enforce such payment, the right to so proceed being cumulative and in addition to such other remedies as may be provided by law. Nothing in this section shall be so construed as to repeal in any respect the provisions of any law having for its purpose the protection and enforcement of claims by persons furnishing labor or materials.

Miss. Code Ann. § 31-5-5 Repealed.

Repealed by Laws, 1980, ch. 520, § 5, eff from and after April 1, 1981. §§ 31-5-5 through 31-5-13 . [Codes, Hemingway’s 1921 Supp. §§ 2447d to 2447f; 1930, §§ 5972-5976; 1942, §§ 9015-9019; Laws, 1918, ch. 217; 1962, ch. 333] Editor’s Notes — Former §§ 31-5-5 through 31-5-13 pertained to suits on a bond. Laws of 1980, ch 520, § 5, which repealed these sections, provided in part that these sections will apply and continue in full force and effect as to all bonds and contracts entered into prior to the effective date of the repeal.

Miss. Code Ann. § 31-5-15 Withdrawal by contractor of amounts retained on public contracts by furnishing different security.

Under any public contract heretofore or hereafter made or awarded by the State of Mississippi, or any agency or department of the State of Mississippi, or by any political subdivision thereof, the contractor may, with the written consent of his or its surety, from time to time, withdraw the whole or any portion of the amount retained from payments due the contractor pursuant to the terms of the contract by depositing with the State Treasurer of the State of Mississippi, or the treasurer or secretary of the political subdivision of the State of Mississippi holding funds belonging to the contractor, the following security, or any combination thereof in an amount equal to or in excess of the amount so withdrawn, said securities to be accepted at the time of deposit at market value but not in excess of par value, to wit: U. S. Treasury Bonds, U. S. Treasury Notes, U. S. Treasury Certificates of Indebtedness, or U. S. Treasury Bills, or Bonds or notes of the State of Mississippi, or Bonds of any political subdivision of the State of Mississippi, or Certificates of deposit issued by commercial banks located in the State of Mississippi, provided that such certificate is negotiable or is accompanied by a power of attorney executed by the owner of the certificate in favor of the Treasurer of the State of Mississippi or of the treasurer or the secretary of the political subdivision involved, or Certificates of deposit issued by savings and loan associations located in the State of Mississippi, the accounts of which are insured by the Federal Savings and Loan Insurance Corporation, or whose accounts are insured by a company approved by the State Board of Savings and Loan Associations, provided that such certificate is made payable with accrued interest on demand and is accompanied by a power of attorney executed by the owner of the certificate in favor of the Treasurer of the State of Mississippi or the treasurer or secretary of the political subdivision involved, and provided that any such certificate from any of the savings and loan associations referred to in this subparagraph shall not be for an amount in excess of the maximum dollar amount of coverage of the Federal Savings and Loan Insurance Corporation. The agency or department of the state shall notify the State Treasurer of the amount of deposit required and shall also notify the State Treasurer when to release the deposit. The political subdivision of the state shall notify its treasurer or secretary of the amount of deposit required and shall also notify him when to release the deposit. The State Treasurer, or the secretary or treasurer of the political subdivision holding said security, shall, from time to time, collect all interest or income on the security so deposited and shall, by and with the written consent of contractor’s surety, pay the same when and as collected to the contractor or contractors who deposited said obligations. If the deposit be in the form of coupon bonds, the coupons as they respectively become due shall be delivered to the contractor. If in the event of an overpayment to a contractor the contracting authority is unable to obtain reimbursement for such overpayments from the contractor, the chief administrative officer of the contracting authority shall notify the contractor, its surety and the State Treasurer or other holder of the security, of the nature of the overpayment and of the failure to obtain reimbursement. Upon such notification, the security holder shall retain the income on the deposited security until an amount equal to the overpayment is accumulated and paid to the contracting authority. In the event the contractor shall default in the performance of the contract or any portion thereof, the securities deposited by him in lieu of retainage and all interest and coupons and income accruing on said securities after said default may be sold by the state or any agency or department thereof, or any political subdivision, and the proceeds of said sale used as if such proceeds represented the retainage provided for under the contract.

