1998 Regular Session
To: Fees, Salaries and Administration; Public Health and Welfare
By: Senator(s) Nunnelee, Bean, Hall, Thames
Senate Bill 2193
(As Sent to Governor)
AN ACT TO AMEND SECTION 43-3-103, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE BOARD OF DIRECTORS OF THE MISSISSIPPI INDUSTRIES FOR THE BLIND TO ADOPT AND PUBLISH RULES AND REGULATIONS ESTABLISHING A LEAVE POLICY FOR MIB EMPLOYEES AND REQUIRING THAT MIB OFFICES BE OPENED AND STAFFED ON LEGAL HOLIDAYS; TO CREATE A REVOLVING FUND IN THE STATE TREASURY TO BE USED BY MIB FOR THE PURPOSE OF TAKING ADVANTAGE OF CERTAIN CONTRACTUAL OPPORTUNITIES AND MEETING THE OBLIGATIONS; TO DECLARE THE INTENT OF THE LEGISLATURE THAT PHYSICALLY OR MENTALLY DISABLED CITIZENS OF THE STATE SHALL BE AFFORDED EQUAL OPPORTUNITIES IN EMPLOYMENT IF THEY ARE QUALIFIED AND ABLE TO PERFORM THE JOB; TO AMEND SECTIONS 25-1-98 AND 25-3-91, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; TO AMEND SECTION 25-9-107, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT EMPLOYEES OF THE MISSISSIPPI INDUSTRIES FOR THE BLIND ARE NON STATE SERVICE EMPLOYEES AND TO AUTHORIZE STATE AGENCIES TO CONTRACT FOR THE PERSONAL SERVICES OF MIB EMPLOYEES WITHOUT PRIOR APPROVAL OF THE STATE PERSONNEL BOARD OR THE STATE PERSONAL SERVICE CONTRACT REVIEW BOARD; TO AMEND SECTION 31-7-13, MISSISSIPPI CODE OF 1972, TO EXEMPT PURCHASES MADE BY STATE AGENCIES INVOLVING ANY ITEM THAT IS MANUFACTURED, PROCESSED OR PRODUCED BY THE MISSISSIPPI INDUSTRIES FOR THE BLIND FROM THE PROVISIONS OF THE PUBLIC PURCHASING LAW; TO REVISE PUBLIC BID REQUIREMENTS TO AUTHORIZE GOVERNMENTAL ENTITIES TO MAKE PURCHASES UP TO $10,000.00 WITHOUT ADVERTISING FOR COMPETITIVE BIDS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 43-3-103, Mississippi Code of 1972, is amended to read as follows:
43-3-103. (1) From and after July 1, 1997, the MIB shall be governed by a board of directors hereby created, to consist of four (4) persons appointed by the Governor, and three (3) by the Lieutenant Governor, with the advice and consent of the Senate, each of whom shall be a qualified elector of the State of Mississippi. The members of the board of directors appointed by the Governor shall include the following:
(a) One (1) legally blind individual;
(b) One (1) educator with expertise in rehabilitation or the field of blindness;
(c) One (1) individual with at least five (5) years' actual experience in finance or a related field;
(d) One (1) individual with at least five (5) years' actual experience in manufacturing or a related field.
The members of the board of directors appointed by the Lieutenant Governor shall include the following:
(a) One (1) legally blind individual;
(b) One (1) individual with at least five (5) years' actual experience in marketing or a related field; and
(c) One (1) individual who is a licensed practicing attorney.
Initial appointments shall be made within sixty (60) days of enactment of this act. The Governor shall make initial appointments of two (2) members for two (2) years, one (1) member for three (3) years, and one (1) member for four (4) years to be designated at the time of appointment. The Lieutenant Governor shall make initial appointments of one (1) member for two (2) years, one (1) member for three (3) years, and one (1) member for four (4) years to be designated at the time of appointment. Thereafter, the terms of the members shall be for four (4) years and until their successors are appointed and qualified. In the event of a vacancy during the term of office of an incumbent, the appointing authority shall fill such vacancy, for the unexpired portion of the term, by appointing an individual having the same prerequisite qualifications as required for the vacancy being filled.
(2) The board of directors shall organize by selecting annually from its members a chairman and a vice-chairman, and may do all things necessary and convenient for carrying into effect the provisions of this chapter. Each member of the board shall receive a per diem as provided in Section 25-3-69, Mississippi Code of 1972, plus travel and reasonable and necessary expenses incidental to the attendance at each meeting as provided in Section 25-3-41, including mileage.
(3) The Lieutenant Governor may designate the Chairman of the Senate Committee on Public Health and Welfare and another member of the Senate and the Speaker of the House of Representatives may designate the Chairman of the House Committee on Public Health and Welfare and another member of the House to attend any meeting of the Board of Directors of the MIB. The appointing authorities may designate alternate members from their respective houses to serve when the regular designees are unable to attend such meetings of the board. Such legislative designees shall have no jurisdiction or vote on any matter within the jurisdiction of the board. For attending meetings of the board, such legislators shall receive per diem and expenses which shall be paid from the contingent expense funds of their respective houses in the same amounts as provided for committee meetings when the Legislature is not in session; however, no per diem and expenses for attending meetings of the board will be paid while the Legislature is in session. No per diem and expenses will be paid except for attending meetings of the board without prior approval of the proper committee in their respective houses.
