contracts or purchase equipment shall state the time and place at. 101 which bids ...... of surveillance equipment or an
MISSISSIPPI LEGISLATURE
REGULAR SESSION 2015
By:
To: Accountability, Efficiency, Transparency
Senator(s) Collins
COMMITTEE SUBSTITUTE FOR SENATE BILL NO. 2400
1 2 3
AN ACT TO AMEND SECTION 31-7-13, MISSISSIPPI CODE OF 1972, TO REVISE THE PUBLIC PURCHASING LAW TO PLACE RESTRICTIONS ON THE EMERGENCY AND SINGLE SOURCE PURCHASES; AND FOR RELATED PURPOSES.
4
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
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SECTION 1.
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amended as follows:
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31-7-13.
Section 31-7-13, Mississippi Code of 1972, is
All agencies and governing authorities shall
8
purchase their commodities and printing; contract for garbage
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collection or disposal; contract for solid waste collection or
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disposal; contract for sewage collection or disposal; contract for
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public construction; and contract for rentals as herein provided.
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(a)
Bidding procedure for purchases not over $5,000.00.
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Purchases which do not involve an expenditure of more than Five
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Thousand Dollars ($5,000.00), exclusive of freight or shipping
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charges, may be made without advertising or otherwise requesting
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competitive bids.
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(a) shall be construed to prohibit any agency or governing
S. B. No. 2400 15/SS02/R859CS PAGE 1
However, nothing contained in this paragraph
*SS02/R859CS*
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authority from establishing procedures which require competitive
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bids on purchases of Five Thousand Dollars ($5,000.00) or less.
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(b)
Bidding procedure for purchases over $5,000.00 but
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not over $50,000.00.
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more than Five Thousand Dollars ($5,000.00) but not more than
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Fifty Thousand Dollars ($50,000.00), exclusive of freight and
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shipping charges may be made from the lowest and best bidder
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without publishing or posting advertisement for bids, provided at
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least two (2) competitive written bids have been obtained.
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state agency or community/junior college purchasing commodities or
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procuring construction pursuant to this paragraph (b) may
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authorize its purchasing agent, or his designee, to accept the
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lowest competitive written bid under Fifty Thousand Dollars
31
($50,000.00).
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pursuant to this paragraph (b) may authorize its purchasing agent,
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or his designee, with regard to governing authorities other than
34
counties, or its purchase clerk, or his designee, with regard to
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counties, to accept the lowest and best competitive written bid.
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Such authorization shall be made in writing by the governing
37
authority and shall be maintained on file in the primary office of
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the agency and recorded in the official minutes of the governing
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authority, as appropriate.
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clerk, or their designee, as the case may be, and not the
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governing authority, shall be liable for any penalties and/or
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damages as may be imposed by law for any act or omission of the S. B. No. 2400 15/SS02/R859CS PAGE 2
Purchases which involve an expenditure of
Any
Any governing authority purchasing commodities
The purchasing agent or the purchase
*SS02/R859CS*
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purchasing agent or purchase clerk, or their designee,
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constituting a violation of law in accepting any bid without
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approval by the governing authority.
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written bid" shall mean a bid submitted on a bid form furnished by
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the buying agency or governing authority and signed by authorized
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personnel representing the vendor, or a bid submitted on a
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vendor's letterhead or identifiable bid form and signed by
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authorized personnel representing the vendor.
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mean that the bids are developed based upon comparable
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identification of the needs and are developed independently and
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without knowledge of other bids or prospective bids.
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for construction in excess of Five Thousand Dollars ($5,000.00)
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shall be broken down by components to provide detail of component
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description and pricing.
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the written bids and become part of the bid evaluation criteria.
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Bids may be submitted by facsimile, electronic mail or other
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generally accepted method of information distribution.
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submitted by electronic transmission shall not require the
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signature of the vendor's representative unless required by
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agencies or governing authorities.
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(c)
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"Competitive" shall
Any bid item
These details shall be submitted with
Bids
Bidding procedure for purchases over $50,000.00. (i)
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The term "competitive
Publication requirement. 1.
Purchases which involve an expenditure of
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more than Fifty Thousand Dollars ($50,000.00), exclusive of
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freight and shipping charges, may be made from the lowest and best S. B. No. 2400 15/SS02/R859CS PAGE 3
*SS02/R859CS*
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bidder after advertising for competitive bids once each week for
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two (2) consecutive weeks in a regular newspaper published in the
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county or municipality in which such agency or governing authority
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is located.
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projects in excess of Twenty-five Thousand Dollars ($25,000.00)
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shall be bid.
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Reinvestment Act projects in this section shall not apply to
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programs identified in Division B of the American Recovery and
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Reinvestment Act.
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However, all American Recovery and Reinvestment Act
All references to American Recovery and
2.
The purchasing entity may designate the
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method by which the bids will be received, including, but not
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limited to, bids sealed in an envelope, bids received
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electronically in a secure system, bids received via a reverse
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auction, or bids received by any other method that promotes open
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competition and has been approved by the Office of Purchasing and
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Travel.
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contract for design or construction of public facilities,
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including buildings, roads and bridges.
However, reverse auction shall not be used for any public
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3.
The date as published for the bid opening
87
shall not be less than seven (7) working days after the last
88
published notice; however, if the purchase involves a construction
89
project in which the estimated cost is in excess of Fifty Thousand
90
Dollars ($50,000.00), such bids shall not be opened in less than
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fifteen (15) working days after the last notice is published and
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the notice for the purchase of such construction shall be S. B. No. 2400 15/SS02/R859CS PAGE 4
*SS02/R859CS*
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published once each week for two (2) consecutive weeks.
However,
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all American Recovery and Reinvestment Act projects in excess of
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Twenty-five Thousand Dollars ($25,000.00) shall be bid.
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projects in excess of Twenty-five Thousand Dollars ($25,000.00)
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under the American Recovery and Reinvestment Act, publication
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shall be made one (1) time and the bid opening for construction
99
projects shall not be less than ten (10) working days after the
For any
100
date of the published notice.
