MISSISSIPPI LEGISLATURE
2020 Regular Session
To: Rules
By: Representatives Scoggin, Faulkner
AN ACT TO CREATE THE "POSTSECONDARY EDUCATION COVID-19 MITIGATION RELIEF PROGRAM ACT," WHICH SHALL BE ADMINISTERED BY THE MISSISSIPPI POSTSECONDARY EDUCATION FINANCIAL ASSISTANCE BOARD TO PROVIDE GRANTS AND REIMBURSEMENTS TO ELIGIBLE TWO-YEAR AND FOUR- YEAR, PUBLIC AND PRIVATE POSTSECONDARY EDUCATIONAL INSTITUTIONS LOCATED WITHIN THE STATE OF MISSISSIPPI FOR COVID-19 RELATED ELIGIBLE EXPENSES; TO DEFINE TERMINOLOGY USED IN THIS ACT; TO PRESCRIBE ELIGIBILITY REQUIREMENTS FOR A POSTSECONDARY EDUCATIONAL INSTITUTION'S PARTICIPATION IN THE GRANT PROGRAM; TO REQUIRE THE BOARD TO DEVELOP REGULATIONS, PROCEDURES AND APPLICATION FORMS TO GOVERN THE ADMINISTRATION OF THE PROGRAM, AND ESTABLISH THE MINIMUM REQUIREMENTS TO BE INCLUDED IN THE APPLICATION FOR CONSIDERATION FOR GRANT FUNDS INCLUDING DEMONSTRATION OF NEED, INTENT FOR USE OF GRANT FUNDS RECEIVED, AN ITEMIZED EXPENSE REPORT OF REIMBURSABLE ELIGIBLE EXPENSES; TO REQUIRE ELIGIBLE POSTSECONDARY EDUCATIONAL INSTITUTIONS DESIRING TO PARTICIPATE IN THE PROGRAM TO MAKE APPLICATION FOR A GRANT TO THE BOARD; TO PROVIDE THAT THE APPLICATION MUST BE ACCOMPANIED WITH VERIFIED DOCUMENTATION AND SIGNED UNDER PENALTY OF PERJURY; TO PROVIDE THAT THE USE OF GRANTS SHALL SUBJECT THE RECEIVING POSTSECONDARY EDUCATIONAL INSTITUTION TO AUDIT BY THE UNITED STATES DEPARTMENT OF THE TREASURY'S OFFICE OF INSPECTOR GENERAL AND THE MISSISSIPPI OFFICE OF THE STATE AUDITOR; TO REQUIRE POSTSECONDARY EDUCATIONAL INSTITUTIONS FOUND TO BE FULLY OR PARTIALLY NONCOMPLIANT WITH GRANT REQUIREMENTS TO RETURN TO THE STATE ALL OR A PORTION OF THE GRANT MONIES RECEIVED AND USED FOR UNALLOWABLE EXPENDITURES; TO PROVIDE THAT THE AGGREGATE AMOUNT OF GRANT FUNDS AWARDED TO ANY SINGLE POSTSECONDARY EDUCATIONAL INSTITUTION SHALL NOT EXCEED THE AMOUNT AUTHORIZED FOR THE INDIVIDUAL INSTITUTION UNDER THIS ACT; TO STIPULATE THAT GRANT FUNDS SHALL ONLY BE AWARDED IN THE AMOUNT INDICATED IN THE POSTSECONDARY EDUCATIONAL INSTITUTION'S APPLICATION AS ITEMIZED ELIGIBLE EXPENSES, SUBJECT TO APPROVAL BY THE BOARD; TO ALLOW POSTSECONDARY EDUCATIONAL INSTITUTIONS TO APPLY FOR GRANTS ON MULTIPLE OCCASIONS UNTIL SUCH TIME THAT THE POSTSECONDARY EDUCATIONAL INSTITUTION HAS RECEIVED THE AGGREGATE AMOUNT OF FUNDS IT IS ELIGIBLE TO BE AWARDED; TO CREATE A SPECIAL FUND IN THE STATE TREASURY, TO BE KNOWN AS THE "POSTSECONDARY EDUCATION COVID-19 MITIGATION RELIEF GRANT FUND"; TO PROVIDE THAT IF ANY UNOBLIGATED MONIES REMAIN IN THE FUND ON DECEMBER 1, 2020, THOSE FUNDS SHALL LAPSE INTO THE BUDGET CONTINGENCY FUND, TO BE TRANSFERRED INTO THE UNEMPLOYMENT COMPENSATION FUND; TO REQUIRE THE STATE FISCAL OFFICER TO TRANSFER $88,842,618.19 FROM THE BUDGET CONTINGENCY FUND TO THE "POSTSECONDARY EDUCATION COVID-19 MITIGATION RELIEF GRANT FUND," FOR THE IMPLEMENTATION AND ADMINISTRATION OF THE POSTSECONDARY EDUCATIONAL INSTITUTIONS' COVID-19 ASSISTANCE GRANT PROGRAM; TO PROVIDE POSTSECONDARY EDUCATIONAL INSTITUTIONS AND THEIR RESPECTIVE GOVERNING BOARDS WITH IMMUNITY FROM CIVIL LIABILITY FOR ANY DAMAGES ARISING FROM THE PUBLIC PROCUREMENT OF PERSONNEL, PROPERTY, SUPPLIES OR SERVICES NECESSARY TO ADMINISTER THE PROVISIONS OF THIS ACT; TO AMEND SECTION 31-7-13, MISSISSIPPI CODE OF 1972, TO EXEMPT STATE GOVERNMENTAL AGENCIES, LOCAL GOVERNING AUTHORITIES AND ANY POLITICAL SUBDIVISION THEREOF, INCLUDING LOCAL SCHOOL DISTRICTS, CHARTER