MISSISSIPPI LEGISLATURE
2016 Regular Session
To: Accountability, Efficiency,Transparency
By: Representative Turner
AN ACT TO AMEND SECTION 25-9-120, MISSISSIPPI CODE OF 1972, TO REVISE THE VOTING MEMBERS OF THE PERSONAL SERVICE CONTRACT REVIEW BOARD; TO PROVIDE THAT NO MEMBER SHALL BE AN EMPLOYEE OF THE STATE; TO REVISE THE QUORUM REQUIRED FOR CONDUCTING BUSINESS AND VOTING; TO REMOVE THE PROVISION THAT ALLOWS FOR CERTAIN AGENCIES TO BE EXEMPTED FROM COMPETITIVE BIDDING; TO PROVIDE GUIDELINES FOR APPROVAL OR NONAPPROVAL WHEN AN AGENCY CONTRACTS WITH STATE PROGRAMS AND OTHER STATE AGENCIES; TO REVISE THE TIMELINE FOR SUBMITTING CONTRACTS TO THE PERSONAL SERVICE CONTRACT REVIEW BOARD FOR REVIEW; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 25-9-120, Mississippi Code of 1972, is amended as follows:
25-9-120. (1) Contract personnel, whether classified as contract workers or independent contractors shall not be deemed state service or nonstate service employees of the State of Mississippi, and shall not be eligible to participate in the Public Employees' Retirement System, or the State and School Employees' Health Insurance Plan, nor be allowed credit for personal and sick leave and other leave benefits as employees of the State of Mississippi, notwithstanding Sections 25-3-91 through 25-3-101; 25-9-101 through 25-9-151; 25-11-1 through 25-11-126; 25-11-128 through 25-11-131; 25-15-1 through 25-15-23 and for the purpose set forth herein. Contract workers, i.e., contract personnel who do not meet the criteria of independent contractors, shall be subject to the provisions of Section 25-11-127.
(2) (a) There is hereby created the Personal Service Contract Review Board, which shall be composed of the following members:
* * *
( * * *i) * * * Three (3) individuals appointed
by the Governor with the advice and consent of the Senate; and
( * * *ii) Two (2) individuals appointed by
the Lieutenant Governor with the advice and consent of the Senate * * *.
* * *
(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 June 30, 2017;
(ii) One (1) member appointed by the Governor to serve for a term ending June 30, 2018;
( * * *iii) One (1) member appointed by the
Governor to serve for a term ending June 30, 2020;
( * * *iv) One (1) member appointed by the
Lieutenant Governor to serve for a term ending June 30, 2018; and
( * * *v) One (1) member appointed by the
Lieutenant Governor to serve for a term ending June 30, 2019.
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 Personal Service Contract 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 Personal Service Contract Review Board. Any person, or any employee or owner of a company, who is a principal of the source providing the personal or professional service shall not be appointed to the Personal Service Contract 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 on the Personal Service Contract Review Board;
(d) Members of the Personal Service Contract 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
Personal Service Contract Review Board shall * * * elect a chairman from among the
membership, and he or she shall preside over the meetings of the
board. The board shall annually elect a vice chairman, who shall serve in the
absence of the chairman. 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 chairman. Necessary clerical and administrative support for the board
shall be provided by the State Personnel Board. Minutes shall be kept of the
proceedings of each meeting, copies of which shall be filed on a monthly basis
with the Chairmen of the Accountability, Efficiency and Transparency Committees
of the Senate and House of Representatives.
(3) The Personal Service Contract Review Board shall have the following powers and responsibilities:
(a) 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 for computer or information technology-related services governed by the Mississippi Department of Information Technology Services, any personal service contracts entered into by the Mississippi Department of Transportation, and any contract for attorney, accountant, auditor, architect, engineer, and utility rate expert services. 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), Mississippi Code of 1972. Any rules and regulation changes related to personal and professional services contracts that may be proposed by the Personal Service Contract Review Board shall be submitted to the Chairmen of the Accountability, Efficiency and Transparency Committees of the Senate and House of Representatives at least fifteen (15) days prior to the board voting on the proposed changes, and such rules and regulation changes, if adopted, shall be promulgated in accordance with the Mississippi Administrative Procedures Act;
(b) Approve all personal and professional services contracts involving the expenditures of funds in excess of Seventy-five Thousand Dollars ($75,000.00);
(c) Develop mandatory
standards with respect to contractual services personnel which require
invitations for public bid, requests for proposals, record keeping and
financial responsibility of contractors. The Personal Service Contract Review
Board shall, unless exempted under this paragraph (c) or under paragraph (d) or
(j) of this subsection (3), 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;
* * *
(d) Prescribe certain
circumstances whereby agency heads may enter into contracts for personal and
professional services without receiving prior approval from the Personal
Service Contract Review Board. The Personal Service Contract 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 services meet the agency's requirements and 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 Personal Service Contract Review Board.
(ii) Contracts between two (2) state agencies, both under Personal Service Contract Review Board purview shall not require Personal Service Contract Review Board approval. However, the contracts shall still be entered into the statewide payroll and human resource system.
(e) * * * 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;
(f) * * * Present recommendations for governmental
privatization and to evaluate privatization proposals submitted by any state
agency;
(g) * * * 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 Personal Service
Contract Review Board procurement regulations;
(h) * * * Request the State Auditor to conduct a
performance audit on any personal or professional service contract;
(i) 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;
(j) 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 (j), 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 shall have published 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 (j) is not a sole source service and can be provided by another person or entity, then the objecting person or entity shall notify the Personal Service Contract 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 Personal Service Contract 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 Personal Service Contract 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 Personal Service Contract Review Board in this appeal process shall be valid unless approved by the chairman and two (2) other members of the Personal Service Contract Review Board present and voting.
(vi) The Personal Service Contract Review Board shall prepare and submit a quarterly report to the House of Representatives and Senate Committees on Accountability, Efficiency and Transparency that details the sole source contracts presented to the Personal Service Contract Review Board and the reasons that the Personal Service Contract Review Board approved or rejected each contract. Such quarterly reports shall also include the documentation and memoranda required in subsection (5) 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.
(4) Any contract submitted
to the Personal Service Contract Review Board for review and approval shall be
presumed to be approved if the Personal Service Contract Review Board does not
object to the contract * * * at
the meeting in the month following the month the agency submitted the contract.
All submissions shall be made thirty (30) or more days before the
monthly meeting of the Personal Service Contract Review Board or as prescribed
by the Personal Service Contract Review Board. If the Personal Service
Contract Review Board rejects any contract submitted for review or approval,
the Personal Service Contract 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
Personal Service Contract Review Board.
(5) All sole source contracts for personal and professional services awarded by state agencies, whether approved by an agency head or the Personal Service Contract Review Board, shall contain in the procurement file a written determination for the approval, using a request form furnished by the Personal Service Contract 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.
(6) The Personal Service Contract 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 said regulations.
(7) No member of the Personal Service Contract Review Board shall use his official authority or influence to coerce, by threat of discharge from employment, or otherwise, the purchase of commodities or the contracting for personal or professional services under this section.
(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.
SECTION 2. This act shall take effect and be in force from and after July 1, 2016.