Miss. Code Ann. § 31-5-17 Resident labor used on public works.

Every public officer, contractor, superintendent, or agent engaged in or in charge of the construction of any state or public building or public work of any kind for the State of Mississippi or for any board, city commission, governmental agency, or municipality of the State of Mississippi shall employ only workmen and laborers who have actually resided in Mississippi for two (2) years next preceding such employment.

Miss. Code Ann. § 31-5-19 Procedure if resident labor not available.

In the event workmen or laborers qualified under the provisions of Section 31-5-17 are not available, then the contractor, officer, superintendent, agent, or person in charge of such work shall notify in writing the mayor of the city in which said work is being done, the president of the board of supervisors of the county in which said work is being done, the Governor where said work is being done for the State of Mississippi, and the president, chairman, or executive officer of such board, city commission, or governmental agency for which said work is being done, of such fact. Unless the mayor, Governor, president, executive officer, or chairman aforesaid, as the case may be, shall forthwith supply such contractor, officer, superintendent, agent, or person in charge of said works with the satisfactory workmen or laborers needed, said contractor, officer, superintendent, agent, or person shall be authorized to employ workmen or laborers who are not qualified under the provisions of Section 31-5-17 to make up the deficiency. Nothing herein shall be construed to prevent the State of Mississippi, any county, municipality, board, or commission from placing or letting any contract for the erection or construction of any public building or public work in the open market, or soliciting bids from persons, firms, or corporations without the State of Mississippi. Any person, persons, firm, or corporation from without the State of Mississippi that may obtain such contracts for public buildings or public works shall comply with the provisions of Section 31-5-17 upon undertaking the said contract or work.

Miss. Code Ann. § 31-5-21 Penalty.

Any contractor, officer, superintendent, agent, or person in charge of said work who shall violate any of the provisions of Section 31-5-17, shall be liable upon conviction before a court of competent jurisdiction to a fine of not more than One Hundred Dollars ($100.00) or to imprisonment of not more than sixty (60) days, or both at the discretion of the court; and every day’s employment of each workman or laborer in such violation shall constitute a separate offense. However, where any workman or laborer furnishes such employer with a certificate by the sheriff, chancery clerk, or county registrar of the county of his domicile to the effect that such workman or laborer has actually resided in this state two (2) years next preceding such employment, such employer, acting in good faith, shall be relieved of any liability by reason of employing such person.

Miss. Code Ann. § 31-5-23 State products used in public works.

In the construction of any building, highway, road, bridge, or other public work or improvement by the State of Mississippi or any of its political subdivisions or municipalities, only materials grown, produced, prepared, made and/or manufactured within the State of Mississippi should be used. Paint, varnish and lacquer shall be used which shall contain as vehicles tung oil and either ester gum or modified resin (with rosin as the principal base of constituents), and turpentine shall be used as solvent or thinner, all of which said products shall be produced in Mississippi. However, preference shall not be given to materials grown, produced, prepared, made and/or manufactured in the State of Mississippi when other materials of like quality produced without the State of Mississippi may be purchased or secured at less cost, or any other materials of better quality produced without the State of Mississippi can be secured at a reasonable cost. The duty is hereby enjoined upon all public officers or bodies having the right to contract for the purchase of materials for any such public work to be paid for by the State of Mississippi or any of its political subdivisions or municipalities to faithfully observe the provisions of this section. All contracts hereafter let to any person, firm or corporation for the construction or doing of any public work shall contain a provision enjoining a like duty upon the contractor with respect to the purchase of materials as would have rested upon the public officer or body letting the contract had he or it done the work and purchased the materials. Nothing herein shall in any manner apply to any public work or improvement which will be paid for either in whole or in part by funds contributed either directly or indirectly by the United States. This section is declaratory of public policy of the State of Mississippi. The boards of supervisors of the State of Mississippi are hereby enjoined, in the letting of contracts in pursuance to Section 65-9-19, to use any and all low gravity oil from the various oil fields in this state in the construction, maintenance, and upkeep of the rural roads, and to faithfully observe the provisions hereof.

