Amendment vs bill Committee Amendment No 1 (Adopted) vs As Passed the lower

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HB1788 (As Passed the House) - 2020 Regular Session MISSISSIPPI LEGISLATURE Regular Session To:
Adopted COMMITTEE AMENDMENT NO 1 PROPOSED TO House Bill No.
Rules By:
1788 BY:
Representatives Bounds, Karriem House Bill 1788 (As Passed the House) AN ACT TO DIRECT THE STATE FISCAL OFFICER TO TRANSFER $50,000,000.00 TO THE MISSISSIPPI PANDEMIC RESPONSE BROADBAND AVAILABILITY GRANT PROGRAM FUND;
Committee Amend by striking all after the enacting clause and inserting in lieu thereof the following:
TO CREATE THE "MISSISSIPPI PANDEMIC RESPONSE BROADBAND AVAILABILITY ACT";
SECTION 1.
TO PROVIDE A STATEMENT OF LEGISLATIVE INTENT AND FINDINGS;
Upon the effective date of this act, the State Fiscal Officer shall transfer to the Mississippi Pandemic Response Broadband Availability Grant Program Fund out of the Budget Contingency Fund...........................$ 50,000,000.00.
TO CREATE THE "MISSISSIPPI PANDEMIC RESPONSE BROADBAND AVAILABILITY GRANT PROGRAM FUND" AS A SPECIAL FUND IN THE STATE TREASURY FOR THE PURPOSE OF PROVIDING FUNDS FOR GRANTS TO MISSISSIPPI PUBLIC SCHOOL DISTRICTS, INDEPENDENT SCHOOLS AND NATIVE AMERICAN TRIBAL SCHOOL DISTRICTS;
SECTION 2.
TO PROVIDE THAT THE MISSISSIPPI PANDEMIC RESPONSE BROADBAND AVAILABILITY GRANT PROGRAM SHALL BE ADMINISTERED BY THE MISSISSIPPI DEPARTMENT OF EDUCATION, FOR THE PURPOSE OF MAKING GRANTS TO ELIGIBLE SCHOOL DISTRICTS AND SCHOOLS TO PROVIDE THEM WITH GRANT MONIES FOR ELIGIBLE EXPENSES;
Sections 2 through 5 of this act shall be known and may be cited as the "Mississippi Pandemic Response Broadband Availability Act." SECTION 3.
TO DIRECT THE MISSISSIPPI DEPARTMENT OF EDUCATION TO DEVELOP REGULATIONS AND PROCEDURES TO GOVERN THE ADMINISTRATION OF THE PROGRAM;
(1) The Legislature finds and declares that due to the COVID-19 pandemic there is an immediate increased need for reliable Internet service in Mississippi, including expanded 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 1 broadband access, to facilitate and assist with distance learning.
TO PRESCRIBE THE REQUIREMENTS FOR THE GRANTS;
Therefore, the Mississippi Department of Education shall establish the Mississippi Pandemic Response Broadband Availability Grant Program to provide grants to Mississippi public school districts, independent schools and Native American tribal schools for the purpose of expanding broadband access in the unserved areas of the State of Mississippi.
TO SPECIFY THAT THE USE OF GRANT FUNDS SHALL BE SUBJECT TO AUDIT AND REGULATION OF THE MISSISSIPPI DEPARTMENT OF EDUCATION, AND NONCOMPLIANCE WITH THE TERMS OF THE GRANT SHALL REQUIRE REPAYMENT OF GRANT MONIES TO THE STATE;
(2) As used in this act, the following words and phrases shall have the meanings ascribed in this section unless the context clearly indicates otherwise:
TO SPECIFY THAT ALL MONIES SHALL BE DISBURSED FROM THIS SPECIAL FUND IN COMPLIANCE WITH THE REQUIREMENTS OF THE CARES ACT AND GUIDELINES FROM THE UNITED STATES DEPARTMENT OF THE TREASURY REGARDING THE USE OF MONIES FROM THE CORONAVIRUS RELIEF FUND;
(a) "Broadband access" means access to broadband services as defined in Section 77-17-3(d).
