American Bar Association
Forum on the Construction Industry
Managing the
Swell of Conflicting Regulation in the Construction Industry
Carl Circo
University of Arkansas
College of Law
Fayetteville, Arkansas
J. Andrew Howard
Alston & Bird
Los Angeles, California
Susan Fisher Stevens
Sprint Nextel Corporation
Overland Park, Kansas
Erin L. Gerdes
Woods
& Aitken LLP
Presented
at the 2009 Fall Meeting
“The
Two-Way Street of Construction Counseling:
Learning
From the Ins & Outs”
October
15-16, 2009
Philadelphia,
Pennsylvania
© 2009 American Bar Association
I.
Licensing
and Registration
According to the
a.
Design
professions
Depending on the jurisdiction involved, design professionals may be required to obtain a license, register, or obtain a certificate of authority to practice in that jurisdiction before providing or offering to provide design services with respect to projects located in that jurisdiction. The terms “licensing” and “registration” as applied to design professionals are often used interchangeably to refer to these requirements. As a matter of convenience, this discussion generally refers to the process as “registration” except in those cases in which particular significance attaches to a different term. Most registration schemes expressly regulate both the practice of the profession (practice registration) and the use of professional titles (title registration).
State registration laws and regulations governing the design professions tend to follow similar patterns from one jurisdiction to another. This section summarizes the more common approaches to the recurring topics covered by the ABA Guide. The most basic features include requirements relating to professional education and experience, information and fees that must be submitted to an administrative board or agency, and the issuance of some formal certificate or document that confirms the professional’s or firm’s right to practice in that jurisdiction.
The State-by-State Licensing Matrix summarizes some of the most important information on registration of design professionals in each jurisdiction. Because the matrix provides coverage of many details, this portion of the paper describes, without endnote references to statutes and regulations in any particular jurisdiction, some information that is common among many jurisdictions. Where information is specific to a particular jurisdiction or where reference to a particular jurisdiction, statute, or other authority is useful for illustration or clarification purposes, appropriate endnotes are included here.
i.
Design professions covered
The statutes typically distinguish at least between the architectural and engineering professions. Most also recognize specialties within these two broad categories. Among the architectural professions, many states separately address landscape architecture and interior design. Within the field of engineering, most states include distinct provisions governing professional engineering and land surveying, and some also provide separate registration processes for the categories of electrical, civil, structural, and mechanical engineering in addition to the general category of professional engineering.
Further
specialized registration is also common.
Some jurisdictions in which mineral production is important separately
regulate or address geological design professionals.[2] Another category separately covered in some
jurisdictions is that of geoscientist, which may include the services commonly
provided by soils testing firms.[3] Many states exempt most residential design
activities from their registration requirements,[4]
but
ii.
Key definitions of regulated activity
Registration statutes typically define at least the practices of architecture and engineering, but there are no universal definitions of those terms. The definitions of these two basic design professions generally overlap in certain respects, and the definitional distinctions are not always easy to apply in practice.[7] Note that a title registration scheme that licenses those who use design professional titles rather than directly licensing the practice of a design profession might not need to define the professions at all.[8]
Some statutory definitions tie the regulation of certain design professions to those activities that affect public safety or welfare.[9] An alternative is simply to identify specific services or activities that fall within a particular regulated category,[10] and some statutes combine both of these definitional approaches.[11] As a key component of the definition of the practice of architecture, some statutes include the element that architecture involves those design services that relate primarily to projects intended for human occupancy.[12] This definitional tactic has the potential to establish a bright-line distinction between those activities that require a registered architect and those that may be performed by engineers or other registered design professionals or that may not require registration at all.
Several jurisdictions take the relatively unhelpful approach of defining the practice of professional engineering primarily by reference to those services and activities that require specialized education, training, and experience in engineering and the application of specialized knowledge of mathematics, physics, and engineering.[13] Legal counsel advising clients undertaking projects in jurisdictions that use somewhat broad or circular definitions may find that it is especially important to research administrative rules and judicial interpretations to understand how to distinguish the registration requirement for one profession from those that govern related professions and how to construe exemptions and exceptions.
As
a practical matter, the definitional distinctions between architecture and
engineering under registration statutes tend to fall into two broadly
contrasting categories. One approach
uses relatively general definitions that may have the advantage of brevity, but
the disadvantage of potential vagueness or over-breadth. The other approach attempts to define the
regulated activities more comprehensively and specifically, which may produce
many questions of interpretation and application. Two contrasting definitions of the practices
of architecture and engineering, one from
The
“Practice of
architecture” means a service or creative work requiring architectural
education, training, and experience and the application of the principles of
architecture and related technical disciplines to the professional services or
creative work as consulting, evaluating, planning, designing, specifying,
coordinating of consultants, administration of contracts, and reviewing of
construction for the purpose of assuring compliance with the specifications and
design, in connection with a building or site development.[14]
“Practice of
engineering” means any service or creative work, the adequate performance of
which requires engineering education, training, and experience in the
application of special knowledge of the mathematical, physical, and engineering
sciences to such services or creative work as consultation, investigation,
expert technical testimony, evaluation, design and design coordination of
engineering works and systems, design for development and use of land and
water, performing engineering surveys and studies, and the review of
construction for the purpose of monitoring compliance with drawings and
specifications, any of which embraces such services or work, either public or
private, in connection with any utilities, structures, buildings, machines,
equipment, processes, work systems projects, and industrial or consumer
products or equipment of control systems, communications, mechanical,
electrical, hydraulic, pneumatic, or thermal nature, insofar as they involve
safeguarding life, health, or property, and including such other professional
services as may be necessary to the planning, progress, and completion of any
engineering services.[15]
The
corresponding
“Practice of
architecture” means a service or creative work applying the art and science of
developing design concepts, planning for functional relationships and intended
uses, and establishing the form, appearance, aesthetics, and construction
details for the construction, enlargement, or alteration of a building or
environs intended for human use or occupancy, the proper application of which
requires education, training, and experience in those matters. The term
includes:
(A) establishing
and documenting the form, aesthetics, materials, and construction technology
for a building, group of buildings, or environs intended to be constructed or
altered;
(B)
preparing, or supervising and controlling the preparation of, the architectural
plans and specifications that include all integrated building systems and
construction details, unless otherwise permitted under Section
1051.606(a)(4);
(C)
observing the construction, modification, or alteration of work to evaluate
conformance with architectural plans and specifications described in Paragraph
(B) for any building, group of buildings, or environs requiring an architect;
(D)
programming for construction projects, including identification of economic,
legal, and natural constraints and determination of the scope and spatial
relationship of functional elements;
(E)
recommending and overseeing appropriate construction project delivery systems;
(F)
consulting, investigating, and analyzing the design, form, aesthetics,
materials, and construction technology used for the construction, enlargement,
or alteration of a building or environs and providing expert opinion and
testimony as necessary;
(G)
research to expand the knowledge base of the profession of architecture,
including publishing or presenting findings in professional forums; and
(H)
teaching, administering, and developing pedagogical theory in academic settings
offering architectural education.[16]
* * * *
(b) In this
chapter, “practice of engineering” means the performance of or an offer or
attempt to perform any public or private service or creative work, the adequate
performance of which requires engineering education, training, and experience
in applying special knowledge or judgment of the mathematical, physical, or
engineering sciences to that service or creative work.