Miss. Code Ann. § 31-5-25 Time for full and final payment to contractors; exemptions; monthly submission by contractors of proof of payments to subcontractors.

All sums due contractors under all public construction contracts shall be paid as follows: Partial, progress or interim payments: All partial, progress or interim payments or monies owed contractors shall be paid when due and payable under the terms of the contract. If they are not paid within forty-five (45) calendar days from the day they were due and payable, then they shall bear interest from the due date until paid at the rate of one percent (1%) per month until fully paid. Final payments: The final payment of all monies owed contractors shall be due and payable: At the completion of the project or after the work has been substantially completed in accordance with the terms and provisions of the contract; When the owner beneficially uses or occupies the project except in the case where the project involves renovation or alteration to an existing facility in which the owner maintains beneficial use or occupancy during the course of the project; When the project is certified as having been completed by the architect or engineer authorized to make such certification; or When the project is certified as having been completed by the contracting authority representing the State of Mississippi or any of its political subdivisions, whichever event shall first occur. If the contractor is not paid in full within forty-five (45) calendar days from the first occurrence of one (1) of the above-mentioned events, then said final payment shall bear interest from the date of said first occurrence at the rate of one percent (1%) per month until fully paid. In no event shall said final payment due the contractor be made until the consent of the contractor’s surety has been obtained in writing and delivered to the proper contracting authority. [Repealed] Contractors shall submit monthly certification to the project engineer or architect indicating payments to subcontractors on prior payment request.

Miss. Code Ann. § 31-5-27 Payment of interest on delinquent accounts.

When a contractor receives any payment under a public construction contract, the contractor shall, upon receipt of that payment, pay each subcontractor and material supplier in proportion to the percentage of work completed by each subcontractor and material supplier. If for any reason the contractor receives less than the full payment due under the public construction contract, the contractor shall be obligated to disburse on a pro rata basis those funds received, with the contractor, subcontractors and material suppliers each receiving a prorated portion based on the amount due on the payment. If the contractor without reasonable cause fails to make any payment to his subcontractors and material suppliers within fifteen (15) days after the receipt of payment under the public construction contract, the contractor shall pay to his subcontractors and material suppliers, in addition to the payment due them, a penalty in the amount of one-half of one percent (1/2 of 1%) per day of the delinquency, calculated from the expiration of the 15-day period until fully paid. The total penalty shall not exceed fifteen percent (15%) of the outstanding balance due.

Miss. Code Ann. § 31-5-29 Applicability of Sections 31-5-25, 31-5-27.

Sections 31-5-25 and 31-5-27, shall apply as to all public construction contracts entered into by all state agencies, commissions, boards and districts and by all municipalities, counties and other political subdivisions of the State of Mississippi.

Miss. Code Ann. § 31-5-31 Provider to subcontractor of equipment used in road construction contract shall notify general contractor of payments not timely made.

Any person, firm or corporation who leases, rents or sells to any subcontractor any equipment to be used in a road construction contract, wherein a performance and payment bond is required of the general contractor, shall notify the general contractor involved in such contract that credit is being extended by them to the subcontractor and stating the terms of the credit agreement. In the event the subcontractor does not meet his payment obligations as set forth in the credit agreement, the creditor shall notify the general contractor of the nonpayment within thirty (30) days after such payment is due. The creditor shall notify the general contractor upon receipt of any payment which had been reported as past due. Failure of the creditor to comply with the nonpayment notice provision of this section shall void the terms of the general contractor’s performance and payment bond as to such creditor for such equipment leased, rented or sold.

Miss. Code Ann. § 31-5-33 Amount of retainage which may be withheld; exemptions.