SCHOOLS, PUBLIC SPECIAL PURPOSE SCHOOLS, POSTSECONDARY EDUCATIONAL INSTITUTIONS AND THEIR RESPECTIVE GOVERNING BOARDS FROM THE PROCUREMENT AND COMPETITIVE BIDDING REQUIREMENTS FOR PURCHASES OF EQUIPMENT, TECHNOLOGICAL DEVICES, HARDWARE AND SOFTWARE FOR SUCH DEVICES, SUPPLIES AND SERVICES DIRECTLY ASSOCIATED WITH THE MITIGATION OF THE IMPACT OF COVID-19 FOR PURPOSES OF PROVIDING CONTINUAL EDUCATION, HEALTH CARE, SOCIAL SERVICE AND UTILITY NEEDS; TO CREATE THE "INDEPENDENT SCHOOLS' COVID-19 ASSISTANCE GRANT PROGRAM ACT," WHICH SHALL BE ADMINISTERED BY THE MISSISSIPPI DEVELOPMENT AUTHORITY TO PROVIDE GRANTS AND REIMBURSEMENT TO ELIGIBLE INDEPENDENT SCHOOLS FOR COVID-19 RELATED ELIGIBLE EXPENSES; TO DEFINE TERMINOLOGY USED IN THIS ACT; TO PRESCRIBE ELIGIBILITY REQUIREMENTS FOR INDEPENDENT SCHOOL PARTICIPATION IN THE GRANT PROGRAM; TO REQUIRE MDA TO DEVELOP REGULATIONS, PROCEDURES AND APPLICATION FORMS TO GOVERN THE ADMINISTRATION OF THE PROGRAM, AND ESTABLISH THE MINIMUM REQUIREMENTS TO BE INCLUDED IN THE APPLICATION FOR CONSIDERATION FOR GRANT FUNDS INCLUDING DEMONSTRATION OF NEED, INTENT FOR USE OF GRANT FUNDS RECEIVED, AN ITEMIZED EXPENSE REPORT OF REIMBURSABLE ELIGIBLE EXPENSES; TO REQUIRE ELIGIBLE INDEPENDENT SCHOOL DESIRING TO PARTICIPATE IN THE PROGRAM TO MAKE APPLICATION FOR A GRANT TO THE MDA; TO PROVIDE THAT THE APPLICATION MUST BE ACCOMPANIED WITH VERIFIED DOCUMENTATION AND SIGNED UNDER PENALTY OF PERJURY; TO PROVIDE THAT USE OF GRANTS SHALL SUBJECT THE INDEPENDENT SCHOOL TO AUDIT BY THE UNITED STATES DEPARTMENT OF THE TREASURY'S OFFICE OF INSPECTOR GENERAL AND THE MISSISSIPPI OFFICE OF THE STATE AUDITOR; TO REQUIRE INDEPENDENT SCHOOLS FOUND TO BE FULLY OR PARTIALLY NONCOMPLIANT WITH GRANT REQUIREMENTS TO RETURN TO THE STATE ALL OR A PORTION OF THE GRANT MONIES RECEIVED AND USED FOR UNALLOWABLE EXPENDITURES; TO PROVIDE THAT THE AGGREGATE AMOUNT OF GRANT FUNDS AWARDED TO ANY SINGLE INDEPENDENT SCHOOL SHALL NOT EXCEED $100,000.00; TO STIPULATE THAT GRANTS FUNDS SHALL ONLY BE AWARDED IN THE AMOUNT INDICATED IN THE INDEPENDENT SCHOOL'S APPLICATION AS ITEMIZED ELIGIBLE EXPENSES, SUBJECT TO APPROVAL BY THE MDA; TO ALLOW INDEPENDENT SCHOOLS TO APPLY FOR GRANTS ON MULTIPLE OCCASIONS UNTIL SUCH TIME THAT THE INDEPENDENT SCHOOL HAS RECEIVED THE AGGREGATE AMOUNT OF FUNDS IT IS ELIGIBLE TO BE AWARDED; TO CREATE A SPECIAL FUND IN THE STATE TREASURY, TO BE KNOWN AS THE "INDEPENDENT SCHOOL'S COVID-19 ASSISTANCE GRANT FUND"; TO PROVIDE THAT IF AN UNOBLIGATED MONIES REMAIN IN THE FUND ON DECEMBER 1, 2020, THOSE FUNDS SHALL LAPSE INTO THE BUDGET CONTINGENCY FUND, TO BE TRANSFERRED INTO THE UNEMPLOYMENT COMPENSATION FUND; TO REQUIRE THE STATE FISCAL OFFICER SHALL TRANSFER $10,000,000.00 FROM THE BUDGET CONTINGENCY FUND TO THE "INDEPENDENT SCHOOL'S COVID-19 ASSISTANCE GRANT FUND," FOR THE IMPLEMENTATION AND ADMINISTRATION OF THE INDEPENDENT SCHOOLS' COVID-19 ASSISTANCE GRANT PROGRAM; TO AMEND SECTION 27-104-7, MISSISSIPPI CODE OF 1972, TO EXEMPT PURCHASES MADE BY PUBLIC POSTSECONDARY EDUCATIONAL INSTITUTIONS AND THEIR RESPECTIVE GOVERNING BOARDS FOR THE MITIGATION OF THE IMPACT OF COVID-19 FROM OVERSIGHT AND APPROVAL OF THE PUBLIC PROCUREMENT REVIEW BOARD; TO PROVIDE THAT THE PROVISIONS OF THIS ACT ARE SEVERABLE; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Sections 1 through 7 of this act shall be known, and may be cited as the "Postsecondary Education COVID-19 Mitigation Relief Program Act."