(4) It shall be the duty of the Board of Directors of MIB to:
(a) Appoint and employ an executive director who shall be the executive and administrative head of MIB and who shall serve at the pleasure of the board of directors. The Board of Directors of MIB shall set the compensation of the executive director, subject to the approval of the State Personnel Board.
(b) Make and publish policies, rules and regulations, not inconsistent with the terms of this chapter, as may be necessary for the efficient administration and operation of MIB.
(c) Adopt and publish rules and regulations, in its discretion, to establish a policy of sick leave with pay and personal leave with pay for MIB employees and to require that MIB offices be opened and staffed on legal holidays as determined necessary by the board of directors.
(5) There is created a revolving fund in the State Treasury, which shall be used by the Mississippi Industries for the Blind for the purpose of taking advantage of contractual opportunities that would not be available to MIB without those funds and for the purpose of meeting the obligations of those types of contracts. The fund shall consist of monies that are specifically made available by the Legislature for the purpose of the fund. MIB shall not be authorized to expend any monies in the fund until it has received the prior written approval of the Executive Director of the Department of Finance and Administration and the State Treasurer. MIB shall repay to the fund all monies that it expends from the fund, which monies then may be used by MIB for future contractual opportunities and obligations. Monies in the fund at the end of a fiscal year shall not lapse into the State General Fund, and all interest earned on monies in the fund shall be credited to the fund.
(6) There is hereby created a joint study committee of the Senate and House of Representatives which shall develop a report to the Legislature and the Governor, with recommendations relating to the creation of a nonprofit corporation for the operation of MIB and its programs, including any matter relating to the future operation of the MIB. The joint committee shall report its findings and recommendations to the Legislature and the Governor on or before January 1, 1998, and upon the presentation of such report the joint committee shall be dissolved. The committee shall consist of the Chairman of the Senate Public Health and Welfare Committee; the Chairman of the House Public Health and Welfare Committee; four (4) members of the Senate appointed by the President of the Senate, one (1) of whom shall be the member of the oversight committee appointed under subsection (3); and four (4) members of the House of Representatives appointed by the Speaker of the House, one (1) of whom shall be the member of the oversight committee appointed under subsection (3). Appointments shall be made within thirty (30) days after the enactment of this act; and, within fifteen (15) days thereafter on a day to be designated jointly by the President of the Senate and the Speaker of the House, the committee shall meet and organize by selecting from its membership a chairman and a vice-chairman. The vice-chairman shall also serve as secretary and shall be responsible for keeping all records of the committee. A majority of the members of the committee shall constitute a quorum. In the selection of its officers and the adoption of rules, resolutions and reports, an affirmative vote of a majority of the members of the joint committee from each house shall be required. All members shall be notified in writing of all meetings, such notices to be mailed at least five (5) days prior to the date on which a meeting is to be held. Members of the committee shall be paid from the contingent expense funds of their respective houses in the same manner as provided for committee meetings when the Legislature is not in session. The joint committee may meet with and utilize the services of the Board of Directors of MIB in developing its recommendations.
SECTION 2. It is the intent of the Legislature that citizens of the State of Mississippi who have physical or mental disabilities shall be afforded the opportunity to compete and participate in employment on an equal basis with persons who are not disabled, if the disabled persons are qualified and able to perform the essential functions of the employment positions that are held or sought.
SECTION 3. Section 25-1-98, Mississippi Code of 1972, is amended as follows:
25-1-98. In addition to any other times required by statute, all state offices shall be open and staffed for the normal conduct of business from 8:00 a.m. until 5:00 p.m., Monday through Friday, except on legal holidays as set forth in Section 3-3-7. The Governor may designate certain state offices and institutions as providers of essential services and require that they be open and staffed on legal holidays. The Board of Directors of the Mississippi Industries for the Blind may, in its discretion, require that its offices and operations be open and staffed on legal holidays. Employees required to work on legal holidays shall earn compensatory leave under the provisions of Section 25-3-92. No employee shall receive additional vacation or sick leave benefits for working on a legal holiday, nor shall this section be construed to authorize any additional compensation as an alternative to the accrual of compensatory leave except as specifically provided for in a legislative appropriation. The provisions of this section shall not be construed to limit the hours of operation of any agency or to abrogate any action taken during hours other than those stated, nor shall these provisions apply to any offices that do not customarily stay open five (5) days a week. The provisions of this section shall not apply to the military department of the State of Mississippi or to the armories, field training sites, air bases or other installations of the Mississippi National Guard.
A workday for a state employee in a full-time employment position shall be eight (8) hours in duration at a minimum exclusive of time off for meals. The appointing authority shall develop work schedules which ensure that each full-time employee works a full workday and shall provide the State Auditor with a copy of the regular work schedule of the appointing authority.
SECTION 4. Section 25-3-91, Mississippi Code of 1972, is amended as follows:
25-3-91. For purposes of Sections 25-3-91 through 25-3-99, the following words and terms shall have the meaning described herein, unless the context requires otherwise:
(a) "Appointing authority" shall mean such person, agency or authority authorized by law to employ individuals in state government, but shall not include the Board of Directors of the Mississippi Industries for the Blind.