101
contracts or purchase equipment shall state the time and place at
102
which bids shall be received, list the contracts to be made or
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types of equipment or supplies to be purchased, and, if all plans
104
and/or specifications are not published, refer to the plans and/or
105
specifications on file.
106
county or municipality, then such notice shall be given by posting
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same at the courthouse, or for municipalities at the city hall,
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and at two (2) other public places in the county or municipality,
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and also by publication once each week for two (2) consecutive
110
weeks in some newspaper having a general circulation in the county
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or municipality in the above-provided manner.
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that the notice is submitted to the newspaper for publication, the
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agency or governing authority involved shall mail written notice
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to, or provide electronic notification to the main office of the
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Mississippi Procurement Technical Assistance Program under the
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Mississippi Development Authority that contains the same
117
information as that in the published notice. S. B. No. 2400 15/SS02/R859CS PAGE 5
The notice of intention to let
If there is no newspaper published in the
*SS02/R859CS*
On the same date
Submissions received
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by the Mississippi Procurement Technical Assistance Program for
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projects funded by the American Recovery and Reinvestment Act
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shall be displayed on a separate and unique Internet web page
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accessible to the public and maintained by the Mississippi
122
Development Authority for the Mississippi Procurement Technical
123
Assistance Program.
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related submissions shall be publicly posted within twenty-four
125
(24) hours of receipt by the Mississippi Development Authority and
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the bid opening shall not occur until the submission has been
127
posted for ten (10) consecutive days.
128
and Administration shall maintain information regarding contracts
129
and other expenditures from the American Recovery and Reinvestment
130
Act, on a unique Internet web page accessible to the public.
131
Department of Finance and Administration shall promulgate rules
132
regarding format, content and deadlines, unless otherwise
133
specified by law, of the posting of award notices, contract
134
execution and subsequent amendments, links to the contract
135
documents, expenditures against the awarded contracts and general
136
expenditures of funds from the American Recovery and Reinvestment
137
Act.
138
or governing authority shall post to the designated web page
139
maintained by the Department of Finance and Administration, notice
140
of the award, including the award recipient, the contract amount,
141
and a brief summary of the contract in accordance with rules
142
promulgated by the department.
Those American Recovery and Reinvestment Act
The Department of Finance
The
Within one (1) working day of the contract award, the agency
S. B. No. 2400 15/SS02/R859CS PAGE 6
*SS02/R859CS*
Within one (1) working day of the ~ OFFICIAL ~
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contract execution, the agency or governing authority shall post
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to the designated web page maintained by the Department of Finance
145
and Administration a summary of the executed contract and make a
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copy of the appropriately redacted contract documents available
147
for linking to the designated web page in accordance with the
148
rules promulgated by the department.
149
the agency or governing authority shall be posted to the web page
150
for the duration of the American Recovery and Reinvestment Act
151
funding or until the project is completed, whichever is longer.
152
(ii)
The information provided by
Bidding process amendment procedure.
If all
153
plans and/or specifications are published in the notification,
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then the plans and/or specifications may not be amended.
155
plans and/or specifications are not published in the notification,
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then amendments to the plans/specifications, bid opening date, bid
157
opening time and place may be made, provided that the agency or
158
governing authority maintains a list of all prospective bidders
159
who are known to have received a copy of the bid documents and all
160
such prospective bidders are sent copies of all amendments.
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notification of amendments may be made via mail, facsimile,
162
electronic mail or other generally accepted method of information
163
distribution.
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within two (2) working days of the time established for the
165
receipt of bids unless such addendum also amends the bid opening
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to a date not less than five (5) working days after the date of
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the addendum. S. B. No. 2400 15/SS02/R859CS PAGE 7
If all
This
No addendum to bid specifications may be issued
*SS02/R859CS*
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(iii)
Filing requirement.
In all cases involving
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governing authorities, before the notice shall be published or
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posted, the plans or specifications for the construction or
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equipment being sought shall be filed with the clerk of the board
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of the governing authority.
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bid file shall be established which shall indicate those vendors
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to whom such solicitations and specifications were issued, and
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such file shall also contain such information as is pertinent to
176
the bid.
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(iv)
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In addition to these requirements, a
Specification restrictions. 1.
Specifications pertinent to such bidding
179
shall be written so as not to exclude comparable equipment of
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domestic manufacture.
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presented, the Department of Finance and Administration or the
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board of a governing authority may approve a request for specific
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equipment necessary to perform a specific job.
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justification, when placed on the minutes of the board of a
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governing authority, may serve as authority for that governing
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authority to write specifications to require a specific item of
187
equipment needed to perform a specific job.
188
requirements, from and after July 1, 1990, vendors of relocatable
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classrooms and the specifications for the purchase of such
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relocatable classrooms published by local school boards shall meet
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all pertinent regulations of the State Board of Education,
S. B. No. 2400 15/SS02/R859CS PAGE 8
However, if valid justification is
*SS02/R859CS*
Further, such
In addition to these
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including prior approval of such bid by the State Department of
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Education.
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2.
Specifications for construction projects
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may include an allowance for commodities, equipment, furniture,
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construction materials or systems in which prospective bidders are
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instructed to include in their bids specified amounts for such
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items so long as the allowance items are acquired by the vendor in
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a commercially reasonable manner and approved by the
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agency/governing authority.
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to circumvent the public purchasing laws.
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(v)
Such acquisitions shall not be made
Agencies and governing authorities may
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establish secure procedures by which bids may be submitted via
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electronic means.
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(d)
Lowest and best bid decision procedure.
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(i)
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from the lowest and best bidder.
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best bid, freight and shipping charges shall be included.
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Life-cycle costing, total cost bids, warranties, guaranteed
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buy-back provisions and other relevant provisions may be included
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in the best bid calculation.
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agencies must be in compliance with regulations established by the
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Department of Finance and Administration.