SECTION 2. As used in this act, the following terms shall have the meanings ascribed unless the context otherwise requires:
(a) "Board" means the Mississippi Postsecondary Education Financial Assistance Board.
(b) "COVID-19" means the Coronavirus Disease 2019.
(c) "CARES Act" means the Coronavirus Aid, Relief, and Economic Security Act.
(d) "Eligible postsecondary educational institution" means:
(i) Any state-supported four-year college or university operating within the State of Mississippi under the governing authority of the Board of Trustees of State Institutions of Higher Learning;
(ii) Any private four-year college or university operating within the State of Mississippi and accredited by a state, regional or national accrediting organization; and
(iii) Any state-supported two-year community college operating within the State of Mississippi under the governing authority of the Mississippi Community College Board and a local community college district board of trustees.
(e) "Interruption in learning" means disruption of regular educational instruction at a postsecondary educational institution facility resulting from required or voluntary closure related to COVID-19.
(f) "Public health measure" means any action reasonably taken to prevent the spread of COVID-19 in the educational setting.
(g) "Eligible expense" means a cost incurred by a postsecondary educational institution for public health measures or due to interruption in learning from March 1, 2020 through December 30, 2020. Such eligible expenses may consist of:
(i) Training and professional development for faculty and staff regarding measures to decrease the spread of COVID-19;
(ii) Purchasing facility sanitization supplies and other expenses of disinfection of the recipient institution's facilities to mitigate or respond to COVID-19;
(iii) Technology costs associated with transition to and administration of online learning;
(iv) Payroll expenses for public health and public safety employees employed by the recipient institution, and payroll expenses for health care, human services and similar employees of the institution whose services are substantially dedicated to mitigating or responding to the COVID-19 public health emergency;
(v) Purchasing of medical supplies and personal protection equipment (PPE); or
(vi) Medical expenses incurred by the recipient institution to treat or diagnose COVID-19, including COVID-19 testing and serological testing, emergency medical response and transportation, and telemedicine expenses related to COVID-19.
No cost will be considered an eligible expense if found to be ineligible under the guidelines, guidance, rules, regulations and/or other criteria, as may be amended or supplemented from time to time, of the United States Department of the Treasury regarding the use of monies from the Coronavirus Relief Fund established by the CARES Act.
(h) "Grant" means an award by the board to a postsecondary educational institution to cover eligible expenses in accordance with this act.
(i) "Program" means the Postsecondary Education COVID-19 Mitigation Relief Program established in this act.
SECTION 3. (1) There is established the Postsecondary Education COVID-19 Mitigation Relief Program for public and private postsecondary educational institutions to be administered by the Mississippi Postsecondary Education Financial Assistance Board established under Section 37-106-9, which shall set the dates and deadlines for applying for an award under this section. The program is established for the purpose of providing reimbursement to eligible postsecondary educational institutions for unreimbursed expenses directly related to COVID-19. The board shall establish such rules and regulations as it deems necessary and proper to carry out the purposes and intent of this section.
(2) The board shall approve applications for reimbursement from each eligible postsecondary educational institution. For each eligible postsecondary educational institution, the board shall only award funds equivalent to the lesser of the total of itemized eligible COVID-19-related expenses or the maximum allowable for each institution based on the total number of students enrolled during the 2019-2020 scholastic year, who were actively enrolled as a part-time or full-time student on June 23, 2020, as determined by the student allocation formulas specified in subsections (3) and (4) of this section. To qualify for reimbursement, each postsecondary educational institution's application for reimbursement must, in addition to specifying the amount of reimbursement requested, also include an itemized expense report that evidences the eligible expenses incurred by the eligible postsecondary educational institution.
(3) (a) Each four-year postsecondary educational institution shall be eligible to be reimbursed at an amount equivalent to Four Hundred Forty-one Dollars ($441.00) per student actively enrolled as a part-time or full-time students on June 24, 2020. Each four-year postsecondary educational institution's reimbursement shall be determined upon the submission of the itemized expense report, required under subsection (2) of this section. Failure of a four-year postsecondary educational institution to submit the itemized expense report will subject the institution to forfeiture of any allotted funds designated for the specific institution's eligible maximum reimbursement amount.
(b) Upon a showing of itemized eligible
COVID-19-related expenses, the eligible maximum reimbursement amount allowed for each four-year postsecondary educational institution, as determined by the student allocation formula prescribed in paragraph (a) of this subsection, shall be as follows:
(i) Alcorn State University ......................
.................................................... $1,439,865.00
(ii) Delta State University ......................
.................................................... $1,511,307.00
(iii) Jackson State University ...................
.................................................... $2,798,145.00
(iv) Mississippi State University ................
.................................................... $9,087,687.00
(v) Mississippi University for Women .............
.................................................... $1,183,203.00
(vi) Mississippi Valley State University .........
...................................................... $891,261.00
(vii) University of Mississippi ..................
.................................................... $9,302,454.00
(viii) University of Southern Mississippi ........
.................................................... $5,683,608.00
(ix) Belhaven University .........................
.................................................... $1,764,000.00
(x) Blue Mountain College ........................
...................................................... $264,600.00
(xi) Millsaps College ............................
...................................................... $336,420.00
(xii) Mississippi College ........................