(c) The
practice of engineering includes:
(1) consultation, investigation, evaluation, analysis, planning, engineering for program management, providing an expert engineering opinion or testimony, engineering for testing or evaluating materials for construction or other engineering use, and mapping;
(2)
design, conceptual design, or conceptual design coordination of engineering
works or systems;
(3)
development or optimization of plans and specifications for engineering works
or systems;
(4)
planning the use or alteration of land or water or the design or analysis of
works or systems for the use or alteration of land or water;
(5)
responsible charge of engineering teaching or the teaching of engineering;
(6) performing
an engineering survey or study;
(7)
engineering for construction, alteration, or repair of real property;
(8)
engineering for preparation of an operating or maintenance manual;
(9)
engineering for review of the construction or installation of engineered works
to monitor compliance with drawings or specifications;
(10) a
service, design, analysis, or other work performed for a public or private
entity in connection with a utility, structure, building, machine, equipment,
process, system, work, project, or industrial or consumer product or equipment
of a mechanical, electrical, electronic, chemical, hydraulic, pneumatic,
geotechnical, or thermal nature;
(11)
providing an engineering opinion or analysis related to a certificate of merit
under Chapter 150, Civil Practice and Remedies Code; or
(12) any
other professional service necessary for the planning, progress, or completion
of an engineering service.[17]
Registration statutes often include many other important definitions and concepts that may require careful review and interpretation. In particular, most jurisdictions establish detailed definitions of other regulated professions, such as land surveying and landscape architecture, as well as definitions of technical terms relevant to the application of the registration scheme.
One aspect of many definitions that may raise significant questions concerns how the regulatory scheme applies to activities such as construction contract administration and the observation or inspection of construction works. To address these concerns, some jurisdictions include these concepts within the definition of one or more of the regulated professions, but then they expressly establish exceptions that allow some unregistered persons, such as construction superintendents or foremen, and even building contractors in general, to engage in those specific activities in connection with the performance of their other contractual duties. A Nebraska statute along these lines, which apparently acknowledges that the state’s detailed list of activities constituting the practices of architecture and engineering may literally overreach the regulatory objective, expressly excludes the disbursement activities of construction lenders from the scope of the definitions.[18]
iii.
Common requirements
Most registration statutes governing design professionals require that the applicant must have an appropriate academic degree and pass an examination. Particularly for certain engineering professions, some require internship periods and even references from registered professionals who can attest to the applicant’s experience.[19] Many incorporate or adopt tests or educational standards of national organizations and accreditation bodies.[20] Some statutes apply less demanding requirements to design professionals who have been practicing for many years, a feature that sometimes reflects that the contemporary registration scheme was adopted long after some especially experienced individuals began to practice. Periodic re-registration requirements are also common. Some jurisdictions require applicants in certain design professions to also have a specified number of years of relevant experience. Section I.a.vi. discusses special registration provisions for design professionals who are already licensed in other jurisdictions.
iv.
Common exceptions and exemptions
While
most of the registration statutes contain many exceptions and exemptions, there
is even less uniformity among the jurisdictions on this topic than on many
other aspects of registration. Several
categories of exceptions and exemptions appear frequently, but even within
those common categories the details vary greatly from one jurisdiction to
another. Statutes that broadly define
the regulated professions and activities may also include extensive or detailed
exemptions.
At
least in the case of architecture and professional engineering, the statutes
generally include exceptions and exemptions that permit those registered under
one design category to engage in some activities that would otherwise be
covered by the definition of one or more other regulated design
professions. Several jurisdictions grant
to registered architects and registered engineers rather broad exceptions to
engage in those activities that fall within the definition of the other’s
profession. This solution to the overlap
problem is distinct from, and presumably far broader than, the more common
approach of allowing architects to engage in those engineering activities that
are merely incidental to the performance of architectural services and allowing
a corresponding accommodation to engineers.
Another tactic to address this concern is to grant a broad exception
that allows one registered professional to engage in services covered expressly
by another registered profession by means of a consulting arrangement with a
registered member of the other profession.
For activities that generally fall within the definition of the practice of architecture, the most common exceptions include: (1) architectural services that registered engineers perform and that are incidental to the practice of engineering; (2) drafting or other limited design work performed by employees under the supervision of a registered architect; (3) single-family residential design services, either as a broad category or where the total area of the residential project is less than a designated minimum; and (4) architectural services for agricultural purposes. But even within these common categories, details often vary significantly from one jurisdiction to the next. For example, in some jurisdictions, multiple-unit residential projects as well as single-family residences are exempt, and in others the square footage or total construction cost of a residential (or other) project provides the controlling regulatory criterion. Statutes exempting activities of supervised employees also frequently differ significantly with respect to the nature of the permitted activities.
Some of the less common exemptions from architectural registration requirements include those that cover (1) some governmental projects; (2) certain manufacturing or industrial projects; (3) works for personal use: (4) incidental architectural activities performed by registered professionals other than architects and engineers; (5) projects of limited scope, such as the design of storefronts or golf courses; (6) structures costing less than a specified amount if not intended for public use or if public safety is not implicated; and (7) design of non-load-bearing interior features or other specified interior features.
Exemptions and exceptions from the registration requirements for professional engineers follow a similar pattern. The statutes commonly exempt from the requirements architects who perform certain activities that might otherwise fall under the definition of the practice of engineering but that are incidental to normal architectural services. Some jurisdictions add exceptions for special categories that are especially relevant to engineering services. For example, some jurisdictions provide exemptions for employees or contractors in particular fields, such as the communications industry or utility services, or for particular structure types or project types, such as garages, sheds, mechanical projects, pre-engineered buildings, manufactured products, and personal property.
Exemptions for more specialized design professions, such as landscape architecture or specific engineering specialties may either be similar to those that apply to architecture and professional engineering, or they may be more limited in scope. For example, in some jurisdictions, one of the main exemptions from the registration requirements for landscape architecture is that a registered architect may perform services that fall within the definition of landscape architecture. A number of specialized design professionals may qualify for other limited exemptions, as in the case of a landscape architectural registration statute that exempts urban planners for some purposes, or a regulation applying to certain engineering activities that permits limited design activities to be performed by contractors with an appropriate specialized contractor’s license.
