Miss. Admin. Code Title 12 — Finance and Administration

DEPARTMENT OF FINANCE AND ADMINISTRATION DEPARTMENT OF FINANCE AND ADMINISTRATION

Part 1 Organizational Rules

Chapter 1 Responsibilities of the Mississippi Department of Finance & Administration

12 Miss. Admin. Code Pt. 1, R. 1.1 Authority

This regulation is adopted as a rule to conform to the requirements of Section 25-43-2.104 of the Mississippi Code of 1972, Annotated as amended, regarding agency organization, method of operation, and where/how the public may obtain information.

History

• Source: Miss. Code Ann §25-43-2.104

12 Miss. Admin. Code Pt. 1, R. 1.2 General Agency Description (required by 25-43-2.104)

The Mississippi Department of Finance & Administration (DFA) serves as the primary executive branch agency for fiscal management and maintenance of state facilities. DFA oversees the State’s fiscal affairs and the implementation and control of the State’s budget as promulgated by the Legislature through appropriation. In addition, the Department administers the state life and health insurance program, tort claims, the unemployment compensation revolving fund, the bond advisory function, and the State’s accounting and pre-audit functions. On-going activities also include the Workers’ Compensation Insurance Programs for state agencies. The Department affects the powers and duties formerly granted by law to the Office of General Services, including all services of the Bureau of Building, Grounds and Real Property Management, Bureau of Capitol Facilities; Bureau of Purchasing; and the Bureau of Surplus Property.

The Department of Finance & Administration assigns space in state-owned buildings and privately leased and collects rent monies, recommends police protection for property to the various state agencies, determines repair and renovation needs of state properties, and directs contracts for these repairs. Additionally, the Department contracts and equips all buildings required by the State and sells, conveys, or purchases state lands within oversight by the Public Procurement Review Board.

History

• Source: [§7-1-25, §7-1-255, §7-1-257, §7-1-401, §7-1-403, §7-1-451, §7-7-2, §7-7-3, §7-7-9, §25-15-5, §25-15-303, §27-104-5, §27-104-7, §27-104-31, §27-104-101, §27-104-103, §27-104- 107, §29-5-2, §29-5-77, §29-5-79, §29-5-81]

12 Miss. Admin. Code Pt. 1, R. 1.3 Agency Operation

DFA is headed by an executive director who is appointed by and

serves at the pleasure of the Governor. The appointment is made by the advice and consent of the Senate. The executive director may assign to deputy directors such powers and duties as deemed appropriate to carry out the department’s lawful functions. [§27-104-101]

DFA has deputy executive directors to assist in carrying out the functions of the department. The duties assigned to the deputies are divided by the financial and administrative functions of the department; however, there is some overlap with each having common functional responsibilities.

There are several offices within DFA. Each office is managed by a director who serves at the pleasure of the executive director.

History

• Source: §27-104-5, §27-104-101

12 Miss. Admin. Code Pt. 1, R. 1.4 Requests for Information

All requests for information must be submitted in writing and must clearly and specifically identify the information to be requested. Each request must include the full name, telephone number, and mailing address of the requester. The request may be mailed, delivered, or transmitted via fax or email to the following:

Mississippi Department of Finance & Administration Public Information P. O. Box 267 Jackson, MS 39205 Phone: 601-359-3402 Fax: 601-359-2405 Email: publicinformation@dfa.state.ms.us

History

• Source: 25-61-1 et seq.

Chapter 2 Administrative Procedure Regulating the Adoption, Amendment, or Repeal of Agency Rules.

12 Miss. Admin. Code Pt. 1, R. 2.1 Authority

This administrative procedure is adopted in accordance with the requirements of Section 25-43-1.101 et seq. of the Mississippi Code of 1972, as amended.

History

• Source: Miss. Code Ann. § 25-43-1.101, et seq.

12 Miss. Admin. Code Pt. 1, R. 2.2 Notice of Proposed Rule Action

The MS Department of Finance & Administration, as required by Section 25-43-1.101 of the Mississippi Code of 1972, prior to the adoption, amendment or repeal (“rule action”) of any rule that implements, interprets or prescribes law or policy or describes the organization and its procedures and/or practices, shall give at least twenty-five (25) days‟ notice of its intended action. This notice shall include:

(a) the docket number of the proposed rule action; (b) a description of the subjects and issues involved in the rule action; (c) and a description of how interested persons may present their views.

The notice shall be filed by the Mississippi Department of Finance & Administration with the Secretary of State’s Office, posted by DFA on its website, and mailed to persons who have made timely request for advance notice of its rule action proceedings.

History

• Source: Miss. Code Ann. §§ 25-43-1.101, 25-43-3.103.

12 Miss. Admin. Code Pt. 1, R. 2.3 Emergency Rule Procedure

Should the Executive Director of DFA determine that an emergency exists because of an imminent threat to the public, he or she may thereby invoke rule actions with fewer than twenty-five (25) days notice. In any such instances, the DFA must state in writing its reasons for doing so. It may abbreviate or eliminate the rule action notice for a period of not longer than one hundred and twenty (120) days renewable one time for not more than ninety (90) days. After this time, the normal notice procedure would once again apply.

History

• Source: Miss. Code Ann. § 25-43-3.108.

12 Miss. Admin. Code Pt. 1, R. 2.4 Public Participation

Within the twenty-five (25) day notice period, any interested person may submit written data, views, arguments, or other comments for consideration by the DFA prior to adoption of any policy or procedure. Any written comment should refer to the docket number appearing in the heading of the rule action notice and should be addressed to the Office of the DFA. The DFA may choose to extend the time period for submission of comments.

History

• Source: Miss. Code Ann. § 25-43-3.104.

12 Miss. Admin. Code Pt. 1, R. 2.5 Hearings

The DFA may invite interested persons to present their views orally at an informal hearing or participate in any procedure enabling those views to be adequately expressed. An oral proceeding will be conducted in the event that it is requested in writing by a political subdivision, state agency, or ten (10) interested persons. The DFA shall send a notice which fixes a time and place for such a hearing to each party requesting an opportunity to be heard or who submitted written comments. Further, the DFA shall send a notice to all persons who have made timely request of the Office of the DFA for advance notice of its rule action proceedings.

For purposes of law, hearings related to rule action proceedings are to be regarded as informal. Statutory provisions governing formal hearings and adjudicatory proceedings, therefore, do not apply. Any hearing held to solicit feedback regarding a given rule is a non-adversarial fact- finding proceeding. Any rule action taken under this procedure need not be based exclusively on the record of such hearings.

In the event that a hearing is conducted, the DFA may designate a representative to conduct a hearing.

(a) The presiding official shall determine all procedural questions, except for those specifically governed by this legislation. This includes the maximum number of speakers which can be accommodated in a single session and imposing any necessary and reasonable time and presentation limitations. (b) Anyone requesting an opportunity to be heard may attend a hearing, with or without legal counsel. A hearing participant may submit written comments. They may bring experts with them. The length of any presentations, remarks, or questions by these persons will also be determined by OSA‟s presiding official. (c) The obtaining and use of experts or other authorities or resource persons is the responsibility of the parties attending the meeting. Any person acting in this capacity may be questioned by the presiding official. (d) Any interested party in attendance at a public hearing shall have the opportunity to make an oral presentation. (e) The presiding official has the authority to exclude data or materials deemed to be improper or irrelevant. However, formal rules of evidence and other related judicial rules will not apply. (f) The minutes, along with any other pertinent record of the hearing, will be kept in the official rules file.

History

• Source: Miss. Code Ann. § 25-43-3.104.

12 Miss. Admin. Code Pt. 1, R. 2.6 Rule Action Docket

The DFA shall keep a rule action docket ledger in which the following shall be entered: (a) the docket number of each proposed rule action; (b) the date of the notice of the proposed rule action; (c) a short description of the proposed rule action; (d) a short description of the comments received stating who made the comment and when it was received; (e) a description of the final action taken concerning the proposed rule action; and (f) the effective date of the action.

History

• Source: Miss. Code Ann. § 25-43-3.102.

12 Miss. Admin. Code Pt. 1, R. 2.7 Rule File

The rule file will contain documents which are public records and which are part of specific rule actions procedures, including: (a) notices of each proposed rule action; (b) written comments and summary of any oral comments received in the event that a hearing is conducted; (c) requests to participate in an oral presentation of views; (d) any requests for extension of time;

(e) any grants or denials of requests; (f) minutes or other records of informal hearings; (g) final rules; (h) statements of repeal of rules; and (i) any other notice or document relevant to the rule action and the rule action proceedings.

History

• Source: Miss. Code Ann. § 25-43-3.102.

12 Miss. Admin. Code Pt. 1, R. 2.8 Effectiveness of Final Rule Action

All timely comments will be considered in taking any final rule action. Copies of all final rule actions shall be provided to all persons who had made timely request for advance notice of the Office of the DFA’s rule action proceedings, and to all persons who have submitted written comments regarding the proposed rule action. As stated in Section 25-43-9 of the Mississippi Code of 1972, Annotated, as amended, each rule adopted in its final form is effective thirty (30) days after filing with the Office of the Secretary of State, except if:

(a) a later date is required by statute or specified in the rule, in which case the later date is the effective date. (b) in accordance with any constitutional or statutory provisions, an emergency rule becomes effective immediately upon filing with the Secretary of State’s Office as may be necessary because of imminent peril to the public health, safety or welfare. No rule shall become effective prior to the time limits imposed by Section 25-43-9 of the Mississippi Code of 1972, Annotated, as amended.

No rule action is valid unless taken in substantial compliance with this regulatory procedure. Any party believing it is adversely impacted by a proposed rule action may seek review of the final rule action in a court of proper jurisdiction.

History

• Source: Miss. Code Ann. §§ 25-43-1.101, 25-43-2.105, 25-43-3.113, 25-43-9.

Chapter 3 Declaratory Opinions

12 Miss. Admin. Code Pt. 1, R. 3.1 Authority

This regulation is adopted to conform to the requirements of Section 25-43- 2.105 of the Mississippi Code of 1972, Annotated, as amended.

History

• Source: Miss. Code Ann. §§ 25-43-2.103 to 25-43-2.105.

12 Miss. Admin. Code Pt. 1, R. 3.2 Requests for Opinions

Any person with direct substantial interest may make a written request for a declaratory opinion as to the applicability to specific circumstances of a statute, rule, or order administered by the agency or within its primary jurisdiction. The term “substantial interest” will include any person with direct involvement in implementing public programs or governmental activities for which the DFA is responsible. The term “primary jurisdiction”means

that the agency has a constitutional or statutory grant of authority in the subject matter being considered.

Written requests for opinions may be sent in a letter form or may be e-mailed to the agency according to written website instructions.

Each written request shall: (a) be set forth the specific facts on which the opinion is to be based; (b) be limited to a single transaction or occurrence; and (c) contain all relevant contact information

History

• Source: Miss. Code Ann. §§ 25-43-2.103 to 25-43-2.105.

12 Miss. Admin. Code Pt. 1, R. 3.3 Subjects Which may be Addressed

The DFA will issue declaratory opinions regarding the application of specified facts to: (1) a statute administered or enforceable by DFA or (2) a rule it has promulgated. The agency will not issue a declaratory opinion regarding a statute or rule which is outside the primary jurisdiction of the agency.

History

• Source: Miss. Code Ann. §§ 25-43-2.103 to 25-43-2.105.

12 Miss. Admin. Code Pt. 1, R. 3.4 Circumstances in Which Declaratory Opinions will not be Issued

The DFA may, for good cause, refuse to issue a declaratory opinion. The circumstances in which declaratory opinions will not be issued include, but are limited to:

(a) lack of clarity concerning the question presented; (b) pending or anticipated litigation, administrative action, or any other adjudication which might either answer the question or make an answer unnecessary; (c) The statute or rule on which a declaratory opinion is sought is clear and does not need interpreting to answer the question. (d) The facts provided are not sufficient to answer the question presented. (e) The request fails to contain required information. (f) The requestor either lacks substantial interest or the issue is outside the primary jurisdiction of the requesting agency. (g) The requestor is not substantially affected by the statute or rule on which the opinion is sought. (h) The requestor is not faced with an issue that requires an answer to be forthcoming. (i) The question concerns the legal validity of a statute or rule. (j) The request is not intended to aid in future conduct, but instead is intended to primarily justify past conduct. (k) No clear answer is determinable. (l) The question involves the application of a criminal statute or a set of facts which may constitute a crime.

(m) The answer to the question requires disclosure of information which is protected by law from such disclosure. (n) The question is currently the subject of an Attorney General’s opinion or has been already answered in writing by the Attorney General. (o) A similar request is pending elsewhere, whereby a written DFA opinion might constitute the unauthorized practice of law. (p) Issuance of an opinion may affect the interests of the State, its officers, and employees in pending or anticipated litigation. (q) The question involves eligibility for a license, permit, or other approval and there is statutory or regulatory process by which eligibility would be determined.

History

• Source: Miss. Code Ann. § 25-43-2.105.

12 Miss. Admin. Code Pt. 1, R. 3.5 Where to Send Requests

All requests must be mailed, delivered or transmitted via facsimile to the DFA. They may also be submitted electronically via e-mail. No oral or telephone requests will be accepted for official opinions.

History

• Source: Miss. Code Ann. §§ 25-43-2.103, 25-43-2.105.

