MISSISSIPPI LEGISLATURE

2023 Regular Session

To: Finance

By: Senator(s) Chassaniol

Senate Bill 2887

(COMMITTEE SUBSTITUTE)

AN ACT TO AMEND SECTION 27-105-33, MISSISSIPPI CODE OF 1972, TO MODIFY CERTAIN PROVISIONS CONCERNING THE DEPOSIT AND INVESTMENT OF EXCESS STATE FUNDS BY THE STATE TREASURER; TO REVISE THE REQUIREMENT THAT AT LEAST 80% OF THE TOTAL DOLLAR AMOUNT IN ALL REPURCHASE AGREEMENTS AT ANY ONE TIME SHALL BE PURSUANT TO CONTRACTS WITH QUALIFIED STATE DEPOSITORIES; TO PROVIDE THE OPTION OF INVESTING IN CERTAIN CORPORATE BONDS AND TAXABLE MUNICIPAL BONDS; TO AMEND SECTION 27-104-7, MISSISSIPPI CODE OF 1972, TO SPECIFY THAT CERTAIN PUBLIC PROCUREMENT REVIEW BOARD PROVISIONS DO NOT IMPAIR OR LIMIT THE AUTHORITY OF THE STATE TREASURER TO ENTER INTO ANY PERSONAL OR PROFESSIONAL SERVICES CONTRACTS INVOLVING THE MANAGEMENT OF TRUST FUNDS, AN AUTHORITY COMPARABLE TO THAT GRANTED TO THE BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM; TO REMOVE A SUBSECTION THAT REPEALED ON JULY 1, 2022; AND FOR RELATED PURPOSES.

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

     SECTION 1.  Section 27-105-33, Mississippi Code of 1972, is amended as follows:

     27-105-33.  It shall be the duty of the State Treasurer and the Executive Director of the Department of Finance and Administration on or about the tenth day of each month, and in their discretion at any other time, to analyze carefully the amount of cash in the General Fund of the state and in all special funds credited to any special purpose designated by the State Legislature or held to meet the budgets or appropriations for maintenance, improvements and services of the several institutions, boards, departments, commissions, agencies, persons or entities of the state, and to determine in their opinion when the cash in such funds is in excess of the amount required to meet the current needs and demands of no more than seven (7) business days on such funds and report their findings to the Governor.  It shall be the duty of the State Treasurer to provide a cash flow model for forecasting revenues and expenditures on a bimonthly basis and providing technical assistance for its operation.  The Department of Finance and Administration shall use the cash flow model furnished by the State Treasurer, in analyzing the amount of funds on deposit and available for investment.

     The State Treasurer is hereby authorized, empowered and directed to invest all such excess general and special funds of the state in the following manner:

          (a)  Funds shall be allocated equally among all qualified state depositories which do not have demand accounts in excess of One Hundred Fifty Thousand Dollars ($150,000.00) until each qualified depository willing to accept the same shall have on deposit or in security repurchase agreements or in other securities authorized in paragraph (d) of this section at interest the sum of Three Hundred Thousand Dollars ($300,000.00).  For the purposes of this subsection, no branch bank or branch office shall be counted as a separate depository.

          (b)  The balance, if any, of such excess general and special funds shall be offered to qualified depositories of the state on a pro rata basis as provided in Section 27-105-9.  For the purposes of this subsection, the pro rata share of each depository shall be reduced by the amount of the average daily collected earning balance of demand deposits maintained by the State Treasurer pursuant to Section 27-105-9 during the preceding calendar year, and such reduction shall be allocated pro rata among other eligible depositories.

          (c)  Funds offered pursuant to paragraphs (a) and (b) above shall be invested for periods of up to one (1) year, and shall bear interest at an interest rate no less than that numerically equal to the bond equivalent yield on direct obligations of the United States Treasury of comparable maturity, as determined by the State Treasurer.  In determining such rate, the State Treasurer shall consider the Legislature's desire to distribute funds equitably throughout the state to the maximum extent possible.