In some circumstances, it is important to recognize that an exemption from a registration requirement does not necessarily solve all regulatory problems that may arise when design responsibilities are performed by those who are not registered. For example, a residential design exemption has limited significance in a jurisdiction in which a residential building permit may not be issued without drawings stamped by a registered architect.[24]
v.
Treatment of business entities
Most jurisdictions include special requirements or provisions for corporations, partnerships, limited liability companies, or other forms of business entities that provide professional design services. The approaches and details differ in many respects. Some jurisdictions authorize a form of professional registration for a business entity if all of the stakeholders of the business, or a specified minimum percentage of the stakeholders, are registered. For these purposes, stakeholders may include shareholders, partners, members, officers, or directors of the firm. A common strategy is not to register the business entity, or at least not to register the entity in the same sense that individuals are registered to practice the profession, but to allow the entity to engage in the regulated activities through its agents or employees who are registered. Some business entity provisions are primarily intended to assure that properly licensed individuals retain responsibility and legal liability for all professional services.
Yet
another scheme provides for a business entity registration that is distinct
from the professional license and that permits licensed professionals to
practice in a corporate or other entity form.
Finally, a few jurisdictions do not provide for professional registration by business entities, or they allow business entities to register under some professional categories but not others.[26] For the most part, however, even in these jurisdictions, some provision is generally made for a business entity to offer regulated services through officers or employees who are properly registered.[27]
vi.
Reciprocity and temporary licensing
For many projects, one of the most important licensing questions a design professional faces is whether the jurisdiction in which the project is located will permit the practice of engineering, architecture, or a specialty design profession by those who are registered only in a different jurisdiction. While most jurisdictions have some reciprocity provisions for at least some licensed design professions, once again, there is far less uniformity than national and regional design firms would prefer.
Under the provisions in some jurisdictions, a design professional registered only in another jurisdiction may, without registering locally, serve as a consultant to another design professional who is registered in the local jurisdiction.[28] Other statutes provide for temporary registration for a design professional who is registered in another jurisdiction and who merely seeks to provide services of brief duration or in connection with a particular project.[29]
A common approach is to permit local registration for a professional already registered in another jurisdiction if the professional meets certain educational, testing, experience, and moral character standards. Some of the statutes specify that this form of registration is only available to design professionals registered in jurisdictions that include reciprocal foreign registration procedures. Typically, the statutes recognize nationally accredited educational programs, and they may streamline licensing by accepting national testing procedures.[30] Jurisdictions differ significantly in the number of years or type of experience that may be required for registration through reciprocity.[31] Certain aspects of reciprocity may also be discretionary with the administrative agency having authority over the design profession involved.[32]
The
reciprocity provisions of jurisdictions located in areas prone to earthquakes
frequently add a requirement that the applicant must meet training relating to
seismic forces.[33]
vii.
Professional standards
While registration statutes do not themselves necessarily establish the professional standard of care or the principles of professional conduct for design professions, they often do address related considerations. For example, some registration statutes include restrictions relating to those who have been convicted of certain crimes or regulatory infractions, while others merely include a requirement that the applicant must be of good moral character.[35] The registration statutes or associated administrative regulations may also require a registered design professional to comply with continuing education rules.[36]
The same statutory framework that establishes the registration requirements also sometimes provides for the adoption and administration of rules of professional conduct.[37] Consequently, the boards or agencies having authority over the registration process often also have authority to promulgate codes of professional conduct. These codes may be quite detailed. For example, the Michigan Board of Professional Engineers prohibits engineers from giving gifts to secure clients, soliciting or accepting gratuities from contractors or their agents, or accepting compensation from more than one participant in a project without appropriate written disclosure and the approval of all parties.[38]
Registration
statutes often make reference to the use of professional seals. Some of these provisions expressly require
the design professional to seal certain documents or they impose legal
responsibility or liability in connection with sealed drawings or technical
documents. In
viii.
Penalties and consequences for failing to
register or obtain license
Practicing as a regulated design professional without a required license generally subjects the offender to a civil or criminal fine. In many jurisdictions, practicing without the appropriate authority is categorized as a misdemeanor,[41] and in others a violation may even constitute a felony.[42] In many, a design professional who practices without being properly registered may not resort to the court system to collect a fee or enforce a contract for design services. While this consequence may be included expressly in the registration statutes,[43] it seems that at least an equal number of jurisdictions reach this result through case law.[44]
ix.
Notable differences in state licensing and
registration of design professions
In a broad sense, as the preceding discussion suggests, the registration schemes follow similar patterns from one jurisdiction to another. As summarized above, these schemes usually involve defining the regulated professions, establishing detailed requirements for appropriate educational qualifications and experience, providing for testing specific to each profession, creating and empowering an administrative board or agency having jurisdiction over one or more professions, providing for reciprocity or registration by non-resident professionals and firms, establishing exemptions and exceptions from the registration requirements, and imposing penalties for violators.
Some significant differences exist with respect to administrative authority over design professions. Most jurisdictions vest substantial authority over registered design professions in specialized boards or administrative agencies. Many establish a separate agency for each distinct profession or for closely related design professions (such as one agency for engineers and land surveyors and a separate agency for architects and landscape architects),[45] but some place authority over all or several distinct design professions in a single body.[46] Where separate agencies exist, counsel must be careful to understand where the jurisdiction of one agency ends and that of another begins, as well as to appreciate the potential for overlapping jurisdiction, turf battles, and inconsistent regulatory approaches or interpretations.
Most
jurisdictions regulate both the practice of each profession and the use of the
professional titles associated with that profession.[47] Under this approach, a person who is not
properly registered violates the registration law by providing any services or
engaging in any of the activities covered by the definition of a regulated
design profession or by merely using the associated professional title
or directly or indirectly holding himself or herself out to be a member of that
profession. A few jurisdictions, however,
only regulate, or at least only expressly address, the use of a professional
title rather than the act of engaging in defined professional activities. In
In
most jurisdictions the regulatory structure governing the registration of
design professions is at least roughly similar from one regulated design
profession to another.
x.
Notable anomalies
Some
distinctions are especially noteworthy because they hold the potential for
surprise. In
Other
specific provisions from several registration schemes serve to remind counsel
always to check the applicable statutes and regulations for non-standard
requirements. For example, an
In other words, while the registration statutes share many common features, unique provisions also abound. Counsel must, therefore, carefully review the specific statutes and regulations for a particular jurisdiction. Often, of course, the best way to discover or understand jurisdictional peculiarities is to consult with local counsel and the regulatory agencies having jurisdiction over the professions and projects involved.
b.