TO TRANSFER UNDISTRIBUTED MONIES IN THE FUND AS OF DECEMBER 1, 2020, TO THE UNEMPLOYMENT COMPENSATION FUND;
(b) "COVID-19" means the Coronavirus Disease 2019.
TO PROVIDE THAT A DECLARATION OF ANY PORTION OF THIS ACT AS INVALID SHALL NOT AFFECT THE REMAINING PORTIONS OF THIS ACT;
(c) "Department" means the Mississippi Department of Education.
TO AMEND SECTION 31-7-13, MISSISSIPPI CODE OF 1972, TO EXEMPT PUBLIC SCHOOL DISTRICTS AND SCHOOLS FROM THE PROCUREMENT AND COMPETITIVE BIDDING REQUIREMENTS FOR CONTRACTS MADE UNDER THE MISSISSIPPI PANDEMIC RESPONSE BROADBAND AVAILABILITY ACT;
(3) There is hereby created in the State Treasury a special fund to be designated as the "Mississippi Pandemic Response Broadband Availability Grant Program Fund," which shall consist of funds made available by the Legislature in any manner and funds from any other source designated for deposit into such fund.
AND FOR RELATED PURPOSES.
Unexpended amounts remaining in the fund at the end of a fiscal year shall not lapse into the State General Fund, and any investment earnings or interest earned on amounts in the fund shall be deposited to the credit of the fund.
     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
Monies in the fund shall be used for the purpose of providing payments to eligible 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 2 Mississippi public school districts, independent schools and Native American tribal school districts as provided in this act.
     SECTION 1.  Upon the effective date of this act, the State Fiscal Officer shall transfer to the Mississippi Pandemic Response Broadband Availability Grant Program Fund out of the Budget Contingency Fund ...........................................$ 50,000,000.00.
Monies in the fund shall be administered and disbursed by the department 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 Coronavirus Aid, Relief, and Economic Security Act.
     SECTION 2.  Sections 2 through 5 of this act shall be known and may be cited as the "Mississippi Pandemic Response Broadband Availability Act."      SECTION 3.  (1)  The Legislature finds and declares that due to the COVID-19 pandemic there is an immediate increased need for reliable Internet service in Mississippi, including expanded broadband access, to facilitate and assist with distance learning.  Therefore, the Mississippi Department of Education shall establish the Mississippi Pandemic Response Broadband Availability Grant Program to provide grants to Mississippi public school districts, independent schools and Native American tribal schools for the purpose of expanding broadband access in the unserved areas of the State of Mississippi.
If on December 1, 2020, there are undistributed monies in the fund, or if at any other time undistributed monies in the fund are determined by the department to be ineligible to be spent by the department, those monies shall be transferred to the Unemployment Compensation Fund.
     (2)  As used in this act, the following words and phrases shall have the meanings ascribed in this section unless the context clearly indicates otherwise:
SECTION 4.
          (a)  "Broadband access" means access to broadband services as defined in Section 77-17-3(d).
(1) The department shall distribute grant monies, without the requirement of application by school districts or schools, as equitably and efficiently as possible after determining the unserved areas of the state using the latest publicly available Federal Communications Commission broadband data, and after determining which and to what extent Mississippi public school districts, independent schools and Native American tribal school districts educate students living in such unserved areas of the state.
          (b)  "COVID-19" means the Coronavirus Disease 2019.
The Mississippi Department of Education shall consult with the Mississippi Association of Independent Schools and the administrations of the Native American tribal school districts in determining which and to what extent such schools and 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 3 schools districts educate students living in such unserved areas of the state.
          (c)  "Department" means the Mississippi Department of Education.
Any grant monies provided under this act shall be spent by the recipient school district no later than December 1, 2020, or by such later date as may be specified in the guidelines, guidance, rules, regulations and/or other criteria of the United States Department of the Treasury regarding the use of monies from the Coronavirus Relief Fund established in Section 5001 of the Coronavirus Aid, Relief, and Economic Security Act.
