MISSISSIPPI LEGISLATURE
2016 Regular Session
To: Accountability, Efficiency,Transparency
By: Representative Turner
AN ACT TO AMEND SECTION 27-104-7, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE PUBLIC PROCUREMENT REVIEW BOARD TO ADOPT REGULATIONS GOVERNING THE APPROVAL OF CONTRACTS FOR ARCHITECTURAL AND ENGINEERING SERVICES; TO AMEND SECTION 31-11-3, MISSISSIPPI CODE OF 1972, TO CLARIFY THE DEPARTMENT OF FINANCE AND ADMINISTRATION'S AUTHORITY TO REVIEW AND PREAPPROVE ALL ARCHITECTURAL AND ENGINEERING SERVICE CONTRACTS ENTERED INTO BY STATE AGENCIES; TO BRING FORWARD SECTIONS 31-7-13.1 AND 37-101-41, MISSISSIPPI CODE OF 1972, FOR THE PURPOSES OF POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 27-104-7, Mississippi Code of 1972, is amended as follows:
27-104-7. (1) There is created within the Department of Finance and Administration the Public Procurement Review Board, which shall be composed of the Executive Director of the Department of Finance and Administration, the head of the Office of Budget and Policy Development and an employee of the Office of General Services who is familiar with the purchasing laws of this state. The Executive Director of the Department of Finance and Administration shall be chairman and 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. Two (2) members shall be a quorum. No action shall be valid unless approved by the chairman and one (1) other of those members present and voting, entered upon the minutes of the board and signed by the chairman. The board shall meet on a monthly basis and at any other time when notified by the chairman. 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 Legislative Budget Office.
(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;
(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 peoples 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 peoples of North America; or
(v) Female;
(e) In consultation with and approval by the Chairmen 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.
(3) No member of the Public Procurement 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 public construction under this chapter.
(4) 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.
SECTION 2. Section 31-11-3, Mississippi Code of 1972, is amended as follows:
31-11-3. (1) The Department of Finance and Administration, for the purposes of carrying out the provisions of this chapter, in addition to all other rights and powers granted by law, shall have full power and authority to employ and compensate architects or other employees necessary for the purpose of making inspections, preparing plans and specifications, supervising the erection of any buildings, and making any repairs or additions as may be determined by the Department of Finance and Administration to be necessary, pursuant to the rules and regulations of the State Personnel Board. The department shall have entire control and supervision of, and determine what, if any, buildings, additions, repairs, demolitions or improvements are to be made under the provisions of this chapter, subject to the regulations adopted by the Public Procurement Review Board.
(2) The department shall have full power to erect buildings, make repairs, additions or improvements, demolitions, to grant or acquire easements or rights-of-way, and to buy materials, supplies and equipment for any of the institutions or departments of the state subject to the regulations adopted by the Public Procurement Review Board. In addition to other powers conferred, the department shall have full power and authority as directed by the Legislature, or when funds have been appropriated for its use for these purposes, to:
(a) Build a state office building;
(b) Build suitable plants or buildings for the use and housing of any state schools or institutions, including the building of plants or buildings for new state schools or institutions, as provided for by the Legislature;
(c) Provide state aid for the construction of school buildings;
(d) Promote and develop the training of returned veterans of the United States in all sorts of educational and vocational learning to be supplied by the proper educational institution of the State of Mississippi, and in so doing allocate monies appropriated to it for these purposes to the Governor for use by him in setting up, maintaining and operating an office and employing a state director of on-the-job training for veterans and the personnel necessary in carrying out Public Law No. 346 of the United States;
(e) Build and equip a hospital and administration building at the Mississippi State Penitentiary;
(f) Build and equip additional buildings and wards at the Boswell Retardation Center;
(g) Construct a sewage disposal and treatment plant at the Mississippi State Hospital, and in so doing acquire additional land as may be necessary, and to exercise the right of eminent domain in the acquisition of this land;
(h) Build and equip the Mississippi central market and purchase or acquire by eminent domain, if necessary, any lands needed for this purpose;
(i) Build and equip suitable facilities for a training and employing center for the blind;
(j) Build and equip a gymnasium at Columbia Training School;
(k) Approve or disapprove the expenditure of any money appropriated by the Legislature when authorized by the bill making the appropriation;
(l) Expend monies appropriated to it in paying the state's part of the cost of any street paving;
(m) Sell and convey state lands when authorized by the Legislature, cause said lands to be properly surveyed and platted, execute all deeds or other legal instruments, and do any and all other things required to effectively carry out the purpose and intent of the Legislature. Any transaction which involves state lands under the provisions of this paragraph shall be done in a manner consistent with the provisions of Section 29-1-1;
(n) Collect and receive from educational institutions of the State of Mississippi monies required to be paid by these institutions to the state in carrying out any veterans' educational programs;
(o) Purchase lands for building sites, or as additions to building sites, for the erection of buildings and other facilities which the department is authorized to erect, and demolish and dispose of old buildings, when necessary for the proper construction of new buildings. Any transaction which involves state lands under the provisions of this paragraph shall be done in a manner consistent with the provisions of Section 29-1-1;
(p) Obtain business property insurance with a deductible of not less than One Hundred Thousand Dollars ($100,000.00) on state-owned buildings under the management and control of the department; and
(q) In consultation with and approval by the Chairmen of the Public Property Committees of the Senate and the House of Representatives, enter into contracts for the purpose of providing parking spaces for state employees who work in the Woolfolk Building, the Carroll Gartin Justice Building or the Walter Sillers Office Building.