Construction
Professionals
Though
Over half of the
States[60]
have generally applicable licensing, registration, and/or certification
requirements for contractors and subcontractors that perform construction work.[61] Beyond that, though, regardless of whether a
State has a generally applicable requirement, some States enable a local
jurisdiction to impose licensing requirements for work done by contractors
within that particular jurisdiction,[62] and all states
appear to impose licensing, registration, and/or certification requirements on
at least some of the specialty trades such as plumbing, electrical, asbestos
abatement, etc.[63] This section will focus on the typical (and
some atypical) requirements in licensing, registration, and/or certification
requirements for general contractors and builders. However, given the penalties associated with
performing un-licensed, un-certificated, or un-registered work (or even
submitting a bid without the appropriate credentials), contractors must
carefully review the requirements of each State in which they may consider
providing any form of construction-related services.
i. Scope
of Licensing, Registration, and Certification Statutes
If a State
generally requires the licensure, registration, or certification of contractors
and subcontractors performing construction work, the first questions are what
work qualifies as “construction work” and who is doing it? The types of work covered by these statutes
are typically fairly broad in scope. For
instance,
qualified, or required to be qualified,
under this chapter and who, for compensation, contracts to, offers to undertake
or undertakes to, submits a bid or a proposal to, or personally or by others
performs the construction or the management of the construction for an owner of
any building, bridge, or other structure, including a person who installs
industrialized buildings . . . for the construction or
improvement of, addition to, or the repair, alteration, or remodeling of any
such building, bridge, or structure for use by the owner or by others or for
resale to others.[64]
The
Statutes also
commonly restrict relatively broad definitions of a contractor to projects over
a certain value or provide limited exemptions for work being done on the
contractor’s own property. For instance,
in
[A]ny person, firm, partnership,
copartnership, association, corporation, or other organization, or any
combination thereof, that, for a fixed price, commission, fee, or wage,
attempts to or submits a bid to construct or demolish, or contracts or
undertakes to construct or demolish, or assumes charge, in a supervisory
capacity or otherwise, or manages the construction, erection, alteration,
demolition, or repair, or has or have constructed, erected, altered,
demolished, or repaired, under his or her, their, or its direction, any
building, apartment, condominium, highway, sewer, utility, grading, or any
other improvement or structure on public or private property for lease, rent,
resale, public access, or similar purpose, except single-family residences,
when the cost of the work to be done, or done, in the State of Arkansas by the
contractor, including, but not limited to, labor and materials, is twenty thousand dollars ($20,000) or more. . . . However, when
a person or an entity acts as a contractor in the construction, erection,
alteration, demolition, or repair of his or her own or its own property, such
action shall not result in the person or entity being required to obtain a
license, but the person or entity shall comply with all other provisions of
this subchapter.[67]
Other limiting amounts extend from
as low as $1,000 (
(1)
to owners doing work on their own property (by
themselves, their employees, or with “duly licensed contractors”) if the
property is intended for occupancy solely by the owner, is not intended for
occupancy by members of the public as the owner’s employees or business
visitors, and is not intended for sale or rent.[73] Under the statute, if the property is sold or
leased within one year of completion or the issuance of a certificate for
occupancy, then that is prima facie evidence of intent.[74]
(2)
to owners that act as developers and who
contract with a duly-licensed general contractor to build structures or appurtenances to structures on the
owner’s property for the purpose of sale or rent and to owners who act as
developers, who contract with a duly-licensed general contractor or specialty
contractor to improve
structures or appurtenances to structures on their property for the purpose of
sale or rent.[75] For an owner to qualify for this exemption,
the licensed contractors’ names and license numbers must be included in all
sales documents.[76]
Thus, once again, it will be
important for those engaging in construction to carefully review the applicable
licensing statutes even when working on a “personal” project since a license,
certificate, or registration may be required.
ii.
Requirements
for Successful Licensure, Certification, or Registration
Common
requirements to be properly credentialed as a construction professional include
paying a licensing or application fee, meeting specified financial requirements
(via proof of audited financial statements), passing a trade and/or business
law examination, providing evidence of compliance with workers’ compensation
laws, providing evidence of coverage by a general liability insurance policy,
and/or posting a bond. Some States also
may evaluate the contractor’s or subcontractor’s experience and/or past
performance on projects.[77] Finally, non-resident contractors and
subcontractors may be subjected to additional requirements such as obtaining a
certificate of authority and maintaining a registered agent[78] or registering themselves
and contracts over a certain amount with the State’s and/or local government’s
tax officials.[79]
iii. Treatment of Business Entities
Although more
fully discussed in the section below regarding responsible persons in charge,
responsible managing officers, and responsible managing employees, contractors
performing construction services under the auspices of a corporation, joint
venture, or other business forms may face additional issues.
The first question
that commonly arises in these situations is who or what needs a license? Does the business entity need its own license
or is it sufficient that an employee or owner has a license? To be certain, States handle the licensing of
construction businesses quite differently.
For instance, in some States, all
parties to a joint venture are required to be properly licensed.[80] However, in other States, a joint venture or
a partnership may be considered registered if one of the joint venturers or
general partners is registered.[81] Still other States will grant a license to
the business entity so long as a regularly employed person with the company is
properly qualified.[82]
iv. Reciprocity
With the wide
variety of rules applicable in the different States, some solace may be found
in the fact that reciprocity is available between certain States. However, even in States where reciprocity
exists, it may be limited, and contractors may still have some hurdles to cross
even in States with some form of reciprocity.
v. Penalties
Generally
speaking, a large number of States will impose some level of civil monetary
fine in connection with engaging in activities without a required license,
certificate, or registration. However,
many States also impose much more serious penalties, including (1) classifying
such actions as misdemeanors with the potential for imprisonment and/or criminal
fine,[93]
(2) deeming the contract under which the contractor was to, is, or did perform
null and void and/or unenforceable by the contractor,[94] (3) prohibiting
contractors from filing suit in a court or arbitral forum in connection with
such work,[95] and/or (4)
prohibiting contractors from recovering on lien or bond claims.[96]
However, some
States will enable a contractor to claim to have “substantially complied” with
the licensing requirements in order to avoid the harsh sanction of being
excluded from the court system.[98] For instance, in Arizona, factors reviewed
include: whether the non-compliance was contributed
to by the Registrar of Contractors, whether the contractor was financially
responsible at the time it was not licensed, whether there was a knowing
violation of the licensing requirements, whether the violation was immediately
remedied by the contractor, and whether the violation prejudiced the party whom
the statute is designed to protect.[99] Similarly, in limited situations,
Finally, it should
be recognized that others may also face penalties in connection with a
contractor’s unlicensed activities. For
instance, in
c.