          (d)  To the extent that the State Treasurer shall find that general and special funds cannot be invested pursuant to paragraphs (a), (b) and (c) of this section for the stated maturity up to one (1) year, the Treasurer may invest such funds, together with any other funds required for current operation, as determined pursuant to this section, in the following:

              (i)  Time certificates of deposit or interest-bearing accounts with qualified state depositories.  For those funds determined under prudent judgment of the State Treasurer to be made available for investment in time certificates of deposit, the rate of interest paid by the depositories shall be determined by rules and regulations adopted and promulgated by the State Treasurer which may include competitive bids.  At the time of investment, the interest rate on such certificates of deposit under the provisions of this subparagraph shall be a rate not less than the bond equivalent yield on direct obligations of the United States Treasury with a similar length of maturity.

              (ii)  Direct United States Treasury obligations, the principal and interest of which are fully guaranteed by the government of the United States.

              (iii)  United States government agency, United States government instrumentality or United States government-sponsored enterprise obligations, the principal and interest of which are fully guaranteed by the government of the United States, such as the Government National Mortgage Association; or United States governmental agency, United States government instrumentality or United States government-sponsored enterprise obligations, the principal and interest of which are guaranteed by any United States government agency, United States government instrumentality or United States government-sponsored enterprise contained in a list promulgated by the State Treasurer.

              (iv)  Direct security repurchase agreements and reverse direct security repurchase agreements of any federal book entry of only those securities enumerated in subparagraphs (ii) and (iii) above.  "Direct security repurchase agreement" means an agreement under which the state buys, holds for a specified time, and then sells back those securities and obligations enumerated in subparagraphs (ii) and (iii) above.  "Reverse direct securities repurchase agreement" means an agreement under which the state sells and after a specified time buys back any of the securities and obligations enumerated in subparagraphs (ii) and (iii) above. * * *  At least eighty percent (80%) of the total dollar amount in all repurchase agreements at any one time shall be pursuant to contracts with qualified state depositories.  A qualified public depository shall be given preference for such agreements when possible.

              (v)  Bonds issued, assumed or guaranteed by the Country of Israel, provided that:

                   1.  Investments in such instruments shall be denominated in United States currency;

                   2.  Such bonds must be of investment grade as rated by at least one (1) nationally recognized statistical rating agency; and

                   3.  The amount of funds invested in such bonds at any time shall not exceed Twenty Million Dollars ($20,000,000.00).

               (vi)  Corporate bonds and taxable municipal bonds; or corporate short-term obligations of corporations or of wholly owned subsidiaries of corporations, whose short-term obligations are rated A-1 or better by Standard and Poor's, rated P-1 or better by Moody's Investment Service, F-1 or better by Fitch Ratings, Ltd., or the equivalent of these ratings if assigned by another United States Securities and Exchange Commission designated Nationally Recognized Statistical Rating Organization.

          (e)  For the purposes of this section, direct obligations issued by the United States of America shall be deemed to include securities of, or other interests in, any open-end or closed-end management type investment company or investment trust registered under the provisions of 15 USCS Section 80(a)-1 et seq., provided that the portfolio of such investment company or investment trust is limited to direct obligations issued by the United States of America, United States government agencies, United States government instrumentalities or United States government-sponsored enterprises, and to repurchase agreements fully collateralized by direct obligations of the United States of America, United States government agencies, United States government instrumentalities or United States government-sponsored enterprises, and the investment company or investment trust takes delivery of such collateral for the repurchase agreement, either directly or through an authorized custodian.  The State Treasurer and the Executive Director of the Department of Finance and Administration shall review and approve the investment companies and investment trusts in which funds invested under paragraph (d) of this section may be invested.  The total dollar amount of funds invested in all open-end and closed-end management type investment companies and investment trusts at any one time shall not exceed twenty percent (20%) of the total dollar amount of funds invested under paragraph (d) of this section.

