2005 Regular Session
To: Public Health and Welfare; Appropriations
By: Senator(s) Nunnelee
AN ACT TO ESTABLISH A MISSISSIPPI COUNCIL ON PURCHASING FROM PEOPLE WITH DISABILITIES; TO PROVIDE THAT A PRODUCT OR SERVICE MEETING APPLICABLE SPECIFICATIONS ESTABLISHED BY STATE AGENCIES, POLITICAL SUBDIVISIONS OR MUNICIPALITIES SHALL BE PROCURED FROM A COMMUNITY REHABILITATION PROGRAM AT A PRICE DETERMINED BY THE COUNCIL TO BE A FAIR MARKET PRICE; TO ESTABLISH A PREFERENCE FOR PRODUCTS MANUFACTURED OR PRODUCED BY THE MISSISSIPPI INDUSTRIES FOR THE BLIND; TO PROVIDE FOR THE MEMBERSHIP AND OPERATION OF THE COUNCIL; TO PROVIDE FOR ADMINISTRATIVE SUPPORT BY THE OFFICE OF PURCHASING OF THE MISSISSIPPI DEPARTMENT OF FINANCE AND ADMINISTRATION; TO PRESCRIBE FAIR MARKET PRICE AND PURCHASING PROCEDURES FOR PRODUCTS MADE BY SUCH COMMUNITY REHABILITATION PROGRAMS; TO PRESCRIBE THE DUTIES OF THE COUNCIL AND THE OFFICE OF PURCHASING; TO PROVIDE EXCEPTIONS; TO CLARIFY PROCUREMENT FOR POLITICAL SUBDIVISIONS OF THE STATE AND MUNICIPALITIES; TO AUTHORIZE A CENTRAL NONPROFIT AGENCY TO ADMINISTER THE PURCHASING PROGRAM; TO PROVIDE FOR CONSUMER INFORMATION AND COMPLAINTS; TO AUTHORIZE RULEMAKING BY THE COUNCIL AND THE OFFICE OF PURCHASING; TO PROVIDE FOR RECORD KEEPING AND REPORTS; TO PRESCRIBE A MANAGEMENT FEE TO SUPPORT THE COST OF THE PURCHASING PROGRAM; TO AMEND SECTION 31-7-13, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The purpose of this act is to further the state's policy of encouraging and assisting persons with disabilities to achieve maximum personal independence by engaging in useful and productive employment activities and, in addition, to provide state agencies, departments, and institutions and political subdivisions of the state with a method for achieving conformity with requirements of nondiscrimination and affirmative action in employment matters related to persons with disabilities.
SECTION 2. As used in this act:
(a) "Central nonprofit agency" means an agency designated as a central nonprofit agency under contract under Section 20 of this act.
(b) "Community rehabilitation program" means a government or nonprofit private program operated under criteria established by the council and under which persons with severe disabilities produce products or perform services for compensation.
(c) "Council" means the Mississippi Council on Purchasing from People with Disabilities.
(d) "Disability" mans a mental or physical impairment, including blindness, that impedes a person who is seeking, entering or maintaining gainful employment.
(e) "Office" means the Office of Purchasing of the Mississippi Department of Finance and Administration.
SECTION 3. (1) The Mississippi Council on Purchasing from People with Disabilities is hereby established, to be composed of nine (9) members selected from the following categories who are appointed by the Governor with the advice and consent of the Senate:
(a) Private citizens conversant with the employment needs of persons with disabilities, including blindness, and with current experience in the pricing and marketing of goods and services;
(b) Representatives of community rehabilitation programs that represent different disability groups, including person with blindness, and that provide or seek to provide products produced or services performed by persons with disabilities;
(c) Representatives of state agencies or political subdivisions that purchase a significant amount of products produced or services performed by persons with disabilities; and
(d) Persons with disabilities.
(2) The Governor shall select three (3) members from the category prescribed by subsection (1)(a) and at least one (1) member from the other three (3) categories prescribed by subsection (1)(a). To the extent possible, the Governor shall attempt to ensure that the categories prescribed by subsection (1)(b), (c) and (d) are equally represented on the council. Members of the council serve staggered terms of six (6) years with the terms of three (3) members expiring on July 1 of each odd-numbered year. Members may not receive compensation for their service on the council, but they are entitled to reimbursement for actual and necessary expenses incurred in performing their duties as members.
(3) The Governor shall select one (1) of the council members to serve as presiding officer.
