MISSISSIPPI LEGISLATURE

1998 Regular Session

To: Fees, Salaries and Administration

By: Senator(s) Robertson

Senate Bill 2999

AN ACT TO AMEND SECTION 25-53-5, MISSISSIPPI CODE OF 1972, TO REQUIRE THE MISSISSIPPI DEPARTMENT OF INFORMATION TECHNOLOGY SERVICES TO ADOPT RULES AND REGULATIONS GOVERNING THE PROTEST PROCEDURES TO BE FOLLOWED BY ANY ACTUAL OR PROSPECTIVE BIDDER, OFFERER OR CONTRACTOR WHO IS AGGRIEVED IN CONNECTION WITH THE SOLICITATION OR AWARD OF A CONTRACT FOR THE ACQUISITION OF COMPUTER EQUIPMENT OR SERVICES; TO PROVIDE THAT THE DEPARTMENT MAY REQUIRE THE PROTESTING PARTY TO POST A BOND TO COVER ANY EXPENSE OR LOSS INCURRED BY THE STATE AS A RESULT OF THE PROTEST; TO PROVIDE THAT THE DEPARTMENT MAY PROHIBIT ANY PROSPECTIVE BIDDER, OFFERER OR CONTRACTOR WHO IS A PARTY TO ANY LITIGATION INVOLVING ANY SUCH CONTRACT WITH THE STATE TO PARTICIPATE IN ANY OTHER SUCH BID, OFFER OR CONTRACT DURING THE PENDENCY OF THE LITIGATION; TO AMEND SECTION 25-53-21, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT IN THE NEGOTIATION AND EXECUTION OF CONTRACTS FOR THE ACQUISITION OF COMPUTER EQUIPMENT OR SERVICES, THE EXECUTIVE DIRECTOR OF THE MISSISSIPPI DEPARTMENT OF INFORMATION TECHNOLOGY SERVICES MAY NEGOTIATE A LIMITATION ON THE LIABILITY TO THE STATE OF PROSPECTIVE CONTRACTORS IF THE LIMITATION AFFORDS THE STATE REASONABLE PROTECTION; TO AMEND SECTION 25-53-51, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE EXECUTIVE DIRECTOR OF THE MISSISSIPPI DEPARTMENT OF INFORMATION TECHNOLOGY SERVICES TO REQUIRE STATE AGENCY EMPLOYEES WHO SEEK TO QUALIFY FOR THE POSITION OF INFORMATION CONFIDENTIALITY OFFICER TO BE PHOTOGRAPHED AND FINGERPRINTED AS A PART OF THE BACKGROUND INVESTIGATION PROCEDURE; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 25-53-5, Mississippi Code of 1972, is amended as follows:

25-53-5. The authority shall have the following powers, duties, and responsibilities:

(a) The authority shall provide for the development of plans for the efficient acquisition and utilization of computer equipment and services by all agencies of state government, and provide for their implementation. In so doing, the authority may use the MDITS staff, at the discretion of the executive director of the authority, or the authority may contract for the services of qualified consulting firms in the field of information technology and utilize the service of such consultants as may be necessary for such purposes.

(b) The authority shall immediately institute procedures for carrying out the purposes of this chapter and supervise the efficient execution of the powers and duties of the office of executive director of the authority. In the execution of its functions under this chapter, the authority shall maintain as a paramount consideration the successful internal organization and operation of the several agencies so that efficiency existing therein shall not be adversely affected or impaired. In executing its functions in relation to the institutions of higher learning and junior colleges in the state, the authority shall take into consideration the special needs of such institutions in relation to the fields of teaching and scientific research.

(c) Title of whatever nature of all computer equipment now vested in any agency of the State of Mississippi is hereby vested in the authority, and no such equipment shall be disposed of in any manner except in accordance with the direction of the authority or under the provisions of such rules and regulations as may hereafter be adopted by the authority in relation thereto.

(d) The authority shall adopt rules, regulations, and procedures governing the acquisition of computer and telecommunications equipment and services which shall, to the fullest extent practicable, insure the maximum of competition between all manufacturers of supplies or equipment or services. In the writing of specifications, in the making of contracts relating to the acquisition of such equipment and services, and in the performance of its other duties the authority shall provide for the maximum compatibility of all information systems hereafter installed or utilized by all state agencies and may require the use of common computer languages where necessary to accomplish the purposes of this chapter. The authority may establish by regulation and charge reasonable fees on a nondiscriminatory basis for the furnishing to bidders of copies of bid specifications and other documents issued by the authority.