In any contract for the construction, repair, alteration or demolition of any building, structure or facility awarded by the State of Mississippi, or any agency, unit or department of the State of Mississippi, or by any political subdivision thereof, which contract provides for progress payments in installments based upon an estimated percentage of completion with a percentage of the contract proceeds to be retained by the state agency, unit or department, or by the political subdivision or contractor pending completion of the contract, such retainage shall be five percent (5%), and the amount retained by the prime contractor from each payment due the subcontractor shall not exceed the percentage withheld by the state, or any agency, unit or department of the state, or by any political subdivision thereof, from the prime contractor. On any contract as described herein, of which the total amount is Two Hundred Fifty Thousand Dollars ($250,000.00) or greater, or on any contract with a subcontractor, regardless of amount, five percent (5%) shall be retained until the work is at least fifty percent (50%) complete, on schedule and satisfactory in the architect’s and/or engineer’s opinion, at which time fifty percent (50%) of the retainage held to date shall be returned to the prime contractor for distribution to the appropriate subcontractors and suppliers. Provided, however, that future retainage shall be withheld at the rate of two and one-half percent (21/2%). The provisions of this section shall not apply to contracts let by the Mississippi Transportation Commission for the construction, improvement or maintenance of roads and bridges.

Miss. Code Ann. § 31-5-35 Public employees prohibited from requiring bidder on public contract to obtain surety bonds from any particular company, agent, or broker.

No state, county, or municipal employee, and no person acting or purporting to act on behalf of such employee, or any state, county or municipal agency, shall, with respect to any public building or construction contract which is about to be or which has been competitively bid or negotiated, require the bidder to make application to or furnish financial data to, or to obtain or procure any of the surety bonds, or surety bond components of wrap-up insurance, that is specified in connection with such contract or specified by any law, from any particular insurance or surety company, agent or broker.

Miss. Code Ann. § 31-5-37 Contractors submitting bids for public works projects utilizing specified funding required to submit employment plan with bid; contents of plan; review of individuals for vacant positions.

All public works projects utilizing funds received by state or local governmental entities resulting from a federally declared disaster or a spill of national significance, including damages, penalties, fines or supplemental projects paid or financed by responsible parties pursuant to a court order, negotiated settlement, or other instrument, including under any law distributing such fines and penalties including the federal Resources and Ecosystems Sustainability, Tourist Opportunities and Revived Economy of the Gulf Coast Act of 2011 (R.E.S.T.O.R.E.), the Oil Pollution Act of 1990 or the Federal Water Pollution Control Act or similar legislation, shall be subject to the hiring policies established by this section. Contractors submitting bids for public works projects that involve an expenditure of Five Thousand Dollars ($5,000.00) or more and that are financed, in whole or in part, through the use of funds described in subsection (1) of this section shall submit with their bid a certification that they will comply with the provisions of this section if they are awarded a contract. The contractor shall submit to the agency or governing authority that solicited the bid and the Mississippi Department of Employment Security an employment plan within seven (7) days after the award of the contract which shall include the following: The types of jobs involved in the public works project; The skill level of the jobs involved in the project; Wage information on the jobs involved in the project; The number of vacant positions that the contractor and any subcontractor needs to fill; How the contractor and any subcontractor will recruit, low-wage and unemployed individuals for job vacancies; Such other information as may be required by the Mississippi Department of Employment Security; and Proof of registration with the Mississippi Department of Employment Security for taxation in accordance with the provisions of Title 71. From the date written notice of the contract award is received and until ten (10) business days after the receipt of the employment plan by the Mississippi Department of Employment Security, the contractor and any subcontractor shall not hire any personnel to fill vacant positions necessary for the public works project except residents of the State of Mississippi who are to be verified by the Mississippi Department of Employment Security and/or those qualified individuals who are submitted by the Mississippi Department of Employment Security. For purposes of this subsection, the contractor or subcontractor is authorized to employ Mississippi residents to begin work immediately, and such persons are to be verified by the Mississippi Department of Employment Security after employment by the contractor or subcontractor. During the ten-day period the Mississippi Department of Employment Security shall submit qualified individuals to the contractor to consider for the vacant positions. The contractor shall review the individuals submitted by the department before hiring individuals who are not submitted by the department. The contract award shall be vacated if the contractor fails to comply with the provisions of this subsection.