          (f)  Investments authorized by subparagraphs (ii) and (iii) of paragraph (d) shall mature on such date or dates as determined by the State Treasurer in the exercise of prudent judgment to generate a favorable return to the state and will allow the monies to be available for use at such time as the monies will be needed for state purposes.  However, the maturity of securities purchased as enumerated in subparagraphs (ii) and (iii) shall not exceed ten (10) years from date of purchase.  Special funds shall be considered those funds created constitutionally, statutorily or administratively which are not considered general funds.  All funds invested for a period of thirty (30) days or longer under paragraph (d) shall bear a rate at least equal to the current established rate under paragraph (c) of this section.

          (g)  Any interest-bearing deposits or certificates of deposit shall not exceed at any time the amount insured by the Federal Deposit Insurance Corporation in any one (1) banking institution, the Federal Savings and Loan Insurance Corporation in any one (1) savings and loan association, or other deposit insurance corporation approved by the State Treasurer, unless the uninsured portion is collateralized by the pledge of securities in the manner provided by Section 27-105-5.

          (h)  Unless otherwise provided, income from investments authorized by the provisions of this subsection shall be credited to the State General Fund.

          (i)  Not more than Five Hundred Thousand Dollars ($500,000.00) of funds may be invested with foreign financial institutions, and the State Treasurer may enter into price contracts for the purchase or exchange of foreign currency or other arrangements for currency exchange in an amount not to exceed Five Hundred Thousand Dollars ($500,000.00) upon specific direction of the Department of Economic and Community Development.  The State Treasurer shall promulgate all rules and regulations for applications, qualifications and any other necessary matters for foreign financial institutions.

     Any liquidating agent of a depository in liquidation, voluntary or involuntary, shall redeem from the state any bonds and securities which have been pledged to secure state funds and such redemption shall be at the par value or market value thereof, whichever is greater; otherwise, The liquidating agent or receiver may pay off the state in full for its deposits and retrieve the pledged securities without regard to par or market value.

     The State Treasurer and the Executive Director of the Department of Finance and Administration shall make monthly reports to the Legislative Budget Office containing a full and complete statement of all funds invested by virtue of the provisions of this section and the revenues derived therefrom and the expenses incurred therewith, together with all such other information as may seem to each of them as being pertinent to inform fully the Mississippi Legislature with reference thereto.

     The State Treasurer shall not deposit any funds on demand deposit with any authorized depository, unless such depository has contracted for interest-bearing accounts or time certificates of deposit.

     Notwithstanding the foregoing, any financial institution not meeting the prescribed ratio requirement set forth in Section 27-105-5 whose accounts are insured by the Federal Deposit Insurance Corporation, or any successor to that insurance corporation, may receive state funds in an amount not exceeding the amount which is insured by such insurance corporations and may qualify as a state depository to the extent of such insurance for this purpose only.  The paid-in and earned capital funds of such financial institution shall not be included in the computations specified in Section 27-105-9(a) and (b).

     SECTION 2.  Section 27-104-7, Mississippi Code of 1972, is amended as follows:

     27-104-7.  (1)  (a)  There is created the Public Procurement Review Board, which shall be reconstituted on January 1, 2018, and shall be composed of the following members:

               (i)  Three (3) individuals appointed by the Governor with the advice and consent of the Senate;

              (ii)  Two (2) individuals appointed by the Lieutenant Governor with the advice and consent of the Senate; and

               (iii)  The Executive Director of the Department of Finance and Administration, serving as an ex officio and nonvoting member.

          (b)  The initial terms of each appointee shall be as follows:

              (i)  One (1) member appointed by the Governor to serve for a term ending on June 30, 2019;

              (ii)  One (1) member appointed by the Governor to serve for a term ending on June 30, 2020;

              (iii)  One (1) member appointed by the Governor to serve for a term ending on June 30, 2021;

              (iv)  One (1) member appointed by the Lieutenant Governor to serve for a term ending on June 30, 2019; and

              (v)  One (1) member appointed by the Lieutenant Governor to serve for a term ending on June 30, 2020.

     After the expiration of the initial terms, all appointed members' terms shall be for a period of four (4) years from the expiration date of the previous term, and until such time as the member's successor is duly appointed and qualified.