     (3)  There is hereby created in the State Treasury a special fund to be designated as the "Mississippi Pandemic Response Broadband Availability Grant Program Fund," which shall consist of funds made available by the Legislature in any manner and funds from any other source designated for deposit into such fund.  Unexpended amounts remaining in the fund at the end of a fiscal year shall not lapse into the State General Fund, and any investment earnings or interest earned on amounts in the fund shall be deposited to the credit of the fund.  Monies in the fund shall be used for the purpose of providing payments to eligible Mississippi public school districts, independent schools and Native American tribal school districts as provided in this act.  Monies in the fund shall be administered and disbursed by the department 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 Coronavirus Aid, Relief, and Economic Security Act.  If on December 1, 2020, there are undistributed monies in the fund, or if at any other time undistributed monies in the fund are determined by the department to be ineligible to be spent by the department, those monies shall be transferred to the Unemployment Compensation Fund.
Grants shall be conditioned on the school district or school broadband provider agreements including that broadband capacity shall be expanded to a significant extent for the district's or school's students during the COVID-19 public health emergency.
     SECTION 4.  (1)  The department shall distribute grant monies, without the requirement of application by school districts or schools, as equitably and efficiently as possible after determining the unserved areas of the state using the latest publicly available Federal Communications Commission broadband data, and after determining which and to what extent Mississippi public school districts, independent schools and Native American tribal school districts educate students living in such unserved areas of the state.  The Mississippi Department of Education shall consult with the Mississippi Association of Independent Schools and the administrations of the Native American tribal school districts in determining which and to what extent such schools and schools districts educate students living in such unserved areas of the state.  Any grant monies provided under this act shall be spent by the recipient school district no later than December 1, 2020, or by such later date as may be specified in the guidelines, guidance, rules, regulations and/or other criteria of the United States Department of the Treasury regarding the use of monies from the Coronavirus Relief Fund established in Section 5001 of the Coronavirus Aid, Relief, and Economic Security Act.  Grants shall be conditioned on the school district or school broadband provider agreements including that broadband capacity shall be expanded to a significant extent for the district's or school's students during the COVID-19 public health emergency.
(2) The department may develop regulations and procedures to govern the administration of the program.
     (2)  The department may develop regulations and procedures to govern the administration of the program.           SECTION 5.  (1)  The grant monies distributed under this act shall be used by school districts and schools to negotiate and contract with existing or potential broadband providers to increase or gain broadband access for the unserved areas where their students reside.  To achieve such increased broadband access, the school districts and schools may utilize any broadband technology available to increase or gain broadband access in the unserved areas.
SECTION 5.
     (2)  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 Department of Education.  A school district or 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.  Recipient school districts and schools shall confirm their understanding of these terms.
(1) The grant monies distributed under this act shall be used by school districts and schools to negotiate and contract with existing or potential broadband providers to increase or gain broadband access for the unserved areas where their students reside.
     (3)  Mississippi public school districts, independent schools and Native American tribal schools that receive grant monies under this act shall provide periodic project status reports to the Mississippi Department of Education and any other documentation that the Mississippi Department of Education determines is necessary to ensure compliance with this act and the United States Department of the Treasury regarding the use of monies from the Coronavirus Relief Fund established in Section 5001 of the Coronavirus Aid, Relief, and Economic Security Act.
To achieve such increased broadband access, the school districts and schools may utilize any broadband technology available to increase or gain broadband access in the unserved areas.
     SECTION 6.  Section 31-7-13, Mississippi Code of 1972, is amended as follows:
(2) 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 Department of Education.
     31-7-13.  All agencies and governing authorities shall purchase their commodities and printing;
A school 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 4 district or 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.
Recipient school districts and schools shall confirm their understanding of these terms.
(3) Mississippi public school districts, independent schools and Native American tribal schools that receive grant monies under this act shall provide periodic project status reports to the Mississippi Department of Education and any other documentation that the Mississippi Department of Education determines is necessary to ensure compliance with this act and the United States Department of the Treasury regarding the use of monies from the Coronavirus Relief Fund established in Section 5001 of the Coronavirus Aid, Relief, and Economic Security Act.
SECTION 6.
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;
          (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.
(a) Bidding procedure for purchases not over $5,000.00.