Special
provisions governing design-builders
While many jurisdictions have express statutory or regulatory provisions applicable to the use of the design-build project delivery system for public projects, a discussion of public projects is generally beyond the scope of both the ABA Guide and this paper. According to the ABA Guide, only a relatively small number of jurisdictions have licensing provisions specifically relating to the design-build project delivery system in the private sector. Some of these provisions expressly authorize a properly licensed contractor to operate as a design-builder by allowing the contractor to provide the design services either through a properly licensed employee or via a consulting arrangement with a properly licensed design professional.[104] At least one jurisdiction expressly makes a similar accommodation to facilitate design-build contracting by design professionals.[105] Some others require design-builders to make special disclosures about the method by which regulated services are to be provided by a properly licensed person or entity.[106] In some cases, however, the special statutory provisions primarily confirm that operating via the design-build project delivery system does not excuse compliance with a licensing requirement.[107]
Because the materials prepared for Plenary Session 3 for this conference include a state-by-state matrix that covers, among many other topics, how the jurisdictions included in the ABA Guide address certain design-build issues, this paper will not repeat those details. Of course, an excellent and far more comprehensive additional resource on this issue is the Forum’s own Design/Build Deskbook.[108]
d.
The
Responsible Managing Employee
Fulfilling the requirements for licensure – either as a construction or design professional – may seem relatively simple and straightforward for the sole proprietor whose work is limited or confined to a particular discipline or geographic territory. But the complexity of the licensure process increases when the work of several persons is covered under a single license. In this instance the license of one individual may be sufficient. As demonstrated above, similarities and disparities abound among the various States’ licensing requirements. Depending on the jurisdiction and the type of business association involved, where the work of several persons is covered under a single license, the person whose license is used is oftentimes referred to as the Responsible Person in Charge (“RPC”), Responsible Managing Officer (“RMO”) or Responsible Managing Employee (“RME”).
For
example, in
As with all licensing requirements, the qualifications to serve as an RPC, RMO or RME vary from jurisdiction to jurisdiction, as do the procedures for disassociation and replacement.[112] Penalties for failure to be properly licensed also vary from jurisdiction to jurisdiction, but frequently include licensure suspension or revocation,[113] imposition of civil penalties,[114] criminal prosecution,[115] and in some cases, even disgorgement of profits earned by the individual or corporation during periods of lack of proper licensure.[116] As always, review of the pertinent laws and regulations and consultation with local counsel is paramount in assuring compliance and avoiding the risks of non-compliance with a jurisdiction’s licensing laws.
e.
Federal
Licensing and Registration Requirements
As one of the world’s largest consumers of goods and services, the United States Government can dictate terms and conditions and implement rules and requirements that ordinary consumers – and even state and local governments – cannot. With the myriad of unique requirements applicable to federal government contracting, it might surprise some to learn that the federal government has not yet established a mandatory federal licensing program for construction professionals seeking to do business with the federal government. Conversely, it can be an overwhelming realization to construction professions to learn of and comply with the unique and numerous contractor registration requirements applicable to federal government contracting.
i. Contractor’s exemption from state and local licensing laws
As a general rule, contractors engaged to perform construction work for the federal government on projects located on federal property are exempt from compliance with state and local contractor licensing laws. The rationale for such an exemption is – not surprisingly – rooted in the United States Constitution.
Although
the case did not involve contractor licensing, the groundwork for this rule was
laid in James Stuart & Co., Inc. v.
Sadrakula.[117] In this case, the United States Supreme Court
considered whether a provision of
On further appeal, the Supreme Court
observed that, under the Property Clause of the Constitution, Congress has
plenary authority and control over property owned by the federal government.[119] Nevertheless, the Court rejected the argument
advanced by the contractor that all of the laws of the former sovereign (i.e.,
the state from which the property is obtained by the federal government) are
abrogated upon transfer of ownership to the
By resolving the case in this way, the Court recognized that no area of the country would be left without a developed legal system for the protection of private rights, and that enforcement of pre-existing state law would promote the assimilation of the laws governing the federal territories with the laws of the surrounding state, unless Congress passed legislation to the contrary.[122] The Court stated, however, that only the laws in effect at the time of transfer continue in force and effect (if not inconsistent with federal laws or policies); “future statutes of the state are not a part of the body of laws in the ceded area.”[123]
Years later, in Leslie Miller, Inc. v. Arkansas,[124]
the Supreme Court again was presented with the enforceability of a state law to
contractors engaged on federal construction projects, this time expressly
considering the applicability of the state’s contractor licensing
regulations. In Leslie Miller, a contractor bid on and was awarded a construction
project at an Air Force base located in
On
further appeal to the United States Supreme Court, the contractor – joined by
the Government as amicus – argued that application of the state’s licensing law
interfered with the federal government’s authority to regulate federal
procurement.[126] The Supreme Court agreed and reversed.[127] In reversing, the Supreme Court observed that
under governing federal procurement laws, the Air Force was obligated to
consider a variety of factors in determining bidder responsibility and
determining which bid would be “most advantageous” to the Government, two
prerequisites for contract award under the governing procurement statute and
regulations.[128] The Court further observed that, under
Based upon these similarities, the Court concluded:
Mere enumeration of the similar grounds for licensing under the state statute and for finding “responsibility” under the federal statute and regulations is sufficient to indicate conflict between this license requirement which Arkansas places on a federal contractor and the action which Congress and the Department of Defense have taken to insure the reliability of persons and companies contracting with the Federal Government.[130]
This conflict led the Court to further conclude, “Subjecting a federal contractor to the Arkansas contractor license requirement would give the State’s licensing board a virtual power of review over the federal determination of ‘responsibility’ and would thus frustrate the expressed federal policy of selecting the lowest responsible bidder.”[131] Consequently, the Court determined that application of the state licensing statute was preempted under the Supremacy Clause of the Constitution, and the contractor’s conviction was reversed.[132]
The Court’s decision in Leslie Miller has been adopted by various other state and federal courts. In Electric Construction Co. v. Flickinger,[133] the Arizona Supreme Court, relying on the Leslie Miller decision, concluded that the state’s licensing statutes did not apply to a subcontractor working at an Air Force base located in the state because of the “impermissible burden” those requirements would impose beyond those established by federal law.[134] Similarly, in Airport Construction & Materials, Inc. v. Bivens,[135] the Arkansas Supreme Court concluded that the state’s contractor licensing rules did not apply to a subcontractor on a federal construction project because application of those requirements would frustrate the express federal policy of awarding contracts to the lowest responsible and responsive bidder.[136] The court was not persuaded by the fact that the subcontract was awarded to the unlicensed subcontractor several months after award of the prime contract, and therefore rejected the state’s argument that application of the licensing laws to lower-tier contractors would not impede the federal agency’s determination of the prime contractor’s responsibility.[137]
Leslie Miller and the cases that have followed it create a significant obstacle to a state’s attempt to force a contractor, working exclusively on federal projects within the state’s boundaries, to comply with its contractors’ licensing laws and regulations.[138] However, as these decisions make clear, where there is no expressed federal statute, policy or rule that would be frustrated by application of a state’s law or regulation, a contractor working on a federal construction project is required to comply with other state laws or regulations applicable to the performance of the work.[139]
ii. Designers’ responsibility for state registration
Unlike
contractors, design professionals are not exempt from state registration under
federal architect-engineer contracts except in two limited circumstances: where
the design work will be performed entirely outside the
iii. Federal contractor registration
requirements
1. Central
Contractor Registration
Since October 1, 2003, and except in certain limited circumstances, prior to award of a federal contract all contractors have been required to submit basic company information to the federal government through registration in the Central Contractor Registration database (“CCR”).[142] Contractor information in the CCR is electronically stored, and disseminated to and used by agency procurement officials (i.e., the contracting officers) in soliciting and awarding federal government contracts, grants, cooperative agreements and other forms of federal assistance. Consequently, only prime contractors (or firms seeking to be in direct privity with the awarding agency) are required to register in the CCR.
