Effective 28 Aug 2019

107.170. Bond — public works contractor — definitions — amount of bond — defense of employees from suit, exceptions — nongovernmental services, bond not required — bond precludes filing of mechanic's lien. — 1. As used in this section, the following terms mean:

(1) "Contractor":

(a) A person or business entity who:

a. Provides or arranges for construction services on a public works project under contract to a public entity for a governmental purpose; or

b. Contracts, provides, or arranges for construction services on a public works project for a nongovernmental purpose when acting as a lessee, agent, designee, or representative of a public entity;

(b) Contractor shall not include:

a. Professional engineers, architects or land surveyors licensed pursuant to chapter 327;

b. Those who provide environmental assessment services;

c. Those who design, create or otherwise provide works of art under a city's formally established program for the acquisition and installation of works of art and other aesthetic adornments to public buildings and property; or

d. A construction manager not-at-risk within the meaning of section 8.675, or who does not otherwise enter into contracts with contractors for the furnishing of labor, materials, or services to the public works project;

(2) "Public entity", any official, board, commission or agency of this state or any county, city, town, township, school, road district or other political subdivision of this state;

(3) "Public works", the erection, construction, alteration, repair or improvement of any building, road, street, public utility or other public facility owned by the public entity, including work for nongovernmental purposes.

2. It is hereby made the duty of all public entities in this state, in making contracts for public works, the cost of which is estimated to exceed fifty thousand dollars, to be performed for:

(1) The public entity; or

(2) The public entity's lessee, agent, designee, or representative on work for nongovernmental purposes,

­­to require every contractor for such work to furnish to the public entity a bond with good and sufficient sureties, in an amount fixed by the public entity. Such bond, among other conditions, shall be conditioned for the payment of any and all materials, incorporated, consumed or used in connection with the construction of such work; all insurance premiums, both for compensation, and for all other kinds of insurance, on said work; and for all labor performed in such work whether by a subcontractor, a supplier at any tier, or otherwise. Remote suppliers shall not be entitled to recovery under the bond required by this section, unless such suppliers shall have given written notice to the contractor that it has not been paid within ninety days of the time the supplier last supplied materials on the public works project. For purposes of this provision, a "remote supplier" is any material supplier to a public works project having a contract with a second, or lower, tier subcontractor, or with another material supplier of any tier.

3. All bonds executed and furnished under the provisions of this section shall be deemed to contain the requirements and conditions as herein set out, regardless of whether the same be set forth in said bond, or of any terms or provisions of said bond to the contrary notwithstanding.

4. Nothing in this section shall be construed to require a member of the school board of any public school district of this state to independently confirm the existence or solvency of any bonding company if a contractor represents to the member that the bonding company is solvent and that the representations made in the purported bond are true and correct. This subsection shall not relieve from any liability any school board member who has any actual knowledge of the insolvency of any bonding company, or any school board member who does not act in good faith in complying with the provisions of subsection 2 of this section.

5. A public entity may defend, save harmless and indemnify any of its officers and employees, whether elective or appointive, against any claim or demand, whether groundless or otherwise arising out of an alleged act or omission occurring in the performance of a duty under this section. The provisions of this subsection do not apply in case of malfeasance in office or willful or wanton neglect of duty.

6. Nothing in this section shall be deemed to require any contractor who provides construction services for a public works project used for nongovernmental purposes and who contracts with a public entity's lessee, agent, designee, or representative on such public works project used for nongovernmental purposes to furnish a bond when the public entity's lessee, agent, designee, or representative is required under this section to furnish a bond.

7. The providing of a bond under this section shall preclude the filing of a mechanic's lien under chapter 429 by any subcontractor or supplier. Any mechanic's lien filed in violation hereof shall be void and unenforceable and shall be summarily discharged by a judge of the county in which the mechanic's lien is* filed.

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(RSMo 1939 § 3277, A.L. 1959 S.B. 294, A.L. 1993 S.B. 278, A.L. 1994 H.B. 1063, A.L. 1995 H.B. 622, A.L. 1997 S.B. 437, A.L. 2014 S.B. 529, A.L. 2019 S.B. 167)

Prior revisions: 1929 § 2890; 1919 § 1040; 1909 § 1247

*Word "if" appears in original rolls.

CROSS REFERENCES:

Actions on such bonds, how brought, 522.300

Wage rates to be paid employees on construction of public works, 290.210 to 290.340

(1993) If county commission fails to obtain payment bond from contractor on public works project as required by statute, such failure exposes county commissioners to liability for payment of mechanics' lien filed by materialman when materialman furnished materials for project in good faith. National Oil and Supply, Inc. v. Vaughts, Inc., 856 S.W.2d 912 (Mo. App. S.D.).

(2000) Railroad relocation project was "public works project" within meaning of section. Union Pacific Railroad Co. v. St. Louis Marketplace, 212 F.3d 386 (8th Cir.).

(2008) This section and section 429.010 are intended to provide inclusive protection to those furnishing labor and materials for public benefit. Collins & Hermann, Inc. V. TM2 Construction Co., 263 S.W.3d 793 (Mo.App.E.D.).