(b) "Catastrophic injury or illness" means a severe condition or combination of conditions affecting the mental or physical health of an employee or a member of an employee's immediate family that requires the services of a licensed physician for an extended period of time and that forces the employee to exhaust all leave time earned by that employee and to lose compensation from the state for the employee.
(c) "Employee" means a person appointed to a position in the state service or nonstate service as defined in Section 25-9-107, for which he is compensated on a full-time permanent or provisional basis, a temporary basis, or a part-time basis.
(d) "Workday" shall mean a day as defined in Section 25-1-98.
(e) "Temporary employment" means the employment of a person in a temporary or time-limited position not to exceed twelve (12) months.
(f) "Part-time employment" means the employment of a person in a part-time position.
SECTION 5. Section 25-9-107, Mississippi Code of 1972, is amended as follows:
25-9-107. The following terms, when used in this chapter, unless a different meaning is plainly required by the context, shall have the following meanings:
(a) "Board" shall mean the State Personnel Board created under the provisions of this chapter.
(b) "State service" shall mean all employees of state departments, agencies and institutions as defined herein, except those officers and employees excluded by this chapter.
(c) "Nonstate service" shall mean the following officers and employees excluded from the state service by this chapter. The following are excluded from the state service:
(i) Members of the state Legislature, their staffs and other employees of the legislative branch;
(ii) The Governor and staff members of the immediate Office of the Governor;
(iii) Justices and judges of the judicial branch or members of appeals boards on a per diem basis;
(iv) The Lieutenant Governor, staff members of the immediate Office of the Lieutenant Governor and officers and employees directly appointed by the Lieutenant Governor;
(v) Officers and officials elected by popular vote and persons appointed to fill vacancies in elective offices;
(vi) Members of boards and commissioners appointed by the Governor, Lieutenant Governor or the state Legislature;
(vii) All academic officials, members of the teaching staffs and employees of the state institutions of higher learning, the State Board for Community and Junior Colleges, and community and junior colleges;
(viii) Officers and enlisted members of the National Guard of the state;
(ix) Prisoners, inmates, student or patient help working in or about institutions;
(x) Contract personnel; provided, that any agency which employs state service employees may enter into contracts for personal and professional services only if such contracts are approved in compliance with the rules and regulations promulgated by the State Personal Service Contract Review Board under Section 25-9-120(3). Before paying any warrant for such contractual services in excess of One Hundred Thousand Dollars ($100,000.00), the Auditor of Public Accounts, or the successor to those duties, shall determine whether the contract involved was for personal or professional services, and, if so, was approved by the State Personal Service Contract Review Board;
(xi) Part-time employees; provided, however, part-time employees shall only be hired into authorized employment positions classified by the board, shall meet minimum qualifications as set by the board, and shall be paid in accordance with the Variable Compensation Plan as certified by the board;
(xii) Persons appointed on an emergency basis for the duration of the emergency; the effective date of the emergency appointments shall not be earlier than the date approved by the State Personnel Director, and shall be limited to thirty (30) working days. Emergency appointments may be extended to sixty (60) working days by the State Personnel Board;
(xiii) Physicians, dentists, veterinarians, nurse practitioners and attorneys, while serving in their professional capacities in authorized employment positions who are required by statute to be licensed, registered or otherwise certified as such, provided that the State Personnel Director shall verify that the statutory qualifications are met prior to issuance of a payroll warrant by the auditor;
(xiv) Personnel who are employed and paid from funds received from a federal grant program which has been approved by the Legislature or the Department of Finance and Administration whose length of employment has been determined to be time-limited in nature. This subparagraph shall apply to personnel employed under the provisions of the Comprehensive Employment and Training Act of 1973, as amended, and other special federal grant programs which are not a part of regular federally funded programs wherein appropriations and employment positions are appropriated by the Legislature. Such employees shall be paid in accordance with the Variable Compensation Plan and shall meet all qualifications required by federal statutes or by the Mississippi Classification Plan;
(xv) The administrative head who is in charge of any state department, agency, institution, board or commission, wherein the statute specifically authorizes the Governor, board, commission or other authority to appoint said administrative head; provided, however, that the salary of such administrative head shall be determined by the State Personnel Board in accordance with the Variable Compensation Plan unless otherwise fixed by statute;
(xvi) The State Personnel Board shall exclude top level positions if the incumbents determine and publicly advocate substantive program policy and report directly to the agency head, or the incumbents are required to maintain a direct confidential working relationship with a key excluded official. Provided further, a written job classification shall be approved by the board for each such position, and positions so excluded shall be paid in conformity with the Variable Compensation Plan;
(xvii) Employees whose employment is solely in connection with an agency's contract to produce, store or transport goods, and whose compensation is derived therefrom;
(xviii) Personnel employed by the State Prison Emergency Construction and Management Board, paid from funds from the "Correctional Facilities Emergency Construction Fund," or employed under contracts let or approved by the board for the construction, acquisition, lease, lease-purchase or operation of prison facilities. This subparagraph shall stand repealed from and after July 1, 1996;
(xix) The associate director, deputy directors and bureau directors within the Department of Agriculture and Commerce;
(xx) Personnel employed by the Mississippi Industries for the Blind; provided, that any agency may enter into contracts for the personal services of MIB employees without the prior approval of the State Personnel Board or the State Personal Service Contract Review Board; however, any agency contracting for the personal services of an MIB employee shall provide the MIB employee with not less than the entry level compensation and benefits that the agency would provide to a full-time employee of the agency who performs the same services.