12 Miss. Admin. Code Pt. 1, R. 3.6 Agency Response

Written agency opinions prepared in response to this rule may be issued by the Executive Director of DFA or by a Deputy Executive Director, with his authorization, by the DFA, or by the director of the division responsible for implementation of the statute, rule, or order. Within forty-five (45) days of receipt of a written request for a declaratory opinion, the agency, in writing, shall: (a) issue an opinion regarding the applicability of the statute, rule, or order in question to the specific circumstances; (b) agree to issue a declaratory opinion by a specified time, but no later than ninety (90) days after receipt of the written request; or (c) decline to issue a declaratory opinion, stating the reasons for its action. The forty-five (45) day period shall begin on the first State of Mississippi business day on or after the request is received by DFA.

History

• Source: Miss. Code Ann. §§ 25-43-2.103, 25-43-2.105.

12 Miss. Admin. Code Pt. 1, R. 3.7 Opinion Issuance

A copy of all opinions prepared in response to a written request for a declaratory opinion must be mailed within three (3) business days of issuance to the requesting person.

History

• Source: Miss. Code Ann. §§ 25-43-2.103, 25-43-2.105.

12 Miss. Admin. Code Pt. 1, R. 3.8 Opinion not Final for Thirty Days

A declaratory opinion shall not become final until the expiration of thirty (30) days after the issuance of the opinion. Prior to the expiration of thirty

(30) days, the DFA may, in his discretion, withdraw or amend the declaratory opinion for any reason which is not arbitrary or capricious. Reasons for withdrawing or amending an opinion include, but are not limited to, a determination that the requestor failed to meet the requirements of the rules or that the opinion contains a legal or factual error. Each opinion letter must state that the date when the opinion is final.

History

• Source: Miss. Code Ann. §§ 25-43-2.103, 25-43-2.105.

12 Miss. Admin. Code Pt. 1, R. 3.9 Procedural Rights of Persons Receiving Declaratory Opinions

When any person making a request receives a declaratory opinion, to the extent that the facts provided in the request apply to the actual situation, the agency will take no civil or criminal action against that person acting in the same circumstances, who, in good faith follows the direction contained in the opinion. However, if a court of competent jurisdiction, declares the opinion to be manifestly wrong and without substantial support, it shall be null and void.

History

• Source: Miss. Code Ann. §§ 25-43-2.103, 25-43-2.105.

12 Miss. Admin. Code Pt. 1, R. 3.10 Third Party Applicability

Any declaratory opinion issued by the DFA shall not be binding or effective for any third party or person other than DFA and the person to whom the opinion is issued. It shall not, under any circumstances, be used as a precedent for any other transaction or occurrence beyond the facts and circumstances set forth by the requesting person.

History

• Source: Miss. Code Ann. § 25-43-2.105.

12 Miss. Admin. Code Pt. 1, R. 3.11 Notice to Specific Third Parties

The DFA may give notice to any person, agency or entity that declaratory opinion has been requested and may receive and consider data, facts, arguments and opinions from other persons, agencies, or other entities other than the requestor.

History

• Source: Miss. Code Ann. §§ 7-5-25, 25-43-2.103.

12 Miss. Admin. Code Pt. 1, R. 3.12 Requests for Opinions from the Attorney General

The authority of persons to request and receive agency declaratory opinions does not affect the ability of any person authorized to request a legal opinion from the Attorney General under Section 7-5-25 of the Mississippi Code of 1972, as amended.

History

• Source: Miss. Code Ann. §§ 7-5-25, 25-43-2.103.

12 Miss. Admin. Code Pt. 1, R. 3.13 Public Access to Declaratory Opinions

They will be maintained in comprehensive agency file indexed by name and subject. The file will not include any information deemed to be confidential by statute or exempt from public disclosure as a result of another provision of law. All declaratory opinions and their respective written requests shall be available for public

inspection and copying in accordance with the Public Records Act and DFA’s public records request procedure, subject to any confidentiality.

History

• Source: 25-43-2.102, 25-43-2.103

Part 2 Public Information Policy

Chapter 1 Rules for Accessing Public Documents

12 Miss. Admin. Code Pt. 2, R. 1.1 Authority and Purpose Adopted in compliance with the Mississippi Public Records Act of 1983, Miss

Code Ann. §25-61- 1 thru 25-61-19, and the Mississippi Ethics Commission’s Model for Public Records Rules. All records and portions of records not exempt from disclosure will be made available in accordance with the procedures outlined below.

“It is the policy of the Legislature that public records must be available for inspection by any person unless otherwise provided by this act. Furthermore, providing access to public records is a duty of each public body and automation of public records must not erode the right of access to those records.” Section 25-61-1, Miss. Code of 1972.

“All public records are hereby declared to be public property, and any person shall have the right to inspect, copy or mechanically reproduce or obtain a reproduction of any public record of a public body in accordance with reasonable written procedures adopted by the public body concerning the cost, time, place and method of access, and public notice of the procedures shall be given by the public body.” Section 25-61-5, Miss. Code of 1972.

The Act defines “public record” to include “all books, records, papers, accounts, letters, maps, photographs, films, cards, tapes, recordings or reproductions thereof, and any other documentary materials, regardless of physical form or characteristics, having been used, being in use, or prepared, possessed or retained for us in the conduct, transaction or performance of any business, transaction, work, duty or function of any public body, or required to be maintained by any public body.” Section 25-61-3(b).

The purpose of these rules is to establish the procedures the DFA will follow in order to provide full access to public records. These rules provide information to persons wishing to request access to public records of the DFA and establish processes for both requestors and the DFA staff that are designed to best assist members of the public in obtaining such access.

The purpose of the Act is to provide the public full access to public records concerning the conduct of government. The Act and these rules will be interpreted in favor of disclosure. In carrying out its responsibilities under the Act, the DFA will be guided by the provisions of the Act describing its purposes and interpretation.

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History

• Source: Miss Code Ann. §25-61-1, §25-61-5 & §25-61-3(b)

12 Miss. Admin. Code Pt. 2, R. 1.2 - 2-

About the DFA The Mississippi Department of Finance and Administration is composed of eighteen (18) offices with a total staff of approximately 420 employees. The agency’s primary responsibility is the administration and oversight of the State’s financial and administrative operations. This includes supervision over purchasing, accounting, budgeting, travel, employee payroll, vendor payments, State health insurance, building construction and maintenance, surplus property, State Capitol police and security of State buildings, the State’s fleet of vehicles and aircraft, and other related areas. (a) Locations: DFA Main Office DFA Surplus Property DFA MS Management & Reporting System 501 North West Street 3157 Highway 468W 210 East Capitol Street Suite 1301A Pearl, MS 39208 Suite 1400 Jackson, MS 39201 Jackson, MS 39201

(b) How to File a Request Any person wishing to request access to public records of the DFA, or seeking assistance in making such a request should contact the DFA Director of Communications. All requests to examine, copy, or obtain public records from the DFA must be in writing** and delivered to the DFA via mail, e- mail or in person. The request should provide as much detail as possible about the records being requested, include the preferred format (paper copy, flash drive, electronic or inspection) and must include the name, address, and contact information of the requester including email address and phone number. Requests should be sent to: Mississippi Department of Finance and Administration Office of Communications RE: PUBLIC RECORDS REQUEST 501 North West Street, Suite 1301A Jackson, MS 39201

Via email: info@dfa.ms.gov Via facsimile: 601.359.2405 This information is also available on the DFA web site at www.dfa.ms.gov. The Director of Communications will oversee compliance with the Act but another DFA staff member may process the request. Therefore, these rules will refer to the Director of Communications “or designee.” The Director of Communications or designee and the DFA will provide the “fullest assistance” to requester; ensure that public records are protected from damage or disorganization; and prevent fulfilling public records requests from causing excessive interference with essential functions of the DFA.

Title 12 Part 2

History

• Source: Miss Code Ann. §25-61-5

12 Miss. Admin. Code Pt. 2, R. 1.3 Availability of Public Records (a) Hours for inspection of records

Public records are available for inspection and copying during normal business hours of the DFA, Monday through Friday, 8:00 a.m. to 5:00 p.m., excluding legal holidays. Records must be inspected at the office of the DFA. The time, place and manner of inspection and copying of records will not be allowed to interfere with other essential duties of the DFA. (b) Organization of records. The DFA will maintain its records in a reasonably organized manner, subject to the rules of record retention. The DFA will take reasonable actions to protect records from damage and disorganization. A requester shall not take the DFA records from the DFA offices. A variety of records is available on the DFA web site at www.dfa.ms.gov and at www.transparency.mississippi.gov. Requesters are encouraged to view the documents available on the web site prior to submitting a records request. (c) Making a request for public records. Any person wishing to inspect or copy public records of the DFA should make the request in writing on the DFA request form, or by letter, fax, or e- mail addressed to the Director of Communications and including the following information:

1. Name of requester; 2. Address of requester; 3. Other contact information, including telephone number and any e-mail address; 4. Identification of the public records adequate for the Director of Communications or designee to locate the records; and 5. The date and time of day of the request.

If the requester wishes to have copies of the records made instead of simply inspecting them, he or she should so indicate and make arrangements to pay for copies of the records or a deposit. Pursuant to Rule 1.8. Costs of Providing Public Records of this policy, standard 8 ½” X 11” photocopies will be provided at $.25 a page. (See No. 8 Costs of Providing Public Records for additional costs and charges).

A form is available for use by requesters at the office of the Director of Communications and on-line at www.dfa.ms.gov.

The Director of Communications or designee may accept requests for public records that contain the above information by telephone or in person. If the Director of Communications or designee accepts such a request, he or she will confirm receipt of the information and the substance of the request in writing.

History

• Source: Miss Code Ann. 25-61-5

12 Miss. Admin. Code Pt. 2, R. 1.4 Processing of public records requests- General (a) Providing access

The DFA acknowledges that “providing access to public records is a duty” and that “any person shall have the right to inspect, copy or mechanically reproduce or obtain a reproduction of any public record” in accordance with these policies. Sections 25-61-1 and 25-

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61-5. The Director of Communications or designee will process requests in the order allowing the most requests to be processed in the most efficient manner. (b) Acknowledging receipt of request. Within seven business days of receipt of the request, the Director of Communications will do one or more of the following: 1. Make the records available for inspection or copying; 2. If copies are requested and payment of a deposit for the copies, if any, is made or terms of payment are agreed upon, send the copies to the requester; 3. Provide a reasonable estimate of when the records will be available; or 4. If the request is unclear or does not sufficiently identify the requested records, request clarification from the requester. Such clarification may be requested and provided by telephone. The Director of Communications or designee may revise the estimate of when records will be available; or 5. Deny the request. (c) Consequences of failure to respond. If the DFA does not respond in writing within seven business days of receipt of the request for disclosure, the requestor should consider contacting the Director of Communications to determine the reason for the failure to respond. (d) Timetable for Processing. All requests to examine, copy or obtain public records will be approved or denied within fourteen (14) working days after the request is received. Some documents are exempt from disclosure (See Rule 1.6. Exemptions) including records furnished to the DFA by third parties referred to below (See Rule 1.7. Third Party Information). Third parties have thirty (30) days from the date of notification to obtain a court order protecting information deemed confidential.

No request will be processed until after payment is received, therefore, depending on when payment is made and/or the scope of the request, it may take longer than fourteen (14) working days before the documents are ready for inspection or to be released. (e) Protecting rights of others. In the event that the requested records contain information that may affect rights of others and may be exempt from disclosure, the Director of Communications will, prior to providing the records, give notice to such others whose rights may be affected by the disclosure. Such notice should be given so as to make it possible for those other persons to contact the requester and ask him or her to revise the request, or, if necessary, seek an order from a court to prevent or limit the disclosure. The notice to the affected persons will include a copy of the request. (f) Records exempt from disclosure. Some records are exempt from disclosure, in whole or in part. If the DFA believes that a record is exempt from disclosure and should be withheld, the Director of Communications or designee will state the specific exemption and provide a brief explanation of why the record or a portion of the record is being withheld. If only a portion of a record is exempt from disclosure, but the remainder is not exempt, the Director of Communications or designee will redact the exempt portions, provide the nonexempt portions, and indicate to the requester why portions of the record are being redacted. (g) Inspection of records. The DFA shall promptly provide space to inspect public records. No member of the public may remove a document from the viewing area or disassemble or alter

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any document. The requestor shall indicate which documents, if any, he or she wishes the public body to copy. The requester must claim or review the assembled records within thirty (30) days of the DFA’s notification to him or her that the records are available for inspection or copying. The DFA will notify the requester in writing of this requirement and inform the requester that he or she should contact the DFA to make arrangements to claim or review the records. If the requester or a representative of the requester fails to claim or review the records within the thirty-day period or make other arrangements, the DFA may close the request and refile the assembled records. (h) Providing copies of records. After inspection is complete, the Director of Communications or designee shall make the requested copies or arrange for copying. (i) Providing records in installments. When the request is for a large number of records, the Director of Communications or designee will provide access for inspection and copying in installments, if he or she reasonably determines that it would be practical to provide the records in that way. If, within thirty (30) days, the requester fails to inspect the entire set of records or one or more of the installments, the Director of Communications or designee may stop searching for the remaining records and close the request. (j) Completion of inspection. When the inspection of the requested records is complete and all requested copies are provided, the Director of Communications or designee will indicate that the DFA has completed a diligent search for the requested records and made any located nonexempt records available for inspection. (k) Closing withdrawn or abandoned request. When the requester either withdraws the request or fails to fulfill his or her obligations to inspect the records or pay the deposit or final payment for the requested copies, the Director of Communications will close the request and indicate to the requester that the DFA has closed the request. (l) Later discovered documents. If, after the DFA has informed the requester that it has provided all available records, the DFA becomes aware of additional responsive documents existing at the time of the request, it will promptly inform the requester of the additional documents and provide them on an expedited basis.