Contractors that want to become registered in the CCR complete a one-time online registration application, and are responsible for updating or renewing their registration at least once per year.[143] Contractors are responsible for the accuracy and completeness of the information they submit in connection with their CCR registration.[144] Further, they are responsible to the government for any liability resulting from the government’s reliance on the information submitted.[145] As a consequence, contractors are well advised to routinely review and update their CCR profile beyond the yearly review mandated by the FAR.
CCR registration generally requires submission of a variety of basic contractor information in five separate categories: General Information; Corporate Information; Goods and Services Information; Financial Information; and Point of Contract Information.[146] The following is a non-exclusive list of examples of the types of information collected within these five categories:
2. Online Representations and Certifications Application
In addition to registration in the CCR, federal government contractors also are required to complete the Online Representations and Certification Application (“ORCA”). ORCA is an internet-based system that centralizes the storage and collection of the required representations and certifications (“reps and certs”) that previously were included in government solicitations.[147] ORCA was created to expand the federal government’s use and reliance on “e-business applications,” and to streamline the procurement process by eliminating the repetitious need for contractors to submit paper copies of the government’s standard reps and certs with each potential procurement opportunity. ORCA registration is now mandatory for all solicitations that require active contractor registration in the CCR.
Like CCR registration, contractors must update their ORCA profiles on at least an annual basis and are responsible for ensuring the truth and accuracy of that information.[148] Further, submission of a bid or offer constitutes re-verification and re-certification by the contractor that the information contained in ORCA is current, accurate and complete.[149]
The scope of reps and certs required by ORCA is vast. Like its paper predecessor, these include, for example, certifications related to business ownership and size, compliance with applicable labor standards and labor laws, compliance with domestic preference restrictions (e.g., Buy America Act and Trade Agreements Act), and compliance with procurement integrity laws, among numerous others. Moreover, while errors in a contractor’s ORCA (and CCR) record are not unusual, contractors should be especially mindful of the automated population of certification responses generated by the business and financial information provided by the contractor. For example, unlike many of the affirmative “check-the-box” certifications (where a user affirmatively checks the box next to the appropriate representation or certification), several certification options are established by default based upon the general business information inputted by the user. This often results in the unintentional but affirmative misrepresentation of business size, where a large business is represented as a small business.
f.
Annex:
State-by-State Licensing Matrix
A state-by-state matrix reflecting these issues is attached to the end of this paper.
II.
Regulation
of Lien Rights
Accompanying this article is a matrix that addresses two key issues: (1) May a lien be “bonded over” by a party interested in having the lien removed from the property? and (2) Does a State have an anti-advance lien waiver statute that prevents contractors or owners from requesting that lien rights be waived prior to payment? These two issues greatly impact not only the ability to prevent liens from being filed, but also how such liens can be responded to if filed.
Generally
speaking, most states appear to allow liens to be bonded over.[150] However, the amount of the bonds required to
be filed range from the claim amount,[151] to the amount
demanded with interest at 8 percent plus $100[152], to an amount
determined by the court,[153] to twice the
amount claimed.[154] Other States will determine the amount of the
bond required based upon the amount of the claim. For instance,
With regard to the advance lien waiver statutes, approximately 27 states have some form of anti-advance lien waiver statute in effect. However, it should be noted that these statutes may be limited based upon the amount of the contract at issue or even the type of contract at issue.[156] Such statutes appear to be justified on the theory that such contract provisions violate public policy.[157]
State-by-State Licensing
Matrix Sample
Note: To access the full matrix, insert the program CD you received at the conference into your computer. The CD should auto-launch. If it doesn’t, open the CD and double click on the file “Double_Click_To_Begin.html”. A Web Site will appear in your web browser software. On the left hand side, click on Faculty, Articles, Slides. Scroll down to the “Plenary 2” section and you will find the entire matrix.
|
State |
Bonding
Over Lien Permitted? |
Time
Restraints |
Value of
Bond Required |
Notice
Requirements |
Miscellaneous
Issues |
Anti-Advance
Lien Waiver Statute? |
|
|
Yes |
Upon notification by the
court of the security transfer, lien claimant has ten days to challenge the
sufficiency of the bond amount or the surety.
The court’s determination is final.[1] Lien claimant must take
action “within six months after the maturity of the entire indebtedness.”[2] |
The value of the bond must
equal the “amount demanded in such claim of lien plus interest thereon at
eight percent per year for three years plus $100.00.”[3] |
None |
May recover attorney’s
fees.[4] |
No[5] |
State-by-State Lien Matrix
Sample
Note: To access the full matrix, insert the program CD you received at the conference into your computer. The CD should auto-launch. If it doesn’t, open the CD and double click on the file “Double_Click_To_Begin.html”. A Web Site will appear in your web browser software. On the left hand side, click on Faculty, Articles, Slides. Scroll down to the “Plenary 2” section and you will find the entire matrix.
|
State |
Bonding
Over Lien Permitted? |
Time Restraints |
Value of
Bond Required |
Notice
Requirements |
Miscellaneous
Issues |
Anti-Advance
Lien Waiver Statute? |
|
|
Yes |
Upon notification by the
court of the security transfer, lien claimant has ten days to challenge the
sufficiency of the bond amount or the surety.