.................................................... $1,914,381.00
(xiii) Rust College ..............................
...................................................... $282,681.00
(xiv) Tougaloo College ...........................
...................................................... $308,700.00
(xv) William Carey University ....................
................................................... $1,889,244.00.
(c) The Mississippi Postsecondary Education Financial Assistance Board shall directly allocate to the Board of Trustees of State Institutions of Higher Learning the amount of Thirty Thousand Dollars ($30,000.000).
(d) The total allocating authority provided to the Mississippi Postsecondary Education Financial Assistance Board under the provisions of this subsection (3) shall not exceed Thirty-eight Million Six Hundred Eighty-seven Thousand Five Hundred Fifty-six Dollars ($38,687,556.00).
(4) (a) Each two-year postsecondary educational institution, upon a showing of itemized eligible COVID-19-related expenses, shall be eligible to be awarded funds equivalent to the lesser of the total of its itemized eligible expenses or the base amount of Three Hundred Fifty-one Thousand Five Hundred Fifty Dollars Seventy-one Cents ($351,550.71) available to each respective institution, as determined by calculating the total amount of unreimbursed expenses incurred by all two-year postsecondary educational institutions multiplied by the full-time equivalent (FTE) rate of fifteen percent (15%), and divided by the total number of two-year postsecondary educational institutions based on a thirty-seven percent (37%) reduction. The total of the base amount actually awarded to each institution under this paragraph (a) shall be deducted from the eligible maximum reimbursement amount allowed for each institution under paragraph (c) of this subsection.
(b) The remaining eighty-five percent (85%) of the unreimbursed expenses incurred by all two-year postsecondary educational institutions shall then be divided by the total number of FTE students enrolled in all two-year postsecondary educational institutions to be reimbursed at an amount equivalent to Five Hundred Forty-five Dollars Forty-two Cents ($545.42) per FTE student at each respective two-year postsecondary educational institution as of June 24, 2020, based on a thirty-seven percent (37%) reduction. Each postsecondary educational institution's reimbursement shall be determined upon the submission of the itemized expense report, required under subsection (2) of this section. Failure of a postsecondary educational institution to submit the itemized expense report will subject the institution to forfeiture of any allotted funds designated for the specific institution's eligible maximum reimbursement amount.
(c) Upon a showing of itemized eligible
COVID-19-related expenses, the eligible maximum reimbursement amount allowed for each institution, as determined by the student allocation formulas prescribed in paragraphs (a) and (b) of this subsection, shall be as follow:
(i) Coahoma Community College ....................
.................................................... $1,104,018.54
(ii) Copiah-Lincoln Community College ............
.................................................... $1,641,377.19
(iii) East Central Community College .............
.................................................... $1,429,800.67
(iv) East Mississippi Community College ..........
.................................................... $1,943,536.14
(v) Hinds Community College ......................
.................................................... $4,900,064.29
(vi) Holmes Community College ....................
.................................................... $2,908,719.58
(vii) Itawamba Community College .................
.................................................... $2,511,704.35
(viii) Jones County Junior College ...............
.................................................... $2,359,313.34
(ix) Meridian Community College ..................
.................................................... $1,697,113.29
(x) Mississippi Delta Community College ..........
.................................................... $1,453,472.11
(xi) Mississippi Gulf Coast Community College ....
.................................................... $4,220,356.11
(xii) Northeast Mississippi Community College ....
.................................................... $1,866,958.52
(xiii) Northwest Mississippi Community College ...
.................................................... $3,372,657.14
(xiv) Pearl River Community College ..............
.................................................... $2,497,523.94
(xv) Southwest Mississippi Community College .....
................................................... $1,248,446.98.
(d) The Mississippi Postsecondary Education Financial Assistance Board shall directly allocate to the Mississippi Community College Board the amount of Fifteen Million Dollars ($15,000,000.00).
(e) The total allocating authority provided to the Mississippi Postsecondary Education Financial Assistance Board under the provisions of this subsection (4) shall not exceed Fifty Million One Hundred Fifty-five Thousand Sixty-two Dollars Nineteen Cents ($50,155,062.19).
(5) The total allocating authority provided to the Mississippi Postsecondary Education Financial Assistance Board under the provisions of subsections (3) and (4) of this section shall not exceed Eighty-eight Million Eight Hundred Forty-two Thousand Six Hundred Eighteen Dollars Nineteen Cents ($88,842,618.19).
(6) The board shall develop regulations, procedures and application forms to govern the administration of the program, which at a minimum, shall require eligible postsecondary educational institutions to:
(a) Submit an application for a grant for reimbursement;
(b) Demonstrate the need and purpose of the grant funds received to mitigate the impact of COVID-19 on the operation of the school and its delivery of instruction;
(c) Intended use of grant funds to provide enhanced Internet connectivity, distance learning, technology upgrades, and any necessary professional development related to the technological enhancements for purpose of facility digital instruction; and
(d) Provide an itemized list of reimbursable eligible expenses, as defined in Section 2 of this act, which the eligible postsecondary educational institution has previously incurred, is presently incurring or will incur in the future, as such expenses relate to mitigation of the impact of COVID-19.
SECTION 4. (1) Any eligible postsecondary educational institution desiring to participate in the program shall make application for a grant to the board in a form satisfactory to the board. The application shall include verified documentation, signed under penalty of perjury.
(2) The board shall use the funds appropriated by the Legislature from the Budget Contingency Fund to provide funds for the purposes of making grants to eligible postsecondary educational institutions pursuant to applications submitted under subsection (1) of this section, to cover future COVID-19 eligible expenses or provide reimbursement for previously incurred COVID-19 eligible expenses.