(3) The department shall survey state-owned and state-utilized buildings to establish an estimate of the costs of architectural alterations, pursuant to the Americans With Disabilities Act of 1990, 42 USCS, Section 12111 et seq. The department shall establish priorities for making the identified architectural alterations and shall make known to the Legislative Budget Office and to the Legislature the required cost to effectuate such alterations. To meet the requirements of this section, the department shall use standards of accessibility that are at least as stringent as any applicable federal requirements and may consider:
(a) Federal minimum guidelines and requirements issued by the United States Architectural and Transportation Barriers Compliance Board and standards issued by other federal agencies;
(b) The criteria contained in the American Standard Specifications for Making Buildings Accessible and Usable by the Physically Handicapped and any amendments thereto as approved by the American Standards Association, Incorporated (ANSI Standards);
(c) Design manuals;
(d) Applicable federal guidelines;
(e) Current literature in the field;
(f) Applicable safety standards; and
(g) Any applicable environmental impact statements.
(4) The department shall observe the provisions of Section 31-5-23, in letting contracts and shall use Mississippi products, including paint, varnish and lacquer which contain as vehicles tung oil and either ester gum or modified resin (with rosin as the principal base of constituents), and turpentine shall be used as a solvent or thinner, where these products are available at a cost not to exceed the cost of products grown, produced, prepared, made or manufactured outside of the State of Mississippi.
(5) The department shall have authority to accept grants, loans or donations from the United States government or from any other sources for the purpose of matching funds in carrying out the provisions of this chapter.
(6) The department shall build a wheelchair ramp at the War Memorial Building which complies with all applicable federal laws, regulations and specifications regarding wheelchair ramps.
(7) The department shall review and preapprove all architectural or engineering service contracts entered into by any state agency, institution, commission, board or authority regardless of the source of funding used to defray the costs of the construction or renovation project for which services are to be obtained to ensure compliance with purchasing regulations and to confirm that the contracts are procured by a competitive qualification-based selection process except where such appointment is for an emergency project or for a continuation of a previous appointment for a directly related project. The provisions of this subsection (7) shall not apply to any architectural or engineering contract fully paid for by self-generated funds of any of the state institutions of higher learning, nor shall they apply to community college projects that are fully funded from local funds or other nonstate sources which are outside the Department of Finance and Administration's appropriations or as directed by the Legislature. The provisions of this subsection (7) shall not apply to any construction or design projects of the State Military Department that are fully or partially funded from federal funds or other nonstate sources, nor shall they apply to any highway, bridge or ferry project of the State Department of Transportation.
(8) The department shall have the authority to obtain annually from the state institutions of higher learning information on all building, construction and renovation projects including duties, responsibilities and costs of any architect or engineer hired by any such institutions.
(9) As an alternative to other methods of awarding contracts as prescribed by law, the department may elect to use the method of contracting for construction projects set out in Sections 31-7-13.1 and 31-7-13.2; however, the dual-phase design-build method of construction contracting authorized under Section 31-7-13.1 may be used only when the Legislature has specifically required or authorized the use of this method in the legislation authorizing a project.
(10) The department shall have the authority, for the purposes of carrying out the provisions of this chapter, and in addition to all other rights and powers granted by law, to create and maintain a list of suspended and debarred contractors and subcontractors. Consistent with this authority, the department may adopt regulations governing the suspension or debarment of contractors and subcontractors, which regulations shall be subject to the approval of the Public Procurement Review Board. A suspended or debarred contractor or subcontractor shall be disqualified from consideration for contracts with the department during the suspension or debarment period in accordance with the department's regulations.