History

• Source: Miss Code Ann. §25-61-1 & §25-61-5

12 Miss. Admin. Code Pt. 2, R. 1.5 Processing of public records requests – Electronic records (a) Requesting electronic records

The process for requesting electronic public records is the same as for requesting paper public records. (b) Providing electronic records. When a requester requests records in an electronic format, the Director of Communications will provide the nonexempt records or portions of such records that are reasonably locatable in an electronic format that is used by the public body and is generally commercially available, or in a format that is reasonably translatable from the format in which the public body keeps the record. Costs for providing electronic records are governed by Rule 1.8.

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(c) Customized access to data bases. With the consent of the requester, the DFA may provide customized access if the record is not reasonably locatable or not reasonably translatable into the format requested. The DFA may charge the actual cost for such customized access.

History

• Source: Miss Code Ann. §25-61-3 & §25-61-5

12 Miss. Admin. Code Pt. 2, R. 1.6 Rule 1.6

Exemptions The Public Records Act, as well as other statutes and court decisions, provide that a number of types of records are exempt from public inspection and copying. In addition, other statutes or rules of law, such as various privacy restrictions, may prohibit disclosure. Requesters should be aware of the following exemptions, outside the Public Records Act, that restrict the availability of some records held by DFA for inspection and copying:

(a) Academic records exempt from public access, see § 37-11-51. (b) Appraisal records exempt from access, see § 31-1-27. (c) Archaeological records exempt from public access, see § 39-7-41. (d) Attorney work product, examination, exemption, see § 25-1-102. (e) Birth Defects Registry, see § 41-21-205. (f) Bureau of vital statistics, access to records, see § 41-57-2. (g) Charitable organizations, registration information, exemption from public access, see § 79-11-527. (h) Concealed pistols or revolvers, licenses to carry, records, exemption, see § 45-9-101. (i) Confidentiality, ambulatory surgical facilities, see § 41-75-19. (j) Defendants likely to flee or physically harm themselves or others, see § 41- 32-7. (k) Environmental self-evaluation reports, public records act, exemption, see § 49-2-71. (l) Hospital records, Mississippi Public Records Act exemption, see § 41-9-68. (m) Individual tax records in possession of public body, exemption from public access requirements, see § 27-3-77. (n) Insurance and insurance companies, risk based capital level requirements, reports, see § 83-5-415. (o) Judicial records, public access, exemption, see § 9-1-38. (p) Jury records exempt from public records provisions, see § 13-5-97. (q) Licensure application and examination records. exemption from Public Records Act, see § 73-52-1. (r) Medical examiner, records and reports, see § 41-61-63. (s) Personnel files exempt from examination, see § 25-1-100. (t) Public records and trade secrets, proprietary commercial and financial information, exemption from public access, see § 79-23-1. (u) Workers' compensation, access to records, see § 71-3-66. (v) Records subject to privilege, such as Attorney/Client, Physician/Patient, etc.

Title 12 Part 2

History

• Source: Miss Code Ann. §25-61-11

12 Miss. Admin. Code Pt. 2, R. 1.7 - 7-

Third Party Information When any person files or submits documents with the DFA which the filer contends are exempt from disclosure under the Public Records Act, the filer shall provide a written statement at the time of filing which shall describe the documents filed and which shall fully explain why the documents are designated as exempt from disclosure and must specifically cite any statute or other legal authority in support of such designation. Such written statement shall itself be a public record subject to disclosure.

Any document filed with the DFA which contains trade secrets or confidential commercial or financial information subject to the protection of any applicable law or court decision shall be clearly designated as such by the filer on its face and accompanying cover letter at the time of filing and shall be placed in an envelope other than white. Each page of each document shall be marked CONFIDENTIAL. Upon request to inspect or copy any document so designated, the DFA shall notify the person who filed the document. Thirty (30) days after such notice, the document will be made available for public inspection or copying unless the filer shall have obtained a court order protecting such records as confidential pursuant to Section 25-61-9, Miss. Code Ann. of 1972.

Any person filing documents with the DFA shall, prior to filing, redact from the documents any social security numbers, account numbers or dates of birth not required to be listed. The DFA shall determine on a case-by-case basis whether similar information may be redacted by the filer to prevent identity theft. In no event will the DFA bear any responsibility for a filer’s failure to redact such information which leads to or may lead to identity theft or other crime or loss.

Failure by the third party to clearly identify trade secrets or confidential commercial or financial information on a different color paper than non-confidential pages will result in that information being released subject to a public records request.

History

• Source: Miss Code Ann. §25-61-9

12 Miss. Admin. Code Pt. 2, R. 1.8 Costs of providing public records

(a) Costs for paper copies. Section 25-61-7(1), Miss. Code of 1972, reads as follows: “Except as provided in subsection (2) of this section, each public body may establish and collect fees reasonably calculated to reimburse it for, and in no case to exceed, the actual cost of searching, reviewing and/or duplicating and, if applicable, mailing copies of public records.”

A requestor may obtain standard 8 ½” x 11” black and white photocopies for $.25 cents per page and color copies for $.50 cents per page. Copy charges for some specific types of records are set by statute and may exceed the amount stated above. Examples of specific DFA copy charges include, but are not limited to, the following:

Title 12 Part 2

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The DFA charges $.25 per page for a standard black and white photocopy of a record selected by a requester. A statement of the factors and the manner used to determine this charge is available from the Director of Communications.

Before beginning to make the copies, the requester must pre-pay all reasonably estimated costs of copying all the records selected by the requester. The Director of Communications or designee may also require the payment of the remainder of the copying costs before providing all the records in an installment before providing that installment. The DFA will not charge sales tax when it makes copies of public records.

The DFA will notify the requester of the costs to obtain the information prior to processing the request. The requester will be required to reimburse the DFA for reasonable costs sufficient to cover the actual expenses incurred by the DFA to furnish the requested information. Payment must be made in advance of the receipt of documents. If the actual cost is higher than the estimate, the requestor will be required to pay the difference before receiving the information. If the actual cost is lower than the estimate, the DFA will refund the difference.

Please note that the following types of public records requests usually require additional research and staff time and can have significant costs associated with filling the request: (1) Requests for very large volumes of material (2) Requests that are too broad (3) Requests that are unspecific in scope (4) Requests for information that have already been archived and (5) Requests for documents that are unusual in size. (b) Costs for electronic records. The cost of electronic copies of records shall be determined on a case by case basis for information on a CD-ROM. If the DFA office has scanning equipment at its offices: The cost of scanning existing DFA paper or other non-electronic records is $.25 per page. There will be no charge for e-mailing electronic records to a requester, unless another cost applies.

Such costs include, but are not limited to, time of the lowest paid but qualified staff member to evaluate and research the request, to retrieve any relevant files, to organize the information, to notify any third parties, to develop a cost estimate and schedule, to reproduce any requested material, to observe the inspection of records and to deliver the information requested. If 8 ½” x 11" – $.25 per page 8 ½” x 14" – $.35 per page 11" x 17” – $.75 per page $15 per hour............for basic copies or clerical assistance $15-$75 per hour....to evaluate, research, redact, reproduce based on the pay scale of the lowest level employee competent to respond to the request $40 per hour............for technical or professional assistance $50 per hour............for automated records search Actual costs..............for postage, UPS, Federal Express, temporary agency personnel, and reproduction at an outside print facility

Title 12 Part 2

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necessary, the DFA may engage third parties to perform these tasks. The requester is required to pay the actual costs of these engagements in advance. (c) Costs of mailing. The DFA may also charge actual costs of mailing, including the cost of the shipping container. (d) Payment. Payment may be made by certified check, money order, or corporate check made payable to the DFA for the amount specified. No cash, personal checks, or credit/debit cards can be accepted. (e) Charges for searching, reviewing and redacting. The actual cost of searching for and reviewing and, if necessary, redacting exempt information from public records shall be based upon the hourly rate of compensation for the lowest paid agency employee qualified to perform the task, which shall be multiplied by the actual time to complete the task.

DFA may require payment in advance for all costs before providing copies or access to records.

History

• Source: Miss Code Ann. §25-61-7

12 Miss. Admin. Code Pt. 2, R. 1.9 Review of denials of public records

(a) Petition for internal administrative review of denial of access. Any person who objects to the initial denial or partial denial of a records request may petition in writing (including e-mail) to the Director of Communications for a review of that decision. The petition must include a copy of or reasonably identify the written statement by the Director of Communications or designee denying the request. (b) Consideration of petition for review. The Director of Communications must promptly provide the petition and any other relevant information to the Executive Director of DFA or his or her designee. For immediate consideration of the petition and either affirmation or reversal of the denial within two business days following the DFA’s receipt of the petition, or within such other time as the DFA and the requester mutually agree to. (c) Opinion by the Ethics Commission. Pursuant to Section 25-61-13, if the DFA denies a requestor access to public records, the requestor may ask the Ethics Commission to review the matter. The Ethics Commission has adopted rules on such requests. They may be found at www.ethics.state.ms.us. (d) Judicial review. Any person whose request for public records was denied may institute a suit in the Chancery Court of Hinds County, seeking to reverse the denial, as set forth in Section 25- 61-13.

History

• Source: Miss Code Ann. §25-61-13

12 Miss. Admin. Code Pt. 2, R. 1.10 Rule 1.10

Public Information via the Internet Frequently requested information, including many standard records are available free of charge on the DFA website at www.dfa.ms.gov. In addition, information on the state budget, expenditures, travel, contracts, leases, workforce and grants is available free of charge at transparency.ms.gov . Section: Miss Code Ann. §25-61-5

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Mississippi Department of Finance and Administration Public Records Request Form Mail or Hand Deliver to: 501 N. West Street, Suite 1301A, Jackson, MS 39201 Email to: info@dfa.ms.gov or Fax to: 601.359.2405

Requestor Name Address City State Zip Code Phone Fax Email Address Signature Date If you wish to have copies of the records made instead of simply inspecting them, you should so indicate and make arrangements to pay for copies of the records or a deposit. Pursuant to No. 8. of this policy, standard photocopies will be provided at $.25 cents per 8 ½” x 11”. I would prefer to inspect I want photocopies Please mail to the address listed above Please send to the email listed above

Please provide clear, concise description with dates, if applicable.

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Title 12 Part 2

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Chapter 2 Rules for accessing Outstanding, Unpaid Warrants

12 Miss. Admin. Code Pt. 2, R. 2.1 Rule 2.1

Authority and Purpose Adopted in compliance with authority granted to the State Fiscal Officer, pursuant to the authority granted to the State Fiscal Officer at Mississippi Code Ann. §7-7-1 et seq. The primary policy goals of the State Treasurer developed in coordination with the State Fiscal Officer, pursuant to the authority granted to the State Fiscal Officer at Mississippi Code Ann. §7-7- 1 et seq., are to honor all valid warrants issued in the name of the State of Mississippi and to ensure to the fullest extent practicable that appropriate warrant recipients receive the full value of each instrument. All outstanding, unpaid warrants are exempt from disclosure in accordance with the stated policy below.

History

• Source: Mississippi Code Ann., §7-7-1 et seq., Mississippi Code Ann. §89-12-23 and §89-12-27.

12 Miss. Admin. Code Pt. 2, R. 2.2 Rule 2.2

Availability of Records Any records created by or provided to the State containing information about outstanding, unpaid warrants issued by the State are confidential and not available for public inspection to the extent that the Treasurer of the State and State Fiscal Officer determine that confidentiality is necessary to protect the interests of the payee, the State and the public welfare. To this end, all records created by the State containing information about outstanding, unpaid warrants issued by the State are deemed confidential and shall not be made available for public inspection until published by the State Treasurer as unclaimed property pursuant to Mississippi Code Ann. §89-12-23 and §89-12-27.

History

• Source: Mississippi Code Ann. §7-7-1et seq., Mississippi Code Ann. §89-12-23 and §89-12.27.

Part 3 Bureau of Building, Grounds and Real Property Management-REPEALED

12 Miss. Admin. Code Pt. 3 Bureau of Building, Grounds and Real Property Management-REPEALED

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Title 12: Department of Finance and Administration Part 3: Bureau of Buildings and Grounds and Real Property Management REPEALED effective August 2, 2026.

Part 4 MS Management Reporting Systems

12 Miss. Admin. Code Pt. 4, R. 1.1 General Purpose A

The Mississippi Department of Finance and Administration (DFA) serves as the primary executive branch agency for fiscal management. Under §7-7- 41, the State Fiscal Officer has the authority to prescribe rules and regulations concerning the issuance of warrants and other forms of payments for all departments, institutions and agencies of the state. Unless otherwise noted, this rule establishes that vendors of the State of Mississippi shall invoice electronically, be paid electronically, and shall be provided the supporting remittance detail by electronic means. B. This rule is a means for reducing the costs to produce paper warrants and remittance advices. The State has documented significant savings in the move to electronic payment and remittance. The State avoids the costs associated with printing, sorting, distributing, copying, and mailing warrants. Additionally, the State has determined that there are reduced opportunities for fraud and lost payments under this means of payment and remittance. This rule is also a means of expediting the delivery and processing of vendor issued invoices by agencies. C. Vendors benefit by receiving notification of pending deposits of funds and have options for interfacing the remittance data from the State into their accounts receivable systems. Vendors also benefit by submitting online invoices or importing a file of invoices to agencies, thus eliminating the costs associated with paper invoices.