(e) The authority shall adopt rules and regulations governing the sharing with, or the sale or lease of information technology services to any nonstate agency or person. Such regulations shall provide that any such sharing, sale, or lease shall be restricted in that same shall be accomplished only where such services are not readily available otherwise within the state, and then only at a charge to the user not less than the prevailing rate of charge for similar services by private enterprise within this state.

(f) The authority may, in its discretion, establish a special technical advisory committee or committees to study and make recommendations on technology matters within the competence of the authority as the authority may see fit. Persons serving on the Information Resource Council, its task forces, or any such technical advisory committees shall be entitled to receive their actual and necessary expenses actually incurred in the performance of such duties, together with mileage as provided by law for state employees, provided the same has been authorized by a resolution duly adopted by the authority and entered on its minutes prior to the performance of such duties.

(g) The authority may provide for the development and require the adoption of standardized computer programs and may provide for the dissemination of information to and the establishment of training programs for the personnel of the various information technology centers of state agencies and personnel of the agencies utilizing the services thereof.

(h) The authority shall adopt reasonable rules and regulations requiring the reporting to the authority through the office of executive director of such information as may be required for carrying out the purposes of this chapter and may also establish such reasonable procedures to be followed in the presentation of bills for payment under the terms of all contracts for the acquisition of computer equipment and services now or hereafter in force as may be required by the authority or by the executive director in the execution of their powers and duties.

(i) The authority shall require such adequate documentation of information technology procedures utilized by the various state agencies and may require the establishment of such organizational structures within state agencies relating to information technology operations as may be necessary to effectuate the purposes of this chapter.

(j) The authority may adopt such further reasonable rules and regulations as may be necessary to fully implement the purposes of this chapter. All rules and regulations adopted by the authority shall be published and disseminated in readily accessible form to all affected state agencies, and to all current suppliers of computer equipment and services to the state, and to all prospective suppliers requesting the same. Such rules and regulations shall be kept current, be periodically revised, and copies thereof shall be available at all times for inspection by the public at reasonable hours in the offices of the authority. Whenever possible no rule, regulation or any proposed amendment to such rules and regulations shall be finally adopted or enforced until copies of said proposed rules and regulations have been furnished to all interested parties for their comment and suggestions.

(k) The authority shall establish rules and regulations which shall provide for the submission of all contracts proposed to be executed by the executive director for computer equipment or services to the authority for approval before final execution, and the authority may provide that such contracts involving the expenditure of less than such specified amount as may be established by the authority may be finally executed by the executive director without first obtaining such approval by the authority.

(l) The authority is authorized to purchase, lease, or rent computer equipment or services and to operate said equipment and utilize said services in providing services to one or more state agencies when in its opinion such operation will provide maximum efficiency and economy in the functions of any such agency or agencies.

(m) The authority shall assist political subdivisions and instrumentalities in their development of plans for the efficient acquisition and utilization of computer equipment and services. An appropriate fee shall be charged the political subdivision by the authority for such assistance.

(n) The authority shall adopt rules and regulations governing the protest procedures to be followed by any actual or prospective bidder, offerer or contractor who is aggrieved in connection with the solicitation or award of a contract for the acquisition of computer equipment or services. Such rules and regulations shall prescribe the manner, time and procedure for making protests and may provide that a protest not timely filed shall be summarily denied. The authority may require the protesting party, at the time of filing the protest, to post a bond, payable to the state, in an amount that the authority determines sufficient to cover any expense or loss incurred by the state, the authority or any state agency as a result of the protest if the protest subsequently is determined by a court of competent jurisdiction to have been filed without any substantial basis or reasonable expectation to believe that the protest was meritorious; however, in no event may the amount of the bond required exceed a reasonable estimate of the total project cost. The authority, in its discretion, also may prohibit any prospective bidder, offerer or contractor who is a party to any litigation involving any such contract with the state, the authority or any agency of the state to participate in any other such bid, offer or contract, or to be awarded any such contract, during the pendency of the litigation.