          (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.
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.
          (c)  Bidding procedure for purchases over $50,000.00.
However, nothing contained in this paragraph 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 5 (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.
              (i)  Publication requirement.
(b) Bidding procedure for purchases over $5,000.00 but not over $50,000.00.
                   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.
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.
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                   3.  The date as published for the bid opening shall not be less than seven (7) working days after the last published notice;
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).
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.
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.
              (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.
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.
              (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.
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 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 6 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.
              (iv)  Specification restrictions.
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.
                   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.
"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.
                   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.
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.
              (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.
These details shall be submitted with the written bids and become part of the bid evaluation criteria.
          (d)  Lowest and best bid decision procedure.
Bids may be submitted by facsimile, electronic mail or other generally accepted method of information distribution.
              (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.
Bids submitted by electronic transmission shall not require the signature of the vendor's representative unless required by agencies or governing authorities.
              (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.
(c) Bidding procedure for purchases over $50,000.00.
              (iii)  Decision procedure for Mississippi Landmarks.
(i) Publication requirement.
 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.
1.
              (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.
Purchases which involve an expenditure of more than Fifty Thousand Dollars ($50,000.00), exclusive of 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 7 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.
          (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.
However, all American Recovery and Reinvestment Act projects in excess of Twenty-five Thousand Dollars ($25,000.00) shall be bid.
          (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.
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.
          (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;
2.
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.
Reverse auctions shall be the primary method for receiving bids during the bidding process.
          (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.
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.
          (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.
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.
          (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 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 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 8 Office of Purchasing and Travel.
     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.
However, reverse auction shall not be used for any public contract for design or construction of public facilities, including buildings, roads and bridges.
     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.
The Public Procurement Review Board must approve any contract entered into by alternative process.
          (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.
The provisions of this item 2 shall not apply to the individual state institutions of higher learning.
          (l)  Hospital purchase, lease-purchase and lease authorization.
3.
              (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.
The date as published for the bid opening shall not be less than seven (7) working days after the last published notice;
              (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.
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.
          (m)  Exceptions from bidding requirements.  Excepted from bid requirements are:
However, all American Recovery and Reinvestment Act projects in excess of Twenty-five Thousand Dollars ($25,000.00) shall be bid.
              (i)  Purchasing agreements approved by department.  Purchasing agreements, contracts and maximum price regulations executed or approved by the Department of Finance and Administration.
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.
              (ii)  Outside equipment repairs.  Repairs to equipment, when such repairs are made by repair facilities in the private sector;
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 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 9 specifications on file.
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;
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 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 10 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 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 11 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 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 12 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 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 13 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 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 14 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 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 15 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 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 16 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 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 17 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 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 18 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, 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 19 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 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 20 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 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 21 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 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 22 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 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 23 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 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 24 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 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 25 for such total component replacement is known before disassembly of the component;
              (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;
(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;
              (iv)  Raw gravel or dirt.  Raw unprocessed deposits of gravel or fill dirt which are to be removed and transported by the purchaser.
(iv) Raw gravel or dirt.
              (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.
Raw unprocessed deposits of gravel or fill dirt which are to be removed and transported by the purchaser.
              (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.
(v) Governmental equipment auctions.
              (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.
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.
              (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.
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 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 26 the item or items authorized to be purchased and the maximum bid authorized to be paid for each item or items.
              (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;
(vi) Intergovernmental sales and transfers.
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;
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, 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 27 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, 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 28 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;
              (x)  Hospital group purchase contracts.  Supplies, commodities and equipment purchased by hospitals through group purchase programs pursuant to Section 31-7-38.
(x) Hospital group purchase contracts.
              (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.
Supplies, commodities and equipment purchased by hospitals through group purchase programs pursuant to Section 31-7-38.
              (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.
(xi) Information technology products.
              (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.
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.
              (xiv)  Library books and other reference materials.  Purchases by libraries or for libraries of books and periodicals;
20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 29 (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;
              (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).
(xv) Unmarked vehicles.
              (xvi)  Election ballots.  Purchases of ballots printed pursuant to Section 23-15-351.
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).