History

• Source: §7-7- 41, 27-104-33, 31-7- 301

12 Miss. Admin. Code Pt. 4, R. 1.2 Definitions A

ACH: Automated Clearing House. Affiliated with the U. S. Treasury and the Federal Reserve System and used as the conduit for electronic payments and collections. B. EFT: Electronic Funds Transfer. Electronic Funds Transfer (EFT) provides for electronic payments and collections. EFT i s safe, secure, efficient, and less expensive than paper check payments and collections. Issuance costs for EFT payments are approximately 80% less than the cost to issue the same payment on a paper warrant. EFT transactions use the ACH network associated with the Federal Reserve System.

1. The State of Mississippi uses "standard EFT" for transferring funds to employee bank accounts for direct deposit of payroll payments and for some transfers to checking accounts of State agencies. 2. The State uses expanded EFT in the transfer of funds and remittance information using PayModeTM. The State has established PayModeTM as the default payment method for those payments and transfers requiring supporting remittance information. C. E-payment vehicle: Tool that captures the payment and remittance information and pushes it electronically to the designated vendor from the source system (Statewide Automated Accounting System or successor system). The ACH is used to move the funds while a proprietary system is used to provide access to supporting remittance data and notification of the availability of funds to the State's vendors. D. E-invoicing vehicle: Tool that allows vendors to submit invoices electronically to individual agencies. E. MAGIC: Mississippi's Accountability System for Government Information and Collaboration, the successor system for SAAS and SPAHRS. F. PayModeTM: A Bottomline Technologies product offered through Bank of America, PayModeTM is the State's present repayment and reinvoicing vehicle. G. Primary Agency: State agency with which a vendor transacts most of his business. H. SAAS: Statewide Automated Accounting System. I. SPAHRS: Statewide Payroll and Human Resource System. J. Vendor Payments: Payments initiated and approved by State Agencies for various goods and services or as used to transfer funds to other governing authorities such as school districts, cities, and counties.

History

• Source: §7-7- 41

12 Miss. Admin. Code Pt. 4, R. 1.3 Contract Language Requirements

All contracts, other than those for contract workers paid through SPAHRS, entered into or amended on or after July 1, 2009, must contain the following combined language for e-Payment and e -Invoicing:

The State requires the Contractor to submit invoices electronically throughout the term of the agreement. Vendor invoices shall be submitted to the st ate agency using the processes and procedures identified by the State. Payments by state agencies using the Statewide Automated Accounting System (SAAS), or any specific successor system (MAGIC) shall be made and remittance information provided electronically as directed by the State. These payments shall be deposited into the bank account of the Contractor's choice. Contractor understands and agrees that the State is exempt from the payment of taxes. All payments shall be in United States currency.

History

• Source: §7-7- 41

12 Miss. Admin. Code Pt. 4, R. 1.4 Requirements for Transitioning to E-payment Vehicle A

All vendors set up as of April 1, 2006, for payment through standard EFT, unless otherwise approved as an exemption, must be enrolled in PayModeTM. B. All vendors established as new vendors in the Statewide Automated Accounting System

(SAAS) on or after April 1, 2006 must be established for e-payment and remittance via PayModeTM. C. All remaining SAAS vendors, unless specifically exempted, must convert to PayModeTM on the schedule determined by the DFA. D. To register for PayModeTM, vendors should go to the Bank of America's TM

enrollment website athttp:// - v.pyinode.coin/mississippi. 1. Vendor must have a valid email address in order to enroll with PayModeTM. This email address can be obtained through one of the free email services such as Yahoo, Gmail, or Hotmail. 2. Vendor must have access to a computer. As computers are generally accessible in all businesses, as well as in Public Libraries or other public forums, no exemption will be granted for having only limited or no access to a computer. 3. Vendor may request assistance in enrolling with the State's e-payment service provider by contacting PayMode Customer Support at 1-866-2527366.

History

• Source: §7-7- 41

12 Miss. Admin. Code Pt. 4, R. 1.5 Requirements for Transitioning to E-invoicing

A. All vendors who contract with a state agency must agree to invoice the State electronically through PayMode. B. To register for PayMode E -invoicing, vendors must first register with PayMode for E- payment. C. Vendors must then complete additional information on the PayMode website to enroll in E-invoicing. D. Vendors may request assistance in enrolling in PayMode E-invoicing by contacting PayMode Customer Support at 1- 866-252-7366.

History

• Source: §7-7- 41

12 Miss. Admin. Code Pt. 4, R. 1.6 Exemptions A

The following are exemptions from this rule: 1. Payments to State employees as defined in §25-9- 107; 2. Payments to Contract Workers — note that Independent Contractors are not exempt from this rule (Additional information about Independent Contractor vs Employee may be found in IRS Publication 15A); 3. Payments to Vendors specifically approved for "one of payments using the specific vendor number designated for that purpose by the Office of Fiscal Management; 4. Right-of-Way acquisition payments made by the Mississippi Department of Transportation; 5. Debt service payments made by the Office of the State Treasurer; 6. Tax payments to the Internal Revenue Service (standard EFT); 7. Tax payments to the Mississippi Department of Revenue (standard EFT); 8. Transfers to the Public Employees Retirement System of Mississippi (standard EFT) 9. Transfers to the Mississippi Deferred Compensation and Trust/SBA

(standard EFT); 10. Payments to vendors who are approved for exemption by DFA (see VI.B).

B. To apply for an exemption not listed in VI.A.(1 — 9), the vendor can obtain a Mandatory E-Payment and E -Invoicing Exemption Request 17.10.20 from the Vendor's Primary Agency. C. Mandatory E-Payment and E -Invoicing Exemption Request 17.10.20 must detail the following: 1. Reason(s) exemption is being requested. This must be a narrative explanation of the reason for the request; 2. Documentation of supporting cost and legal issues associated with the request for the exemption. D. DFA will issue a written determination within 10 business days of the receipt of the exemption request. The written determination of DFA will be considered the final determination.

Part IV Chapter 2 Payments by Credit Card, Charge Card, Debit Cards or Other Forms of Electronic Payment of Amount Owed to State Agencies

History

• Source: §7-7- 41

12 Miss. Admin. Code Pt. 4, R. 2.1 Rule 2.1

Authority The Department of Finance and Administration (DFA) has established the following Administrative rule to be followed when agencies, in accordance with §27- 104-33, Mississippi Code of 1972, Annotated, elect to accept payments by credit cards, charge cards, debit cards, electronic check and other forms of electronic payment for various services and fees collectible for agency purposes.

The State Department of Finance and Administration shall establish policies that allow the payment of various fees and other accounts receivable to state agencies by credit cards, charge cards, debit cards and other forms of electronic payment in the discretion of the department. Any fees or charges associated with the use of such electronic payments shall be assessed to the user of the electronic payment as an additional charge for processing the electronic payment.

Agencies with the approval of the Department of Finance and Administration may bear the full cost of processing such electronic payment if the agency can demonstrate to the department’s satisfaction that they are able to assume these costs and provide the related service for the same or lesser cost.

Rule 2.2. Definitions A. Electronic payments : Consumer and business initiated payments, whether made through the Internet or in person, for various services and fees using any of the following payment instruments: credit cards, bank cards, charge cards, debit cards, electronic checks, or direct debits via electronic funds transfer. B. ACH: Automated Clearing House. Affiliated with the U. S. Treasury and the Federal Reserve System and used as the conduit for electronic payments

and collections. The ACH is the settlement vehicle for electronic payments. The ACH is also used to transport direct debit and credit transactions to consumer bank accounts. C. Application Service Provider (ASP): An application service provider (ASP) provides computer-based services to customers over a network. The most limited definition is that of providing access to a particular application program (such as license renewals, registrations, etc.) using a standard protocol such as HTTP. ASP applications for purposes of this rule are those which accept electronic payments either through a browser-based application, or other revenue input sources. D. DFA: Mississippi Department of Finance and Administration. E. E-Government Transaction Fee: E-government Transaction Fee is the mark-up above any regulatory fee plus the cost of sales as agreed to in an agency specific Statement of Work (SOW). A description of the E-Government Transaction fee shall be included in the SOW. E-Government Transaction fees are disbursed by the State to the vendor on a daily basis. Additional/Supplemental fees above the E- Government Transaction fees must be described and itemized in the agency specific SOW. F. EOC FEE: Electronic Government Oversight Committee (EOC) Fee. This fee is used to offset the costs associated with providing electronic services and operating the electronic portal (www.mississippi.00v) at ITS. §25-53-151 (2) of the Mississippi Code defines the EOC.The original twenty-eight portal applications still collect this fee. On occasion, ITS has granted a written exemption of this fee for a specific Agency to absorb and directly remit the EOC fees associated with transactions for a specific application to DFA payable to the DFA – MS – Gov Portal Fees Fund. Henceforth, with new applications, the State collects 2% of the net operating profit each month through E-Government Transaction Fees. Those monies are deposited to the DFA – MS – Gov Portal Fees Fund on a monthly basis. The portal vendor is sent their portion of the fees on a daily basis. G. Consumer: Consumer, for purposes of these rules, may be any individual person or business representative who initiates a transaction involving electronic payment. H. Processing Fee is approved by the Department of Finance and Administration (DFA). All transactions must include a unless DFA has granted express written approval for the Agency to absorb the payment processing costs associated with the transactions for a specific application and for the agency to remit those fees to DFA payable to the DFA – MS – Gov Portal Fees Fund. I. ITS: Mississippi Department of Information Technology Services. J. Point of Sale: Point of Sale (POS). Payments made "over the counter" for fees for services. For the purposes of electronic payments in Mississippi, agencies desiring to accept "over the counter" electronic payments must have a POS application. POS applications may be: A web-based system where all payment information is keyed into the application by the client or a "card swipe" application similar to those found in commercial enterprises. POS applications must be certified to meet PCI Compliance Standards. K. PPI: Portal Payment Interface: The PPI defines and creates the accounting entries used to record all electronic payment transactions in the State’s accounting

system. L. Record Keeping: An agency must establish and maintain financial records and keep them available for the purposes of audit. The record keeping procedures must include the capture of the details of the electronic payments, associated fees, and supporting reconciliation documentation. M. Payment Card Industry — Data Security Standards: PCI-DSS is the result of collaboration between the major credit card brands to develop a single approach to safeguarding sensitive data. PCI-DSS defines a series of requirements for handling, transmitting, and storing sensitive data. The PCI- DSS standards can be found at https://wvvw.pcisecuritystandards.org/ . N. Revenue Input Source: Electronic transactions from Web-based, Point of Sale (POS), Interactive Voice Response (IVR), Over the Counter Sales, etc. §27-104-33. Payment by credit card, charge card, debit card, or other form of electronic payment amounts owed to state agencies. The State Department of Finance and Administration shall establish policies that allow the payment of various fees and other accounts receivable to state agencies by credit cards, charge cards, debit cards and other forms of electronic payment in the discretion of the department. Any fees or charges associated with the use of such electronic payments shall be assessed to the user of the electronic payment as an additional charge for processing the electronic payment. Agencies with the approval of the Department of Finance and Administration may bear the full cost of processing such electronic payment if the agency can demonstrate to the department's satisfaction that they are able to assume these costs and provide the related service for the same or lesser cost. O. TPE – Transaction Processing Engine : TPE is a secure electronic payment solution built specifically for state and local government that provides complete transaction management services from payment to disbursement. P. Payment Processor: The company that settles approved payment transactions with the acquiring banks that issued the customer’s credit/debit card or maintains the customer’s bank account. The State’s payment processor is Mississippi Interactive LLC (MSI) and they are the merchant of record with the credit card companies for maintaining the State’s PCI compliance.

History

• Source: §27-104-33
• Source: §25-53-151 (2)

12 Miss. Admin. Code Pt. 4, R. 2.3 Approvals for Internet-based Applications and Services for State Agencies

A. E-government applications and services require additional review and approval by ITS and by DFA (in contrast to traditional software applications.) Because of the multiple costing models used by vendors for e -government applications, as well as the necessity for ensuring appropriate security for all public-facing applications, the normal ITS procurement delegations to agencies do not apply for these types of acquisitions. In addition, DFA must approve and schedule any implementations that involve payments. See 001-025 Approvals for Internet-based Applications and Services in the ITS Procurement Handbook. http://dsitspe01.its.ms.qov/its/procman.nsf/TOC4?OpenView

History

• Source: §25-53-151 (2)

12 Miss. Admin. Code Pt. 4, R. 2.4 Payment Applications - Fees Paid By Consumer

A. Agency applications accepting payments shall use the third party electronic payment processor designated by DFA to accept electronic payments for various services and fees collectible for agency purposes unless express written approval is given by DFA for the use of an alternate payment processor. 1. Designated payment processor is to be used regardless of where the application is hosted (agency, ITS, third-party). 2. Rules for obtaining approval of an alternate payment processor are found in Section V. B. The services provided by the processor and the fees for such services shall be set forth in the contract approved by the State. All such agreements are considered e - government agreements and are under the purview of ITS (see 001-020 Acquisitions within ITS Purview, item 3, in the ITS Procurement Handbook). The applications on MS.Gov operate under Project Number 37577. Agencies and the vendor will complete a detailed Statement of Work (SOW) describing provided services and the costs of the services, equipment rental, etc.