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authority accepts a bid other than the lowest bid actually
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submitted, it shall place on its minutes detailed calculations and
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narrative summary showing that the accepted bid was determined to S. B. No. 2400 15/SS02/R859CS PAGE 9
Decision procedure.
Purchases may be made
In determining the lowest and
All best bid procedures for state
*SS02/R859CS*
If any governing
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be the lowest and best bid, including the dollar amount of the
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accepted bid and the dollar amount of the lowest bid.
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or governing authority shall accept a bid based on items not
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included in the specifications.
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(ii)
No agency
Decision procedure for Certified Purchasing
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Offices.
In addition to the decision procedure set forth in
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paragraph (d)(i), Certified Purchasing Offices may also use the
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following procedure:
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offering the best value.
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freight and shipping charges shall be included.
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costing, total cost bids, warranties, guaranteed buy-back
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provisions, documented previous experience, training costs and
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other relevant provisions, including, but not limited to, a bidder
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having a local office and inventory located within the
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jurisdiction of the governing authority, may be included in the
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best value calculation.
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Purchasing Offices to utilize a Request For Proposals (RFP)
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process when purchasing commodities.
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for state agencies must be in compliance with regulations
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established by the Department of Finance and Administration.
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agency or governing authority shall accept a bid based on items or
238
criteria not included in the specifications.
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(iii)
Purchases may be made from the bidder In determining the best value bid, Life-cycle
This provision shall authorize Certified
All best value procedures
No
Decision procedure for Mississippi
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Landmarks.
In addition to the decision procedure set forth in
241
paragraph (d)(i), where purchase involves renovation, restoration, S. B. No. 2400 15/SS02/R859CS PAGE 10
*SS02/R859CS*
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or both, of the State Capitol Building or any other historical
243
building designated for at least five (5) years as a Mississippi
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Landmark by the Board of Trustees of the Department of Archives
245
and History under the authority of Sections 39-7-7 and 39-7-11,
246
the agency or governing authority may use the following procedure:
247
Purchases may be made from the lowest and best prequalified
248
bidder.
249
than fifteen (15) working days before the first published notice
250
of bid opening.
251
bidder's knowledge and experience in historical restoration,
252
preservation and renovation.
253
bid, freight and shipping charges shall be included.
254
costing, total cost bids, warranties, guaranteed buy-back
255
provisions and other relevant provisions may be included in the
256
best bid calculation.
257
procedures for state agencies must be in compliance with
258
regulations established by the Department of Finance and
259
Administration.
260
than the lowest bid actually submitted, it shall place on its
261
minutes detailed calculations and narrative summary showing that
262
the accepted bid was determined to be the lowest and best bid,
263
including the dollar amount of the accepted bid and the dollar
264
amount of the lowest bid.
265
accept a bid based on items not included in the specifications.
Prequalification of bidders shall be determined not less
S. B. No. 2400 15/SS02/R859CS PAGE 11
Prequalification criteria shall be limited to
In determining the lowest and best Life-cycle
All best bid and prequalification
If any governing authority accepts a bid other
No agency or governing authority shall
*SS02/R859CS*
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(iv)
Construction project negotiations authority.
267
If the lowest and best bid is not more than ten percent (10%)
268
above the amount of funds allocated for a public construction or
269
renovation project, then the agency or governing authority shall
270
be permitted to negotiate with the lowest bidder in order to enter
271
into a contract for an amount not to exceed the funds allocated.
272
(e)
Lease-purchase authorization.
For the purposes of
273
this section, the term "equipment" shall mean equipment, furniture
274
and, if applicable, associated software and other applicable
275
direct costs associated with the acquisition.
276
of equipment which an agency is not required to lease-purchase
277
under the master lease-purchase program pursuant to Section
278
31-7-10 and any lease-purchase of equipment which a governing
279
authority elects to lease-purchase may be acquired by a
280
lease-purchase agreement under this paragraph (e).
281
financing may also be obtained from the vendor or from a
282
third-party source after having solicited and obtained at least
283
two (2) written competitive bids, as defined in paragraph (b) of
284
this section, for such financing without advertising for such
285
bids.
286
after acceptance of bids for the purchase of such equipment or,
287
where no such bids for purchase are required, at any time before
288
the purchase thereof.
289
for an annual rate of interest which is greater than the overall
290
maximum interest rate to maturity on general obligation
Any lease-purchase
Lease-purchase
Solicitation for the bids for financing may occur before or
S. B. No. 2400 15/SS02/R859CS PAGE 12
No such lease-purchase agreement shall be
*SS02/R859CS*
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indebtedness permitted under Section 75-17-101, and the term of
292
such lease-purchase agreement shall not exceed the useful life of
293
equipment covered thereby as determined according to the upper
294
limit of the asset depreciation range (ADR) guidelines for the
295
Class Life Asset Depreciation Range System established by the
296
Internal Revenue Service pursuant to the United States Internal
297
Revenue Code and regulations thereunder as in effect on December
298
31, 1980, or comparable depreciation guidelines with respect to
299
any equipment not covered by ADR guidelines.
300
agreement entered into pursuant to this paragraph (e) may contain
301
any of the terms and conditions which a master lease-purchase
302
agreement may contain under the provisions of Section 31-7-10(5),
303
and shall contain an annual allocation dependency clause
304
substantially similar to that set forth in Section 31-7-10(8).
305
Each agency or governing authority entering into a lease-purchase
306
transaction pursuant to this paragraph (e) shall maintain with
307
respect to each such lease-purchase transaction the same
308
information as required to be maintained by the Department of
309
Finance and Administration pursuant to Section 31-7-10(13).
310
However, nothing contained in this section shall be construed to
311
permit agencies to acquire items of equipment with a total
312
acquisition cost in the aggregate of less than Ten Thousand
313
Dollars ($10,000.00) by a single lease-purchase transaction.
314
equipment, and the purchase thereof by any lessor, acquired by
315
lease-purchase under this paragraph and all lease-purchase S. B. No. 2400 15/SS02/R859CS PAGE 13
*SS02/R859CS*
Any lease-purchase
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All
316
payments with respect thereto shall be exempt from all Mississippi
317
sales, use and ad valorem taxes.