(4) A person is not eligible for appointment as a member of the council under subsection (1)(a) if the person or the person's spouse:
(a) Is employed by or participates in the management of a central nonprofit agency, a community rehabilitation program, or another organization receiving funds from or doing business with the council;
(b) Owns or controls, directly or indirectly, more than a ten percent (10%) interest in a central nonprofit agency, a community rehabilitation program, or another organization receiving funds from or doing business with the council; or
(c) Uses or receives a substantial amount of tangible goods, services or funds from the council, a central nonprofit agency or a community rehabilitation program, other than reimbursement authorized by law for council membership, attendance or expenses.
(5) A person may not serve as a member of the council if the person is required to register as a lobbyist because of the person's activities for compensation on behalf of a profession related to the operation of the council.
(6) Appointments to the council shall be made without regard to the race, creed, sex, disability, age, religion or national origin of the appointees.
(7) It is a ground for removal from the council if a member:
(a) Does not have at the time of appointment the qualification required by subsection (1) of this section for appointment to the council;
(b) Does not maintain during the service on the council the qualifications required by subsection (1) of this section for appointment to the council;
(c) Violates a prohibition established by subsection (4) or (5) of this section;
(d) Cannot because of illness or disability discharge the member's duties for a substantial part of the term for which the member is appointed; or
(e) Is absent from more than half of the regularly scheduled council meetings that the member is eligible to attend during a calendar year unless the absence is excused by majority vote of the council.
(8) The validity of an action of the council is not affected by the fact that it was taken when a ground for removal of a member of the council existed.
(9) If the executive director of the commission has knowledge that a potential ground for removal exists, the executive director shall notify the presiding officer of the council of the potential ground. If the presiding officer is notified under this section, or if the presiding officer has knowledge that a potential ground for removal exists, the presiding officer shall notify the Governor and the Attorney General that a potential ground for removal exists. If the potential ground for removal involves the presiding officer, the executive director shall notify the next highest officer of the council, who shall notify the Governor and the Attorney General that a potential ground for removal exists.
(10) The council shall adopt rules establishing a formal certification procedure for recognition and approval of community rehabilitation programs. The procedure must include a committee composed of three (3) council members appointed by the presiding officer to review certification applications of community rehabilitation programs and issue recommendations to the council. The council may:
(a) Recognize a program that maintains accreditation by a nationally accepted vocational rehabilitation accrediting organization; and
(b) Approve community rehabilitation program services that have been approved for purchase by a state habilitation or rehabilitation agency.
(11) The council may delegate the administration of the procedure established under subsection (10) to a central nonprofit agency but may not delegate the authority to certify a community rehabilitation program under this section.
SECTION 4. The presiding officer of the council or the presiding officer's designee shall provide to members of the council and to council employees, as often as necessary, information regarding requirements for office or employment under this act, including information regarding a person's responsibilities under applicable laws relating to standards of conduct for state officers or employees.
SECTION 5. (1) A person who is appointed to and qualifies for office as a member of the council may not vote, deliberate, or be counted as a member in attendance at a meeting of the council until the person completes a training program that complies with this section.
(2) The training program must provide the person with information regarding:
(a) This act;
(b) The programs operated by the council;
(c) The role and functions of the council;
(d) The rules of the council with an emphasis on the rules that relate to oversight and investigatory authority;
(e) The current budget for the council;
(f) The results of the most recent formal audit of the council;
(g) The requirements of:
(i) The open meetings law;
(ii) The open records law; and
(iii) The administrative procedure law;
(h) Other laws relating to public officials, including, conflict of interest laws; and
(i) Any applicable ethics policies adopted by the council or the Mississippi Ethics Commission.
(3) A person appointed to the council is entitled to reimbursement, as provided by law, for the travel expenses incurred in attending the training program regardless of whether the attendance at the program occurs before or after the personal qualifies for office.
SECTION 6. (1) The Office of Purchasing of the Mississippi Department of Finance and Administration may employ staff as necessary to carry out the council's duties.
(2) The staff shall provide:
(a) Management oversight for the administration of this act; and
(b) Policy guidance and administrative support to the council.
(3) The council shall develop and implement policies that clearly separate the policymaking responsibilities of the council and management responsibilities of the staff of the council.
SECTION 7. (1) The council may establish an advisory committee if the council considers the committee necessary. The membership of the committee is determined by the council.
(2) The council shall specify the purpose and duties of the advisory committee, which may include:
(a) Reviewing the effectiveness of the program administered under this act; and
(b) Recommending procedures to create higher skilled and higher paying employment opportunities.
(3) Members of an advisory committee serve at the will of the council. The council may dissolve an advisory committee when appropriate.