(3) The use of grants shall be subject to audit by the United States Department of the Treasury's Office of Inspector General and the Mississippi Office of the State Auditor. An eligible postsecondary educational institution found to be fully or partially noncompliant with grant requirements shall return to the state all of the grant monies received and used for unallowable expenditures. Applicants shall confirm their understanding of these terms.
(4) The program shall be subject to the following terms and conditions:
(a) The aggregate amount of grant funds which may be awarded to any single postsecondary educational institution under the provisions of this act shall not exceed the dollar amount specified for such postsecondary educational institution authorized under subsections (3)(b) and (4)(b) of Section 3 of this act;
(b) Grant funds shall only be awarded in the amount indicated in the eligible postsecondary educational institution's application as itemized eligible expenses, subject to approval by the board; and
(c) An eligible postsecondary educational institution is not limited to submitting only one (1) application for grant funds, but may submit new applications for grant funds, following the guidelines required by the board, until such time that it has received the aggregate amount of funds for which it is eligible to be awarded.
SECTION 5. There is created a special fund in the State Treasury, to be known as the "Postsecondary Education COVID-19 Mitigation Relief Grant Fund," from which the grants authorized by this act shall be disbursed by the board. All monies shall be disbursed from the fund in compliance with the guidelines, guidance, rules, regulations and/or other criteria, as may be amended from time to time, of the United States Department of the Treasury regarding the use of monies from the Coronavirus Relief Fund established by the CARES Act. If on December 1, 2020, there are unobligated monies in the fund, those funds shall lapse into the Budget Contingency Fund, to be transferred, by the State Fiscal Officer, into the Unemployment Compensation Fund.
SECTION 6. Upon the effective date of this act, the State Fiscal Officer shall transfer funds from the Budget Contingency Fund to the "Postsecondary Education COVID-19 Mitigation Relief Grant Fund," the amount of Eighty-eight Million Eight Hundred Forty-two Thousand Six Hundred Eighteen Dollars Nineteen Cents ($88,842,618.19) for the implementation and administration of the Postsecondary Education COVID-19 Mitigation Relief Program Act.
SECTION 7. (1) Public postsecondary educational institutions and their respective governing boards, shall be immune from liability for any damages which may arise out of the public procurement provisions of Section 31-7-13, from which it is exempt, with regard to the acquisition of personnel, property, supplies or services for purposes authorized under this act.
(2) Notwithstanding any other provision of law to the contrary, any procurements of any kind made by any eligible public postsecondary educational institution or their respective governing boards under the provisions of this act shall be exempt from any public purchasing laws and regulations.
SECTION 8. 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 $5,000.00. Purchases which do not involve an expenditure of more than Five Thousand Dollars ($5,000.00), 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 Five Thousand Dollars ($5,000.00) or less.
(b) Bidding procedure for purchases over $5,000.00 but not over $50,000.00. Purchases which involve an expenditure of more than Five Thousand Dollars ($5,000.00) but not more than Fifty Thousand Dollars ($50,000.00), 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 state agency or community/junior college purchasing commodities or procuring construction pursuant to this paragraph (b) may authorize its purchasing agent, or his designee, to accept the lowest competitive written bid under Fifty Thousand Dollars ($50,000.00). 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. Any bid item for construction in excess of Five Thousand Dollars ($5,000.00) shall be broken down by components to provide detail of component description and pricing. These details shall be submitted with the written bids and become part of the bid evaluation criteria. 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 $50,000.00.
(i) Publication requirement.
1. Purchases which involve an expenditure of more than Fifty Thousand Dollars ($50,000.00), exclusive of freight and shipping charges, may be made from the lowest and best bidder after advertising for competitive 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. However, all American Recovery and Reinvestment Act projects in excess of Twenty-five Thousand Dollars ($25,000.00) shall be bid. All references to American Recovery and Reinvestment Act projects in this section shall not apply to programs identified in Division B of the American Recovery and Reinvestment Act.
2. Reverse auctions shall be the primary method for receiving bids during the bidding process. If a purchasing entity determines that a reverse auction is not in the best interest of the state, then that determination must be approved by the Public Procurement Review Board. The purchasing entity shall submit a detailed explanation of why a reverse auction would not be in the best interest of the state and present an alternative process to be approved by the Public Procurement Review Board. If the Public Procurement Review Board authorizes the purchasing entity to solicit bids with a method other than reverse auction, then the purchasing entity may designate the other methods by which the bids will be received, including, but not limited to, bids sealed in an envelope, bids received electronically in a secure system, or bids received by any other method that promotes open competition and has been approved by the Office of Purchasing and Travel. However, reverse auction shall not be used for any public contract for design or construction of public facilities, including buildings, roads and bridges. The Public Procurement Review Board must approve any contract entered into by alternative process. The provisions of this item 2 shall not apply to the individual state institutions of higher learning.