318
lease-purchase agreement under this section shall be exempt from
319
State of Mississippi income taxation.
320
(f)
Interest paid on any
Alternate bid authorization.
When necessary to
321
ensure ready availability of commodities for public works and the
322
timely completion of public projects, no more than two (2)
323
alternate bids may be accepted by a governing authority for
324
commodities.
325
alternate bids procedure unless the lowest and best bidder cannot
326
deliver the commodities contained in his bid.
327
purchases of such commodities may be made from one (1) of the
328
bidders whose bid was accepted as an alternate.
329
(g)
No purchases may be made through use of such
In that event,
Construction contract change authorization.
In the
330
event a determination is made by an agency or governing authority
331
after a construction contract is let that changes or modifications
332
to the original contract are necessary or would better serve the
333
purpose of the agency or the governing authority, such agency or
334
governing authority may, in its discretion, order such changes
335
pertaining to the construction that are necessary under the
336
circumstances without the necessity of further public bids;
337
provided that such change shall be made in a commercially
338
reasonable manner and shall not be made to circumvent the public
339
purchasing statutes.
340
the architect or engineer hired by an agency or governing S. B. No. 2400 15/SS02/R859CS PAGE 14
In addition to any other authorized person,
*SS02/R859CS*
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341
authority with respect to any public construction contract shall
342
have the authority, when granted by an agency or governing
343
authority, to authorize changes or modifications to the original
344
contract without the necessity of prior approval of the agency or
345
governing authority when any such change or modification is less
346
than one percent (1%) of the total contract amount.
347
governing authority may limit the number, manner or frequency of
348
such emergency changes or modifications.
349
(h)
Petroleum purchase alternative.
The agency or
In addition to
350
other methods of purchasing authorized in this chapter, when any
351
agency or governing authority shall have a need for gas, diesel
352
fuel, oils and/or other petroleum products in excess of the amount
353
set forth in paragraph (a) of this section, such agency or
354
governing authority may purchase the commodity after having
355
solicited and obtained at least two (2) competitive written bids,
356
as defined in paragraph (b) of this section.
357
competitive written bids are not obtained, the entity shall comply
358
with the procedures set forth in paragraph (c) of this section.
359
In the event any agency or governing authority shall have
360
advertised for bids for the purchase of gas, diesel fuel, oils and
361
other petroleum products and coal and no acceptable bids can be
362
obtained, such agency or governing authority is authorized and
363
directed to enter into any negotiations necessary to secure the
364
lowest and best contract available for the purchase of such
365
commodities. S. B. No. 2400 15/SS02/R859CS PAGE 15
*SS02/R859CS*
If two (2)
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(i)
Road construction petroleum products price
367
adjustment clause authorization.
368
authority authorized to enter into contracts for the construction,
369
maintenance, surfacing or repair of highways, roads or streets,
370
may include in its bid proposal and contract documents a price
371
adjustment clause with relation to the cost to the contractor,
372
including taxes, based upon an industry-wide cost index, of
373
petroleum products including asphalt used in the performance or
374
execution of the contract or in the production or manufacture of
375
materials for use in such performance.
376
shall be established and published monthly by the Mississippi
377
Department of Transportation with a copy thereof to be mailed,
378
upon request, to the clerks of the governing authority of each
379
municipality and the clerks of each board of supervisors
380
throughout the state.
381
on the cost of such petroleum products only and shall not include
382
any additional profit or overhead as part of the adjustment.
383
bid proposals or document contract shall contain the basis and
384
methods of adjusting unit prices for the change in the cost of
385
such petroleum products.
386
(j)
Any agency or governing
Such industry-wide index
The price adjustment clause shall be based
State agency emergency purchase procedure.
The
(i)
If
387
the governing board or the executive head * * * of any agency of
388
the state shall determine that an emergency exists in regard to
389
the purchase of any commodities or repair contracts, so that the
390
delay incident to giving opportunity for competitive bidding would S. B. No. 2400 15/SS02/R859CS PAGE 16
*SS02/R859CS*
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391
be detrimental to the interests of the state, then the * * * head
392
of such agency shall * * * file with the Department of Finance and
393
Administration * * * 1. a statement explaining the conditions and
394
circumstances of the emergency, which shall include a detailed
395
description of the events leading up to the situation and the
396
negative impact to the entity if the purchase is made following
397
the statutory requirements set forth in paragraph (a), (b) or (c)
398
of this section, and * * * 2. a certified copy of the appropriate
399
minutes of the board of * * * the agency requesting the emergency
400
purchase, if applicable.
401
applicable board certification, the Executive Director of the
402
Department of Finance and Administration may, in writing,
403
authorize the purchase or repair without having to comply with
404
competitive bidding requirements.
405
(ii)
Upon receipt of the statement and
If the governing board or the executive head
406
of any agency of the state shall determine that an emergency
407
exists in regard to the purchase of any commodities or repair
408
contracts, so that the delay incident to giving opportunity for
409
competitive bidding would lead to substantial physical injury or
410
harm to the population or substantial damage to or loss of
411
property, then the provisions herein for competitive bidding shall
412
not apply and any officer or agent of such governing authority
413
having general or special authority therefor in making such
414
purchase or repair shall approve the bill presented therefor, and
S. B. No. 2400 15/SS02/R859CS PAGE 17
*SS02/R859CS*
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415
he shall certify in writing thereon from whom such purchase was
416
made, or with whom such a repair contract was made.
417
(iii)
Total purchases so made under subparagraphs
418
(i) and (ii) shall only be for the purpose of meeting needs
419
created by the emergency situation. Following the emergency
420
purchase, documentation of the purchase, including a description
421
of the commodity purchased, the purchase price thereof and the
422
nature of the emergency shall be filed with the Department of
423
Finance and Administration.
424
(k)
Governing authority emergency purchase procedure.