(4) The council shall make reasonable attempts to have balanced representation on all advisory committees, including attempting to seek representation from:
(a) The Mississippi Department of Mental Health;
(b) Other community rehabilitation programs;
(c) Representatives from central nonprofit agencies;
(d) Representatives of disability advocacy groups;
(e) Government purchasing agents with knowledge of this act;
(f) Private industry representatives with knowledge of this act; and
(g) Private citizens who have a disability and have knowledge of the sale of products and services.
SECTION 8. (1) The council shall determine the fair market price of all products and services manufactured or provided by persons with disabilities and offered for sale to the various agencies and departments of the state and its political subdivisions by a community rehabilitation program. The council shall ensure that the products and services offered for sale offer the best value for the state or a political subdivision.
(2) A subcommittee composed of three (3) council members appointed by the presiding officer shall review the data used to determine fair market price and shall make recommendations to the council concerning fair market price for the products and services and offering the best value to customers.
(3) The council shall revise the prices periodically to reflect changing market conditions.
(4) Before offering for sale products and services manufactured or provided by persons with disabilities to state agencies, political subdivisions and municipal governing authorities, the council shall test the goods and services to the extent necessary to ensure quality. The council may enter into a contract with a private or public entity to assist with testing.
(5) The Office of Purchasing of the Mississippi Department of Finance and Administration shall make awards under this section based on proposed goods and services meeting formal state specifications developed by the office or meeting commercial specifications approved by the office.
(6) Requisitions for products and services required by state agencies, political subdivisions and municipalities are processed by the office according to rules established by the office.
SECTION 9. A suitable product or service that meets applicable specifications established by state agencies, political subdivisions or municipal governing authorities, and that is available within the time specified shall procure from a community rehabilitation program at the price determined by the council to be the fair market price. Provided, however, that a preference shall be given to the Mississippi Industries for the Blind when purchases made by state agencies, political subdivisions or municipal governing authorities involve any item that is manufactured, processed or produced by Mississippi Industries for the Blind, and the office shall by regulation establish reasonable preferential policies for purchases from Mississippi Industries for the Blind.
SECTION 10. (1) The records of the council and of a central nonprofit agency shall, to the extent that the records pertain specifically to state purchases of the products and services of persons with disabilities, be made available upon request to the inspection of representatives of the State Auditor. The inspection of the records shall be conducted with due regard to the privacy rights of persons with disabilities.
(2) The office is the depository for all records concerning the council's operations.
SECTION 11. (1) Each state agency, political subdivision or municipality that purchases products or services through a program under this act shall:
(a) Designate an agency employee to ensure the agency complies with this act; and
(b) Report to the office and the council the purchase of products or services available from a general nonprofit agency or community rehabilitation program under this act, but purchased from another business that is not a central nonprofit agency or community rehabilitation program under this act.
(2) A report under this section may be based on a sampling of purchases by the agency in an audit conducted after the purchases.
(3) The office shall post the reports required by this section on its website.
(4) The council shall review the information contained in the reports under this section. The office shall assist the council in reviewing and analyzing the reports in order to improve state agency compliance with this act.
SECTION 12. The council may cooperate with the Prison Industries Program of the Mississippi Department of Corrections to accomplish the purposes of this act and to contribute to the economy of state government. The council and the department may enter into contractual agreements, cooperative working relationships or other arrangements necessary for effective coordination and the realization of the objectives of both entities.
SECTION 13. The council may adopt procedures, practices and standards used for federal programs similar to the state program established in this act.
SECTION 14. (1) The Office of Purchasing of the Department of Finance and Administration shall provide legal and other necessary support to the council in accordance with legislative appropriation. The office shall assign an upper level management employee to ensure that the office meets the requirements of this act.
(2) State agencies, political subdivisions and municipal governing authorities responsible for the provision of rehabilitation and related services to persons with disabilities shall cooperate with the council in the operation of the program. The Mississippi Department of Rehabilitation Services, and other state human services agencies responsible for assisting persons with disabilities may, through written agreements or interagency contracts, provide space, storage, logistical support, consultation, expert services, communications services, or financial assistance with respect to any function or responsibility of the council.
(3) The office or a state agency may not assume the marketing or fiscal responsibility for the expense of marketing the products and services of persons with disabilities under the program.
(4) The office shall include the programs administered under this act in the commission's procurement policy manuals.
(5) After any audit or review the office conducts with regard to state agency compliance with purchasing laws and procedures, the office shall report to the council a state agency that is not complying with this act.
SECTION 15. (1) The council shall adopt rules for the implementation, extension, administration, or improvement of the program authorized by this act.
(2) The office shall provide legal support to assist the council in adopting rules under this section.