(11) This section shall not apply to the Mississippi State Port Authority.
SECTION 3. Section 31-7-13.1, Mississippi Code of 1972, is brought forward as follows:
31-7-13.1. (1) The method of contracting for construction described in this section shall be known as the "dual-phase design-build method" of construction contracting. This method of construction contracting may be used only when the Legislature has specifically required or authorized the use of this method in the legislation authorizing a project. At a minimum, the determination must include a detailed explanation of why using the dual-phase design-build method for a particular project satisfies the public need better than the traditional design-bid-build method based on the following criteria:
(a) The project provides a savings in time or cost over traditional methods; and
(b) The size and type of the project is suitable for design-build.
(2) For each proposed dual-phase design-build project, a two-phase procedure for awarding a contract must be adopted. During Phase One, and before solicitation of initial proposals, the agency or governing authority shall develop, with the assistance of an architectural or engineering firm, a scope of work statement that provides prospective offerors with sufficient information regarding the requirements of the agency or governing authority. The scope of work statement must include, but is not limited to, the following information:
(a) Drawings must show overall building dimensions and major lines of dimensions, and site plans that show topography, adjacent buildings and utilities;
(b) Drawings must include information to adequately explain HVAC, electrical and structural requirements;
(c) The scope of work statement also must include building elevations, sections and design details; and
(d) The scope of work statement must include general budget parameters, schedule or delivery requirements, relevant criteria for evaluation of proposals, and any other information necessary to enable the design-builders to submit proposals that meet the needs of the agency or governing authority.
(3) The agency or governing authority shall cause to be published once a week, for at least two (2) consecutive weeks in a regular newspaper published in the county in which the project is to be located, or a newspaper with statewide circulation, a notice inviting proposals for the dual-phase design-build construction project. The proposals shall not be opened in less than fifteen (15) working days after the last notice is published. The notice must inform potential offerors of how to obtain the scope of work statement developed for the project, and the notice must contain such other information to describe adequately the general nature and scope of the project so as to promote full, equal and open competition.
(4) The agency or governing authority shall accept initial proposals only from entities able to provide an experienced and qualified design-build team that includes, at a minimum, an architectural or engineering firm registered in Mississippi and a contractor properly licensed and domiciled in Mississippi for the type of work required. From evaluation of initial proposals under Phase One, the agency or governing authority shall select a minimum of two (2) and a maximum of five (5) design-builders as "short-listed firms" to submit proposals for Phase Two.
(5) During Phase Two, the short-listed firms will be invited to submit detailed designs, specific technical concepts or solutions, pricing, scheduling and other information deemed appropriate by the agency or governing authority as necessary to evaluate and rank acceptability of the Phase Two proposals. After evaluation of these Phase Two proposals, the agency or governing authority shall award a contract to the design-builder determined to offer the best value to the public in accordance with evaluation criteria set forth in the request for proposals, of which price must be one, but not necessarily the only, criterion.
(6) If the agency or governing authority accepts a proposal other than the lowest dollar proposal actually submitted, the agency or governing authority shall enter on its minutes detailed calculations and a narrative summary showing why the accepted proposal was determined to provide the best value, and the agency or governing authority shall state specifically on its minutes the justification for its award.
(7) All facilities that are governed by this section shall be designed and constructed to comply with standards equal to or exceeding the minimum building code standards employed by the state as required under Section 31-11-33 in force at the time of contracting. All private contractors or private entities contracting or performing under this section must comply at all times with all applicable laws, codes and other legal requirements pertaining to the project.
(8) At its discretion, the agency or governing authority may award a stipulated fee equal to a percentage, as prescribed in the request for proposals, of the project's final design and construction budget, as prescribed in the request for proposals, but not less than two-tenths of one percent (2/10 of 1%) of the project's final design and construction budget, to each short-list offeror who provides a responsive, but unsuccessful, proposal. If the agency or governing authority does not award a contract, all responsive final list offerors shall receive the stipulated fee based on the owner's estimate of the project final design and construction budget as included in the request for proposals. The agency or governing authority shall pay the stipulated fee to each offeror within ninety (90) days after the award of the initial contract or the decision not to award a contract. In consideration for paying the stipulated fee, the agency or governing authority may use any ideas or information contained in the proposals in connection with any contract awarded for the project, or in connection with a subsequent procurement, without any obligation to pay any additional compensation to the unsuccessful offerors. Notwithstanding the other provisions of this subsection, an unsuccessful short-list offeror may elect to waive the stipulated fee. If an unsuccessful short-list offeror elects to waive the stipulated fee, the agency or governing authority may not use ideas and information contained in the offeror's proposal, except that this restriction does not prevent the agency or governing authority from using any idea or information if the idea or information is also included in a proposal of an offeror that accepts the stipulated fee.