425
If the governing authority, or the governing authority acting
426
through its designee, shall determine that an emergency exists in
427
regard to the purchase of any commodities or repair contracts, so
428
that the delay incident to giving opportunity for competitive
429
bidding would be detrimental to the interest of the governing
430
authority, then the provisions herein for competitive bidding
431
shall not apply and any officer or agent of such governing
432
authority having general or special authority therefor in making
433
such purchase or repair shall approve the bill presented therefor,
434
and he shall certify in writing thereon from whom such purchase
435
was made, or with whom such a repair contract was made.
436
board meeting next following the emergency purchase or repair
437
contract, documentation of the purchase or repair contract,
438
including a description of the commodity purchased, the price
439
thereof and the nature of the emergency shall be presented to the S. B. No. 2400 15/SS02/R859CS PAGE 18
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At the
440
board and shall be placed on the minutes of the board of such
441
governing authority.
442 443
(l)
Hospital purchase, lease-purchase and lease
authorization.
444
(i)
The commissioners or board of trustees of any
445
public hospital may contract with such lowest and best bidder for
446
the purchase or lease-purchase of any commodity under a contract
447
of purchase or lease-purchase agreement whose obligatory payment
448
terms do not exceed five (5) years.
449
(ii)
In addition to the authority granted in
450
subparagraph (i) of this paragraph (l), the commissioners or board
451
of trustees is authorized to enter into contracts for the lease of
452
equipment or services, or both, which it considers necessary for
453
the proper care of patients if, in its opinion, it is not
454
financially feasible to purchase the necessary equipment or
455
services.
456
services executed by the commissioners or board shall not exceed a
457
maximum of five (5) years' duration and shall include a
458
cancellation clause based on unavailability of funds.
459
cancellation clause is exercised, there shall be no further
460
liability on the part of the lessee.
461
lease of equipment or services executed on behalf of the
462
commissioners or board that complies with the provisions of this
463
subparagraph (ii) shall be excepted from the bid requirements set
464
forth in this section.
Any such contract for the lease of equipment or
S. B. No. 2400 15/SS02/R859CS PAGE 19
*SS02/R859CS*
If such
Any such contract for the
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465 466
(m)
Exceptions from bidding requirements.
Excepted
from bid requirements are:
467
(i)
Purchasing agreements approved by department.
468
Purchasing agreements, contracts and maximum price regulations
469
executed or approved by the Department of Finance and
470
Administration.
471
(ii)
Outside equipment repairs.
Repairs to
472
equipment, when such repairs are made by repair facilities in the
473
private sector; however, engines, transmissions, rear axles and/or
474
other such components shall not be included in this exemption when
475
replaced as a complete unit instead of being repaired and the need
476
for such total component replacement is known before disassembly
477
of the component; however, invoices identifying the equipment,
478
specific repairs made, parts identified by number and name,
479
supplies used in such repairs, and the number of hours of labor
480
and costs therefor shall be required for the payment for such
481
repairs.
482
(iii)
In-house equipment repairs.
Purchases of
483
parts for repairs to equipment, when such repairs are made by
484
personnel of the agency or governing authority; however, entire
485
assemblies, such as engines or transmissions, shall not be
486
included in this exemption when the entire assembly is being
487
replaced instead of being repaired.
S. B. No. 2400 15/SS02/R859CS PAGE 20
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488
(iv)
Raw gravel or dirt.
Raw unprocessed deposits
489
of gravel or fill dirt which are to be removed and transported by
490
the purchaser.
491
(v)
Governmental equipment auctions.
Motor
492
vehicles or other equipment purchased from a federal agency or
493
authority, another governing authority or state agency of the
494
State of Mississippi, or any governing authority or state agency
495
of another state at a public auction held for the purpose of
496
disposing of such vehicles or other equipment.
497
governing authority under the exemption authorized by this
498
subparagraph (v) shall require advance authorization spread upon
499
the minutes of the governing authority to include the listing of
500
the item or items authorized to be purchased and the maximum bid
501
authorized to be paid for each item or items.
502
(vi)
Any purchase by a
Intergovernmental sales and transfers.
503
Purchases, sales, transfers or trades by governing authorities or
504
state agencies when such purchases, sales, transfers or trades are
505
made by a private treaty agreement or through means of
506
negotiation, from any federal agency or authority, another
507
governing authority or state agency of the State of Mississippi,
508
or any state agency or governing authority of another state.
509
Nothing in this section shall permit such purchases through public
510
auction except as provided for in subparagraph (v) of this
511
section.
512
entities to dispose of and/or purchase commodities from other
It is the intent of this section to allow governmental
S. B. No. 2400 15/SS02/R859CS PAGE 21
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513
governmental entities at a price that is agreed to by both
514
parties.
515
which may be determined to be below the market value if the
516
selling entity determines that the sale at below market value is
517
in the best interest of the taxpayers of the state.
518
authorities shall place the terms of the agreement and any
519
justification on the minutes, and state agencies shall obtain
520
approval from the Department of Finance and Administration, prior
521
to releasing or taking possession of the commodities.
This shall allow for purchases and/or sales at prices
522
(vii)
Perishable supplies or food.
Governing
Perishable
523
supplies or food purchased for use in connection with hospitals,
524
the school lunch programs, homemaking programs and for the feeding
525
of county or municipal prisoners.
526
(viii)
527
available from one (1) source only.
528
purchase of noncompetitive items only available from one (1)
529
source, a certification of the conditions and circumstances
530
requiring the purchase shall be filed by the agency with the
531
Department of Finance and Administration and by the governing
532
authority with the board of the governing authority.
533
of that certification the Department of Finance and Administration
534
or the board of the governing authority, as the case may be, may,
535
in writing, authorize the purchase, which authority shall be noted
536
on the minutes of the body at the next regular meeting thereafter.
537
In those situations, a governing authority is not required to S. B. No. 2400 15/SS02/R859CS PAGE 22
Single source items.