In most cases funds will be deposited in the account designated by the State Treasurer and transferred to the designated agency funds in the state’s accounting system once the bank deposit is balanced. On a case by case basis, deposits may be made to an account outside the state treasury but detailed accounting instruction will be developed and implemented to ensure proper accountability.

C. The Payment Processor will provide the software components to be used by agency applications in calculation of the processing fee associated with a particular fee or services payment. D. The Processing Fee is charged to the consumer and collected into DFA – MS – Gov Portal Fees Fund controlled by DFA and will not flow through the agency accounting journals. Those fees are reimbursed to the payment processor on a daily basis and are recorded as an expense transaction. E. The Processing Fee owed the electronic payment processor will be reimbursed to them on a daily basis. It will be recorded as an expenditure transaction against the Mississippi.Gov Portal Fees Fund. F. Any returned items received by DFA from the designated third party processor will be forwarded to the appropriate agency for handling after being netted out of the settlement for the day. G. Revenues for all fees and services shall be recorded at gross in the state’s accounting system of record as revenue, as specified by the agency on the accounting system’s electronic payment distribution tables. H. Actual processing costs to include fees for authorization, settlement, Electronic Government Oversight fees and E-Government Transaction fees, will be recorded as expenditures as specified by the Agency on the accounting system’s electronic payment distribution tables. I. Revenues for all fees and services shall be recorded at gross in the state’s accounting system as revenue, as specified by the agency on the accounting system’s electronic payment distribution tables. J. Actual processing costs to include fees for authorization, settlement, and Electronic Government Oversight fees, will be recorded as expenditures as

specified by the Agency on the SAAS electronic payment distribution tables.

Rule 2.5. Payment Applications - Fees Paid By Agency

A. Agencies desiring to pay all fees associated with electronic processing of payments must demonstrate to DFA their ability to do so and receive express written approval from DFA. The Electronic Government Oversight Committee must also approve this procedure and include it in the agencies cost model. Agencies must demonstrate they are able to assume the cost and provide the same service for the same or lesser cost of the pre-portal service. Requirements for requesting approval are outlined in section VI of these rules.

B. Agency applications accepting payments shall use the third party electronic payment processor designated by DFA to accept electronic payments for various services and fees collectible for agency purposes unless express written approval is given by DFA for the use of an alternate payment processor. 1. Designated payment processor is to be used regardless of whether the particular application is a POS application, an application hosted through the Mississippi.gov infrastructure, or an application hosted through other ASPs. 2. Rules for obtaining approval of an alternate payment processor are found in section V. C. The services provided by the processor and the fees for such services shall be set forth in the contract approved by the State. All such agreements are considered e- government agreements and are under the purview of ITS (see 001-020 Acquisitions within ITS Purview, item 3, in the ITS Procurement Handbook). http://dsitspe01.its.ms.gov/its/procman.nsf/TOC4?OpenView

D. In most cases funds will be deposited in the account designated by the State Treasurer and transferred to the designated agency funds in the state’s accounting system once the bank deposit is balanced. On a case by case basis, deposits may be made to an account outside the state treasury but detailed accounting instruction will be developed and implemented to ensure proper accountability. E. Funds will be deposited in the account designated by the State Treasurer and transferred to the designated agency funds in SAAS once the bank deposit is balanced. F. Revenues for all fees and services shall be recorded at gross in in the state’s financial system of record as revenue as specified by the agency on the financial system of record electronic payment distribution tables. G. Actual processing fees to include fees for authorization, settlement, and other fees, will be recorded as expenditures as specified by the agency on the Portal Payment Interface (PPI) distribution tables. These fees will be applied against the day's settlement for the agency. H. Any returned items received from the designated third party credit card/or other electronic processor to DFA will be forwarded to the appropriate

agency for handling after being netted out of the settlement for the day.

History

• Source: §25-53-151 (2)
• Source: §25-53-151 (2)

12 Miss. Admin. Code Pt. 4, R. 2.6 Approval of an Alternate Payment Processor

A. An agency wishing to use an alternate payment processor must submit a written request to the Department of Finance and Administration, Office of Fiscal Management, Attn: Portal Transactions, 501 North West Street, Suite 701 B, Jackson, MS 39201. Request for an alternate payment processor will be coordinated through the EOC to ensure procurement procedures are followed and that cost model data can be included for future state projects. B. The written request must state: 1. The reason(s) the State-approved payment processor is not suitable for the agency application. 2. The impact if the request is not granted. C. The application must be approved by DFA prior to entering into the procurement process for the alternate payment processing services. D. The agency must state what payment processors are available that meet their needs. The agency will provide the appropriate Attestation of Compliance document from the vendor stating they comply with Payment Card Industry – Data Security Standards (PCI-DSS) and that the vendor will maintain those standards throughout the engagement with the agency. E. The agency must describe the agency application including: 1. The agency program supported. 2. The items (services and fees) offered for sale. 3. The individual item costs. 4. The estimated usage of the processor (i.e., the number of transactions that will occur per fiscal year). 5. An estimate of the processing costs "per transaction" for the items to be sold through the alternate payment processor. 6. The costs associated with the use of an alternate payment processor including, but not limited to, purchased and leased equipment, training, and contractual services; and charges for refunds, return items, and PCI-DSS compliance. F. The agency must acknowledge that if DFA approves the agency's request to pursue alternate payment processing services: 1. Funds will be deposited in the account designated by the State Treasurer and transferred to the designated agency funds in the state’s financial system of record once the bank deposit is reconciled and balanced by the agency. DFA will not perform this reconciliation and will not approve the transfer of funds to the state’s financial system until proof of reconciliation is provided. 2. Any request for an exception to the above reconciliation requirement must be clearly documented in the request for the alternate payment processor. G. The service must be legally procured following the rules for technology procurement. All such services are considered e-government services, and are within the purview of ITS even if those services are offered at no cost to the agency. (See 001-020 Acquisitions within ITS Purview, item 3, in the ITS Procurement Handbook): http://dsitspe01.its.ms.qov/its/procman.nsf/TOC4?OpenView

1. DFA will be an active participant in the procurement, implementation, and acceptance of the alternate payment processor before the application supported is certified for production operations. 2. DFA, at its discretion, may require that DFA be a party to the contract. H. The alternate payment processor and/or 3rd party vendor must work with DFA to interface daily settled transactions and any associated fees into state’s accounting system via the PPI. I. Agencies are required to collect any State required fees, such as E-government Transaction Fees. J. Approval under this section shall not relieve an agency of its responsibility concerning other sections of this rule.

History

• Source: §25-53-151 (2)

12 Miss. Admin. Code Pt. 4, R. 2.7 Approval for All Fees to Be Paid By Agency

A. An agency wishing to obtain approval to bear the full cost of processing electronic payments should address the written request to the Department of Finance and Administration, Office of Fiscal Management, Attn: Portal Transactions, 501 North West Street, Suite 701 — B, Jackson, MS 39201. This request will be coordinated with EOC to ensure the funding model approved by the EOC remains intact. B. The request must state whether the application is web-based or of another type (example: Point of Sale (POS), over the counter (OTC), subscription, Interactive Voice Recognition (IVR)). C. The agency must describe the agency application including: 1. The agency program supported. 2. The items (services) offered for sale or collections. 3. The individual item costs. 4. An estimate of the processing cost "per transaction" for the items (services) to be sold. D. The agency request must clearly: 1. Document whether the request is for an application where the consumer can purchase only a single item or service at a time (example: drivers' license renewals) or a shopping cart model where multiple items may be purchased (example: hunting and fishing licenses). 2. Demonstrate a dollar neutral cost or cost saving to the agency when absorbing the processing fees rather than having the consumer pay the fees projected over a fiscal year. All assumptions must be documented. 3. Demonstrate that the funds to defray the total cost of electronic processing will be available projected over a fiscal year. All assumptions must be documented. E. The agency must acknowledge that it will be required to set aside cash/authority at a specified minimum limit in a specified fund to cover expenses (debits) associated with the agency's transactions for the following: 1. Authorization and settlements fees 2. Refunds 3. Chargebacks 4. Voids

5. Returned items charges F. Approval under this section implies that the agency accepts and understands that the application will not be certified for production until such time as complete end-to-end testing is approved by DFA. 1. Testing will include financial settlement testing of all payment types. 2. Testing will include refunds and chargebacks. 3. Testing will include full reconciliation using the procedures developed by the Agency for that purpose.

History

• Source: §25-53-151 (2)

12 Miss. Admin. Code Pt. 4, R. 2.8 Approval to Waive E- Government Transaction Fees

A. An agency wishing to obtain approval for a waiver of E- Government Transaction Fees should address the written request to the Department of Information Technology Services, Attention: E-Government Oversight Committee, 3771 Eastwood Drive, Jackson, MS 39211.

B. If an agency is granted a waiver the agency should send a copy of the approval to The Department of Finance and Administration, Bureau of Financial Documents, P.O. Box 1060, Jackson, MS 39215-1060. .

History

• Source: §25-53-151 (2)

12 Miss. Admin. Code Pt. 4, R. 2.9 Third Party Processing and Fulfillment Costs

A. §7-7- 9, Mississippi Code (Laws of 1972) states the following: "The Mississippi General Accounting Office shall maintain a complete system of general accounting to comprehend the financial transactions of every state department, division, officer, board, commission, institution or other agency owned or controlled by the state, except those agencies specifically exempted in Section 7-7-1, whether at the seat of government or not and whether the funds upon which they operate are channeled through the State Treasury or not, either through regular procedures having to do with the issuance of the State Fiscal Officer receipt warrants and disbursement warrants or through controls maintained through reports filed periodically as required by the State Fiscal Officer in accordance with the reporting provisions contained in said Section 7- 7- 1. All Transactions in public funds, as defined in Section 7-7- 1, shall either be handled directly through the State Fiscal Officer and the State Treasury, or shall be reported to the State Fiscal Officer at the times and in the form prescribed by the State Fiscal Officer and the Legislative Budget Office, so that a complete and comprehensive system of accounts of the fiscal activities of all state governmental agencies shall be made available at all times in the General Accounting office. B. This policy is established by the Department of Finance and Administration, Office of fiscal Management (OFM) for direct or indirect payment to vendors to support internal business functions in the fulfillment of orders a nd completion of transactions initiated in person or through the Internet. These

transactions may include, but are not limited to, the collection of taxes, issuance of licenses, production of reports, and other collections or payments for services that are conducted by agencies in their normal course of business. C. Any cost incurred directly (by an agency) or indirectly (passed directly to the consumer) for a party to complete agency business transactions must be reflected as a cost of doing business for this agency. To do otherwise would not fully disclose costs of the State to conduct business or reflect revenue generated by a vendor who is providing services under contract for the State of Mississippi. Likewise, any charge to the consumer for processing these transactions should be recognized by the agency as revenue. D. Agencies will report revenues and expenses on a Journal Voucher (JV) according to the Mississippi Agency Accounting Policy and Procedure (MAAPP) Manual, Section 16. The JV will be created within 5 workdays of the end of the fiscal quarter.

Rule 2.10. Payment Card Industry — Data Security Standards (PCI-DSS)

A. State agencies accepting credit and/or debit cards through an approved alternate payment processor will comply with Payment Card Industry — Data Security Standards (PCI- DSS) to safeguard cardholder and sensitive cardholder data, regardless of revenue input source. (e.g. Internet application, point-of-sale, Interactive Voice Recognition System, etc. Agencies must provide to DFA yearly, proof of the alternate processor’s compliance with PCI-DSS.

Rule 2.11. Development/Hosting Options and Ultimate Responsibility for PCI- DSS and Fines and Penalties

A. Through a contracted partnership with NIC and Mississippi Interactive (MSI), DFA now provides payment processing services through RFP 3564, Project Number 37577, Statement Of Work 001, Payment Processor Solution. MSI/NIC is the official "Merchant of Record" for payments processed online through the Common Checkout Page (CCP) and Transaction Processing Engine (TPE), reducing the PCI-DSS compliance responsibility for the State of Mississippi by locating the software and hardware for payment processing at NIC's PCI Compliant data center. Agency's will be responsible for training their employees on proper handling of credit card data should they receive it in any other manner outside of the NIC provided solution. This includes completing SAQ A attesting that they have outsourced all electronic processing and properly trained employees. *Please Note: CCP and TPE are components of NIC's PCI Compliant Payment Services that separate the state's online application from communicating directly with the payment processor.

B. Responsibility for PCI-DSS continues for agencies that connect their applications to payment processors outside of TPE or CCP within in the state. Also, in the event that an application requires the manual handling or entry of credit card information by agency personnel, the agency is responsible for PCI compliance at the SAQ A level for all individuals within the agency processing those payments. For more information on PCI-DSS SAQ A, please visit: https://www.pcisecuritystandards.org/ .

Rule 2.12. Security Breaches and Notifications A. In the event of a security breach, credit card or debit card data could be compromised. Agencies will immediately terminate the application/services to preserve evidence and notify:

1. DFA's Chief Systems Information Officer at 601-359-6570. 2. Mississippi Department of Information Technology Services, Security Division at 601-432-8180 and E -Government at (601) 432- 1846. 3. Mississippi State Attorney General's Office, Consumer Protection Division at (601) 359-3680 or 1 (800) 281-4418 and the Cyber Crimes Division at (601) 359-3817. B. The agency shall notify their customers of the breach once law enforcement informs the agency that customer notification will not impede an investigation. 1. Agencies may notify customers using written notices or electronic notices. As a last resort, telephone notices can be given. Documentation that notices were provided, to whom they were provided, and when such notices were provided must be maintained by the Agency. 2. The notice shall be clear and conspicuous and include: a. A description of the incident in general terms. b. The type of personal information subjected to unauthorized access or acquisition. c. The general acts the agency has taken to protect the information from further unauthorized access. d. A telephone number that the customer can call for further information. e. Advice that directs the customer to remain vigilant by reviewing account statements and monitoring free credit reports or close an account.