(3) The council shall adopt rules to:
(a) Address possible conflicts of interest for central nonprofit agencies and community rehabilitation programs;
(b) Establish a process for the certification of community rehabilitation programs;
(c) Establish a minimum percentage of disabled labor an organization must employ to be considered a community rehabilitation program under this act; and
(d) Define the terms "value-added" and "direct labor" for products manufactured and services provided that are offered for sale under this act.
SECTION 16. Except as otherwise provided by this section, a product manufactured for sale through the office to any office, department, institution, or agency of the state, political subdivision or municipality under this act shall be manufactured or produced according to specifications developed by the office. If the office has not adopted specifications for a particular product, the production shall be based on commercial or federal specifications in current use by industry for the manufacture of the product for sale to the state.
SECTION 17. (1) In determining the fair market value of products or services offered for sale under this act, the subcommittee established under Section 8 and the council shall give due consideration to the following type of factors:
(a) To the extent applicable, the amounts being paid for similar articles in similar quantities by federal agencies purchasing the products or services under the authorized federal program of like effect to the state program authorized by this act;
(b) The amounts which private business would pay for similar products or services in similar quantities if purchasing from a reputable corporation engaged in the business of selling similar products or services;
(c) To the extent applicable, the amount paid by the state in any recent purchases of similar products or services in similar quantities, making due allowance for general inflationary or deflationary trends;
(d) The actual cost of manufacturing the product or performing a service at a community rehabilitation program offering employment services on or off premises to persons with disabilities, with adequate weight to be given to legal and moral imperatives to pay workers with disabilities equitable wages; and
(e) The usual, customary and reasonable costs of manufacturing, marketing and distribution.
(2) The actual cost of manufacturing a product or performing a service consists of costs directly associated with a contract and includes costs for labor, raw materials used in the production of the product, storage and delivery. Actual costs do not include a cost associated with an individual's preparation to perform the work activity.
(3) The fair market value of a product or service, determined after consideration of relevant factors of the foregoing type, may not be excessive or unreasonable.
SECTION 18. (1) Exceptions from the operation of the mandatory provisions of Section 16 may be made in any case where:
(a) Under the rules of the Office of Purchasing of the Department of Finance and Administration, the product or service so produced or provided does not meet the reasonable requirements of the office, department, institution or agency; or
(b) The requisitions made cannot be reasonably complied with through provision of products or services produced by persons with disabilities.
(2) Each month, the office shall provide the council with a list of all items purchased under the exception provided by subsection (1) of this section. The council shall adopt the form in which the list is to be provided and may require the list to include the date of requisition, the type of product or service requested, the reason for purchase under the exception, and any other information that the council considers relevant to a determination of why the product or service was not purchased in accordance with Section 16.
(3) No office, department, institution or agency may evade the intent of this section by slight variations from standards adopted by the office, when the products or services produced or provided by persons with disabilities, in accordance with established standards, are reasonably adapted to the actual needs of the office, department, institution or agency.
SECTION 19. (1) A product manufactured for sale to a political subdivision of this state, or a municipality, or an office or department thereof shall be manufactured or produced according to specifications developed by the purchaser. A political subdivision of this state or a municipality may purchase products or services for its use from private businesses through its authorized purchasing procedures, but may substitute equivalent products or services produced by persons with disabilities under the provisions of this act. Nothing in this act shall be construed to require a nonprofit agency for persons with disabilities to engage in competitive bidding.
(2) There are excluded from the mandatory application of this act the political subdivisions of the state that are not covered by Title V of the Federal Rehabilitation Act of 1973, as amended (29 U.S. Code Sections 790 through 794). This act does not prohibit a political subdivision from acting as a willing buyer outside a bid system.
SECTION 20. (1) The council may select and contract with one or more central nonprofit agencies through a request for proposals for a period not to exceed five (5) years. Once the selection process is completed, the council shall contract with a central nonprofit agency to:
(a) Recruit and assist community rehabilitation programs in developing and submitting applications for the selection of suitable products and services;
(b) Facilitate the distribution of orders among community rehabilitation programs;
(c) Manage and coordinate the day-to-day operation of the program, including the general administration of contracts with community rehabilitation programs;
(d) Promote increased supported employment opportunities for persons with disabilities; and
(e) Recruit and assist qualified nonprofit organizations that are managed by members of racial minorities, women, or persons with disabilities and that are in the process of qualifying as community rehabilitation programs.
(2) The services of a central nonprofit agency may include marketing and marketing support services, such as:
(a) Assistance to community rehabilitation programs regarding solicitation and negotiation of contracts;
(b) Direct marketing of products and services to consumers;
(c) Research and development of products and services;
(d) Public relations activities to promote the program;
(e) Customer relations;
(f) Education and training;
(g) Accounting services related to purchase orders, invoices, and payments to community rehabilitation programs; and
(h) Other duties designated by the council.