*SS02/R859CS*
Noncompetitive items
In connection with the
~ OFFICIAL ~
Upon receipt
538
obtain the approval of the Department of Finance and
539
Administration.
540
state agency shall file with the Department of Finance and
541
Administration documentation of the purchase, including a
542
description of the commodity purchased, the purchase price thereof
543
and the source of the purchase.
544
Following the purchase, the executive head of the
(ix)
Waste disposal facility construction
545
contracts.
Construction of incinerators and other facilities for
546
disposal of solid wastes in which products either generated
547
therein, such as steam, or recovered therefrom, such as materials
548
for recycling, are to be sold or otherwise disposed of; however,
549
in constructing such facilities, a governing authority or agency
550
shall publicly issue requests for proposals, advertised for in the
551
same manner as provided herein for seeking bids for public
552
construction projects, concerning the design, construction,
553
ownership, operation and/or maintenance of such facilities,
554
wherein such requests for proposals when issued shall contain
555
terms and conditions relating to price, financial responsibility,
556
technology, environmental compatibility, legal responsibilities
557
and such other matters as are determined by the governing
558
authority or agency to be appropriate for inclusion; and after
559
responses to the request for proposals have been duly received,
560
the governing authority or agency may select the most qualified
561
proposal or proposals on the basis of price, technology and other
562
relevant factors and from such proposals, but not limited to the S. B. No. 2400 15/SS02/R859CS PAGE 23
*SS02/R859CS*
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563
terms thereof, negotiate and enter contracts with one or more of
564
the persons or firms submitting proposals.
565
(x)
Hospital group purchase contracts.
Supplies,
566
commodities and equipment purchased by hospitals through group
567
purchase programs pursuant to Section 31-7-38.
568
(xi)
Information technology products.
Purchases
569
of information technology products made by governing authorities
570
under the provisions of purchase schedules, or contracts executed
571
or approved by the Mississippi Department of Information
572
Technology Services and designated for use by governing
573
authorities.
574
(xii)
Energy efficiency services and equipment.
575
Energy efficiency services and equipment acquired by school
576
districts, community and junior colleges, institutions of higher
577
learning and state agencies or other applicable governmental
578
entities on a shared-savings, lease or lease-purchase basis
579
pursuant to Section 31-7-14.
580
(xiii)
Municipal electrical utility system fuel.
581
Purchases of coal and/or natural gas by municipally owned electric
582
power generating systems that have the capacity to use both coal
583
and natural gas for the generation of electric power.
584
(xiv)
Library books and other reference materials.
585
Purchases by libraries or for libraries of books and periodicals;
586
processed film, video cassette tapes, filmstrips and slides;
587
recorded audio tapes, cassettes and diskettes; and any such items S. B. No. 2400 15/SS02/R859CS PAGE 24
*SS02/R859CS*
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588
as would be used for teaching, research or other information
589
distribution; however, equipment such as projectors, recorders,
590
audio or video equipment, and monitor televisions are not exempt
591
under this subparagraph.
592
(xv)
Unmarked vehicles.
Purchases of unmarked
593
vehicles when such purchases are made in accordance with
594
purchasing regulations adopted by the Department of Finance and
595
Administration pursuant to Section 31-7-9(2).
596 597
(xvi)
Election ballots.
Purchases of ballots
printed pursuant to Section 23-15-351.
598
(xvii)
Multichannel interactive video systems.
599
From and after July 1, 1990, contracts by Mississippi Authority
600
for Educational Television with any private educational
601
institution or private nonprofit organization whose purposes are
602
educational in regard to the construction, purchase, lease or
603
lease-purchase of facilities and equipment and the employment of
604
personnel for providing multichannel interactive video systems
605
(ITSF) in the school districts of this state.
606
(xviii)
Purchases of prison industry products by
607
the Department of Corrections, regional correctional facilities or
608
privately owned prisons.
609
Department of Corrections, regional correctional facilities or
610
privately owned prisons involving any item that is manufactured,
611
processed, grown or produced from the state's prison industries.
S. B. No. 2400 15/SS02/R859CS PAGE 25
Purchases made by the Mississippi
*SS02/R859CS*
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612
(xix)
Undercover operations equipment.
Purchases
613
of surveillance equipment or any other high-tech equipment to be
614
used by law enforcement agents in undercover operations, provided
615
that any such purchase shall be in compliance with regulations
616
established by the Department of Finance and Administration.
617
(xx)
Junior college books for rent.
Purchases by
618
community or junior colleges of textbooks which are obtained for
619
the purpose of renting such books to students as part of a book
620
service system.
621
(xxi)
Certain school district purchases.
622
Purchases of commodities made by school districts from vendors
623
with which any levying authority of the school district, as
624
defined in Section 37-57-1, has contracted through competitive
625
bidding procedures for purchases of the same commodities.
626
(xxii)
Garbage, solid waste and sewage contracts.
627
Contracts for garbage collection or disposal, contracts for solid
628
waste collection or disposal and contracts for sewage collection
629
or disposal.
630
(xxiii)
Municipal water tank maintenance
631
contracts.
Professional maintenance program contracts for the
632
repair or maintenance of municipal water tanks, which provide
633
professional services needed to maintain municipal water storage
634
tanks for a fixed annual fee for a duration of two (2) or more
635
years.
S. B. No. 2400 15/SS02/R859CS PAGE 26
*SS02/R859CS*
~ OFFICIAL ~
636
(xxiv)
Purchases of Mississippi Industries for the
637
Blind products.
638
authorities involving any item that is manufactured, processed or
639
produced by the Mississippi Industries for the Blind.
640 641
Purchases made by state agencies or governing
(xxv)
Purchases of state-adopted textbooks.
Purchases of state-adopted textbooks by public school districts.
642
(xxvi)
Certain purchases under the Mississippi
643
Major Economic Impact Act.
644
provisions of Section 57-75-9(2), (3) and (4).
645
(xxvii)
Contracts entered into pursuant to the
Used heavy or specialized machinery or
646
equipment for installation of soil and water conservation
647
practices purchased at auction.