(o) The authority shall make a report in writing to the Legislature each year in the month of January. Such report shall contain a full and detailed account of the work of the authority for the preceding year as specified in Section 25-53-29(3).

All acquisitions of computer equipment and services involving the expenditure of funds in excess of Five Thousand Dollars ($5,000.00) or rentals or leases, in excess of Five Thousand Dollars ($5,000.00) for the term of the contract shall be based upon competitive and open specifications, and contracts therefor shall be entered into only after advertisements for bids are published in one or more daily newspapers having a general circulation in the state not less than fourteen (14) days prior to receiving sealed bids therefor. The authority may reserve the right to reject any or all bids, and if all bids are rejected, the authority may negotiate a contract within the limitations of the specifications so long as the terms of any such negotiated contract are equal to or better than the comparable terms submitted by the lowest and best bidder, and so long as the total cost to the State of Mississippi does not exceed the lowest bid. If the authority accepts one (1) of such bids, it shall be that which is the lowest and best.

(p) When applicable, the authority may procure equipment, systems and related services in accordance with the law or regulations, or both, which govern the Bureau of Purchasing of the Office of General Services or which govern the Mississippi Department of Information Technology Services procurement of telecommunications equipment, software and services.

(q) The authority is authorized to purchase, lease, or rent information technology and services for the purpose of establishing pilot projects to investigate emerging technologies. These acquisitions shall be limited to new technologies and shall be limited to an amount set by annual appropriation of the Legislature. These acquisitions shall be exempt from the advertising and bidding requirement.

(r) All fees collected by the Mississippi Department of Information Technology Services shall be deposited into the Mississippi Department of Information Technology Services Revolving Fund unless otherwise specified by the Legislature.

SECTION 2. Section 25-53-21, Mississippi Code of 1972, is amended as follows:

25-53-21. The executive director shall have the following duties, responsibilities and authority:

(a) He shall conduct continuing studies of all information technology activities carried out by all agencies of the state and shall develop a long-range plan for the efficient and economical performance of such activities in state government. Such plan shall be submitted to the authority for its approval and, having been approved by the authority, shall be implemented by the executive director and all state agencies. Such plan shall be continuously reviewed and modifications thereof shall be proposed to the authority by the executive director as developments in information technology techniques and changes in the structure, activities, and functions of state government may require.

(b) He shall review the purchasing practices of all state agencies in the area of the purchasing of supplies for information technology and make recommendations to the authority and to the Public Procurement Review Board for the institution of purchasing procedures which will insure the most economical procurement of such supplies commensurate with the efficient operation of all departments and agencies of state government.

(c) He shall see that all reports required of all agencies are promptly and accurately made in accordance with the rules and regulations adopted by the authority. Either in person or through his authorized agents, he shall make such inspections of information technology operations being conducted by any of the agencies of the state as may be necessary for the performance of his duties.

(d) He shall suggest and cause to be brought about cooperation between the several state agencies in order to provide efficiency in information technology operation. He shall, together with the heads of the agencies involved, reduce to writing and execute cooperative plans for the acquisition and operation of information technology equipment, and any such plan so adopted shall be carried out in accordance with the provisions of such plan unless the same shall be amended by the joint action of the executive director and the heads of agencies involved. The executive director shall report to the authority the details of any plan so adopted and all amendments or modifications thereof, and shall otherwise report to the authority and to the Public Procurement Review Board any failure on the part of any agency to carry out the provisions of such plan. In the event the head of any agency involved or the executive director shall propose amendments to a plan so adopted and such amendment is disapproved by the head of another agency involved or the executive director, an appeal may be taken to the authority which may, after full consideration thereof, order the adoption of the proposed amendment or any modification thereof. The executive director shall make decisions on all questions of the division of the cost of information technology operations among the several agencies, but his findings shall be subject to the approval or modification by the authority on appeal to it.

(e) He shall review all contracts for acquisition of computer equipment or services now or hereafter in force and may require the renegotiation, termination, amendment or execution of any such contracts in proper form and in accordance with the policies and rules and regulations and subject to the direction of the authority. In the negotiation and execution of such contracts, the executive director may negotiate a limitation on the liability to the state of prospective contractors provided such limitation affords the state reasonable protection.