(d) "Agency" means any state board, commission, committee, council, department or unit thereof created by the Constitution or statutes if such board, commission, committee, council, department, unit or the head thereof, is authorized to appoint subordinate staff by the Constitution or statute, except a legislative or judicial board, commission, committee, council, department or unit thereof.
SECTION 6. Section 31-7-13, Mississippi Code of 1972, is amended as follows:
31-7-13. All agencies and governing authorities shall purchase their commodities and printing; contract for fire insurance, automobile insurance, casualty insurance (other than workers' compensation) and liability insurance; contract for garbage collection or disposal; contract for solid waste collection or disposal; contract for sewage collection or disposal; and contract for public construction as herein provided.
(a) Purchases which do not involve an expenditure of more than One Thousand Five Hundred Dollars ($1,500.00), exclusive of freight or shipping charges, may be made without advertising or otherwise requesting competitive bids. Provided, however, that nothing contained in this paragraph (a) shall be construed to prohibit any agency or governing authority from establishing procedures which require competitive bids on purchases of One Thousand Five Hundred Dollars ($1,500.00) or less.
(b) Purchases which involve an expenditure of more than One Thousand Five Hundred Dollars ($1,500.00) but not more than Ten Thousand Dollars ($10,000.00), exclusive of freight and shipping charges may be made from the lowest and best bidder without publishing or posting advertisement for bids, provided at least two (2) competitive written bids have been obtained. Any governing authority purchasing commodities pursuant to this paragraph (b) may authorize its purchasing agent, or his designee, with regard to governing authorities other than counties, or its purchase clerk, or his designee, with regard to counties, to accept the lowest and best competitive written bid. Such authorization shall be made in writing by the governing authority and shall be maintained on file in the primary office of the agency and recorded in the official minutes of the governing authority, as appropriate. The purchasing agent or the purchase clerk, or their designee, as the case may be, and not the governing authority, shall be liable for any penalties and/or damages as may be imposed by law for any act or omission of the purchasing agent or purchase clerk, or their designee, constituting a violation of law in accepting any bid without approval by the governing authority. The term "competitive written bid" shall mean a bid submitted on a bid form furnished by the buying agency or governing authority and signed by authorized personnel representing the vendor, or a bid submitted on a vendor's letterhead or identifiable bid form and signed by authorized personnel representing the vendor.
(c) Purchases which involve an expenditure of more than Ten Thousand Dollars ($10,000.00), exclusive of freight and shipping charges may be made from the lowest and best bidder after advertising for competitive sealed bids once each week for two (2) consecutive weeks in a regular newspaper published in the county or municipality in which such agency or governing authority is located. The date as published for the bid opening shall not be less than seven (7) working days after the last published notice; however, if the purchase involves a construction project in which the estimated cost is in excess of Fifteen Thousand Dollars ($15,000.00), such bids shall not be opened in less than fifteen (15) working days after the last notice is published and the notice for the purchase of such construction shall be published once each week for two (2) consecutive weeks. The notice of intention to let contracts or purchase equipment shall state the time and place at which bids shall be received, list the contracts to be made or types of equipment or supplies to be purchased, and, if all plans and/or specifications are not published, refer to the plans and/or specifications on file. In all cases involving governing authorities, before the notice shall be published or posted, the plans or specifications for the construction or equipment being sought shall be filed with the clerk of the board of the governing authority, and there remain. If there is no newspaper published in the county or municipality, then such notice shall be given by posting same at the courthouse, or for municipalities at the city hall, and at two (2) other public places in the county or municipality, and also by publication once each week for two (2) consecutive weeks in some newspaper having a general circulation in the county or municipality in the above provided manner. On the same date that the notice is submitted to the newspaper for publication, the agency or governing authority involved shall mail written notice to the main office of the Mississippi Contract Procurement Center that contains the same information as that in the published notice. In addition to these requirements, agencies shall maintain a vendor file and vendors of the equipment or commodities being sought may be mailed solicitations and specifications, and a bid file shall be established which shall indicate those vendors to whom such solicitations and specifications were mailed, and such file shall also contain such information as is pertinent to the bid. Specifications pertinent to such bidding shall be written so as not to exclude comparable equipment of domestic manufacture. Provided, however, that should valid justification be presented, the Department of Finance and Administration or the board of a governing authority may approve a request for specific equipment necessary to perform a specific job. Provided further, that a registered professional engineer or architect may write specifications for a governing authority to require a specific item of equipment available only from limited sources or vendors when such specifications conform with the rules and regulations promulgated by an appropriate federal agency regulating such matters under the federal procurement laws. Further, such justification, when placed on the minutes of the board of a governing authority, may serve as authority for that governing authority to write specifications to require a specific item of equipment needed to perform a specific job. In addition to these requirements, from and after July 1, 1990, vendors of relocatable classrooms and the specifications for the purchase of such relocatable classrooms published by local school boards shall meet all pertinent regulations of the State Board of Education, including prior approval of such bid by the State Department of Education. Nothing in this section shall prohibit any agency or governing authority from writing specifications to include life-cycle costing, total cost bids, extended warranties or guaranteed buy-back provisions, provided that such bid requirements shall be in compliance with regulations established by the Department of Audit.
