Dear ASA Mississippi,
House Bill 1306 (Venue Bill) was signed by the Governor on April 13th. The bill was introduced on 1-15-18 and went through 28 actions before being signed. This would not have been a possibility without the phenomenal support of ASA MS membership. I'd also like to extend a special thank you to Trey Copeland and Suzanne Sharp for being our communication inside the Capital. I have posted the bill below for all to view. Thank you again for your involvement in the continued strengthening of our rights as Mississippi subcontractors and suppliers.
ASA Legislative Committee
House Bill 1306
(As Sent to Governor)
AN ACT TO PROVIDE THAT CERTAIN CONSTRUCTION AGREEMENTS THAT REQUIRE DISPUTE RESOLUTION OUTSIDE THE STATE OR RESTRICT THE PARTIES' CHOICE OF LAW SHALL BE VOID; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) A provision in any contract, subcontract, or purchase order for the improvement of real property in this state, or to provide materials therefor, is void and against public policy if it makes the contract, subcontract, or purchase order subject to the laws of another state, or provides that the exclusive forum for any litigation, arbitration, or other dispute resolution process be located in another state.
(2) The provisions of this section apply only to contracts, agreements and purchase orders:
(a) Entered into on or after July 1, 2018;
(b) Only if at least one (1) of the parties is a Mississippi resident; and
(c) Only if entered into between any two (2) or more of the following persons and no others: the owner of the real property improved or to be improved, a contractor, subcontractor, materialman or design professional. As used in this section, "contractor", "subcontractor", "materialman" and "design professional" shall have the meanings ascribed in Section 85-7-401.
(3) For purposes of this section, "Mississippi resident" means any natural person domiciled in Mississippi or any business entity having a principal place of business in Mississippi.
SECTION 2. This act shall take effect and be in force from and after July 1, 2018.
ASA's Legislative Committee with the full endorsement of your Board of Directors has introduced the following (2) bills in the 2018 Legislative Session:
HB 1306 "Venue Legislation" introduced by Representative Donnie Bell, this bill passed out of Chairman Mark Bakers Committee, "Judiciary A" this morning 1/23/18 and is now on its way to the House Floor. SB 2658 "Retainage Legislation" introduced by Senator Sally Doty and has been referred to "Judiciary A" in the Senate. Members of this committee include:
Judiciary, Division A
W. Briggs Hopson III, Chairman; Sally Doty, Vice-Chairman
Members: Juan Barnett; Barbara Blackmon; Jenifer B. Branning; Joel R.Carter, Jr.; Eugene S. Clarke; Dennis DeBar, Jr.; Joey Fillingane; Hillman Terome Frazier; Dean Kirby; Chad McMahan; David Parker; Derrick T. Simmons; Angela Turner-Ford
If you know any of the members of Senate Judiciary, Division A, please contact them and ask for there support of SB 2658. For updated information on either bill please click on the link below, as your Legislative Chairman, I want to thank you each for your active involvement in the future of our industry!
Legislative Committee Chairman
ASA General Counsel Kegler, Brown, Hill and Ritter Revises FASA’s Retainage Laws in the 50 States
Before you bid or negotiate your next contract, be sure to know the laws regarding retainage where the project is located. The Foundation of ASA’s updated Retainage Laws in the 50 States 2018 summarizes retainage laws in the states and the District of Columbia. Each state entry reviews critical factors in retainage laws for public and private work, including the rate permitted, release milestones and any options to provide alternative securities in lieu of retainage. In most states, retainage is a typical practice in both public and private construction contracts. The mandatory or permissive nature of retainage varies from state to state. In a few states, the retained funds may be held in escrow, to be paid back to the contractor or subcontractor with interest. Some states also permit contractors and subcontractors to substitute securities in lieu of retainage. Other states require contracting agencies or owners to reduce or even eliminate the rate of retainage once a certain portion of the contract is complete. The ASA-member law firm and ASA general counsel, Kegler, Brown, Hill and Ritter in Columbus, Ohio, prepared the manual, which contains contributions from construction attorneys from across the country. “Since its founding in 1966, ASA has been an advocate for the elimination or reduction of retainage,” said ASA Chief Advocacy Officer E. Colette Nelson. “Through ASA’s efforts, the federal government eliminated routine retainage on federal construction in 1983. ASA chapters and members continue to lead efforts to reduce or eliminate retainage on public and private construction in their states.” Nelson urged ASA members who are interested in pursuing retainage reform to consult ASA’s A Guide to Passing Retainage Reform in Your State.