              (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.
(xvi) Election ballots.
              (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.
Purchases of ballots printed pursuant to Section 23-15-351.
              (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.
20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 30 (xvii) Multichannel interactive video systems.
              (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.
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.
              (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.
(xviii) Purchases of prison industry products by the Department of Corrections, regional correctional facilities or privately owned prisons.
              (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.
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.
              (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.
(xix) Undercover operations equipment.
              (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.
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.
              (xxv)  Purchases of state-adopted textbooks.  Purchases of state-adopted textbooks by public school districts.
(xx) Junior college books for rent.
              (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).
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.
              (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.
(xxi) Certain school district purchases.
              (xxviii)  Hospital lease of equipment or services.  Leases by hospitals of equipment or services if the leases are in compliance with paragraph (l)(ii).
Purchases of commodities made by school districts from vendors 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 31 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.
              (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.
(xxii) Garbage, solid waste and sewage contracts.
              (xxx)  School yearbooks.
Contracts for garbage collection or disposal, contracts for solid waste collection or disposal and contracts for sewage collection or disposal.
 Purchases of school yearbooks by state agencies or governing authorities;
(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 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 32 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.
20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 33 (xxx) School yearbooks.
Purchases of school yearbooks by state agencies or governing authorities;
              (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.
(xxxi) Design-build method and dual-phase design-build method of contracting.
              (xxxii)  Toll roads and bridge construction projects.  Contracts entered into under the provisions of Section 65-43-1 or 65-43-3.
Contracts entered into under the provisions of Section 31-7-13.1, 37-101-44 or 65-1-85.
              (xxxiii)  Certain purchases under Section 57-1-221.  Contracts entered into pursuant to the provisions of Section 57-1-221.
(xxxii) Toll roads and bridge construction projects.
              (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.
Contracts entered into under the provisions of Section 65-43-1 or 65-43-3.
              (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.
(xxxiii) Certain purchases under Section 57-1-221.
              (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.
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 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 34 37-115-50, of commodities that are used for clinical purposes and 1.
              (xxxvii)  Certain purchases made under the Alyce G.
(xxxvii) Certain purchases made under the Alyce G.
Clarke Mississippi Lottery Law.  Contracts made by the Mississippi Lottery Corporation pursuant to the Alyce G.
              (xxxviii)  Certain purchases made under the Mississippi Pandemic Response Broadband Availability Act.  Contracts made by a public school district or school pursuant to the Mississippi Pandemic Response Broadband Availability Act.
Contracts made by the Mississippi Lottery Corporation pursuant to the Alyce G.
          (n)  Term contract authorization.  All contracts for the purchase of:
Clarke Mississippi Lottery Law.
              (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.
(xxxviii) Certain purchases made under the Mississippi Pandemic Response Broadband Availability Act.
              (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.
Contracts made by a public school district or school pursuant to the Mississippi Pandemic Response Broadband Availability Act.
          (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.
(n) Term contract authorization.
          (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.
All contracts for the purchase of:
          (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.
(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.
          (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;
Term contracts for a period exceeding twenty-four (24) months shall also be subject to ratification or cancellation by governing authority boards taking 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 35 office subsequent to the governing authority board entering the contract.
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 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.
(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.
          (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;
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.
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:
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.
              (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.
(o) Purchase law violation prohibition and vendor penalty.
              (ii)  "Black" means persons having origins in any black racial group of Africa.
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.
              (iii)  "Hispanic" means persons of Spanish or Portuguese culture with origins in Mexico, South or Central America, or the Caribbean Islands, regardless of race.
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), 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 36 or by imprisonment for thirty (30) days in the county jail, or both such fine and imprisonment.
              (iv)  "Native American" means persons having origins in any of the original people of North America, including American Indians, Eskimos and Aleuts.
In addition, the claim or claims submitted shall be forfeited.
          (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.
(p) Electrical utility petroleum-based equipment purchase procedure.
          (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.
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.
          (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.
(q) Fuel management system bidding procedure.
          (w)  Purchase authorization clarification.  Nothing in this section shall be construed as authorizing any purchase not authorized by law.