648
machinery or equipment used for the installation and
649
implementation of soil and water conservation practices or
650
measures purchased subject to the restrictions provided in
651
Sections 69-27-331 through 69-27-341.
652
Soil and Water Conservation Commission under the exemption
653
authorized by this subparagraph shall require advance
654
authorization spread upon the minutes of the commission to include
655
the listing of the item or items authorized to be purchased and
656
the maximum bid authorized to be paid for each item or items.
657
(xxviii)
Used heavy or specialized
Any purchase by the State
Hospital lease of equipment or services.
658
Leases by hospitals of equipment or services if the leases are in
659
compliance with paragraph (l)(ii).
S. B. No. 2400 15/SS02/R859CS PAGE 27
*SS02/R859CS*
~ OFFICIAL ~
660
(xxix)
Purchases made pursuant to qualified
661
cooperative purchasing agreements.
Purchases made by certified
662
purchasing offices of state agencies or governing authorities
663
under cooperative purchasing agreements previously approved by the
664
Office of Purchasing and Travel and established by or for any
665
municipality, county, parish or state government or the federal
666
government, provided that the notification to potential
667
contractors includes a clause that sets forth the availability of
668
the cooperative purchasing agreement to other governmental
669
entities.
670
cooperative purchasing agreements is determined to be in the best
671
interest of the governmental entity.
Such purchases shall only be made if the use of the
672
(xxx)
School yearbooks.
Purchases of school
673
yearbooks by state agencies or governing authorities; provided,
674
however, that state agencies and governing authorities shall use
675
for these purchases the RFP process as set forth in the
676
Mississippi Procurement Manual adopted by the Office of Purchasing
677
and Travel.
678
(xxxi)
679
design-build method of contracting.
680
the provisions of Section 31-7-13.1, 37-101-44 or 65-1-85.
681
(xxxii)
682
projects.
683
65-43-1 or 65-43-3.
Design-build method and dual-phase Contracts entered into under
Toll roads and bridge construction
Contracts entered into under the provisions of Section
S. B. No. 2400 15/SS02/R859CS PAGE 28
*SS02/R859CS*
~ OFFICIAL ~
684
(xxxiii)
Certain purchases under Section 57-1-221.
685
Contracts entered into pursuant to the provisions of Section
686
57-1-221.
687
(xxxiv)
Certain transfers made pursuant to the
688
provisions of Section 57-105-1(7).
689
or facilities under Section 57-105-1(7) and construction related
690
to such public property or facilities.
691
(xxxv)
Transfers of public property
Certain purchases or transfers entered into
692
with local electrical power associations.
693
entered into under the provisions of Section 55-3-33.
694 695
(n)
Contracts or agreements
Term contract authorization.
All contracts for the
purchase of:
696
(i)
All contracts for the purchase of commodities,
697
equipment and public construction (including, but not limited to,
698
repair and maintenance), may be let for periods of not more than
699
sixty (60) months in advance, subject to applicable statutory
700
provisions prohibiting the letting of contracts during specified
701
periods near the end of terms of office.
702
period exceeding twenty-four (24) months shall also be subject to
703
ratification or cancellation by governing authority boards taking
704
office subsequent to the governing authority board entering the
705
contract.
706
(ii)
Term contracts for a
Bid proposals and contracts may include price
707
adjustment clauses with relation to the cost to the contractor
708
based upon a nationally published industry-wide or nationally S. B. No. 2400 15/SS02/R859CS PAGE 29
*SS02/R859CS*
~ OFFICIAL ~
709
published and recognized cost index.
The cost index used in a
710
price adjustment clause shall be determined by the Department of
711
Finance and Administration for the state agencies and by the
712
governing board for governing authorities.
713
contract documents utilizing a price adjustment clause shall
714
contain the basis and method of adjusting unit prices for the
715
change in the cost of such commodities, equipment and public
716
construction.
717
(o)
The bid proposal and
Purchase law violation prohibition and vendor
718
penalty.
719
made for the purpose of circumventing the provisions of this
720
section requiring competitive bids, nor shall it be lawful for any
721
person or concern to submit individual invoices for amounts within
722
those authorized for a contract or purchase where the actual value
723
of the contract or commodity purchased exceeds the authorized
724
amount and the invoices therefor are split so as to appear to be
725
authorized as purchases for which competitive bids are not
726
required.
727
misdemeanor punishable by a fine of not less than Five Hundred
728
Dollars ($500.00) nor more than One Thousand Dollars ($1,000.00),
729
or by imprisonment for thirty (30) days in the county jail, or
730
both such fine and imprisonment.
731
submitted shall be forfeited.
732 733
No contract or purchase as herein authorized shall be
Submission of such invoices shall constitute a
(p)
Electrical utility petroleum-based equipment
purchase procedure. S. B. No. 2400 15/SS02/R859CS PAGE 30
In addition, the claim or claims
When in response to a proper advertisement
*SS02/R859CS*
~ OFFICIAL ~
734
therefor, no bid firm as to price is submitted to an electric
735
utility for power transformers, distribution transformers, power
736
breakers, reclosers or other articles containing a petroleum
737
product, the electric utility may accept the lowest and best bid
738
therefor although the price is not firm.
739
(q)
Fuel management system bidding procedure.
Any
740
governing authority or agency of the state shall, before
741
contracting for the services and products of a fuel management or
742
fuel access system, enter into negotiations with not fewer than
743
two (2) sellers of fuel management or fuel access systems for
744
competitive written bids to provide the services and products for
745
the systems.
746
cannot locate two (2) sellers of such systems or cannot obtain
747
bids from two (2) sellers of such systems, it shall show proof
748
that it made a diligent, good-faith effort to locate and negotiate
749
with two (2) sellers of such systems.
750
but not be limited to, publications of a request for proposals and
751
letters soliciting negotiations and bids.
752
paragraph (q), a fuel management or fuel access system is an
753
automated system of acquiring fuel for vehicles as well as
754
management reports detailing fuel use by vehicles and drivers, and
755
the term "competitive written bid" shall have the meaning as
756
defined in paragraph (b) of this section.