          (c)  When appointing members to the Public Procurement Review Board, the Governor and Lieutenant Governor shall take into consideration persons who possess at least five (5) years of management experience in general business, health care or finance for an organization, corporation or other public or private entity.  Any person, or any employee or owner of a company, who receives any grants, procurements or contracts that are subject to approval under this section shall not be appointed to the Public Procurement Review Board.  Any person, or any employee or owner of a company, who is a principal of the source providing a personal or professional service shall not be appointed to the Public Procurement Review Board if the principal owns or controls a greater than five percent (5%) interest or has an ownership value of One Million Dollars ($1,000,000.00) in the source's business, whichever is smaller.  No member shall be an officer or employee of the State of Mississippi while serving as a voting member on the Public Procurement Review Board. 

          (d)  Members of the Public Procurement Review Board shall be entitled to per diem as authorized by Section 25-3-69 and travel reimbursement as authorized by Section 25-3-41.

          (e)  The members of the Public Procurement Review Board shall elect a chair from among the membership, and he or she shall preside over the meetings of the board.  The board shall annually elect a vice chair, who shall serve in the absence of the chair.  No business shall be transacted, including adoption of rules of procedure, without the presence of a quorum of the board.  Three (3) members shall be a quorum.  No action shall be valid unless approved by a majority of the members present and voting, entered upon the minutes of the board and signed by the chair.  Necessary clerical and administrative support for the board shall be provided by the Department of Finance and Administration.  Minutes shall be kept of the proceedings of each meeting, copies of which shall be filed on a monthly basis with the chairs of the Accountability, Efficiency and Transparency Committees of the Senate and House of Representatives and the chairs of the Appropriations Committees of the Senate and House of Representatives.

     (2)  The Public Procurement Review Board shall have the following powers and responsibilities:

          (a)  Approve all purchasing regulations governing the purchase or lease by any agency, as defined in Section 31-7-1, of commodities and equipment, except computer equipment acquired pursuant to Sections 25-53-1 through 25-53-29;

          (b)  Adopt regulations governing the approval of contracts let for the construction and maintenance of state buildings and other state facilities as well as related contracts for architectural and engineering services.

     The provisions of this paragraph (b) shall not apply to such contracts involving buildings and other facilities of state institutions of higher learning which are self-administered as provided under this paragraph (b) or Section 37-101-15(m);

          (c)  Adopt regulations governing any lease or rental agreement by any state agency or department, including any state agency financed entirely by federal funds, for space outside the buildings under the jurisdiction of the Department of Finance and Administration.  These regulations shall require each agency requesting to lease such space to provide the following information that shall be published by the Department of Finance and Administration on its website:  the agency to lease the space; the terms of the lease; the approximate square feet to be leased; the use for the space; a description of a suitable space; the general location desired for the leased space; the contact information for a person from the agency; the deadline date for the agency to have received a lease proposal; any other specific terms or conditions of the agency; and any other information deemed appropriate by the Division of Real Property Management of the Department of Finance and Administration or the Public Procurement Review Board.  The information shall be provided sufficiently in advance of the time the space is needed to allow the Division of Real Property Management of the Department of Finance and Administration to review and preapprove the lease before the time for advertisement begins;

          (d)  Adopt, in its discretion, regulations to set aside at least five percent (5%) of 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 and shall be subject to all bid requirements.  Set-aside purchases for which competitive bids are required shall be made from the lowest and best minority business bidder; however, if no minority bid is available or if the minority bid is more than two percent (2%) higher than the lowest bid, then bids shall be accepted and awarded to the lowest and best bidder.  However, the provisions in this paragraph shall not be construed to prohibit the rejection of a bid when only one (1) bid is received.  Such rejection shall be placed in the minutes.  For the purposes of this paragraph, the term "minority business" means a business which is owned by a person who is a citizen or lawful permanent resident of the United States and who is:

              (i)  Black:  having origins in any of the black racial groups of Africa;

              (ii)  Hispanic:  of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish or Portuguese culture or origin regardless of race;

              (iii)  Asian-American:  having origins in any of the original people of the Far East, Southeast Asia, the Indian subcontinent, or the Pacific Islands;