(3) Each year, the council shall review services provided by a central nonprofit agency and the revenues required to accomplish the program to determine whether each agency's performance complies with contractual specifications. Not later than the 60th day before the review, the council shall publish a request for comment on the services of a central nonprofit agency that participates in community rehabilitation programs.
(4) At least once during each five-year period, the council may review and renegotiate the contract with a central nonprofit agency. Not later than the 60th day before the date the council adopts or renews a contract, the council shall publish notice of the proposed contract.
(5) The maximum management fee rate charged by a central nonprofit agency for its services must be computed as a percentage of the selling price of the product or the contract price of a service, must be included in the selling price or contract price, and must be paid at the time of sale. The management fee rate must be approved by the council and must be reviewed on an annual basis.
(6) A percentage of the management fee described by subsection (5) shall be paid to the council. The percentage shall be set by the council in the amount necessary to reimburse the State General Fund for direct and reasonable costs incurred by the office, the council, and the council staff in administering the council's duties under this act.
(7) The council may terminate a contract with a central nonprofit agency if:
(a) The council finds substantial evidence of the central nonprofit agency's noncompliance with contractual obligations; and
(b) The council has provided at least thirty (30) days' notice to the central nonprofit agency of the termination of the contract.
(8) The council may request an audit by the State Auditor of:
(a) The management fee set by a central nonprofit agency; or
(b) The financial condition of a central nonprofit agency.
(9) A person may not operate a community rehabilitation program and at the same time contract with the council as a central nonprofit agency.
SECTION 21. (1) The council shall prepare information of consumer interest describing the activities of the council and describing the council's procedures by which consumer complaints are filed with and resolved by the council. The council shall make the information available to the general public and appropriate state agencies.
(2) The council shall keep an information file about each complaint filed with the council. The file must include:
(a) The name of the person who filed the complaint;
(b) The date the complaint is received by the council;
(c) The subject matter of the complaint;
(d) The name of each person contacted in relation to the complaint;
(e) A summary of the results of the review or investigation of the complaint; and
(f) An explanation of the reason the file was closed, if the council closed the file without taking action other than to investigate the complaint.
(3) If a written complaint is filed with the council, the council, at least as frequently as quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation.
(4) The council shall provide to the person filing the complaint and to each person who is a subject of the complaint a copy of the council's policies and procedures relating to complaint investigation and resolution.
SECTION 22. (1) A dispute between the council and a central nonprofit agency or a community rehabilitation program shall first be submitted to alternative dispute resolution.
(2) This section does not constitute authorization to sue and does not modify the remedies available under other law.
(3) This section does not limit the council's ability to request opinions from the attorney general.
SECTION 23. (1) The council shall develop and implement policies that provide the public with a reasonable opportunity to appear before the council and to speak on any issue under the jurisdiction of the council.
(2) The council shall comply with federal and state laws related to program and facility accessibility. The council shall also prepare and maintain a written plan that describes how a person who does not speak English can be provided reasonable access to the council's programs and services.
SECTION 24. (1) The council and the council's staff may access financial or other information and records from a central nonprofit agency or a community rehabilitation program if the council determines the information and records are necessary for the effective administration of this act and rules adopted under this act.
(2) Information and records must be obtained under subsection (1) in recognition of the privacy interest of persons employed by central nonprofit agencies or community rehabilitation programs. The information and records may not be released or made public on subpoena or otherwise, except that release may be made:
(a) For statistical purposes, but only if a person is not identified;
(b) With the consent of each person identified in the information released; or
(c) Regarding a compensation package of any central nonprofit agency employee or subcontractor if determined by the council to be relevant to the administration of this act.
(3) The council shall adopt rules establishing procedures to ensure that the information and records maintained by the council under this act are kept confidential and protected from release to unauthorized persons.
(4) The council or a central nonprofit agency at the council's direction may inspect a community rehabilitation program for compliance with certification criteria established under this act.
SECTION 25. (1) On or before November 1 of each year, the council shall file with the Governor and the Legislature a complete and detailed written report accounting for all funds received and disbursed by the council during the preceding year.
(2) The report submitted under this section must include:
(a) The number of persons with disabilities, according to their type of disability, who are employed in community rehabilitation programs participating in the programs established by this act or who are employed by businesses or workshops that receive supportive employment from community rehabilitation programs;
(b) The amount of annual wages paid to a person participating in the program;
(c) A summary of the sale of products offered by a community rehabilitation program;
(d) A list of products and services offered by a community rehabilitation program;
(e) The geographic distribution of the community rehabilitation programs;
(f) The number of nondisabled workers who are employed in community rehabilitation programs under this act; and
(g) The average and range of weekly earnings for disabled and nondisabled workers who are employed in community rehabilitation programs under this act.