(d) (i) Purchases may be made from the lowest and best bidder. In determining the lowest and best bid, freight and shipping charges shall be included. If any governing authority accepts a bid other than the lowest bid actually submitted, it shall place on its minutes detailed calculations and narrative summary showing that the accepted bid was determined to be the lowest and best bid, including the dollar amount of the accepted bid and the dollar amount of the lowest bid. No agency or governing authority shall accept a bid based on items not included in the specifications.
(ii) If the lowest and best bid is not more than ten percent (10%) above the amount of funds allocated for a public construction or renovation project, then the agency or governing authority shall be permitted to negotiate with the lowest bidder in order to enter into a contract for an amount not to exceed the funds allocated.
(iii) Whenever bids are solicited for a public construction or renovation project and only one (1) bid is received, the agency or the governing authority may accept such bid if the bid is opened, it is within the funds allocated for the project, it is responsive to the solicitation and the contractor is capable of performing the contract in accordance with the solicitation.
(iv) No addendum to bid specifications for such projects may be issued by the agency or governing authority within twelve (12) hours of the time established by the agency or governing authority for the receipt of bids.
(e) Any lease-purchase of equipment which an agency is not required to lease-purchase under the master lease-purchase program pursuant to Section 31-7-10 and any lease-purchase of equipment which a governing authority elects to lease-purchase may be acquired by a lease-purchase agreement under this paragraph (e). Lease-purchase financing may also be obtained from the vendor or from a third-party source after having solicited and obtained at least two (2) written competitive bids, as defined in paragraph (b) of this section, for such financing without advertising for such bids. Solicitation for the bids for financing may occur before or after acceptance of bids for the purchase of such equipment or, where no such bids for purchase are required, at any time before the purchase thereof. No such lease-purchase agreement shall be for an annual rate of interest which is greater than the overall maximum interest rate to maturity on general obligation indebtedness permitted under Section 75-17-101, and the term of such lease-purchase agreement shall not exceed the useful life of property covered thereby as determined according to the upper limit of the asset depreciation range (ADR) guidelines for the Class Life Asset Depreciation Range System established by the Internal Revenue Service pursuant to the United States Internal Revenue Code and regulations thereunder as in effect on December 31, 1980, or comparable depreciation guidelines with respect to any equipment not covered by ADR guidelines. Any lease-purchase agreement entered into pursuant to this paragraph (e) may contain any of the terms and conditions which a master lease-purchase agreement may contain under the provisions of Section 31-7-10(5), and shall contain an annual allocation dependency clause substantially similar to that set forth in Section 31-7-10(8). Each agency or governing authority entering into a lease-purchase transaction pursuant to this paragraph (e) shall maintain with respect to each such lease-purchase transaction the same information as required to be maintained by the Department of Finance and Administration pursuant to Section 31-7-10(13). However, nothing contained in this section shall be construed to permit agencies to acquire items of equipment with a total acquisition cost in the aggregate of less than Ten Thousand Dollars ($10,000.00) by a single lease-purchase transaction. All equipment, and the purchase thereof by any lessor, acquired by lease-purchase under this paragraph and all lease-purchase payments with respect thereto shall be exempt from all Mississippi sales, use and ad valorem taxes. Interest paid on any lease-purchase agreement under this section shall be exempt from State of Mississippi income taxation.
(f) When necessary to ensure ready availability of commodities for public works and the timely completion of public projects, no more than two (2) alternate bids may be accepted by a governing authority for commodities. No purchases may be made through use of such alternate bids procedure unless the lowest and best bidder, for reasons beyond his control, cannot deliver the commodities contained in his bid. In that event, purchases of such commodities may be made from one (1) of the bidders whose bid was accepted as an alternate.
(g) In the event a determination is made by an agency or governing authority after a construction contract is let that changes or modifications to the original contract are necessary or would better serve the purpose of the agency or the governing authority, such agency or governing authority may, in its discretion, order such changes pertaining to the construction that are necessary under the circumstances without the necessity of further public bids; provided that such change shall be made in a commercially reasonable manner and shall not be made to circumvent the public purchasing statutes. In addition to any other authorized person, the architect or engineer hired by an agency or governing authority with respect to any public construction contract shall have the authority, when granted by an agency or governing authority, to authorize changes or modifications to the original contract without the necessity of prior approval of the agency or governing authority when any such change or modification is less than one percent (1%) of the total contract amount. The agency or governing authority may limit the number, manner or frequency of such emergency changes or modifications.
(h) In the event any agency or governing authority shall have advertised for bids for the purchase of gas, diesel fuel, oils and other petroleum products and coal and no acceptable bids can be obtained, such agency or governing authority is authorized and directed to enter into any negotiations necessary to secure the lowest and best contract available for the purchase of such commodities.
(i) Any agency or governing authority authorized to enter into contracts for the construction, maintenance, surfacing or repair of highways, roads or streets, may include in its bid proposal and contract documents a price adjustment clause with relation to the cost to the contractor, including taxes, based upon an industry-wide cost index, of petroleum products including asphalt used in the performance or execution of the contract or in the production or manufacture of materials for use in such performance. Such industry-wide index shall be established and published monthly by the State Department of Transportation with a copy thereof to be mailed, upon request, to the clerks of the governing authority of each municipality and the clerks of each board of supervisors throughout the state. The price adjustment clause shall be based on the cost of such petroleum products only and shall not include any additional profit or overhead as part of the adjustment. The bid proposals or document contract shall contain the basis and methods of adjusting unit prices for the change in the cost of such petroleum products.