The court’s determination is final.[6] Lien claimant must take
action “within six months after the maturity of the entire indebtedness.”[7] |
The value of the bond must
equal the “amount demanded in such claim of lien plus interest thereon at
eight percent per year for three years plus $100.00.”[8] |
None |
May recover attorney’s
fees.[9] |
No[10] |
[1] Ala.
Code § 35-11-233(b)(2).
[2] Id. §§ 35-11-233(e) and 35-11-221.
[3] Id. § 35-11-233(b)(2).
[4] Id. § 35-11-233(c).
[5]
Noland Co. v. Southern Dev. Co., Inc., 445 So. 2d 266, 270 (
[6] Ala.
Code § 35-11-233(b)(2).
[7] Id. §§ 35-11-233(e) and 35-11-221.
[8] Id. § 35-11-233(b)(2).
[9] Id. § 35-11-233(c).
[10]
Noland Co. v. Southern Dev. Co., Inc., 445 So. 2d 266, 270 (
[1] A State-by-State Guide to Construction and Design Law (Carl J. Circo & Christopher Little, eds., 2d ed. 2009) (referred to throughout this paper as the ABA Guide).
[2] See,
e.g., id. at 50-51 (
[3] See,
e.g., id. at 553-54 (
[4] See infra, Section I.a.iv.
[5]
[6] See, e.g., id. at 50 (noting that Arizona’s Board of Technical Registration, in addition to regulating architects and engineers, also exercises jurisdiction over assayers, certified remediation specialists, certain remediation firms, geologists, and home inspectors).
[7] See, e.g., Holloway v. State Bd. of Architects, 101 S.W.3d 805 (Ark 2003) (addressing whether an engineer engaged in the unauthorized practice of architecture by providing design services relating to a pre-engineered metal building, a significant portion of which consisted of office space).
[8] See ABA
Guide, supra note 1, at 978 (
[9] See,
e.g., id. 1114-15 (
[10] See, e.g., id. at 239 (
[11] See, e.g., id. at 4-6 (
[12] See, e.g., id. at 193 (D.C.), 239 (Georgia), 358-59 (
[13] See, e.g., id. at 359 (
[14] S.C.
Code § 40-3-20(6) (West 2008).
[15] S.C. Code § 40-22-20(23) (West 2008). Some concluding portions of the section are omitted here because they do not define the practice of engineering but merely state that (1) the performance or supervision of work by a contractor, a foreman, or a superintendent is not engineering, and (2) one who practices any branch of engineering or who uses an engineering title or claims to be an engineer is engaged in the practice engineering.
[16] Tex. Occ. Code Ann. § 1051.001(7) (West 2009).
[17] Tex. Occ. Code Ann. § 1001.003(b) & (c) (West 2009).
[18] Neb. Rev. Stat. § 81-3449(13) (West 2009).
[19] See,
e.g., ABA Guide, supra
note 1, at 622 (
[20] See,
e.g., id. at 70-73 (
[21]
[22]
[23] Rosen v. Bureau of Prof’l and Occupational
Affairs, 763 A.2d 962, 965 (
[24] See
ABA Guide, supra note 1,
at 911 (commenting on building permitting practices in
[25] See id. at 601-03.
[26] See
id. at 4-7
(explaining that
[27] See id.
[28] In
[29] For example, both
[30] See
id. at 434 (
[31]
[32] See
id. at 176-77 (
[33] See
id. at 30, 670-71 (
[34] This
requirement applies to registration of both architects and engineers by
comity.
[35]
[36] See,
e.g., id. at 339 (
[37] See,
e.g., id. at 378 (
[38] Id. at 524.
[39] Id. at 131.
[40]
[41] See,
e.g., id. at 316 (
[42] For example, in
[43] See, e.g., Ark. Code Ann. § 17-15-311(c) (West 2009) (architectural fees); Mo. Rev. Stat. § 327.461 (West 2009) (architectural, engineering, and land surveying services); Ore. Rev. Stat. § 671.220(3) (architectural services).
[44] See,
e.g,
[45] See,
e.g., id. at 70-75 (
[46] See,
e.g., id. at 553-54 (
[47] For
example,
[48]
[49] See id. at 476-78.
[50]
[51]
[52]
[53]
[54]
[55]
[56]
[57]
[58]
[59] Donald
I. Schultz & James R. Belcher,
[60] In this
section of the paper, the term “States” is defined to also include the
[61] These
States appear to be
[62] See, e.g., Colorado, Indiana (generally delegating the regulation of general contractors, electrical contractors, and HVAC contractors to local authorities, but imposing State regulations on plumbers and water well drillers), Maine (imposing licensure requirements on electricians and plumbers), New York (allowing cities to issue licensing requirements for electricians and plumbers), and Wyoming.
[63] See, e.g., District of Columbia (Though every business is required to have a basic business license, certain trades (e.g., asbestos abatement, hazardous waste management, and home improvement) are required to have an additional endorsement.), Illinois (imposing licensing requirements on plumbers, water well and pump installation contractors, irrigation contractors, roofing contractors, and land surveyors), Kentucky, Michigan, Minnesota, Missouri (placing requirements on plumbers operating in cities/counties of a certain size), New Hampshire, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Puerto Rico (requiring licenses for developers of large dwelling projects), South Dakota, Texas, Vermont, Wisconsin, and Wyoming.
[64] Ga. Code Ann. § 43-41-2(4).
[65]
[66] See, e.g., Idaho (Idaho Code § 54-5205 (stating that the
contractor licensing chapter shall not “require such persons otherwise licensed,
registered or regulated to obtain such registration as required by this
chapter, so long as such person is not acting with the intent to evade this
chapter”)), Louisiana (La. Rev. Stat.
Ann. § 37:2150.1(4)(b) (“The term ‘contractor’ includes general contractors,
subcontractors, architects and engineers who receive an additional fee for the
employment or direction of labor, or any other work beyond the normal architectural and engineering services.”)
(emphasis added)), and South Carolina (S.C.
Code Ann. § 40-11-320(B) (“An architect or engineer licensed in South
Carolina who is monitoring the execution of design plans or who is performing
as an on-site representative for construction quality control or quality
assurance, or both, for a project owner is not a construction manager for the
purposes of this section.”)).
[67] Ark. Code Ann. § 17-25-101(1) and (2) (emphasis added).
[68] Ariz. Rev. Stat. Ann. § 32-1121(14) (applying in limited situations).
[69]
[70] La. Rev. Stat. Ann. § 37:2150.1(4)(a).
[71] Miss. Code Ann. § 31-3-1 (private projects only).
[72] Alaska
Stat. § 08.18.161.