Rule 2.13. Appeal Process A. An agency wishing to appeal a cease and desist letter must submit a written request to the Department of Finance and Administration, Director, Office of Fiscal Management, 501 North West Street, Suite 701 -B, Jackson, Ms 39201. B. The agency must provide the following information in the written request:

1. The agency program supported. 2. The items (services) offered for sale or collections. 3. The individual item costs. 4. An estimate of the processing cost "per transaction" for the items (services) to be sold. 5. The number of items sold per year and the total cost of those items. 6. A detailed description of how the system works. 7. A detailed list of software operating on the system. 8. A detailed list of equipment, including the name, model number, and purposed of the equipment. 9. A detailed description of accounting entries made to account for revenue and processing and other fees. C. The agency must state whether the agency or the consumer pays the E - Government Transaction fee. The agency request must clearly: 1. Document whether the consumer can purchase only a single item or service at a time (example: drivers' license renewals) or a shopping cart model where multiple items may be purchased (example: hunting and fishing licenses). 2. Demonstrate a dollar neutral cost or cost saving to the agency when absorbing the processing fees rather than having the consumer pay the fees projected over a fiscal year if the agency is to pay the processing fees. All assumptions must be documented. Cost data will be coordinated with the Electronic Oversight Committee. 3. Demonstrate that the funds to defray the total cost of electronic processing will be available projected over a fiscal year if the agency is to pay the processing fees. All assumptions must be documented. D. If the agency is paying processing fees, the agency must acknowledge that they will be required to set aside cash/authority at a specified minimum limit in a specified fund to cover expenses (debits) associated with the agency's transactions for the following: 1. Authorization and settlements fees 2. Refunds 3. Chargebacks 4. Voids 5. Returned items charges E. The agency will also submit their PCI Self-Assessment Questionnaire, Remediation Plan, and cost estimates to correct deficiencies identified in the Remediation Plan. Once the agency information is reviewed, the agency will be given a written response to the appeal request.

History

• Source: §7-7- 9
• Source: 27-104-33
• Source: §25-53-151 (2)
• Source: §25-53-151 (2)
• Source: §25-53-151 (2)

Part 5 Capitol Facilities

Chapter 1 Guidelines for the Placement of Honorary Markers on the Grounds of the New Capitol Building

12 Miss. Admin. Code Pt. 5, R. 1.1 Purpose

The following guidelines have been established to govern the review and approval process of proposals to place permanent markers on the grounds of the New Capitol Building in honor of individuals and/or organizations. Regarding the placement of honorary markers on the grounds of the New Capitol Building, it should be noted that the grounds have historically been the location of elements that honor individuals rather than groups or organizations with preference given to individuals with a long history of state service or other contributions the State. It is the policy that the tradition of honoring important individuals associated with state government continues in this most appropriate public location.

History

• Source: §29-5-2, 29-5-77, 29-5-81

12 Miss. Admin. Code Pt. 5, R. 1.2 Proposal Submission Process

The following steps apply to all proposals for long-term and/or living memorial displays at the New State Capitol. 1. Submit a preliminary proposal. The proposal must include: a. Identification of the person for whom the memorial will be placed; b. Short Bio and description of the person's contribution(s) to the State; i. The proposal must demonstrate that the contributions benefitted a preponderance of the citizens of the State of Mississippi; c. Identification of the person and/or entity submitting the proposal including contact information; i. Designate a single contact person with contact information.

The proposal must be submitted to the Director of the DFA Office of Capitol Facilities 90 days prior to the proposed time of the marker placement.

Proposals may be mailed to: Mississippi Department of Finance & Administration Office of Capitol Facilities P. O. Box 267 Jackson, MS 39205

Rule 1.3. Proposal Review 1. All preliminary proposals will be reviewed by a committee including the: Department of Archives & History - New State Capitol Building Historian, the Director of the Office of Capitol Facilities, and the DFA Supervisor of Grounds Maintenance. a. The committee may request further information from the designated contact person. b. The committee reserves the right to deny any preliminary proposal if it is determined that it does not meet the guidelines. 2. If the committee determines that the preliminary proposal meets these guidelines, the committee will forward the request to the Secretary of the Senate and Clerk of the House of Representatives for final approval.

Rule 1.4. Living Markers

Living Markers consist of trees planted in honor of respected citizens of the State of Mississippi. 1. DFA reserves the right to select the tree type and location due to planting conditions, tree hardiness, supply availability, as well as, maintenance and design considerations. 2. Living Markers are not perpetual. The MS Department of Finance & Administration will endeavor to maintain and protect the plant with the best of horticultural practices. Every effort will be made to preserve and protect plants and trees in accordance with the highest horticultural and maintenance standards. However, the State cannot insure the plant from demise or damage due to severe weather conditions, extenuating natural causes, or potential vandalism.

Rule 1.5. Definitions

As used in these Guidelines, the following definitions apply:

1. "Capitol Complex" means the capitol building and all state buildings established by §29-5- 81. 2. "Living Memorial" includes new or replacement trees, shrubs, gardens, or other plantings commemorating an individual, organization, and or event. 3. "State Capitol" means the New Capitol Building.

History

• Source: §29-5-2, 29-5-77, 29-5-81
• Source: §29-5-2, 29-5-77, 29-5-81
• Source: §29-5-2, 29-5-77, 29-5-81
• Source: §29-5-2, 29-5-77, 29-5-81

Part 6 Procurement Manual for the Office of Purchasing, Travel and Fleet Management

12 Miss. Admin. Code Pt. 6, R. 10.107.04 Rule 10.107.04

Procedures to be Established by State Agencies ............................................... 134 10.107.05 Institutions of Higher Learning Procedures for Open Purchase Orders ........... 134 10.108 Procedures for Applying Preference to Resident Contractors .................................... 134 10.109 Information Applicable to Construction ......................................................................... 135 10.109.01 Construction Defined ............................................................................................. 135 10.109.02 Public Projects ....................................................................................................... 136 10.109.03 Architectural or Engineering Service Contracts .................................................. 137 10.110 Information Applicable to Taxes ..................................................................................... 137 10.111 Information Applicable to Services ................................................................................ 137 10.111.01 Services Requiring Competition ........................................................................... 137 10.111.02 Small Purchase Procurement Card Services ....................................................... 138 10.111.03 State of Mississippi Procurement Card Program ................................................ 138 10.111.04 Procurement Card Program Exception ................................................................ 138 10.112 Credit Cards and Club Membership Cards ................................................................... 139 10.112.01 Balances On Accounts .......................................................................................... 139 10.112.02 Limitations of Use .................................................................................................. 139 10.112.03 Merchant-Specific Credit Cards ............................................................................ 139 10.112.04 Merchant Specific Credit Card Minimum Requirements ..................................... 139 10.112.05 Membership Club Cards ........................................................................................ 141 Appendix A ....................................................................................................................................... 142 Summary of Laws ............................................................................................................................. 142

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Foreword

During the 1962 Regular Session of the Mississippi Legislature, legislation was introduced and passed to establish a division of state government to supervise the procurement activities of all state agencies, departments and institutions. This authority was granted to the Commission of Budget and Accounting in Sections 31-7-3 through 31-7-7, Mississippi Code of 1972, Annotated, and the Division of Purchase Supervision was established under the Commission to carry out the provisions of the Act.

Governmental reorganization, brought about by the enactment of Senate Bill 3050 in the 1984 Regular Session, abolishing the Commission of Budget and Accounting and placing purchasing under the authority of the State Fiscal Management Board. The State Fiscal Management Board assumed all duties and responsibilities and had all authorities originally granted to the Commission of Budget and Accounting as applicable to purchasing. The reorganization also brought about a name change. The Division of Purchase Supervision was redesignated the Purchasing Division of the State Fiscal Management Board.

The 1985 Legislature passed Senate Bill 2510 which moved the purchasing function from the authority of the State Fiscal Management Board and made it a separate bureau within the Office of General Services. Effective July 1, 1985, the Purchasing Division was designated as the Bureau of Purchasing. All duties and authority over purchasing originally given to the Commission of Budget and Accounting and subsequently to the State Fiscal Management Board was then placed with the Office of General Services.

State Government Reorganization enacted during the Regular Legislative Session of 1989 established the Department of Finance and Administration. The Bureau of Purchasing was placed under the jurisdiction of the Division of Financial Management and designated the Office of Purchasing. On July 1, 1990, the Travel Division of the Department of Finance and Administration was integrated into the Office of Purchasing, which changed the name to the Office of Purchasing and Travel.

The Bureau of Fleet Management (the “BFM” or “Bureau”) was established within the Office of Purchasing and Travel, within the Department of Finance and Administration (“DFA”), pursuant to Senate Bill 2398, Regular Legislative Session, Laws of 2006, which amended Section 25-1-77, Mississippi Code of 1972, Annotated, as amended (the “Code”). This created what is now known as the Office of Purchasing, Travel and Fleet Management (“OPTFM”).

This Manual and the regulations contained herein have been written specifically with the intent that the application be directed to state agencies as opposed to governing authorities. For that reason, there are some requirements and authorizations contained in the Manual that would not apply to governing authorities. It should always be remembered that no presentation in this Manual shall be interpreted to take precedent over law. If a procedure set forth in this Manual is contrary to any statute applicable to governing authorities, the statute shall prevail and the procedure shall not be followed.

Any reference to a need for approval by the Office of Purchasing, Travel and Fleet Management of the Request for Authorization to Purchase, P-1, does not apply to governing authorities. However, Governing Authorities are required to request exemption from utilizing reverse auctions for competitive sealed bidding. Exemption may only be granted by the Public Procurement Review Board (PPRB) after requests are received and reviewed by the Office of Purchasing, Travel and Fleet Management.

Throughout this Manual the use of the term "the Office" shall mean the Office of Purchasing, Travel and Fleet Management.

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Chapter 1

General Provisions 1.101 Purpose of the Mississippi Procurement Manual

The purpose of the Mississippi Procurement Manual is to set forth all laws and regulations, along with any other pertinent information, that shall be in effect with the implementation of Title 31, Chapter 7, Mississippi Code of 1972, Annotated. The policies and procedures set forth herein apply to the procurement of commodities and equipment either bought, leased or rented with any funds, regardless of source, by those agencies which are required by the statute to be under the authority of the Department of Finance and Administration Public Procurement Review Board (PPRB). This Manual is intended to be a thorough representation of procedures relative to purchasing by all state entities. Further, it shall serve as a source of information for vendors instructing them as to the proper procedures that must be followed in doing business with the State. For the purpose of this document, all definitions found in Section 31-7-1, Mississippi Code of 1972, Annotated, shall apply. 1.101.01 Interpretation, Purposes and Policies

(1) Interpretation

These regulations shall be construed and applied to promote their underlying purposes and polices.

(2) Purposes and Policies

The underlying purposes and polices of these regulations are:

(a) To simplify, clarify, and modernize the regulations governing procurement by agencies of the State of Mississippi;

(b) To permit the continued development of procurement policies and practices;

(c) To provide for increased public confidence in the procedures followed in public procurement;

(d) To ensure the fair and equitable treatment of all persons who deal with the procurement system of this State;

(e) To provide increased economy in the State of Mississippi procurement activities and to maximize to the fullest extent practicable the purchasing value of public funds of the State;

(f) To foster effective broad-based competition with the free enterprise system; and

(g) To provide safeguards for the maintenance of a procurement system of quality and integrity

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1.101.02 Purpose and Implementation of these Regulations

These regulations, issued by the Mississippi Public Procurement Review Board (PPRB), hereafter referred to as the Board, establishing policies, procedures, and guidelines related to the procurement, management, control, and disposal of commodities and equipment, as applicable, under the authority of these regulations. These regulations are designed to achieve maximum practicable uniformity throughout the State. Therefore, implementation by and within Mississippi agencies shall be consistent with these regulations. 1.102 Purchasing Laws and Regulations

Laws relative to the Office of Purchasing, Travel and Fleet Management and the procurement process in general may be found in Title 31, Chapter 7, Mississippi Code of 1972, Annotated, beginning with Section 31-7-1. These laws and regulations cover the entire procurement process and contain definitions and provisions that both the buying agency and the vendor will find useful in understanding the State's purchasing system. 1.102.01 Supplementary General Principles of Law Applicable

Unless displaced by the particular provisions of these regulations, the principles of law and equity, including the Uniform Commercial Code of this State, the law merchant, and law relative to capacity to contract, agency, fraud, misrepresentation, duress, coercion, mistake, or bankruptcy shall supplement the provisions of these regulations. 1.103 Requirement of Good Faith

These regulations require all parties involved in the negotiation, performance or administration of Mississippi contracts to act in good faith. 1.104 Application of the Regulations

(1) General Application

These regulations apply only to contracts solicited or entered into after the effective date of these regulations unless the parties agree to its application to a contract solicited or entered into prior to the effective date.

(2) Application to Mississippi Procurement

These regulations shall apply to every expenditure of public funds irrespective of their source, when such expenditures are made in compliance with or are designated by Section 31-7-1, et seq. Mississippi Code of 1972, Annotated. However, in the event of a conflict, the guidelines of the grant, gift, or self-generated funds shall prevail; and in any case, violation of these regulations shall carry such penalties as may be applicable under state laws.