(j) If the executive head of any agency of the state shall determine that an emergency exists in regard to the purchase of any commodities or repair contracts, so that the delay incident to giving opportunity for competitive bidding would be detrimental to the interests of the state, then the provisions herein for competitive bidding shall not apply and the head of such agency shall be authorized to make the purchase or repair. Total purchases so made shall only be for the purpose of meeting needs created by the emergency situation. In the event such executive head is responsible to an agency board, at the meeting next following the emergency purchase, documentation of the purchase, including a description of the commodity purchased, the purchase price thereof and the nature of the emergency shall be presented to the board and placed on the minutes of the board of such agency. The head of such agency shall, at the earliest possible date following such emergency purchase, file with the Department of Finance and Administration (i) a statement under oath certifying the conditions and circumstances of the emergency, and (ii) a certified copy of the appropriate minutes of the board of such agency, if applicable.
(k) If the governing authority, or the governing authority acting through its designee, shall determine that an emergency exists in regard to the purchase of any commodities or repair contracts, so that the delay incident to giving opportunity for competitive bidding would be detrimental to the interest of the governing authority, then the provisions herein for competitive bidding shall not apply and any officer or agent of such governing authority having general or special authority therefor in making such purchase or repair shall approve the bill presented therefor, and he shall certify in writing thereon from whom such purchase was made, or with whom such a repair contract was made. At the board meeting next following the emergency purchase or repair contract, documentation of the purchase or repair contract, including a description of the commodity purchased, the price thereof and the nature of the emergency shall be presented to the board and shall be placed on the minutes of the board of such governing authority.
(l) The commissioners or board of trustees of any hospital owned or owned and operated separately or jointly by one or more counties, cities, towns, supervisors districts or election districts, or combinations thereof, may contract with such lowest and best bidder for the purchase or lease of any commodity under a contract of purchase or lease-purchase agreement whose obligatory terms do not exceed five (5) years. In addition to the authority granted herein, the commissioners or board of trustees are authorized to enter into contracts for the lease of equipment or services, or both, which it considers necessary for the proper care of patients if, in its opinion, it is not financially feasible to purchase the necessary equipment or services. Any such contract for the lease of equipment or services executed by the commissioners or board shall not exceed a maximum of five (5) years' duration and shall include a cancellation clause based on unavailability of funds. If such cancellation clause is exercised, there shall be no further liability on the part of the lessee.
(m) Excepted from bid requirements are:
(i) Purchasing agreements, contracts and maximum price regulations executed or approved by the Department of Finance and Administration.
(ii) Repairs to equipment, when such repairs are made by repair facilities in the private sector; however, engines, transmissions, rear axles and/or other such components shall not be included in this exemption when replaced as a complete unit instead of being repaired and the need for such total component replacement is known before disassembly of the component; provided, however, that invoices identifying the equipment, specific repairs made, parts identified by number and name, supplies used in such repairs, and the number of hours of labor and costs therefor shall be required for the payment for such repairs.
(iii) Purchases of parts for repairs to equipment, when such repairs are made by personnel of the agency or governing authority; however, entire assemblies, such as engines or transmissions, shall not be included in this exemption when the entire assembly is being replaced instead of being repaired.
(iv) Raw unprocessed deposits of gravel or fill dirt which are to be removed and transported by the purchaser.
(v) Motor vehicles or other equipment purchased from a federal or state agency or a governing authority at a public auction held for the purpose of disposing of such vehicles or other equipment. Any purchase by a governing authority under the exemption authorized by this paragraph (v) shall require advance authorization spread upon the minutes of the governing authority to include the listing of the item or items authorized to be purchased and the maximum bid authorized to be paid for each item or items.
(vi) Purchases, sales, transfers or trades by governing authorities or state agencies when such purchases, sales, transfers or trades are made by a private treaty agreement or through means of negotiation, from any federal agency or authority, another governing authority or state agency of the State of Mississippi, or any state agency of another state. Nothing in this section shall permit such purchases through public auction except as provided for in paragraph (v) of this section. It is the intent of this section to allow governmental entities to dispose of and/or purchase commodities from other governmental entities at a price that is agreed to by both parties. This shall allow for purchases and/or sales at prices which may be determined to be below the market value if the selling entity determines that the sale at below market value is in the best interest of the taxpayers of the state. Governing authorities shall place the terms of the agreement and any justification on the minutes, and state agencies shall obtain approval from the Department of Finance and Administration, prior to releasing or taking possession of the commodities.
(vii) Perishable supplies or foods purchased for use in connection with hospitals, the school lunch programs, homemaking programs and for the feeding of county or municipal prisoners.
(viii) Noncompetitive items available from one (1) source only.