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.
     SECTION 7.  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 manner affected thereby but shall remain in full force and effect.
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.
     SECTION 8.  This act shall take effect and be in force from and after its passage.
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 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 37 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 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 38 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 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 39 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 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 40 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.
20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 41 (w) Purchase authorization clarification.
Nothing in this section shall be construed as authorizing any purchase not authorized by law.
SECTION 7.
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 manner affected thereby but shall remain in full force and effect.
SECTION 8.
This act shall take effect and be in force from and after July 1, 2020, and shall stand repealed on June 30, 2020.
Further, amend by striking the title in its entirety and inserting in lieu thereof the following:
AN ACT TO DIRECT THE STATE FISCAL OFFICER TO TRANSFER $50,000,000.00 TO THE MISSISSIPPI PANDEMIC RESPONSE BROADBAND AVAILABILITY GRANT PROGRAM FUND;
TO CREATE THE "MISSISSIPPI PANDEMIC RESPONSE BROADBAND AVAILABILITY ACT";
TO PROVIDE A STATEMENT OF LEGISLATIVE INTENT AND FINDINGS;
TO CREATE THE "MISSISSIPPI PANDEMIC RESPONSE BROADBAND AVAILABILITY GRANT PROGRAM FUND" AS A SPECIAL FUND IN THE STATE TREASURY FOR THE PURPOSE OF PROVIDING FUNDS FOR GRANTS TO MISSISSIPPI PUBLIC SCHOOL DISTRICTS, INDEPENDENT SCHOOLS AND NATIVE AMERICAN TRIBAL SCHOOL DISTRICTS;
TO PROVIDE THAT THE MISSISSIPPI PANDEMIC RESPONSE BROADBAND AVAILABILITY GRANT PROGRAM SHALL BE ADMINISTERED BY THE MISSISSIPPI DEPARTMENT OF EDUCATION, FOR THE PURPOSE OF MAKING GRANTS TO ELIGIBLE SCHOOL DISTRICTS AND SCHOOLS TO PROVIDE THEM WITH GRANT MONIES FOR ELIGIBLE EXPENSES;
TO DIRECT THE MISSISSIPPI DEPARTMENT OF EDUCATION TO DEVELOP REGULATIONS AND PROCEDURES TO GOVERN THE ADMINISTRATION OF THE PROGRAM;
TO PRESCRIBE THE REQUIREMENTS FOR THE GRANTS;
TO SPECIFY THAT THE USE OF GRANT FUNDS SHALL BE SUBJECT TO AUDIT AND REGULATION OF THE MISSISSIPPI DEPARTMENT OF EDUCATION, AND NONCOMPLIANCE WITH THE TERMS OF THE GRANT SHALL REQUIRE REPAYMENT OF GRANT MONIES TO THE STATE;
TO SPECIFY THAT ALL MONIES SHALL BE DISBURSED FROM THIS SPECIAL FUND IN COMPLIANCE WITH THE REQUIREMENTS OF THE CARES ACT AND 20/SS36/HB1788A.J *SS36/HB1788A.J* PAGE 42 GUIDELINES FROM THE UNITED STATES DEPARTMENT OF THE TREASURY REGARDING THE USE OF MONIES FROM THE CORONAVIRUS RELIEF FUND;
TO TRANSFER UNDISTRIBUTED MONIES IN THE FUND AS OF DECEMBER 1, 2020, TO THE UNEMPLOYMENT COMPENSATION FUND;
TO PROVIDE THAT A DECLARATION OF ANY PORTION OF THIS ACT AS INVALID SHALL NOT AFFECT THE REMAINING PORTIONS OF THIS ACT;
TO AMEND SECTION 31-7-13, MISSISSIPPI CODE OF 1972, TO EXEMPT PUBLIC SCHOOL DISTRICTS AND SCHOOLS FROM THE PROCUREMENT AND COMPETITIVE BIDDING REQUIREMENTS FOR CONTRACTS MADE UNDER THE MISSISSIPPI PANDEMIC RESPONSE BROADBAND AVAILABILITY ACT;
AND FOR RELATED PURPOSES.
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