3. 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 Fifty Thousand Dollars ($50,000.00), 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. However, all American Recovery and Reinvestment Act projects in excess of Twenty-five Thousand Dollars ($25,000.00) shall be bid. For any projects in excess of Twenty-five Thousand Dollars ($25,000.00) under the American Recovery and Reinvestment Act, publication shall be made one (1) time and the bid opening for construction projects shall not be less than ten (10) working days after the date of the published notice. 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 Procurement Technical Assistance Program under the Mississippi Development Authority that contains the same information as that in the published notice. Submissions received by the Mississippi Procurement Technical Assistance Program for projects funded by the American Recovery and Reinvestment Act shall be displayed on a separate and unique Internet web page accessible to the public and maintained by the Mississippi Development Authority for the Mississippi Procurement Technical Assistance Program. Those American Recovery and Reinvestment Act related submissions shall be publicly posted within twenty-four (24) hours of receipt by the Mississippi Development Authority and the bid opening shall not occur until the submission has been posted for ten (10) consecutive days. The Department of Finance and Administration shall maintain information regarding contracts and other expenditures from the American Recovery and Reinvestment Act, on a unique Internet web page accessible to the public. The Department of Finance and Administration shall promulgate rules regarding format, content and deadlines, unless otherwise specified by law, of the posting of award notices, contract execution and subsequent amendments, links to the contract documents, expenditures against the awarded contracts and general expenditures of funds from the American Recovery and Reinvestment Act. Within one (1) working day of the contract award, the agency or governing authority shall post to the designated web page maintained by the Department of Finance and Administration, notice of the award, including the award recipient, the contract amount, and a brief summary of the contract in accordance with rules promulgated by the department. Within one (1) working day of the contract execution, the agency or governing authority shall post to the designated web page maintained by the Department of Finance and Administration a summary of the executed contract and make a copy of the appropriately redacted contract documents available for linking to the designated web page in accordance with the rules promulgated by the department. The information provided by the agency or governing authority shall be posted to the web page for the duration of the American Recovery and Reinvestment Act funding or until the project is completed, whichever is longer.
(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.
1. 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.
2. Specifications for construction projects may include an allowance for commodities, equipment, furniture, construction materials or systems in which prospective bidders are instructed to include in their bids specified amounts for such items so long as the allowance items are acquired by the vendor in a commercially reasonable manner and approved by the agency/governing authority. Such acquisitions shall not be made to circumvent the public purchasing laws.
(v) Electronic bids. Agencies and governing authorities shall provide a secure electronic interactive system for the submittal of bids requiring competitive bidding that shall be an additional bidding option for those bidders who choose to submit their bids electronically. The Department of Finance and Administration shall provide, by regulation, the standards that agencies must follow when receiving electronic bids. Agencies and governing authorities shall make the appropriate provisions necessary to accept electronic bids from those bidders who choose to submit their bids electronically for all purchases requiring competitive bidding under this section. Any special condition or requirement for the electronic bid submission shall be specified in the advertisement for bids required by this section. Agencies or governing authorities that are currently without available high speed Internet access shall be exempt from the requirement of this subparagraph (v) until such time that high speed Internet access becomes available. Any county having a population of less than twenty thousand (20,000) shall be exempt from the provisions of this subparagraph (v). Any municipality having a population of less than ten thousand (10,000) shall be exempt from the provisions of this subparagraph (v). The provisions of this subparagraph (v) shall not require any bidder to submit bids electronically. When construction bids are submitted electronically, the requirement for including a certificate of responsibility, or a statement that the bid enclosed does not exceed Fifty Thousand Dollars ($50,000.00), on the exterior of the bid envelope as indicated in Section 31-3-21(1) and (2) shall be deemed in compliance with by including same as an attachment with the electronic bid submittal.
(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 subparagraph (i) of this paragraph (d), 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, including, but not limited to, a bidder having a local office and inventory located within the jurisdiction of the governing authority, 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) Decision procedure for Mississippi Landmarks. In addition to the decision procedure set forth in subparagraph (i) of this paragraph (d), where purchase involves renovation, restoration, or both, of the State Capitol Building or any other historical building designated for at least five (5) years as a Mississippi Landmark by the Board of Trustees of the Department of Archives and History under the authority of Sections 39-7-7 and 39-7-11, the agency or governing authority may use the following procedure: Purchases may be made from the lowest and best prequalified bidder. Prequalification of bidders shall be determined not less than fifteen (15) working days before the first published notice of bid opening. Prequalification criteria shall be limited to bidder's knowledge and experience in historical restoration, preservation and renovation. 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 and prequalification 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.
(iv) 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 designees, 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 head of such agency, or his designees, shall 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 requesting the emergency purchase, if applicable. Upon receipt of the statement and applicable board certification, the State Fiscal Officer, or his designees, may, in writing, authorize the purchase or repair without having to comply with competitive bidding requirements.
If the governing board or the executive head, or his designees, of any agency determines 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 threaten the health or safety of any person, or the preservation or protection of property, then the provisions in this section for competitive bidding shall not apply, and any officer or agent of the agency having general or specific authority for making the purchase or repair contract shall approve the bill presented for payment, and he shall certify in writing from whom the purchase was made, or with whom the repair contract was made.
Total purchases made under this paragraph (j) shall only be for the purpose of meeting needs created by the emergency situation. 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 filed with the Department of Finance and Administration. Any contract awarded pursuant to this paragraph (j) shall not exceed a term of one (1) year.
(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 paragraph (m). 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 food 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. Following the purchase, the executive head of the state agency, or his designees, shall file with the Department of Finance and Administration, documentation of the purchase, including a description of the commodity purchased, the purchase price thereof and the source from whom it was purchased.
(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, videocassette tapes, filmstrips and slides; recorded audiotapes, 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 by the Department of Corrections, regional correctional facilities or privately owned prisons. Purchases made by the Mississippi Department of Corrections, regional correctional facilities or privately owned prisons 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), (3) and (4).
(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 governmental 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 and dual-phase design-build method of contracting. Contracts entered into under the provisions of Section 31-7-13.1, 37-101-44 or 65-1-85.
(xxxii) Toll roads and bridge construction projects. Contracts entered into under the provisions of Section 65-43-1 or 65-43-3.