(ix) Construction of incinerators and other facilities for disposal of solid wastes in which products either generated therein, such as steam, or recovered therefrom, such as materials for recycling, are to be sold or otherwise disposed of; provided, however, in constructing such facilities a governing authority or agency shall publicly issue requests for proposals, advertised for in the same manner as provided herein for seeking bids for public construction projects, concerning the design, construction, ownership, operation and/or maintenance of such facilities, wherein such requests for proposals when issued shall contain terms and conditions relating to price, financial responsibility, technology, environmental compatibility, legal responsibilities and such other matters as are determined by the governing authority or agency to be appropriate for inclusion; and after responses to the request for proposals have been duly received, the governing authority or agency may select the most qualified proposal or proposals on the basis of price, technology and other relevant factors and from such proposals, but not limited to the terms thereof, negotiate and enter contracts with one or more of the persons or firms submitting proposals.
(x) Supplies, commodities and equipment purchased by hospitals through group purchase programs pursuant to Section 31-7-38.
(xi) Purchases of data processing equipment made by governing authorities under the provisions of purchase agreements, contracts or maximum price regulations executed or approved by the Mississippi Department of Information Technology Services.
(xii) Energy efficiency services and equipment acquired by school districts, junior colleges, institutions of higher learning and state agencies or other applicable governmental entities on a shared-savings, lease or lease-purchase basis pursuant to Section 31-7-14.
(xiii) Purchases of contracts for fire insurance, automobile insurance, casualty insurance, health insurance and liability insurance by governing authorities or agencies.
(xiv) Purchases of coal and/or natural gas by municipally-owned electric power generating systems that have the capacity to use both coal and natural gas for the generation of electric power.
(xv) Purchases by libraries or for libraries of books and periodicals; processed film, video cassette tapes, filmstrips and slides; recorded audio tapes, cassettes and diskettes; and any such items as would be used for teaching, research or other information distribution; however, equipment such as projectors, recorders, audio or video equipment, and monitor televisions are not exempt under this paragraph.
(xvi) Purchases of unmarked vehicles when such purchases are made in accordance with purchasing regulations adopted by the Department of Finance and Administration pursuant to Section 31-7-9(2).
(xvii) Sales, transfers or trades of any personal property between governing authorities within a county or any such transaction involving governing authorities of two (2) or more counties.
(xviii) Purchases of ballots printed pursuant to Section 23-15-351.
(xix) From and after July 1, 1990, contracts by Mississippi Authority for Educational Television with any private educational institution or private nonprofit organization whose purposes are educational in regard to the construction, purchase, lease or lease-purchase of facilities and equipment and the employment of personnel for providing multichannel interactive video systems (ITSF) in the school districts of this state.
(xx) From and after January 1, 1991, purchases made by state agencies involving any item that is manufactured, processed, grown or produced from the state's prison industries.
(xxi) Purchases of surveillance equipment or any other high-tech equipment to be used by narcotics agents in undercover operations, provided that any such purchase shall be in compliance with regulations established by the Department of Finance and Administration.
(xxii) Purchases by community or junior colleges of textbooks which are obtained for the purpose of renting such books to students as part of a book service system.
(xxiii) Purchases of commodities made by school districts from vendors with which any levying authority of the school district, as defined in Section 37-57-1, has contracted through competitive bidding procedures for purchases of the same commodities.
(xxiv) Emergency purchases made by the Public Employees' Retirement System pursuant to Section 25-11-15(7).
(xxv) Contracts or purchases by the State Prison Emergency Construction and Management Board when exercising its emergency powers to remove two thousand (2,000) inmates from county jails; however, exemptions under this subparagraph (xxv) do not apply to contracts or purchases for private correctional facilities, the South Mississippi Correctional Institution and the Central Mississippi Correctional Facility. This subparagraph shall stand repealed from and after July 1, 1997.
(xxvi) Contracts for garbage collection or disposal, contracts for solid waste collection or disposal and contracts for sewage collection or disposal.
(xxvii) Professional maintenance program contracts for the repair or maintenance of municipal water tanks, which provide professional services needed to maintain municipal water storage tanks for a fixed annual fee for a duration of two (2) or more years.
(xxviii) Purchases made by state agencies involving any item that is manufactured, processed or produced by the Mississippi Industries for the Blind.
In connection with the purchase of noncompetitive items only available from one (1) source, a certification of the conditions and circumstances requiring the purchase shall be filed by the agency with the Department of Finance and Administration and by the governing authority with the board of the governing authority. Upon receipt of such certification the Department of Finance and Administration or the board of the governing authority, as the case may be, may, in writing, authorize the purchase, which authority shall be noted on the minutes of the body at the next regular meeting thereafter. In such situations, a governing authority is not required to obtain the approval of the Department of Finance and Administration.
(n) (i) All contracts for the purchase of:
(A) Commodities, equipment and public construction (including, but not limited to, repair and maintenance), and
(B) Water lines, sewer lines, storm drains, drainage ditches, asphalt milling, traffic striping, asphalt overlay of streets, and curb and gutter (not to exceed One Hundred Fifty Thousand Dollars ($150,000.00) per project listed in this item B) may be let for periods of not more than twenty-four (24) months in advance, subject to applicable statutory provisions prohibiting the letting of contracts during specified periods near the end of terms of office.
