Mississippi Code 1972 (2023) › Title 31 - PUBLIC BUSINESS, BONDS AND OBLIGATIONS (§§ 31-1-1 — 31-31-41) › Chapter 5 - PUBLIC WORKS CONTRACTS (§§ 31-5-1 — 31-5-NEW) › IN GENERAL (§§ 31-5-1 — 31-5-39) › Section 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the contractor, the following security, or any combination thereof in an amount equal to or in excess of the amount so withdrawn, said securities to be accepted at the time of deposit at market value but not in excess of par value, to wit:
(a)
U.S. Treasury Bonds, U.S. Treasury Notes, U.S. Treasury Certificates of Indebtedness, or U.S. Treasury Bills, or
(b)
Bonds or notes of the State of Mississippi, or
(c)
Bonds of any political subdivision of the State of Mississippi, or
(d)
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
(e)
Certificates of deposit issued by savings and loan associations located in the State of Mississippi, the accounts of which are insured by the Federal Deposit 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. For the purposes of this section, the term "retainage" means money, or other security as agreed to by the parties to a construction contract, earned by the contractor, subcontractor or lower-tier sub-subcontractor or supplier, as the case may be, for work properly performed or materials suitably stored if payment for stored materials is provided for in the contract, which has been retained by the owner conditioned on final completion, to include, but not be limited to, deliverable and nondeliverable requirements such as completion of contractual closeout, provision of equipment manuals, provision of warranty documents, completion of punch list and acceptance of all work in connection with a project by the contractor, subcontractor or lower-tier sub-subcontractor or supplier.
Codes, 1942, § 9022.5; Laws, 1971, ch. 516, § 1, eff. 7/1/1971; Laws, 1992, ch. 364, § 1, eff. 7/1/1992.
Amended by Laws, 2024, ch. 387, SB 2762,§ 2, eff. 7/1/2024.