              (iv)  American Indian or Alaskan Native:  having origins in any of the original people of North America; or

              (v)  Female;

          (e)  In consultation with and approval by the Chairs of the Senate and House Public Property Committees, approve leases, for a term not to exceed eighteen (18) months, entered into by state agencies for the purpose of providing parking arrangements for state employees who work in the Woolfolk Building, the Carroll Gartin Justice Building or the Walter Sillers Office Building;

          (f)  Promulgate rules and regulations governing the solicitation and selection of contractual services personnel, including personal and professional services contracts for any form of consulting, policy analysis, public relations, marketing, public affairs, legislative advocacy services or any other contract that the board deems appropriate for oversight, with the exception of any personal service contracts entered into by any agency that employs only nonstate service employees as defined in Section 25-9-107(c), any personal service contracts entered into for computer or information technology-related services governed by the Mississippi Department of Information Technology Services, any personal service contracts entered into by the individual state institutions of higher learning, any personal service contracts entered into by the Mississippi Department of Transportation, any personal service contracts entered into by the Department of Human Services through June 30, 2019, which the Executive Director of the Department of Human Services determines would be useful in establishing and operating the Department of Child Protection Services, any personal service contracts entered into by the Department of Child Protection Services through June 30, 2019, any contracts for entertainers and/or performers at the Mississippi State Fairgrounds entered into by the Mississippi Fair Commission, any contracts entered into by the Department of Finance and Administration when procuring aircraft maintenance, parts, equipment and/or services, any contract entered into by the Department of Public Safety for service on specialized equipment and/or software required for the operation at such specialized equipment for use by the Office of Forensics Laboratories, any personal or professional service contract entered into by the Mississippi Department of Health and/or the Department of Revenue solely in connection with their respective responsibilities under the Mississippi Medical Cannabis Act from February 2, 2022, through June 30, 2023, any contract for attorney, accountant, actuary auditor, architect, engineer, anatomical pathologist, utility rate expert services, any personal service contracts approved by the Executive Director of the Department of Finance and Administration and entered into by the Coordinator of Mental Health Accessibility through June 30, 2022, any personal or professional services contract entered into by the State Department of Health in carrying out its responsibilities under the ARPA Rural Water Associations Infrastructure Grant Program through June 30, 2026, and any personal or professional services contract entered into by the Mississippi Department of Environmental Quality in carrying out its responsibilities under the Mississippi Municipality and County Water Infrastructure Grant Program Act of 2022, through June 30, 2026.  Any such rules and regulations shall provide for maintaining continuous internal audit covering the activities of such agency affecting its revenue and expenditures as required under Section 7-7-3(6)(d).  Any rules and regulation changes related to personal and professional services contracts that the Public Procurement Review Board may propose shall be submitted to the Chairs of the Accountability, Efficiency and Transparency Committees of the Senate and House of Representatives and the Chairs of the Appropriation Committees of the Senate and House of Representatives at least fifteen (15) days before the board votes on the proposed changes, and those rules and regulation changes, if adopted, shall be promulgated in accordance with the Mississippi Administrative Procedures Act;

          (g)  Approve all personal and professional services contracts involving the expenditures of funds in excess of Seventy-five Thousand Dollars ($75,000.00), except as provided in paragraph (f) of this subsection (2) and in subsection (8);

          (h)  Develop mandatory standards with respect to contractual services personnel that require invitations for public bid, requests for proposals, record keeping and financial responsibility of contractors.  The Public Procurement Review Board shall, unless exempted under this paragraph (h) or under paragraph (i) or (o) of this subsection (2), require the agency involved to submit the procurement to a competitive procurement process, and may reserve the right to reject any or all resulting procurements;

          (i)  Prescribe certain circumstances by which agency heads may enter into contracts for personal and professional services without receiving prior approval from the Public Procurement Review Board.  The Public Procurement Review Board may establish a preapproved list of providers of various personal and professional services for set prices with which state agencies may contract without bidding or prior approval from the board;

              (i)  Agency requirements may be fulfilled by procuring services performed incident to the state's own programs.  The agency head shall determine in writing whether the price represents a fair market value for the services.  When the procurements are made from other governmental entities, the private sector need not be solicited; however, these contracts shall still be submitted for approval to the Public Procurement Review Board.