Miss. Code Ann. § 31-5-39 Public entities to establish cost estimate for public work or improvement projects; authority to allocate additional funds to projects.

On or before the date and time established to receive bids for any contract related to the construction of any building, highway, road, bridge or other public work or improvement by the State of Mississippi, its agencies, departments, institutions, or instrumentalities of the state or political subdivisions of the state, such entity shall establish a cost estimate for the project. The cost estimate shall reflect the total amount of funds allocated to the project, including the specific amount allocated for construction. Additional funds may be allocated to a project at any time, including for purposes of awarding a contract to the lowest and best bidder. Additional funds may not be allocated after the date and time established for the receipt of bids for the purpose of increasing negotiation authority.

Miss. Code Ann. § 31-5-41 “Hold harmless” clauses in construction contracts are void; exceptions.

With respect to all public or private contracts or agreements, for the construction, alteration, repair or maintenance of buildings, structures, highway bridges, viaducts, water, sewer or gas distribution systems, or other work dealing with construction, or for any moving, demolition or excavation connected therewith, every covenant, promise and/or agreement contained therein to indemnify or hold harmless another person from that person’s own negligence is void as against public policy and wholly unenforceable. This section does not apply to construction bonds or insurance contracts or agreements.

Miss. Code Ann. § 31-5-51 Performance and payment bonds; persons entitled to sue on payment bond; proof of general liability insurance required before entering into certain contracts with state or local governments.

Any person entering into a formal contract with the state or any county, city or political subdivision thereof, or other public authority for the construction, alteration, or repair of any public building or public work, before entering into such contract, shall furnish to such public body, except as provided in subsection (5) of this section, bonds with good and sufficient surety as follows: A performance bond payable to, in favor of or for the protection of such public body, as owner, for the work to be done in an amount not less than the amount of the contract, conditioned for the full and faithful performance of the contract; A payment bond payable to such public body but conditioned for the prompt payment of all persons supplying labor or material used in the prosecution of the work under said contract, for the use of each such person, in an amount not less than the amount of the contract; and The bonds herein provided for may be made by any surety company which is authorized to do business in the State of Mississippi and listed on the United States Treasury Department’s list of acceptable sureties, or such bonds may be guaranteed by a personal surety as provided for herein. The personal surety shall deposit with the State Treasurer cash or certificates of deposit in an amount not less than the amount of the contract, and the State Treasurer shall hold same in trust and on deposit for the benefit of the public body that is a party to the contract providing for the construction, alteration or repair of the public building or for the public work. Every person who has furnished labor or material used in the prosecution of the work provided for in such contract, in respect of which a payment bond is furnished and who has not been paid in full therefor before the expiration of a period of ninety (90) days after the date on which the last of the labor was performed by him or the last of the materials was furnished by him and for which such claim is made, provided the same has been approved, where required, by the public authority or its architect or engineers, or such approval is being withheld as a result of unreasonable acts of the contractor, shall have the right to sue on such payment bond for the amount, or the balance thereof that is due and payable, but unpaid at the time of institution of such suit and to prosecute said action to final execution and judgment. Notwithstanding anything to the contrary contained herein, if the amount claimed in such action is subject to contractual provisions or conditions, between the parties involved in such action, the action shall be abated pending the performance of such provisions and the fulfillment of such conditions. Any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety (90) days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. Such notice shall be given in writing by the claimant to the contractor or surety at any place where the contractor or surety maintains an office or conducts business. Such notice may be personally delivered by the claimant to the contractor or surety, or it may be mailed by certified mail, return receipt requested, postage prepaid, to the contractor or surety. No such action may be maintained by any person not having a direct contractual relationship with the contractor-principal, unless the notice required by this section shall have been given. The only persons protected by such payment bond, subject to the notice provisions of this section are: Subcontractors and material suppliers of the contractor; Sub-subcontractors and material suppliers of those subcontractors named in subsection (4)(a) of this section; and Laborers who have performed work on the project site. Whenever a contract is less than Twenty-five Thousand Dollars ($25,000.00) the owners may elect to make a lump sum payment at the completion of the job. Lump sum payments will not be made until completion and acceptance by the governing agency. In such a case a performance bond or payment bond will not be required. Except as otherwise provided in subsection (1)(c) for a personal surety, no surety or surety company shall be allowed to guarantee or write bonds for the benefit of the public body that is a party to a contract providing for the construction, alteration or repair of a public building or for public work, unless that surety is listed on the United States Treasury Department’s list of acceptable sureties. If the surety is not listed on the United States Treasury Department’s list of acceptable sureties, the public body for which the public work is being performed shall be liable to the extent that the surety would be liable. Any person entering into a formal contract with the state which exceeds Five Thousand Dollars ($5,000.00), or with a county, city or other public authority which exceeds Twenty-five Thousand dollars ($25,000.00), for the construction, alteration, or repair of any public building or public work, before entering into such contract, shall furnish to the public body proof of general liability insurance coverage in an amount not less than One Million Dollars ($1,000,000.00) for bodily injury and property damage. Exempted from the provisions of this subsection are any persons who enter into a contract with the Mississippi Department of Rehabilitation Services for the construction, alteration or repair of the home of a disabled individual who has been determined eligible for services by the Mississippi Department of Rehabilitation Services.