(9) This section shall not authorize the awarding of construction contracts according to any contracting method that does not require the contractor to satisfactorily perform, at a minimum, both any balance of design, using an independent professional licensed in Mississippi, and construction of the project for which the contract is awarded.
(10) The provisions of this section shall not affect any procurement by the Mississippi Transportation Commission.
(11) The provisions of this section shall not apply to procurement authorized in Section 59-5-37(3).
SECTION 4. Section 37-101-41, Mississippi Code of 1972, is brought forward as follows:
37-101-41. (1) (a) Except as otherwise provided in paragraph (b) of this section, and subject to the provisions of Section 37-101-42, the Board of Trustees of State Institutions of Higher Learning (the "board") is authorized and empowered to lease to private individuals or corporations for a term not exceeding thirty-five (35) years any land or land with existing auxiliary facilities at any of the following state-supported institutions: Mississippi State University of Agriculture and Applied Science, Jackson State University, Mississippi Valley State University, University of Mississippi, Alcorn State University, University of Southern Mississippi, Mississippi University for Women and Delta State University, for the purpose of erecting or renovating, furnishing, maintaining and equipping auxiliary facilities thereon for active faculty, staff and/or students. The auxiliary facilities shall be constructed or renovated, and may be furnished, maintained and equipped thereon by private financing, and may be leased back to the board for use by the concerned state-supported institution of higher learning. The lease shall contain a provision permitting the board to purchase the building located thereon, including any furnishings and equipment therein, for the sum of One Dollar ($1.00) after payment by the board of all sums of money due under said lease.
(b) The Board of Trustees of State Institutions of Higher Learning may grant authority to universities to lease to private individuals or corporations for a period not exceeding thirty-five (35) years, any land or land with existing auxiliary facilities at the university, for the purpose of erecting or renovating, furnishing, maintaining and equipping auxiliary facilities thereon for active faculty, staff and/or students. The auxiliary facilities shall be constructed or renovated, and may be furnished, maintained and equipped thereon by private financing, and may be leased back to the board for use by the university. The lease shall contain a provision permitting the board to purchase the auxiliary facilities located thereon, including any furnishings and equipment therein, for the sum of One Dollar ($1.00) after payment by the board of all sums of money due under the lease.
(2) Upon there being an agreement reached between the Board of Trustees of State Institutions of Higher Learning and a university upon whose land the auxiliary facility will be constructed or renovated and a private individual(s) or corporation(s) to enter into such lease agreement as described in subsection (1), it shall be stipulated in the agreement that all newly constructed or renovated auxiliary facilities shall be in compliance with the minimum building code standards employed by the state as required under Section 31-11-33.
(3) The board, in conjunction with the university, shall have sole discretion to decide the placement of new auxiliary facilities upon the university's campus. However, the scope of any such construction or renovation by private entities shall be limited to two (2) leases entered into pursuant to this Section 37-101-41 per year for each university, and shall not exceed in the aggregate twenty-five percent (25%) of the university's total main campus or satellite campus property under the original lease period. In addition, the scope of any such renovation by private entities shall be limited to one (1) project per fiscal year for each university.
(4) No contractual lease agreement for the construction or renovation, furnishing, maintaining and equipping of privately financed auxiliary facilities shall be entered into by a university without prior approval of the Board of Trustees of State Institutions of Higher Learning. An auxiliary facility is a facility that is described by the current Postsecondary Education Facilities Inventory and Classification Manual (FICM) as within categories 500/600/700/800/900.
Before entering into contractual lease agreements for the construction or renovation, furnishing, maintaining and equipping of privately financed auxiliary facilities, the Board of Trustees of State Institutions of Higher Learning shall establish rules and procedures to ensure adequate public advertisement of any requirement for the construction or renovation, furnishing, maintaining and equipping of privately financed auxiliary facilities at a university in order to promote full and open competition and which set forth the requirements for evaluation of offers and award of the contract lease agreement to the private entity.
(5) In addition to the above stated authority, the university, with the permission of the board, is authorized to enter into such marketing, support, management, operating, cooperating or other similar agreements as the university and board may deem advisable or prudent in connection with the ongoing operations of such auxiliary facilities for a period not to exceed the term of the lease relating to such auxiliary facilities.
SECTION 5. This act shall take effect and be in force from and after July 1, 2016.