(xxxiii) Certain purchases under Section 57-1-221. Contracts entered into pursuant to the provisions of Section 57-1-221.
(xxxiv) Certain transfers made pursuant to the provisions of Section 57-105-1(7). Transfers of public property or facilities under Section 57-105-1(7) and construction related to such public property or facilities.
(xxxv) Certain purchases or transfers entered into with local electrical power associations. Contracts or agreements entered into under the provisions of Section 55-3-33.
(xxxvi) Certain purchases by an academic medical center or health sciences school. Purchases by an academic medical center or health sciences school, as defined in Section 37-115-50, of commodities that are used for clinical purposes and 1. intended for use in the diagnosis of disease or other conditions or in the cure, mitigation, treatment or prevention of disease, and 2. medical devices, biological, drugs and radiation-emitting devices as defined by the United States Food and Drug Administration.
(xxxvii) Certain purchases made under the Alyce G. Clarke Mississippi Lottery Law. Contracts made by the Mississippi Lottery Corporation pursuant to the Alyce G. Clarke Mississippi Lottery Law.
(xxxviii) Certain purchases made by state governmental agencies, local governing authorities and any political subdivision thereof, including local school districts, charter schools, public special purpose schools, postsecondary educational institutions and their respective governing boards, directly associated with the mitigation of the impact of COVID-19. Contracts and purchases by state governmental agencies, local governing authorities and any political subdivision thereof, including local school districts, charter schools, public special purpose schools, postsecondary educational institutions and their respective governing boards, for purchases of equipment, technological devices, hardware and software for such devices, supplies and services directly associated with the mitigation of the impact of COVID-19 for purposes of providing:
1. Continual education services at both the K-12 and postsecondary levels, including, but not limited to:
a. Providing services to K-12 school administrators, faculty and staff, and postsecondary educational institution administration, faculty and staff, which adequately equip schools or institutions with necessary resources for the operation;
b. Training and professional development of administration, faculty and staff regarding measures to decrease the spread of COVID-19 and familiarity with technology programs and devices to facilitate distance learning;
c. Purchasing facility sanitization supplies;
d. Providing technology programs and devices to students for the transition to and administration of online distance learning;
e. Providing summer learning activities and instruction;
f. Developing, implementing and maintaining Learning Management Systems to be used by school districts and charter schools to provide course content consistent with the curriculum guidelines adopted by the State Board of Education;
g. Purchasing necessary equipment and accommodations and providing adequate services for students with disabilities enrolled within the school district or charter school in a manner consistent with the student's IEP or 504 Plan under IDEA;
h. Providing appropriate mental health services to students;
i. Purchasing personal protection equipment (PPE);
j. Purchasing medical testing supplies for the purpose of testing students, faculty and staff for COVID-19; and
k. Purchasing equipment to facilitate or expand a postsecondary educational institution's ability to perform telework.
2. Healthcare services for the purchase of medical testing supplies and equipment, personal protection equipment (PPE) and equipment and medication necessary for the treatment of patients diagnosed with COVID-19;
3. Social and mental health service; and
4. Transportation and public utilities for the development of transit infrastructure and expanding infrastructure for digital network access and purchase of Internet access and provide technical support to citizens for digital inclusion through broadband access.
(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 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 into 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) Procurement of construction services by state institutions of higher learning. Contracts for privately financed construction of auxiliary facilities on the campus of a state institution of higher learning may be awarded by the Board of Trustees of State Institutions of Higher Learning to the lowest and best bidder, where sealed bids are solicited, or to the offeror whose proposal is determined to represent the best value to the citizens of the State of Mississippi, where requests for proposals are solicited.
(v) Insurability of bidders for public construction or other public contracts. In any solicitation for bids to perform public construction or other public contracts to which this section applies including, but not limited to, contracts for repair and maintenance, for which the contract will require insurance coverage in an amount of not less than One Million Dollars ($1,000,000.00), bidders shall be permitted to either submit proof of current insurance coverage in the specified amount or demonstrate ability to obtain the required coverage amount of insurance if the contract is awarded to the bidder. Proof of insurance coverage shall be submitted within five (5) business days from bid acceptance.
(w) Purchase authorization clarification. Nothing in this section shall be construed as authorizing any purchase not authorized by law.
SECTION 9. Sections 9 through 14 of this act shall be known, and may be cited as the "Independent Schools' COVID-19 Assistance Grant Program Act."
SECTION 10. As used in Sections 9 through 14 of this act, the following terms shall have the meanings ascribed unless the context otherwise requires:
(a) "COVID-19" means the Coronavirus Disease 2019.
(b) "CARES Act" means the Coronavirus Aid, Relief, and Economic Security Act.
(c) "Eligible independent school" means any private or nonpublic school operating within the State of Mississippi that:
(i) Is a member of the Midsouth Association of Independent Schools (MAIS) and located in the State of Mississippi; or
(ii) Is accredited by a state, regional or national accrediting organization; and
(iii) Is not subject to the purview of authority of the State Board of Education.
(d) "Interruption in learning" means disruption of regular educational instruction in a school facility resulting from required or voluntary closure related to COVID-19.
(e) "Public health measure" means any action reasonably taken to prevent the spread of COVID-19 in the educational setting.