Miss. Code Ann. § 31-5-52 Performance and payment bonds required when using design-build or construction manager at risk methods of project delivery.

The use of either the design-build method of project delivery as provided in Section 31-7-13.1 or the construction manager at risk method of project delivery as provided in Section 31-7-13.2 must comply with the provisions of Section 31-5-51.

Miss. Code Ann. § 31-5-53 Time for bringing suit on bond; venue.

When suit is instituted on a performance bond given in accordance with this chapter, it shall be commenced within one (1) year after the obligee shall have made final payment on the contract; provided, however, if the contract is abandoned by the general contractor as bond principal or is terminated by the bond obligee, suit shall be commenced within one (1) year after the earlier of the abandonment by the bond principal or termination by the bond obligee. When suit is instituted on a payment bond given in accordance with this chapter, it shall be commenced within one (1) year after the day on which the last of the labor was performed or material was supplied by the person bringing the action and not later. Any suit brought on a performance or payment bond given in accordance with this chapter shall be brought in the county in which the contract or some part thereof was performed or in the county in which service of process may be obtained upon either the principal or the surety on such bond.

Miss. Code Ann. § 31-5-55 Persons entitled to copies of contract and bond.

Any person supplying labor or materials for the prosecution of the work shall, upon request to the owner or obligee, or to the contractor or principal, be furnished promptly with a true and correct copy of the contract and bonds within thirty (30) days of the request or the recipient of the request shall thereafter become liable for reasonable attorney’s fees and costs in any subsequent action under this section. The written request may be evidenced by any reliable means of delivery.

Miss. Code Ann. § 31-5-57 Award of attorney’s fees.

Whenever any person supplying labor or material in the prosecution of the work brings an action on such payment bond and the trial judge finds that the defense raised to such action by the contractor or surety was not reasonable, or not in good faith, or merely for the purpose of delaying payment, then the trial judge may, in his discretion, award the claimant a reasonable amount to be determined by the trial judge as claimant’s attorney’s fees in bringing such successful action. Likewise, if the trial judge finds that such action was brought by claimant without just cause or in bad faith, the trial judge may, in his discretion, award the contractor or surety a reasonable amount to be determined by the trial judge as attorney’s fees for defending such action; provided, however, this section shall not affect the right of any person to recover attorney’s fees where provided by contract or bond.