SECTION 26. (1) The council shall develop and implement a policy requiring the staff of the council or a central nonprofit agency to research and propose appropriate technological solutions to improve the council's ability to perform its functions. The technological solutions must:
(a) Ensure that the public is able to easily find information about the council on the Internet;
(b) Ensure that persons who want to use the council's services are able to:
(i) Interact with the council through the Internet; and
(ii) Access any service that can be provided effectively through the Internet; and
(c) Be cost-effective and developed through the council's planning processes.
(2) The council shall establish procedures for the promotion of the program administered under this act.
SECTION 27. (1) As part of an audit of a state agency authorized by law, the State Auditor shall:
(a) Conduct an audit of a state agency for compliance with this act; and
(b) Report to the council a state agency that is not complying with this act.
(2) If the State Auditor reports to the council that a state agency is not complying with this act, the council shall assist the agency in complying.
SECTION 28. 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 garbage collection or disposal; contract for solid waste collection or disposal; contract for sewage collection or disposal; contract for public construction; and contract for rentals as herein provided.
(a) Bidding procedure for purchases not over $3,500.00. Purchases which do not involve an expenditure of more than Three Thousand Five Hundred Dollars ($3,500.00), exclusive of freight or shipping charges, may be made without advertising or otherwise requesting competitive bids. However, 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 Three Thousand Five Hundred Dollars ($3,500.00) or less.
(b) Bidding procedure for purchases over $3,500.00 but not over $15,000.00. Purchases which involve an expenditure of more than Three Thousand Five Hundred Dollars ($3,500.00) but not more than Fifteen Thousand Dollars ($15,000.00), 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. "Competitive" shall mean that the bids are developed based upon comparable identification of the needs and are developed independently and without knowledge of other bids or prospective bids. Bids may be submitted by facsimile, electronic mail or other generally accepted method of information distribution. Bids submitted by electronic transmission shall not require the signature of the vendor's representative unless required by agencies or governing authorities.
(c) Bidding procedure for purchases over $15,000.00.
(i) Publication requirement. Purchases which involve an expenditure of more than Fifteen Thousand Dollars ($15,000.00), 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. 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, or provide electronic notification to the main office of the Mississippi Contract Procurement Center that contains the same information as that in the published notice.
(ii) Bidding process amendment procedure. If all plans and/or specifications are published in the notification, then the plans and/or specifications may not be amended. If all plans and/or specifications are not published in the notification, then amendments to the plans/specifications, bid opening date, bid opening time and place may be made, provided that the agency or governing authority maintains a list of all prospective bidders who are known to have received a copy of the bid documents and all such prospective bidders are sent copies of all amendments. This notification of amendments may be made via mail, facsimile, electronic mail or other generally accepted method of information distribution. No addendum to bid specifications may be issued within two (2) working days of the time established for the receipt of bids unless such addendum also amends the bid opening to a date not less than five (5) working days after the date of the addendum.
(iii) Filing requirement. 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. In addition to these requirements, a bid file shall be established which shall indicate those vendors to whom such solicitations and specifications were issued, and such file shall also contain such information as is pertinent to the bid.
(iv) Specification restrictions. Specifications pertinent to such bidding shall be written so as not to exclude comparable equipment of domestic manufacture. However, if valid justification is 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. 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.
(v) Agencies and governing authorities may establish secure procedures by which bids may be submitted via electronic means.
(d) Lowest and best bid decision procedure.
(i) Decision procedure. Purchases may be made from the lowest and best bidder. In determining the lowest and best bid, freight and shipping charges shall be included. Life-cycle costing, total cost bids, warranties, guaranteed buy-back provisions and other relevant provisions may be included in the best bid calculation. All best bid procedures for state agencies must be in compliance with regulations established by the Department of Finance and Administration. 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) Decision procedure for Certified Purchasing Offices. In addition to the decision procedure set forth in paragraph (d)(i), Certified Purchasing Offices may also use the following procedure: Purchases may be made from the bidder offering the best value. In determining the best value bid, freight and shipping charges shall be included. Life-cycle costing, total cost bids, warranties, guaranteed buy-back provisions, documented previous experience, training costs and other relevant provisions may be included in the best value calculation. This provision shall authorize Certified Purchasing Offices to utilize a Request For Proposals (RFP) process when purchasing commodities. All best value procedures for state agencies must be in compliance with regulations established by the Department of Finance and Administration. No agency or governing authority shall accept a bid based on items or criteria not included in the specifications.
(iii) Construction project negotiations authority. 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.