(ii) All purchases made by governing authorities, including purchases made pursuant to the provisions of subparagraph (i) of this paragraph (n), may be made upon one (1) purchase order issued per month to each individual vendor prior to delivery of such commodities provided that each individual delivery, load or shipment purchased is properly requisitioned and is properly received and receipted by signed ticket, receipt or invoice, indicating thereon the point of delivery, and provided that, with respect to counties, such commodities are properly accounted for by the receiving clerk or an assistant receiving clerk as provided by Section 31-7-109. Such purchase order shall be invalid on the first calendar day of the month immediately following the month in which it was issued. Purchases in such month immediately following may be made only if a purchase order is issued for such month. Each monthly purchase order shall be retained in the records of the governing authority. Agencies may make purchases as authorized under this subparagraph (ii) in accordance with such regulations, policies and procedures as are promulgated by the Department of Finance and Administration.
(o) No contract or purchase as herein authorized shall be made for the purpose of circumventing the provisions of this section requiring competitive bids, nor shall it be lawful for any person or concern to submit individual invoices for amounts within those authorized for a contract or purchase where the actual value of the contract or commodity purchased exceeds the authorized amount and the invoices therefor are split so as to appear to be authorized as purchases for which competitive bids are not required. Submission of such invoices shall constitute a misdemeanor punishable by a fine of not less than Five Hundred Dollars ($500.00) nor more than One Thousand Dollars ($1,000.00), or by imprisonment for thirty (30) days in the county jail, or both such fine and imprisonment. In addition, the claim or claims submitted shall be forfeited.
(p) When in response to a proper advertisement therefor, no bid firm as to price is submitted to an electric utility for power transformers, distribution transformers, power breakers, reclosers or other articles containing a petroleum product, the electric utility may accept the lowest and best bid therefor although the price is not firm.
(q) The prohibitions and restrictions set forth in Sections 19-11-27, 21-35-27 and 31-7-49 shall not apply to a contract, lease or lease-purchase agreement entered pursuant to the requirements of this chapter.
(r) For the purposes of this section, the term "purchase" shall mean the total amount of money encumbered by a single purchase order.
(s) Any governing authority or agency of the state shall, before contracting for the services and products of a fuel management or fuel access system, enter into negotiations with not fewer than two (2) sellers of fuel management or fuel access systems for competitive written bids to provide the services and products for the systems. In the event that the governing authority or agency cannot locate two (2) sellers of such systems or cannot obtain bids from two (2) sellers of such systems, it shall show proof that it made a diligent, good-faith effort to locate and negotiate with two (2) sellers of such systems. Such proof shall include, but not be limited to, publications of a request for proposals and letters soliciting negotiations and bids. For purposes of this paragraph (s), a fuel management or fuel access system is an automated system of acquiring fuel for vehicles as well as management reports detailing fuel use by vehicles and drivers, and the term "competitive written bid" shall have the meaning as defined in paragraph (b) of this section.
(t) Before entering into any contract for garbage collection or disposal, contract for solid waste collection or disposal or contract for sewage collection or disposal, which involves an expenditure of more than Fifty Thousand Dollars ($50,000.00), a governing authority or agency shall issue publicly a request for proposals concerning the specifications for such services which shall be advertised for in the same manner as provided in this section for seeking bids for purchases which involve an expenditure of more than Ten Thousand Dollars ($10,000.00). Any request for proposals when issued shall contain terms and conditions relating to price, financial responsibility, technology, legal responsibilities and other relevant factors as are determined by the governing authority or agency to be appropriate for inclusion; all factors determined relevant by the governing authority or agency or required by this paragraph (t) shall be duly included in the advertisement to elicit proposals. After responses to the request for proposals have been duly received, the governing authority or agency shall select the most qualified proposal or proposals on the basis of price, technology and other relevant factors and from such proposals, but not limited to the terms thereof, negotiate and enter contracts with one or more of the persons or firms submitting proposals. If the governing authority or agency deems none of the proposals to be qualified or otherwise acceptable, the request for proposals process may be reinitiated.
(u) Notwithstanding any provision of this section to the contrary, any agency or governing authority, by order placed on its minutes, may, in its discretion, set aside not more than twenty percent (20%) of its anticipated annual expenditures for the purchase of commodities from minority businesses; however, all such set-aside purchases shall comply with all purchasing regulations promulgated by the Department of Finance and Administration and shall be subject to bid requirements under this section. Set-aside purchases for which competitive bids are required shall be made from the lowest and best minority business bidder. For the purposes of this paragraph, the term "minority business" means a business which is owned by a majority of persons who are United States citizens or permanent resident aliens (as defined by the Immigration and Naturalization Service) of the United States, and who are Asian, Black, Hispanic or Native American, according to the following definitions:
(i) "Asian" means persons having origins in any of the original people of the Far East, Southeast Asia, the Indian subcontinent, or the Pacific Islands.
(ii) "Black" means persons having origins in any black racial group of Africa.
(iii) "Hispanic" means persons of Spanish or Portuguese culture with origins in Mexico, South or Central America, or the Caribbean Islands, regardless of race.
(iv) "Native American" means persons having origins in any of the original people of North America, including American Indians, Eskimos and Aleuts.
(v) The architect, engineer or other representative designated by the agency or governing authority that is contracting for public construction or renovation may prepare and submit to the contractor only one (1) preliminary punch list of items that do not meet the contract requirements at the time of substantial completion and one (1) final list immediately before final completion and final payment.
(w) Nothing in this section shall be construed as authorizing any purchase not authorized by law.
SECTION 7. This act shall take effect and be in force from and after July 1, 1998.