(f) He shall act as the purchasing and contracting agent for the State of Mississippi in the negotiation and execution of all contracts for the acquisition of computer equipment or services. He shall receive, review, and promptly approve or disapprove all requests of agencies of the state for the acquisition of computer equipment or services, which are submitted in accordance with rules and regulations of the authority. In the event that any such request is disapproved, he shall immediately notify the requesting agency and the members of the authority in writing of such disapproval, stating his reasons therefor. The disapproval of any request by the executive director of the authority may be appealed to the authority or to the Public Procurement Review Board, respectively, in such manner as may be authorized by such reasonable rules and regulations hereby authorized to be adopted by the authority and by the Public Procurement Review Board to govern the same. The executive director shall report the approval of all such requests to the authority in such manner as may be directed by the authority, and shall execute any such contracts only after complying with rules and regulations which may be adopted by the authority in relation thereto. Any contracts for personal or professional services entered into by the executive director shall be exempted from the requirements of Section 25-9-120(3) relating to submission of such contract to the State Personal Service Contract Review Board.

(g) He shall suggest and cause to be brought about cooperation between the several state agencies, departments and institutions in order that work may be done by one agency for another agency, and equipment in one agency may be made available to another agency, and suggest and cause to be brought about such improvements as may be necessary in joint or cooperative information technology operations.

(h) He shall be designated as the "Chief Information Confidentiality Officer" after being duly sworn to the oath of this office by the chairman of the authority and shall be responsible for administering the oath to other qualified officers he may designate.

(i) He shall appoint employees of the Mississippi Department of Information Technology Services, or at his discretion, employees of other state agencies and institutions that are responsible for handling or processing data for any agency or institution other than that for which they are employed, to a position of information custodial care that shall be known as "Information Confidentiality Officer." The selection and swearing of all officers shall be reported to the authority at the next regular meeting and names, affirmation dates and employment dates shall be recorded in the permanent minutes of the authority.

SECTION 3. Section 25-53-51, Mississippi Code of 1972, is amended as follows:

25-53-51. To qualify for the position of information confidentiality officer a person must:

(a) Be an employee of a state agency or institution in a position such that his duties require him to handle or process or supervise the handling or processing of data in conjunction with the use of automated information technology equipment for an agency or institution other than that for whom he is regularly employed.

(b) Have been continuously employed for a period of at least one hundred eighty (180) days by such agency or institution or have successfully been cleared for employment through an investigation that shall consist of a determination as to good moral character and that the prospective employee has not been convicted of a felony. At the request of the executive director, the Mississippi Department of Public Safety shall be responsible for conducting background investigations of the prospective employee and expeditiously report the results of such investigation to the executive director. For the purpose of conducting the background investigation, the executive director may require any prospective employee to be photographed and fingerprinted for identification. A prospective employee may be provisionally employed based on a reference check by the employing agency pending final receipt of the results of the detailed background investigation conducted by the Mississippi Department of Public Safety for a period not to exceed sixty (60) days.

(c) Successfully complete a suitable instructional course on the subjects of information security, privacy and confidentiality and protection, to be developed and taught under the supervision of the executive director. An employee may work in a provisional capacity under the direct supervision of an information confidentiality officer as part of an on-the-job training program while completing instructional requirements, for a period not to exceed ninety (90) days.

(d) Be duly sworn to the following oath: "I, ______, do solemnly swear to protect and uphold the confidentiality of all information that may come to my knowledge that is designated as 'confidential information' by another state agency or institution for which I may handle or process in the normal course of my duties. I swear to exercise reasonable care in the handling and processing of all such designated data and further that I will not reveal or otherwise divulge information from such data obtained. I understand that proven violation of this oath will subject me to forfeiture of my bond and dismissal from employment."

(e) Enter into bond in the minimum amount of Five Thousand Dollars ($5,000.00) with a surety company authorized to do business in the state, and conditioned to pay the full amount thereof as liquidated damages to any person about whom confidential information is disclosed in violation of his oath.

(f) Be identified by a wallet-sized identification card with a picture of the person to be carried at all times while on duty.

SECTION 4. This act shall take effect and be in force from and after its passage.