(3) Application to Service and Construction Contracts

Agencies which are under the authority of the Office of Personal Service Contract Review (OPSCR) shall follow the guidelines set forth in the State of Mississippi Personal Service Contract Rules and Regulations adopted by the PPRB.

The regulations herein shall apply to contracts for construction unless they conflict with

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regulations and procedures established by the Bureau of Buildings, Grounds and Real Property Management. When such conflict arises, the provisions set forth by the Bureau of Building, Grounds, and Real Property Management shall take precedent. 1.105 Severability

If any provision of these regulations or any application thereof to any person or circumstance is held invalid, such invalidity shall not affect any other provision or application of these regulations which can be given effect without the invalid provision or application, and to this end the provisions of these regulations are declared to be severable. 1.106 Duration

These regulations, when approved by the Public Procurement Review Board (PPRB) as authorized by Section 31-7-9, Mississippi Code of 1972, Annotated, shall be in effect as written until amended or repealed by the Board. 1.107 Definitions

The words defined in this section shall have the meanings set forth below whenever they appear in the regulations, unless:

(1) The context in which they are used clearly requires a different meaning; or

(2) A different definition is prescribed for a particular chapter or provision.

(a) Agency – as defined in Section 31-7-1, Mississippi Code of 1972, Annotated.

(b) Agency Procurement Officer – any person duly authorized to enter into and administer contracts and make written determinations with respect thereto. The term also includes an authorized representative acting within the limits of authority.

(c) Board – the Public Procurement Review Board (PPRB).

(d) Business – any corporation, partnership, individual, sole proprietorship, joint stock company, joint venture, or any other private legal entity.

(e) Certified Purchasing Office – any purchasing office in which 50% or more of the purchasing agents hold a certification from the Universal Public Purchasing Certification Council or other nationally recognized purchasing certification, and in which, in the case of a state agency purchasing office, in addition to the national certification, one hundred percent (100%) of the purchasing officials hold a certification from the State of Mississippi’s Basic or Advanced Purchasing Certification Program.

(f) Change Order – a written order signed by the Agency Procurement Officer directing the contractor to make changes. The changes clause of the contract authorizes the Agency Procurement Officer to order change without the consent of the contractor.

(g) Chief Procurement Officer – the person holding the position as the Director of the Office of Purchasing, Travel and Fleet Management.

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(h) Construction – the process of building, altering, improving, renovating or demolishing a public structure, public building, or other public real property. It does not include routine operation, routine repair or regularly scheduled maintenance of existing public structures, public buildings, or other public real property.

(i) Contract – all types of Mississippi agreements, regardless of what they may be called, for the procurement or disposal of commodities, equipment, services, or construction.

(j) Contract Modification – any written alteration in specifications, delivery point, rate of delivery, period of performance, price, quantity, or other provisions of any contract accomplished by mutual action of the parties to the contract.

(k) Contractor – any person having a contract with a governmental body. (l) Data – recorded information, regardless of form or characteristic. (m) Designee – a duly authorized representative of a person holding a superior position.

(n) Employee – an individual drawing a salary from a governmental body, whether elected or not, and any non-compensated individual performing personal services for any governmental body.

(o) Governing Authority – as defined in Section 31-7-1, Mississippi Code of 1972, Annotated.

(p) May – denotes the permissive.

(q) Must – to be required or compelled to

(r) Person – any business, individual, union, committee, club, other organization, or group of individuals.

(s) Procurement – buying, purchasing, renting, leasing, or otherwise acquiring any commodities, equipment, services, or construction. It also includes all functions that pertain to the obtaining of any commodities, equipment, services, or construction, including description of requirements, selection and solicitation of sources, preparation and award of contract and all phases of contract administration.

(t) Purchase – buying, renting, leasing or otherwise acquiring.

(u) Purchasing Agency – any governmental body other than the Office of Purchasing, Travel and Fleet Management which is authorized by regulations, or by way of delegation from the Chief Procurement Officer, to enter into contracts.

(v) Purchasing Agent – any administrator, superintendent, purchase clerk or other chief officer so designated having general or special authority to negotiate for and make private contract for or purchase for any governing authority or agency, including issue purchase orders, invitations for bid, requests for proposals, and receive and accept bids.

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(w) Regulation – a governmental body's statement, having general or particular applicability and future effect, designed to implement, interpret, or prescribe law or policy, or describing organization, procedure, or practice requirements, which has been promulgated in accordance with Section 31-7-9, Mississippi Code of 1972, Annotated.

(x) Reverse Auction – an online auction in which sellers bid against each other to win a buyer’s business. Typically used to purchase commodities from multiple pre- qualified providers. Also referred to as eAuction.

(y) Services – the furnishing of labor, time, or effort by a vendor or supplier, not involving the delivery of a specific end product other than reports which are merely incidental to the required performance. This term shall not include employment agreements or collective bargaining agreements.

(z) Shall – denotes the imperative. 1.108 Public Access to Procurement Information

Procurement information shall be public record to the extent provided in Section 25-61-1, Mississippi Code of 1972, Annotated, in accordance with each state entity’s policies and procedures.

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Chapter 2

Procurement Organization 2.101 Organization

The Public Procurement Review Board (PPRB) as provided for under Section 27-104-7, Mississippi Code of 1972, Annotated shall approve any purchasing regulation established as provided for in Section 31-7-9, Mississippi Code of 1972, Annotated, and shall act upon those purchasing transactions as may be, from time to time, designated by the Board as requiring Board approval. The Board shall also act on other such transactions as would be required by the procedures set forth in the regulations presented herein.

The membership of the Board shall be governed by Section 27-104-7 and consists of three (3) individuals appointed by the Governor with the advice and consent of the Senate; two (2) individuals appointed by the Lieutenant Governor with the advice and consent of the Senate; and the Executive Director of the Department of Finance and Administration, serving as an ex officio and nonvoting member. 2.102 The Office of Purchasing, Travel and Fleet Management

It shall be the responsibility of the Office of Purchasing, Travel and Fleet Management to supervise the purchases, lease-purchases, leases, and rentals of any commodities or equipment made or entered into by the agencies of the State and t h e O f f i c e shall have approval authority over all sales or transfers of personal property owned by agencies of the State; provided, however, that this shall not be intended to include items under the jurisdiction of the Department of Information Technology Services.

Each agency of the State shall be responsible for the procurement of commodities, equipment, and construction needed by that agency in compliance with Section 31-7-13, Mississippi Code of 1972, Annotated, and with the policies and procedures established herein. 2.102.01 Procurement Regulations

(1) Regulations shall be promulgated by the Office of Purchasing, Travel and Fleet Management, with approval of the Public Procurement Review Board (PPRB), in accordance with authority granted under Section 31-7-9, Mississippi Code of 1972, Annotated.

(2) Regulations shall not change existing contract rights. 2.102.02 Deviation from these Regulations

The Public Procurement Review Board (PPRB) may approve deviations to these regulations and may delegate the authority to approve such deviations to the Chief Procurement Officer. Any such deviation shall be based on a determination by the Board or the Chief Procurement Officer that it is to the best interest of the State.

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2.102.03 Agency Procurement Officials

State agencies must designate purchasing agents as defined in Section 1.107 herein for reporting to OPTFM.

On or before January 1 of each year, and every time a purchasing agent is hired, each state agency shall provide to OPTFM the name of each purchasing agent and information identifying the state agency's central purchasing office, including location and director, if applicable. 2.102.04 Amendment to these Regulations

These regulations may be amended by the Office of Purchasing, Travel and Fleet Management, with the approval of the Public Procurement Review Board (PPRB), as authorized in Section 31- 7-9, Mississippi Code of 1972, Annotated.

2.102.05 Public Procurement Review Board (PPRB) Approval

The requesting agencies are required to submit a Request for Authority to Purchase, P-1, to the Office of Purchasing, Travel, and Fleet Management (OPTFM) for certain purchases. In certain situations, as outlined below, the OPTFM will be required to obtain Public Procurement Review Board (PPRB) approval prior to processing the requests. Agencies are advised that they shall not award any purchase or construction contract prior to approval by the Public Procurement Review Board (PPRB) if the purchase or construction contract is one which requires PPRB approval. When approval requests are received, the OPTFM will assign the request to a DFA Contract Analyst who will evaluate the request and provide a recommendation to the Board. The Public Procurement Review Board (PPRB) has regularly scheduled meetings on the first Wednesday of every month. Requests should be submitted to the OPTFM not later than the deadline posted on PPRB’s website. Requests received after this time shall be delayed until the next regular meeting of the Board. The Public Procurement Review Board (PPRB) requires that the following items be brought before the Board for approval:

(1) Any request for any purchase authority (to include multiple purchases or a “not to exceed” amount), award, or awards (when such awards are the result of one competitive procurement) which exceeds $500,000 of commodities, goods, merchandise, furniture, equipment, automotive equipment of every kind, and other personal property purchased by the agencies of the state, but not commodities purchased for resale or raw materials converted into products for resale as provided by Section 31-7-1(e), Mississippi Code of 1972, Annotated;

(2) Regulations governing the approval of contracts let for the construction and maintenance of state buildings and other facilities;

(3) Proposed equipment acquisition schedules for Master Lease Purchase Program (Section 31-7-10, Mississippi Code of 1972, Annotated);

(4) Cancellation of Mississippi Department of Corrections contracts on minutes (Section 47- 5-107, Mississippi Code of 1972, Annotated);

(5) Policies and procedures which relate to the purchasing of commodities, goods, merchandise, furniture, equipment, automotive equipment of every kind, and other personal property purchased by the agencies of the state, but not commodities purchased for resale or raw materials converted into products for resale as provided by

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Sections 31-7-1(e), and 31-7-9, Mississippi Code of 1972, Annotated;

(6) Rules and regulations regarding the sale or disposal of property (Section 29-9-9, Mississippi Code of 1972, Annotated);

(7) Regulations governing any leases or rental agreements for space outside the buildings under the jurisdiction of the Department of Finance and Administration (as defined in the DFA Bureau of Building, Grounds and Real Property Management Leasing Manual);

(8) Regulations governing contracts for engineering or architectural services related to construction and maintenance of state buildings and other state facilities; and

(9) Requests for exemptions from utilizing reverse auctions submitted by state agencies and governing authorities. 2.103 Responsibility of the Office of Purchasing, Travel and Fleet Management

The Public Procurement Review Board (PPRB) acting through the Office of Purchasing, Travel and Fleet Management (OPTFM) shall have approval authority over the types of purchases listed in this chapter and in accordance with the procedures set forth. The OPTFM has the responsibility to serve the State objectively, economically and efficiently; to provide effective service to the state agencies; and to follow fair and ethical practices with all suppliers. However, this authority does not extend to governing authorities. Any mention of the requirements for P-1 approval applies only to agencies. Governing authorities are not required to obtain approval of the Office of Purchasing, Travel and Fleet Management except as otherwise provided in Section 3.106.22 Reverse Auctions. 2.103.01 Contracts

The Office of Purchasing, Travel and Fleet Management (OPTFM) shall have the authority to establish contracts on any commodity being purchased by the agencies. The contracts may be established by competitive bidding or by negotiation. The OPTFM also maintains agency and cooperative contracts. The OPTFM shall have the authority to require that agencies purchase from these contracts and shall have the authority to grant exemption from that requirement if it is determined to be in the best interest of the agency and would be an economically feasible transaction.

The OPTFM shall have the authority to set standards for commodities being purchased, and such standards shall be based on a practical and economically efficient application of that commodity.

It shall be at the discretion of the OPTFM as to the items of equipment and the commodities on which contracts will be established. The OPTFM shall have the authority to establish standards for the acquisition of equipment by agencies.

2.103.01.1 Competitive Bid Contracts

The competitive bid contracts are established on the basis of written specifications and sealed competitive bids with a contract or contracts being awarded to the vendor or vendors that have submitted the lowest and best bid which meets the specifications. All state agencies are required to purchase from the awarded contract vendor unless written approval is obtained from the OPTFM prior to obtaining quotes or soliciting bids regardless of the cost. There are times when an agency needs a product which is similar to items covered on state contract but has

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determined that the item on contract will not meet the needs of the using agency. Agencies are allowed to purchase similar items up to $1,000 without obtaining P-1 approval. The agency should note on the PO how the item is different from the items on state contract and should note in their files why the items on contract would not meet the specific needs of the agency. Requests for purchases of similar items in excess of $1,000 must be submitted to the Office of Purchasing, Travel and Fleet Management on a P-1 with justification.

2.103.01.2 Negotiated Contracts

The negotiated contracts are established on the basis of proposals from many vendors. These proposals are evaluated with contracts being awarded to all vendors whose prices are “comparable.” These contracts may be used by any agency. These negotiated contracts are “convenience” contracts and shall serve to establish a maximum price that can be paid for any item covered by the contract and does not preclude further downward negotiations by the buying agency and/or the Office of Purchasing, Travel and Fleet Management if volume so dictates. Agencies may purchase items covered by a negotiated contract from other than the contract vendor provided they follow the applicable procedures set forth in Section 31-7-13(a), Mississippi Code of 1972, Annotated; (a) purchases under $5,000 may be made without any quotes or bids; (b) if the purchase exceeds $5,000 but is not over $50,000 two quotes are required; or (c) purchases over $50,000 may be made from the lowest and best bidder after properly advertising. In addition, agencies purchasing items covered by a negotiated contract from other than the contract vendor and following the procedures set forth in Section 31-7-13(c), Mississippi Code of 1972, Annotated, purchases over $50,000, shall submit a Request for Authority to Purchase, P-1, to the Office of Purchasing, Travel and Fleet Management for approval prior to making the purchase.