              (ii)  Contracts between two (2) state agencies, both under Public Procurement Review Board purview, shall not require Public Procurement Review Board approval.  However, the contracts shall still be entered into the enterprise resource planning system;

          (j)  Provide standards for the issuance of requests for proposals, the evaluation of proposals received, consideration of costs and quality of services proposed, contract negotiations, the administrative monitoring of contract performance by the agency and successful steps in terminating a contract;

          (k)  Present recommendations for governmental privatization and to evaluate privatization proposals submitted by any state agency;

          (l)  Authorize personal and professional service contracts to be effective for more than one (1) year provided a funding condition is included in any such multiple year contract, except the State Board of Education, which shall have the authority to enter into contractual agreements for student assessment for a period up to ten (10) years.  The State Board of Education shall procure these services in accordance with the Public Procurement Review Board procurement regulations;

          (m)  Request the State Auditor to conduct a performance audit on any personal or professional service contract;

          (n)  Prepare an annual report to the Legislature concerning the issuance of personal and professional services contracts during the previous year, collecting any necessary information from state agencies in making such report;

          (o)  Develop and implement the following standards and procedures for the approval of any sole source contract for personal and professional services regardless of the value of the procurement:

               (i)  For the purposes of this paragraph (o), the term "sole source" means only one (1) source is available that can provide the required personal or professional service.

               (ii)  An agency that has been issued a binding, valid court order mandating that a particular source or provider must be used for the required service must include a copy of the applicable court order in all future sole source contract reviews for the particular personal or professional service referenced in the court order.

               (iii)  Any agency alleging to have a sole source for any personal or professional service, other than those exempted under paragraph (f) of this subsection (2) and subsection (8), shall publish on the procurement portal website established by Sections 25-53-151 and 27-104-165, for at least fourteen (14) days, the terms of the proposed contract for those services.  In addition, the publication shall include, but is not limited to, the following information:

                   1.  The personal or professional service offered in the contract;

                   2.  An explanation of why the personal or professional service is the only one that can meet the needs of the agency;

                   3.  An explanation of why the source is the only person or entity that can provide the required personal or professional service;

                   4.  An explanation of why the amount to be expended for the personal or professional service is reasonable; and

                   5.  The efforts that the agency went through to obtain the best possible price for the personal or professional service.

               (iv)  If any person or entity objects and proposes that the personal or professional service published under subparagraph (iii) of this paragraph (o) is not a sole source service and can be provided by another person or entity, then the objecting person or entity shall notify the Public Procurement Review Board and the agency that published the proposed sole source contract with a detailed explanation of why the personal or professional service is not a sole source service.

               (v)  1.  If the agency determines after review that the personal or professional service in the proposed sole source contract can be provided by another person or entity, then the agency must withdraw the sole source contract publication from the procurement portal website and submit the procurement of the personal or professional service to an advertised competitive bid or selection process.

                   2.  If the agency determines after review that there is only one (1) source for the required personal or professional service, then the agency may appeal to the Public Procurement Review Board.  The agency has the burden of proving that the personal or professional service is only provided by one (1) source.

                   3.  If the Public Procurement Review Board has any reasonable doubt as to whether the personal or professional service can only be provided by one (1) source, then the agency must submit the procurement of the personal or professional service to an advertised competitive bid or selection process.  No action taken by the Public Procurement Review Board in this appeal process shall be valid unless approved by a majority of the members of the Public Procurement Review Board present and voting.

              (vi)  The Public Procurement Review Board shall prepare and submit a quarterly report to the House of Representatives and Senate Accountability, Efficiency and Transparency Committees that details the sole source contracts presented to the Public Procurement Review Board and the reasons that the Public Procurement Review Board approved or rejected each contract.  These quarterly reports shall also include the documentation and memoranda required in subsection (4) of this section.  An agency that submitted a sole source contract shall be prepared to explain the sole source contract to each committee by December 15 of each year upon request by the committee;

          (p)  Assess any fines and administrative penalties provided for in Sections 31-7-401 through 31-7-423.