(f) "Eligible expense" means a cost incurred by an independent school for public health measures or due to interruption in learning from March 1, 2020 through December 30, 2020. Such eligible expenses may consist of:
(i) Training and professional development of local school staff regarding measures to decrease the spread of COVID-19 and familiarity with technology programs and devices to facilitate distance learning;
(ii) Purchasing facility sanitization supplies and other expenses of disinfection of the independent school's facilities to mitigate or respond to COVID-19;
(iii) Purchasing technology programs and equipment for the expansion of Internet connectivity and broadband access within the school facility to be used by school administrators, faculty and staff to facilitate online distance learning;
(iv) Purchasing necessary equipment and accommodations and providing adequate services for students with disabilities;
(v) Purchasing medical supplies and personal protection equipment (PPE); or
(vi) Medical expenses incurred by the independent school to treat or dispense COVID-19, including COVID-19 testing and serological testing, emergency medical response and transportation, and telemedicine expenses related to COVID-19.
No cost will be considered an eligible expense if found to be ineligible under the guidelines, guidance, rules, regulations and/or other criteria, as may be amended from time to time, of the United States Department of the Treasury regarding the use of monies from the Coronavirus Relief Fund established by the CARES Act.
(g) "MDA" means the Mississippi Development Authority.
(h) "Grant" means an award by the MDA to an independent school to cover eligible expenses in accordance with Sections 9 through 14 of this act.
(i) "Program" means the Independent Schools' COVID-19 Assistance Grant Program established in Sections 9 through 14 of this act.
SECTION 11. (1) The Legislature facilitates access by Mississippi's independent schools to federal relief and recovery funds related to COVID-19. Accordingly, the Independent School's COVID-19 Assistance Grant Program is established, to be administered by the MDA, for the purpose of making grants to eligible independent schools to provide reimbursements for eligible expenses, as defined in Section 10 of this act.
(2) From the date of the beginning of the period for applications for grants under this section, the MDA shall consider and review applications from eligible independent schools that did not receive and has not been awarded reimbursement under any other federal program for the expenses that will be reimbursed by a grant under this section.
(3) The MDA shall develop regulations, procedures and application forms to govern the administration of the program, which at a minimum, shall require eligible independent schools to:
(a) Submit an application for a grant for reimbursement;
(b) Demonstrate the need and purpose of the grant funds received to mitigate the impact of COVID-19 on the operation of the school and its delivery of instruction;
(c) Intended use of grant funds to provide enhanced internet connectivity, distance learning, technology upgrades, and any necessary professional development related to the technological enhancements for purpose of facility digital instruction; and
(d) Provide an itemized list of reimbursable eligible expenses as defined in Section 10 of this act, which the independent school has previously incurred, is presently incurring or will incur before December 30, 2020, as such expenses relate to mitigation of the impact of COVID-19.
SECTION 12. (1) Any eligible independent school desiring to participate in the program shall make application for a grant to the MDA in a form satisfactory to the MDA. The application shall include verified documentation, signed under penalty of perjury.
(2) The MDA shall use the funds appropriated by the Legislature from Budget Contingency Fund to provide funds for the purposes of making grants to eligible independent schools pursuant to applications submitted under subsection (1) of this section, to cover future COVID-19 eligible expenses or provide reimbursement for previously incurred COVID-19 eligible expenses.
(3) The use of grants shall be subject to audit by the United States Department of the Treasury's Office of Inspector General and the Mississippi Office of the State Auditor. An eligible independent school found to be fully or partially noncompliant with grant requirements shall return to the state all or a portion of the grant monies received and used for unallowable expenditures. Applicants shall confirm their understanding of these terms.
(4) The program shall be subject to the following terms and conditions:
(a) The eligible maximum amount of grant funds which may be awarded to any eligible independent school under the provisions of this act shall not exceed One Hundred Thousand Dollars ($100,000.00);
(b) Any grant funds awarded shall be the lesser of the amount indicated in the independent school's application as itemized eligible COVID-19-related expenses or the eligible maximum amount, subject to approval by the MDA; and
(c) An eligible independent school is not limited to submitting only one application for grant funds, but may submit new applications grant funds, following the guidelines required by the MDA, until such time that it has received the aggregate amount of funds for which it is eligible to be awarded.
SECTION 13. There is created a special fund in the State Treasury, to be known as the "Independent School's COVID-19 Assistance Grant Fund," from which the grants authorized by this act shall be disbursed by the MDA. All monies shall be disbursed from the fund in compliance with the guidelines, guidance, rules, regulations and/or other criteria, as may be amended from time to time, of the United States Department of the Treasury regarding the use of monies from the Coronavirus Relief Fund established by the CARES Act. If on December 1, 2020, there are unobligated monies in the fund, those funds shall lapse into the Budget Contingency Fund, to be transferred, by the State Fiscal Officer, into the Unemployment Compensation Fund.
SECTION 14. Upon the effective date of this act, the State Fiscal Officer shall transfer funds from the Budget Contingency Fund to the "Independent School's COVID-19 Assistance Grant Fund," the amount of Ten Million Dollars ($10,000,000.00) for the implementation and administration of the Independent Schools' COVID-19 Assistance Grant Program Act.
SECTION 15. 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:
(i) Computer equipment acquired pursuant to Sections 25-53-1 through 25-53-29; or
(ii) Commodities, medical supplies, personal protection equipment, computer equipment or technology upgrades necessary for postsecondary educational institutions or their respective governing boards to mitigate the impact of COVID-19 upon campuses.
(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, and any contract for attorney, accountant, actuary 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). 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.
(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 16. If any section, paragraph, sentence, clause, phrase, or any part of this act is declared to be in conflict with federal law, or if for any reason is declared to be invalid or of no effect, the remaining sections, paragraphs, sentences, clauses, phrases or parts thereof shall be in no matter affected thereby but shall remain in full force and effect.
SECTION 17. This act shall take effect and be in force from and after its passage.