757
and agencies shall be exempt from this process when contracting
758
for the services and products of fuel management or fuel access S. B. No. 2400 15/SS02/R859CS PAGE 31
In the event that the governing authority or agency
*SS02/R859CS*
Such proof shall include,
For purposes of this
Governing authorities
~ OFFICIAL ~
759
systems under the terms of a state contract established by the
760
Office of Purchasing and Travel.
761
(r)
Solid waste contract proposal procedure.
Before
762
entering into any contract for garbage collection or disposal,
763
contract for solid waste collection or disposal or contract for
764
sewage collection or disposal, which involves an expenditure of
765
more than Fifty Thousand Dollars ($50,000.00), a governing
766
authority or agency shall issue publicly a request for proposals
767
concerning the specifications for such services which shall be
768
advertised for in the same manner as provided in this section for
769
seeking bids for purchases which involve an expenditure of more
770
than the amount provided in paragraph (c) of this section.
771
request for proposals when issued shall contain terms and
772
conditions relating to price, financial responsibility,
773
technology, legal responsibilities and other relevant factors as
774
are determined by the governing authority or agency to be
775
appropriate for inclusion; all factors determined relevant by the
776
governing authority or agency or required by this paragraph (r)
777
shall be duly included in the advertisement to elicit proposals.
778
After responses to the request for proposals have been duly
779
received, the governing authority or agency shall select the most
780
qualified proposal or proposals on the basis of price, technology
781
and other relevant factors and from such proposals, but not
782
limited to the terms thereof, negotiate and enter into contracts
783
with one or more of the persons or firms submitting proposals. S. B. No. 2400 15/SS02/R859CS PAGE 32
*SS02/R859CS*
~ OFFICIAL ~
Any
If
784
the governing authority or agency deems none of the proposals to
785
be qualified or otherwise acceptable, the request for proposals
786
process may be reinitiated.
787
of this paragraph, where a county with at least thirty-five
788
thousand (35,000) nor more than forty thousand (40,000)
789
population, according to the 1990 federal decennial census, owns
790
or operates a solid waste landfill, the governing authorities of
791
any other county or municipality may contract with the governing
792
authorities of the county owning or operating the landfill,
793
pursuant to a resolution duly adopted and spread upon the minutes
794
of each governing authority involved, for garbage or solid waste
795
collection or disposal services through contract negotiations.
796
(s)
Notwithstanding any other provisions
Minority set-aside authorization.
Notwithstanding
797
any provision of this section to the contrary, any agency or
798
governing authority, by order placed on its minutes, may, in its
799
discretion, set aside not more than twenty percent (20%) of its
800
anticipated annual expenditures for the purchase of commodities
801
from minority businesses; however, all such set-aside purchases
802
shall comply with all purchasing regulations promulgated by the
803
Department of Finance and Administration and shall be subject to
804
bid requirements under this section.
805
which competitive bids are required shall be made from the lowest
806
and best minority business bidder.
807
paragraph, the term "minority business" means a business which is
808
owned by a majority of persons who are United States citizens or S. B. No. 2400 15/SS02/R859CS PAGE 33
*SS02/R859CS*
Set-aside purchases for
For the purposes of this
~ OFFICIAL ~
809
permanent resident aliens (as defined by the Immigration and
810
Naturalization Service) of the United States, and who are Asian,
811
Black, Hispanic or Native American, according to the following
812
definitions:
813
(i)
"Asian" means persons having origins in any of
814
the original people of the Far East, Southeast Asia, the Indian
815
subcontinent, or the Pacific Islands.
816 817
(ii)
"Black" means persons having origins in any
black racial group of Africa.
818
(iii)
"Hispanic" means persons of Spanish or
819
Portuguese culture with origins in Mexico, South or Central
820
America, or the Caribbean Islands, regardless of race.
821
(iv)
"Native American" means persons having
822
origins in any of the original people of North America, including
823
American Indians, Eskimos and Aleuts.
824
(t)
Construction punch list restriction.
The
825
architect, engineer or other representative designated by the
826
agency or governing authority that is contracting for public
827
construction or renovation may prepare and submit to the
828
contractor only one (1) preliminary punch list of items that do
829
not meet the contract requirements at the time of substantial
830
completion and one (1) final list immediately before final
831
completion and final payment.
832 833
(u)
Procurement of construction services by state
institutions of higher learning. S. B. No. 2400 15/SS02/R859CS PAGE 34
*SS02/R859CS*
Contracts for privately financed ~ OFFICIAL ~
834
construction of auxiliary facilities on the campus of a state
835
institution of higher learning may be awarded by the Board of
836
Trustees of State Institutions of Higher Learning to the lowest
837
and best bidder, where sealed bids are solicited, or to the
838
offeror whose proposal is determined to represent the best value
839
to the citizens of the State of Mississippi, where requests for
840
proposals are solicited.
841
(v)
842
other public contracts.
843
public construction or other public contracts to which this
844
section applies including, but not limited to, contracts for
845
repair and maintenance, for which the contract will require
846
insurance coverage in an amount of not less than One Million
847
Dollars ($1,000,000.00), bidders shall be permitted to either
848
submit proof of current insurance coverage in the specified amount
849
or demonstrate ability to obtain the required coverage amount of
850
insurance if the contract is awarded to the bidder.
851
insurance coverage shall be submitted within five (5) business
852
days from bid acceptance.
853
(w)
Insurability of bidders for public construction or In any solicitation for bids to perform
Purchase authorization clarification.
Proof of
Nothing in
854
this section shall be construed as authorizing any purchase not
855
authorized by law.
856 857
SECTION 2.
This act shall take effect and be in force from
and after July 1, 2015.
S. B. No. 2400 15/SS02/R859CS PAGE 35
~ OFFICIAL ~ ST: Government purchasing; place restrictions on emergency and single source purchases.
*SS02/R859CS*