(e) Lease-purchase authorization. For the purposes of this section, the term "equipment" shall mean equipment, furniture and, if applicable, associated software and other applicable direct costs associated with the acquisition. 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 equipment 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) Alternate bid authorization. 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 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) Construction contract change authorization. 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) Petroleum purchase alternative. In addition to other methods of purchasing authorized in this chapter, when any agency or governing authority shall have a need for gas, diesel fuel, oils and/or other petroleum products in excess of the amount set forth in paragraph (a) of this section, such agency or governing authority may purchase the commodity after having solicited and obtained at least two (2) competitive written bids, as defined in paragraph (b) of this section. If two (2) competitive written bids are not obtained, the entity shall comply with the procedures set forth in paragraph (c) of this section. 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) Road construction petroleum products price adjustment clause authorization. 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 Mississippi 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) State agency emergency purchase procedure. If the governing board or the executive head, or his designee, 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, or his designee, shall, at the earliest possible date following such emergency purchase, file with the Department of Finance and Administration (i) a statement explaining the conditions and circumstances of the emergency, which shall include a detailed description of the events leading up to the situation and the negative impact to the entity if the purchase is made following the statutory requirements set forth in paragraph (a), (b) or (c) of this section, and (ii) a certified copy of the appropriate minutes of the board of such agency, if applicable. On or before September 1 of each year, the State Auditor shall prepare and deliver to the Senate Fees, Salaries and Administration Committee, the House Fees and Salaries of Public Officers Committee and the Joint Legislative Budget Committee a report containing a list of all state agency emergency purchases and supporting documentation for each emergency purchase.
(k) Governing authority emergency purchase procedure. 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) Hospital purchase, lease-purchase and lease authorization.
(i) The commissioners or board of trustees of any public hospital may contract with such lowest and best bidder for the purchase or lease-purchase of any commodity under a contract of purchase or lease-purchase agreement whose obligatory payment terms do not exceed five (5) years.
(ii) In addition to the authority granted in subparagraph (i) of this paragraph (l), the commissioners or board of trustees is 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. Any such contract for the lease of equipment or services executed on behalf of the commissioners or board that complies with the provisions of this subparagraph (ii) shall be excepted from the bid requirements set forth in this section.
(m) Exceptions from bidding requirements. Excepted from bid requirements are:
(i) Purchasing agreements approved by department. Purchasing agreements, contracts and maximum price regulations executed or approved by the Department of Finance and Administration.
(ii) Outside equipment repairs. 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; however, 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) In-house equipment repairs. 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 gravel or dirt. Raw unprocessed deposits of gravel or fill dirt which are to be removed and transported by the purchaser.
(v) Governmental equipment auctions. Motor vehicles or other equipment purchased from a federal agency or authority, another governing authority or state agency of the State of Mississippi, or any governing authority or state agency of another state 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 subparagraph (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) Intergovernmental sales and transfers. 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 or governing authority of another state. Nothing in this section shall permit such purchases through public auction except as provided for in subparagraph (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 food. 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) Single source items. Noncompetitive items available from one (1) source only. 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 that 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 those situations, a governing authority is not required to obtain the approval of the Department of Finance and Administration.
(ix) Waste disposal facility construction contracts. 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; 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) Hospital group purchase contracts. Supplies, commodities and equipment purchased by hospitals through group purchase programs pursuant to Section 31-7-38.
(xi) Information technology products. Purchases of information technology products made by governing authorities under the provisions of purchase schedules, or contracts executed or approved by the Mississippi Department of Information Technology Services and designated for use by governing authorities.
(xii) Energy efficiency services and equipment. Energy efficiency services and equipment acquired by school districts, community and 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) Municipal electrical utility system fuel. 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.
(xiv) Library books and other reference materials. 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 subparagraph.
(xv) Unmarked vehicles. 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).
(xvi) Election ballots. Purchases of ballots printed pursuant to Section 23-15-351.
(xvii) Multichannel interactive video systems. 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.
(xviii) Purchases of prison industry products. From and after January 1, 1991, purchases made by state agencies or governing authorities involving any item that is manufactured, processed, grown or produced from the state's prison industries.
(xix) Undercover operations equipment. Purchases of surveillance equipment or any other high-tech equipment to be used by law enforcement agents in undercover operations, provided that any such purchase shall be in compliance with regulations established by the Department of Finance and Administration.
(xx) Junior college books for rent. 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.
(xxi) Certain school district purchases. 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.
(xxii) Garbage, solid waste and sewage contracts. Contracts for garbage collection or disposal, contracts for solid waste collection or disposal and contracts for sewage collection or disposal.