[73] Ariz.
Rev. Stat. §
32-1121(A)(5).
[74]
[75]
[76]
[77] See, e.g., Alabama (Ala. Code § 3487) (requiring three
references from licensed general contractors, registered professional
engineers, or registered architects for whom the applicant has done work);
Arizona (requiring a minimum of four years practical or management trade
experience (at least two in the prior 10 years) that deal specifically with the
type of license being sought, but allowing technical training to substitute for
up to two years of the experience required); Arkansas (Ark. Code Ann. § 17-25-305); but see
[78] See, e.g.,
[79] See, e.g., Nebraska (Neb. Rev. Stat. § 77-3102);
[80] See, e.g., Alabama (Ala. Admin. Code r. 230-X-1-.06) and
[81] Alaska Stat. § 08.18.011(a) (requiring the name of the registered partner or joint venturer to appear in the name under which the partnership or joint venture does business).
[82] Ariz. Rev. Stat. Ann. § 32-1127.
[83] Cal. Bus. & Prof. Code § 7029.
[84]
[85]
[86] Karen Estelle Carey, Kenneth R. Michael, & Rachel E. Daly, North Carolina Construction and Design Law, in ABA Guide 763, 769 (citing Hawkins v. Holland, 97 N.C. App. 291, 388 S.E.2d 221 (1990)).
[87] 21 N.C. Admin. Code. 12.0205.
[88] Eric A.
Grasberger,
[89] S.C. Code Ann. § 40-11-290.
[90] See, e.g., South Carolina Contractors’ Licensing Board, Waiver Agreements, available at http://www.llr.state.sc.us/POL/Contractors/PDF%20files/CLB%20Reciprocity.pdf (identifying various waiver agreements with Alabama, Georgia, Louisiana, Mississippi, North Carolina, Pennsylvania, Tennessee, Texas, and Utah).
[91] Emerson
L. Dorsey, Jr.,
[92] See, e.g., Arizona Registrar of
Contractors, License Reciprocity,
http://www.azroc.gov/l_rep.html; CA.gov, Reciprocity,
http://www.cslb.ca.gov/Journeymen/JourneymenReciprocity.asp; Utah Div. of
Occupational and Professional Licensing, Utah
Contractor Reciprocity (Endorsement) Cross Reference Information,
http://www.dopl.utah.gov/licensing/contractor_reciprocate.html; Nevada State
Contractors’ Board, Contractor’s License
Application Exam Reciprocity Information, available at http://www.nvcontractorsboard.com/
Contractor_info/reciprocity.pdf.
[93] Such
States include, but may not be limited to:
[94] Such
States include, but may not be limited to:
[95] Such
States include, but may not be limited to:
[96] Such
States include, but may not be limited to:
[97] James
H. Landgraf & Gina M. Zippilli,
[98] Such
States include, but may not be limited to,
[99] Janet
E. Jackim & Bruce B. May,
[100] Eric
A. Grasberger,
[101] Ga.
Code Ann. § 43-41-12.
[102] Idaho
Code § 54-5208.
[103] Md. Code Ann. § 17-2106.
[104] See, e.g., ABA Guide, supra note
1, at 211 (
[105] See, e.g., id. at 211 (
[106] See, e.g., id. at 233 (Georgia) &
847 (
[107] See id. at 426 (in Louisiana, an architect acting as a design-builder must be licensed as a contractor) & 765 (indicating that a design-builder in North Carolina must be licensed as a general contractor, but that licensed general contractors, professional engineers, and architects all may participate in a design-build project).
[108] The Design/Build Deskbook (John R. Heisse, II & James S. Schenck, IV eds., 3rd ed. 2004). We are advised that the fourth edition of the Deskbook will be published soon.
[109] Ca. Bus. & Prof. Code, § 7065.
[110]
[111]
[112] See, e.g., id., § 7068(c) (defining responsible managing employee as “an individual who is a bona fide employee of the applicant and is actively engaged in the classification of work for which that responsible managing employee is the qualifying person on behalf of the applicant.”); also § 7068.2 (providing, inter alia, that licensee must replace qualifying individual within 90 days of disassociation).
[113]
[114]
[115]
[116]
[117] 309
[118]
[119] Id. at 97 n. 1 (“The Congress shall have Power ... To exercise exclusive Legislation ... over all Places purchased by the consent of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings[.]”).
[120] Id. at 99.
[121] Id. at 99, 103.
[122] Id. at 100.
[123] Id.
[124] 352 U.S. 187 (1956).
[125] Id. at 190.
[126] Id. at 188.
[127] Id. at 188.
[128] Id. at 188.
[129] Id. at 189.
[130] Id. at 189-90.
[131] Id. at 190.
[132] Id. at 190.
[133] 485 P.2d 547 (Ariz. 1971).
[134] Id. at 547.
[135] 649 S.W.2d 830 (Ark. 1983).
[136] Id. at 832.
[137]
[138] Of course, the government’s procuring officials (i.e., the various contracting officers) may require, as a condition of responsibility, a prospective contractor to have or acquire a particular license or permit, including a state contractor’s license. Absent a specific requirement in the solicitation or invitation for bids, however, a state contractor’s license is not a mandatory requirement of federal government contracting.
[139] See 48 C.F.R. (“FAR”) 52.236-7.
[140] FAR 36.609-4.
[141] FAR 52.236-25.
[142] See FAR 4.1102. Access to the CCR is available at www.ccr.gov.
[143] FAR 52.204.7(f).
[144]
[145]
[146] For more information about the CCR registration process, consult the Central Contractor Registration User’s Guide, available at www.ccr.gov/doc/CCRUsersGuide.pdf.
[147] Access to ORCA is available at www.orca.bpn.gov.
[148] FAR 4.1201(b).
[149] FAR 52.204-8(c).
[150] The
only states that do not appear to allow liens to be bonded over include
[151] See, e.g.,
[152]
[153]
[154]
[155] Or. Rev. Stat. § 87.076(1).
[156] See, e.g.,
[157] See e.g., Alexandra R. Cole & Brian T. Sheedy, Illinois Construction and Design Law, in Guide to Construction & Design Law 407, 430 (2009); Robert P. Burns & Joshua A. Pollak, Kansas Construction and Design Law, in Guide to Construction & Design Law 491, 506 (2009) (citing the Kansas Fairness in Private Construction Contract Act); Emerson L. Dorsey, Jr., Maryland Construction and Design Law, in Guide to Construction & Design Law 619, 638 (2009); and Danielle M. Graceffa, Michigan Construction and Design Law, in Guide to Construction & Design Law 679, 708 (2009) (citing Mich. Comp. Laws. § 570.1115(1)).