     (3)  All submissions shall be made sufficiently in advance of each monthly meeting of the Public Procurement Review Board as prescribed by the Public Procurement Review Board.  If the Public Procurement Review Board rejects any contract submitted for review or approval, the Public Procurement Review Board shall clearly set out the reasons for its action, including, but not limited to, the policy that the agency has violated in its submitted contract and any corrective actions that the agency may take to amend the contract to comply with the rules and regulations of the Public Procurement Review Board.

     (4)  All sole source contracts for personal and professional services awarded by state agencies, other than those exempted under Section 27-104-7(2)(f) and (8), whether approved by an agency head or the Public Procurement Review Board, shall contain in the procurement file a written determination for the approval, using a request form furnished by the Public Procurement Review Board.  The written determination shall document the basis for the determination, including any market analysis conducted in order to ensure that the service required was practicably available from only one (1) source.  A memorandum shall accompany the request form and address the following four (4) points:

          (a)  Explanation of why this service is the only service that can meet the needs of the purchasing agency;

          (b)  Explanation of why this vendor is the only practicably available source from which to obtain this service;

          (c)  Explanation of why the price is considered reasonable; and

          (d)  Description of the efforts that were made to conduct a noncompetitive negotiation to get the best possible price for the taxpayers.

     (5)  In conjunction with the State Personnel Board, the Public Procurement Review Board shall develop and promulgate rules and regulations to define the allowable legal relationship between contract employees and the contracting departments, agencies and institutions of state government under the jurisdiction of the State Personnel Board, in compliance with the applicable rules and regulations of the federal Internal Revenue Service (IRS) for federal employment tax purposes.  Under these regulations, the usual common law rules are applicable to determine and require that such worker is an independent contractor and not an employee, requiring evidence of lawful behavioral control, lawful financial control and lawful relationship of the parties.  Any state department, agency or institution shall only be authorized to contract for personnel services in compliance with those regulations.

     (6)  No member of the Public Procurement Review Board shall use his or her official authority or influence to coerce, by threat of discharge from employment, or otherwise, the purchase of commodities, the contracting for personal or professional services, or the contracting for public construction under this chapter.

     (7)  Notwithstanding any other laws or rules to the contrary, the provisions of subsection (2) of this section shall not be applicable to the Mississippi State Port Authority at Gulfport.

     (8)  Nothing in this section shall impair or limit the authority of the Board of Trustees of the Public Employees' Retirement System to enter into any personal or professional services contracts directly related to their constitutional obligation to manage the trust funds, including, but not limited to, actuarial, custodial banks, cash management, investment consultant and investment management contracts.  Nor shall this section impair or limit the authority of the State Treasurer to enter into any personal or professional services contracts involving the management of trust funds, including, but not limited to, actuarial, custodial banks, cash management, investment consultant and investment management contracts.

 * * * (9)  Notwithstanding the exemption of personal and professional services contracts entered into by the Department of Human Services and personal and professional services contracts entered into by the Department of Child Protection Services from the provisions of this section under subsection (2)(f), before the Department of Human Services or the Department of Child Protection Services may enter into a personal or professional service contract, the department(s) shall give notice of the proposed personal or professional service contract to the Public Procurement Review Board for any recommendations by the board.  Upon receipt of the notice, the board shall post the notice on its website and on the procurement portal website established by Sections 25‑53‑151 and 27‑104‑165.  If the board does not respond to the department(s) within seven (7) calendar days after receiving the notice, the department(s) may enter the proposed personal or professional service contract.  If the board responds to the department(s) within seven (7) calendar days, then the board has seven (7) calendar days from the date of its initial response to provide any additional recommendations.  After the end of the second seven‑day period, the department(s) may enter the proposed personal or professional service contract.  The board is not authorized to disapprove any proposed personal or professional services contracts.  This subsection shall stand repealed on July 1, 2022.

     SECTION 3.  This act shall take effect and be in force from and after its passage.