(xxiii) Municipal water tank maintenance contracts. 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.
(xxiv) Purchases of Mississippi Industries for the Blind products. Purchases made by state agencies or governing authorities involving any item that is manufactured, processed or produced by the Mississippi Industries for the Blind.
(xxv) Purchases of state-adopted textbooks. Purchases of state-adopted textbooks by public school districts.
(xxvi) Certain purchases under the Mississippi Major Economic Impact Act. Contracts entered into pursuant to the provisions of Section 57-75-9(2) and (3).
(xxvii) Used heavy or specialized machinery or equipment for installation of soil and water conservation practices purchased at auction. Used heavy or specialized machinery or equipment used for the installation and implementation of soil and water conservation practices or measures purchased subject to the restrictions provided in Sections 69-27-331 through 69-27-341. Any purchase by the State Soil and Water Conservation Commission under the exemption authorized by this subparagraph shall require advance authorization spread upon the minutes of the commission 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.
(xxviii) Hospital lease of equipment or services. Leases by hospitals of equipment or services if the leases are in compliance with paragraph (l)(ii).
(xxix) Purchases made pursuant to qualified cooperative purchasing agreements. Purchases made by certified purchasing offices of state agencies or governing authorities under cooperative purchasing agreements previously approved by the Office of Purchasing and Travel and established by or for any municipality, county, parish or state government or the federal government, provided that the notification to potential contractors includes a clause that sets forth the availability of the cooperative purchasing agreement to other governmental entities. Such purchases shall only be made if the use of the cooperative purchasing agreements is determined to be in the best interest of the government entity.
(xxx) School yearbooks. Purchases of school yearbooks by state agencies or governing authorities; provided, however, that state agencies and governing authorities shall use for these purchases the RFP process as set forth in the Mississippi Procurement Manual adopted by the Office of Purchasing and Travel.
(xxxi) Design-build method or the design-build bridging method of contracting. Contracts entered into the provisions of Section 31-11-3(9).
(n) Term contract authorization. All contracts for the purchase of:
(i) All contracts for the purchase of commodities, equipment and public construction (including, but not limited to, repair and maintenance), may be let for periods of not more than sixty (60) months in advance, subject to applicable statutory provisions prohibiting the letting of contracts during specified periods near the end of terms of office. Term contracts for a period exceeding twenty-four (24) months shall also be subject to ratification or cancellation by governing authority boards taking office subsequent to the governing authority board entering the contract.
(ii) Bid proposals and contracts may include price adjustment clauses with relation to the cost to the contractor based upon a nationally published industry-wide or nationally published and recognized cost index. The cost index used in a price adjustment clause shall be determined by the Department of Finance and Administration for the state agencies and by the governing board for governing authorities. The bid proposal and contract documents utilizing a price adjustment clause shall contain the basis and method of adjusting unit prices for the change in the cost of such commodities, equipment and public construction.
(o) Purchase law violation prohibition and vendor penalty. 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) Electrical utility petroleum-based equipment purchase procedure. 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) Fuel management system bidding procedure. 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 (q), 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. Governing authorities and agencies shall be exempt from this process when contracting for the services and products of a fuel management or fuel access systems under the terms of a state contract established by the Office of Purchasing and Travel.
(r) Solid waste contract proposal procedure. 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 the amount provided in paragraph (c) of this section. 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 (r) 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. Notwithstanding any other provisions of this paragraph, where a county with at least thirty-five thousand (35,000) nor more than forty thousand (40,000) population, according to the 1990 federal decennial census, owns or operates a solid waste landfill, the governing authorities of any other county or municipality may contract with the governing authorities of the county owning or operating the landfill, pursuant to a resolution duly adopted and spread upon the minutes of each governing authority involved, for garbage or solid waste collection or disposal services through contract negotiations.
(s) Minority set-aside authorization. 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.
(t) Construction punch list restriction. 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.
(u) Purchase authorization clarification. Nothing in this section shall be construed as authorizing any purchase not authorized by law.
(v) Procurement from People with Disabilities. A suitable product or service that meets applicable specifications established by a state agency, political subdivision or municipality and that is available within the time specified, shall be procured from a community rehabilitation program at the price determined by the Mississippi Council on Purchasing from People with Disabilities to be the fair market price, according to the provisions of Senate Bill No. ____, 2005 Regular Session. Preference shall be given to products manufactured or produced by the Mississippi Industries for the Blind as provided in Section 9 of said act.
SECTION 29. This act shall take effect and be in force from and after July 1, 2005; provided however, that Sections 1 through 27 of this act, which establish and empower a Mississippi Council on Purchasing from People with Disabilities, shall stand repealed on July 1, 2009.