MISSISSIPPI LEGISLATURE

2000 Regular Session

To: Judiciary B; Public Buildings, Grounds and Lands

By: Representative Guice

AN ACT TO AMEND SECTION 31-3-14, MISSISSIPPI CODE OF 1972, TO REQUIRE PUBLIC AGENCIES TO PAY A SURCHARGE ON PUBLIC CONSTRUCTION PROJECTS FOR THE PURPOSE OF SUPPORTING THE MISSISSIPPI CONSTRUCTION EDUCATION FOUNDATION'S SCHOOL-TO-WORK PROGRAM; TO AMEND SECTION 31-3-21, MISSISSIPPI CODE OF 1972, TO REQUIRE CONTRACTORS TO CALCULATE THE SURCHARGE AMOUNT IN BIDS SUBMITTED FOR PUBLIC PROJECTS; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 31-3-14, Mississippi Code of 1972, is amended as follows:

31-3-14. (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 * * * 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 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 Mississippi state institutions of higher learning and public community or 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 approved by the State Board of Contractors in the manner * * * provided in this section to offer courses for construction education and construction craft training to meet the needs of the construction industry of the State of Mississippi.

(2) (a) Each public agency that lets a contract for a public project shall pay a surcharge in an amount equal to one-tenth of one percent (.1%) of the total cost of the project to the State Board of Contractors for deposit into the Construction Education Fund created under subsection (1) of this section. The surcharge must be paid by the governing authority of the public agency to the executive secretary of the board in accordance with the payment schedule for sums due the contractor under Section 31-5-25. Partial payments of the surcharge must be in the same proportion to the total surcharge due, as based upon the total estimated project cost, as the partial payment made to the contractor bears to the total estimated project cost. The executive secretary shall deposit promptly all amounts received under this subsection into the Construction Education Fund. (b) The revenue derived from the surcharge imposed under this subsection shall be allocated to the State Department of Education for distribution to those public high schools participating in the Mississippi Construction Education Foundation's school-to-work program to assist in defraying the costs of the program. This subsection shall not preclude additional support for the school-to-work program which may be made available from any other source of funds.

(3) The State Board of Contractors * * *, on an annual basis, shall 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 shall appoint a technical advisory committee, which shall include the director of the Office of Vocational and Technical Education of the State Department of Education, 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 fifty percent (50%) of the monies distributed by the board, pursuant to this section, must be used for construction craft training.

(4) Each university, * * * community or junior college, the Mississippi Construction Education Foundation, public high school that participates 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.

(5) 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 which 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.

(6) 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.

(7) 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 thereon.

SECTION 2. Section 31-3-21, Mississippi Code of 1972, is amended as follows:

31-3-21. (1) 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 holding 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 by imprisonment for not more than six (6) months, or by both such fine and imprisonment.

(2) 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. Any person violating the provisions of this subsection 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 by imprisonment for not more than six (6) months, or by both such fine and imprisonment.

(3) Each bid submitted for a public project must include a line item establishing the amount of the surcharge the public agency is responsible for paying to the State Board of Contractors under Section 31-3-14. However, the failure of a contractor to include the surcharge amount in its bid shall not absolve the public agency of its obligation to pay the surcharge. The contractor shall determine the amount of the surcharge in accordance with the formula in Section 31-3-14. An underestimation of the total project cost upon which the surcharge is based or a miscalculation of the surcharge amount in the bid shall not reduce the liability of the public agency for the total surcharge due.

(4) 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.

(5) 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 cease all actions 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 Board of Contractors' Fund, created in Section 31-3-17, of not more than three percent (3%) of the total contract being performed by the contractor. The funds collected from civil penalty payments shall be used by the State Board of Contractors for enforcement and education.

SECTION 3. This act shall take effect and be in force from and after July 1, 2000.