MISSISSIPPI Public Retainage may not exceed 5 percent. MISS. CODE ANN. § 31-5-33(1). On contracts valued in excess of $250,000, retainage is 5 percent until the job is 50 percent complete. At that point, if the work is satisfactory, the rate reduces to 2.5 percent and half of the retained funds are to be returned to the contractor to be disbursed to the appropriate subcontractors and suppliers. The contractor may not retain more from a subcontractor than the state retains from the contractor. MISS. CODE ANN. § 31-5-33(1). The contractor may substitute securities in lieu of retention. MISS. CODE ANN. § 31-5-15. Section § 31-5-33 is not applicable to contracts held by the Mississippi Transportation Commission. MISS. CODE ANN. § 31-5-33(2). For county contracts exceeding $1,000, the county board of supervisors must retain between 2.5 percent and 10 percent. MISS. CODE ANN. § 19-13-15(1). For contracts exceeding $750,000, except for bridge or public road contracts, 10 percent shall be retained until the work is 50 percent complete. Thereafter, 50 percent of the retainage shall be returned to the contractor and 5 percent shall be retained. MISS. CODE ANN. § 19-13-15(3). Note: MISS. CODE ANN. § 31-5-33 and MISS. CODE ANN. § 19-13-15 appear to be in conflict since § 31-5-33 applies to any public contract with “any political subdivision” which would include county boards of supervisors.
ASA-Endorsed Change Order Bill Introduced in House
On Jan. 11, Rep. Don Bacon (R-Neb.), along with bi-partisan co-sponsors, introduced a bill to address change orders on federal construction projects. H.R. 4754, the “Change Order Transparency for Federal Contractors Act,” would require a federal contracting agency to provide with its invitations for bid and requests for proposals details on its change procedures and historical performance data about change orders. “Small business contractors deserve to know all relevant information before entering into a contract with a federal agency,” Bacon said. “Small businesses waste time and money while waiting for the approval of their change order requests.” ASA, in collaboration with the Construction Industry Procurement Coalition, has been working with Congress and federal contracting agencies to improve the federal government’s change order procedures. “When enacted, H.R. 4754 will help federal construction contractors and subcontractors learn and understand the risk of nonpayment for change orders before bidding and signing a contract,” said ASA Chief Advocacy Officer E. Colette Nelson. Rep. Steve Knight (R-Calif.), Rep. Stephanie Murphy (D-Fla.) and Rep. Al Lawson (D-Fla.) co-sponsored the bill, which is pending before the House Small Business Committee. Ask your Representative to co-sponsor H.R. 4754 by using the ASA Legislative Action Center.
The Mississippi ASA Board of Directors on or before December 31st of each year accepts nominations from its membership for General Contractors, Architects & Engineers who should be considered as ASA “Partnership Member Firms”. This is an elite group of construction professionals that are NOT subcontractors or supplies and they are not eligible to become ASA Member Firms. This program was established so that the chapter could recognizes those firms that exemplify strong professional working relationships with ASA of Mississippi’s member firms. All “Partnership Member Firms” are discussed and voted on by the chapters Board of Directors.
ASA is proud to announce its 2019 Partnership Program Nominees:
• Benchmark Construction – David Marsh – President
• Brasfield & Gorrie - Ryan Springer – Project Director
• JESCO Construction, Inc. - Jerry Maxcy – President
• Probity Contracting Group, Inc. – Matt Harrell - President
FL Crane & Sons
A & B Electric
JL Roberts Mechanical
Steel Service, Inc.
Arthur J Gallagher
Capital Concrete Cutting
Carr Riggs and Ingram
Fisher Brown Bottrell
Jernigan Copeland Attorneys
Matthews Cutrer Lindsay
Southern Pipe and Supply