2.103.01.3 Cooperative Contracts

Statewide Cooperative Contracts are established on the basis of reviewing and selecting solicited contracts from written specifications and sealed competitive bids or by those on a multiple award scheduled by consortiums which show a demonstrative cost savings. These contracts are usually awarded to the vendor that has submitted the lowest bid that meets specifications. All state agencies are allowed to purchase from cooperative contracts approved by the Office of Purchasing, Travel, and Fleet Management. Governing authorities may purchase from other than the awarded vendor provided they purchase an identical item at or below contract price.

Municipalities – Section 31-7-59, Mississippi Code of 1972, Annotated; State Agencies – Section 31-7-13, Mississippi Code of 1972, Annotated.

2.103.01.4 Statewide Agency Contracts

The statewide agency contracts are established on the basis of competitive bids by a specific state agency. The statewide agency contract must be approved by the OPTFM prior to any purchases being made. The availability of statewide agency contracts to various agencies is dependent upon the terms of the agreement and a determination by the OPTFM that the prices should be available to other agencies. See Section 10.106, Procedures for Establishing an Agency Contract. 2.103.02 Open-Market Purchases

Commodities that are not covered by any state contract may be purchased on the open market provided the agency follows the requirements set forth in Section 31-7-13, Mississippi Code of 1972, Annotated. Purchases of items that are not covered by any state contract in excess of

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$50,000 must be approved by the OPTFM prior to issuance of a purchase order. The OPTFM will supervise the procurement of all commodities by state agencies and shall, upon receipt of the Request for Authority to Purchase, P-1, ascertain that all aspects of the purchase are in compliance with state statutes. The OPTFM will also have the authority to reject requests which are determined not to be in the best interest of the State. The OPTFM shall have the authority to grant exemption from the requirement for P-1 approval if it is determined to be in the best interest of the agency and would be an economically feasible transaction. Proper procedures for submitting a Request for Authority to Purchase, P-1, are covered in Subsection 3.124.01, Request for Authority to Purchase, P-1. 2.103.03 Rental, Lease, Lease-Purchase of Equipment and Furniture

Commodities that are not covered by any state contract may be rented or leased on the open market provided the agency follows the requirements set forth in Section 31-7-13, Mississippi Code of 1972, Annotated. Rental of items that are not covered by any state contract in excess of $50,000 must be approved by the OPTFM prior to issuance of a purchase order. The Office of Purchasing, Travel and Fleet Management will supervise the rental of all commodities by state agencies and shall, upon receipt of the Request for Authority to Purchase, P-1, ascertain that all aspects of the rental are in compliance with state statutes. The OPTFM will also have the authority to reject requests which are determined not to be in the best interest of the State. The OPTFM shall have the authority to grant exemption from the requirement for P-1 approval if it is determined to be in the best interest of the agency and would be an economically feasible transaction. Proper procedures for submitting a Request for Authority to Purchase, P-1, are covered in Subsection 3.124.01, Request for Authority to Purchase, P-1. Agencies should also refer to Section 3.117, Lease Contracts, for further discussion of lease contracts.

To determine if advertising is required, the agency should multiply the rental payment by the number of payments to determine a total cost for the term of the rental. For example: A 36- month contract at $1400/month would be $1400 x 36 = $50,400 and would require advertising. A 3-year contract at $800/quarter would be $800 x 12 = $9,600 and would require at least two written quotes. No agency personnel shall enter into any lease-purchase contract except as is provided for in Sections 31-7-10 and/or 31-7-13(e), Mississippi Code of 1972, Annotated.

It shall be unlawful for any agency to enter into any single lease-purchase transaction for any items having an acquisition cost of less than $10,000.

The OPTFM shall have the right to disapprove any lease-purchase agreement regardless of authority if it is determined to create excessive cost and not be in the best interest of the State. 2.103.04 Commodities, Equipment, and Printing

The Office of Purchasing, Travel and Fleet Management shall supervise the procurement of all commodities, equipment, and printing by state agencies and shall, upon receipt of Request for Authority to Purchase, P-1, ascertain that all aspects of the purchase are in compliance with state statutes. The OPTFM shall have the authority to solicit additional quotes if, upon reviewing the P-1, there is reason to believe that the bids received by the requesting agency are not competitive. 2.103.05 Information Distribution

The OPTFM will make the information available through electronic methods of information distribution.

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2.104 Certified Purchasing Office

As per Section 31-7-1(i), Mississippi Code of 1972, Annotated, Certified Purchasing Office shall be defined as any purchasing office in which 50% or more of the purchasing agents hold a certification from the Universal Public Purchasing Certification Council or other nationally recognized purchasing certification, and in which, in the case of a state agency purchasing office, in addition to the national certification, one hundred percent (100%) of the purchasing officials hold a certification from the State of Mississippi’s Basic or Advanced Purchasing Certification Program. For the purposes of this policy, purchasing agent shall be defined using the general meaning set forth in Section 31-7-1(c), Mississippi Code of 1972, Annotated. “Purchasing agent” means any administrator, superintendent, purchase clerk or other chief officer so designated having general or special authority to negotiate for and make private contract for or purchase for any governing authority or agency.

Commentary

If a person has the authority to issue purchase orders, issue invitations to bid, receive and accept bids, negotiate contract clauses, etc., they should be considered a purchasing agent for the purposes of this policy.

An entity may apply to become a Certified Purchasing Office by completing an application found on the OPTFM website and submitting with appropriate documentation to the Office of Purchasing, Travel and Fleet Management. The application will require the name of the agency, address, phone number and e-mail address of person submitting the application. In addition, the application will require that all purchasing agents for the entity be listed with phone numbers, email addresses and certifications mentioned above. Proof of certification must show the name of the certification holder, the entity issuing the certification, the issue date and the expiration date of the certification. A copy of the certificate will be accepted provided that the required information is included.

Upon receipt of the application, the Office of Purchasing, Travel and Fleet Management will verify that 50% or more of the purchasing agents are certified by a qualified entity (UPPCC or other nationally recognized certification) and in the case of a state agency, that 100% hold a certification from the State of Mississippi’s Basic or Advanced Purchasing Program. After review and verification of the submitted documentation, the Office of Purchasing, Travel and Fleet

Management will issue a certificate to the entity which shall be valid for a twelve (12) month period. If a purchasing agent’s national certification expires prior to the twelve (12) month period, and if this change would reduce the number of qualified purchasing agents below the minimum requirements, the Office of Purchasing, Travel and Fleet Management may issue a Certified Purchasing Office certificate for a period of less than twelve (12) months. Certified Purchasing Offices are eligible to purchase from Cooperative Purchasing Agreements that qualify under Section 31-7-13(m)(xxix) as follows:

(xxviii) 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, Travel and Fleet Management and established by or for any city, county, parish, or state government or the Federal Government, provided, however, that the notification to potential contractors included a clause which set forth the availability of the

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contract to other governmental entities. Such purchases shall only be made if the use of such contract is determined to be in the best interest of the government entity.

State Agencies should note that this authority does not allow them to purchase outside the terms of the statewide competitive bid contracts unless the contract document specifically says that state agencies may use the contract or choose to purchase from a qualified cooperative purchasing agreement. The current state contracts provide the assurance that all state agencies will purchase from the contract and it would be unfair to those vendors to remove that volume without proper notification. Future contract invitations may include a clause which notifies vendors of the availability of cooperative agreements and at that time agencies would have the option.

A qualified cooperative contract is one that has been submitted to and approved by the Office of Purchasing, Travel and Fleet Management after careful consideration of the process used to establish the contract, the products covered and the available prices. Vendors will not be allowed to submit contracts to OPTFM for approval. The OPTFM will only consider contracts submitted by Certified Purchasing Offices. In practical terms this means that a vendor may approach the Certified Purchasing Office of any city, county, or state agencies. If the Certified Purchasing Office feels that the products/prices available under the cooperative agreement would be advantageous, they would then submit a request to the Office of Purchasing, Travel and Fleet Management, advising the OPTFM of the name of the contract, the vendor, copies of applicable web sites/price lists, etc. The OPTFM will review the documents and may contact the originating purchasing entity for additional information prior to making a decision concerning the acceptability of the contract. Upon approval or disapproval the OPTFM will notify the Certified Purchasing Offices and will maintain a list of all approved contracts. Once approved, all Certified Purchasing Offices may purchase off of the approved cooperative contract.

State agencies with certified purchasing offices would, in most cases, be exempt from bidding requirements when they purchase from a qualified cooperative contract. The exception would be that if a commodity is covered by a competitively bid contract, the state agencies will be required to purchase from that contract unless the contract specifically allows purchases made from cooperative contracts.

Cities and counties (governing authorities) with certified purchasing offices will be exempt from bidding requirements when purchasing from a qualified cooperative contract.

Governing Authorities with Certified Purchasing Offices may also use the following procedures: 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 at the governing authority, may be included in the best value calculation.

Renewal – it will be the responsibility of the Certified Purchasing Office to be aware of the expiration date of their certification and to submit a new application not more than four (4) months and not less than one (1) month prior to the expiration date. The Office of Purchasing, Travel and Fleet Management will not be responsible for notifying the Certified Purchasing Office. 2.105 Training and Certification

In accordance with Section 31-7-9 (3), Mississippi Code of 1972, Annotated and to ensure state purchasing and contract management personnel are trained and knowledgeable in accordance

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with state law, the Office of Purchasing, Travel and Fleet Management offers the Mississippi Purchasing Certification Program. This program shall be required for all purchasing officials at state agencies. The goal of the Mississippi Purchasing Certification Program is to offer public purchasing courses and certification testing specifically designed for Mississippi procurement.

“Certified Mississippi Purchasing Agent” means a state agency purchasing official who holds a certification from the Mississippi Basic Purchasing Certification Program as established by the Office of Purchasing, Travel and Fleet Management. 2.105.01 Eligibility Requirements and Maintaining Certification

The minimum procurement experience and training requirements are as follows: (1) Certified Mississippi Purchasing Agent (CMPA) requirements: (a) New employees should register for first available class;

(b) Successfully complete Mississippi Basic Purchasing Certification Program coursework; and

(c) Pass the CMPA exam with a score of 70% or higher.

(d) Recertify every five (5) years by following the same process as listed above. 2.105.02 Further Information

Information on registration, training opportunities, continuing education and resources are available on the Office of Purchasing, Travel and Fleet Management website.

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Chapter 3 Source Selection and Contract Formation 3.101 Purchasing Procedures 3.101.01 Definition of Terms Used in this Section

(1) Established Catalog Price – the price included in a catalog, price list, schedule, or other form that:

(a) Is regularly maintained by a manufacturer or contractor;

(b) Is either published or otherwise available for inspection by customers; and

(c) States price at which sales are currently or were last made to a significant number of any categories of buyers or buyers constituting the general buying public for the supplies or services involved.

(2) Invitation for Bids – all documents, whether attached or incorporated by reference, utilized for soliciting bids.

(3) Purchase Description – the words used in a solicitation to describe the commodities, equipment, or construction to be purchased and includes specifications attached to, or made a part of, the solicitation.

(4) Request for Proposals – all documents, whether attached or incorporated by reference, utilized for soliciting proposals.

(5) Responsible Bidder or Offerer – a person who has the capability in all respects to perform fully the contract requirements and the integrity and reliability which will assure good faith performance.

(6) Responsive Bidder – a person who has submitted a bid which conforms in all material respects to the Invitation for Bids.

(7) Reverse Auction – an electronic auction where suppliers bid online against each other for contracts against a published specification.

(8) Electronic Bids – allows for the online submission of bids. It is a fast, secure and fully audited environment in which suppliers can upload bid files to buyers.

(9) Online Auctions – an auction where items are sold over the internet. 3.101.02 Exemptions Not Requiring Approval

Unless otherwise ordered by regulation of the Public Procurement Review Board (PPRB), the following listed items are exempt from the competitive bid process and do not require approval of the Office of Purchasing, Travel and Fleet Management except as may be required when submitting an Inventory Deletion Form.

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(1) Transactions listed in Section 31-7-13(m), Mississippi Code of 1972, Annotated

(2) Transfer, sale, or exchange of personal property between state agencies or between state agencies and governing authorities - (For transfer, sale or exchange of vehicles, see State Fleet Manual.)

(3) Service contracts provided by businesses or persons which do not include the acquisition of a commodity or equipment and which are under the purview of the Office of Personal Service Contract Review

(4) Transportation of items (freight charges) - This exemption shall not apply to the travel contracts established by the Office of Purchasing, Travel and Fleet Management.

(5) Postage

(6) Workers Compensation Insurance and Personnel Bond required by law

(7) Utilities

(8) Commodities purchased for resale

(9) Highway right-of-way and highway construction contracts governed by specific laws dealing with such contracts

(10) Food and lodging reimbursable on a travel voucher

(11) Maintenance contracts under the purview of the Department of Information Technology Services or the Office of Personal Service Contract Review

(12) Live animals

(13) Textbooks

(14) Library books and other reference materials purchased by or for libraries

(15) Purchases of original artwork and artifacts by museums for public display

(16) Purchases of original artwork (paintings, statues, sculptures, etc.) for public display

(17) Subscriptions

(18) Purchases made from state operated industries such as Mississippi Industries for the Blind.

3.101.03 Exemptions Requiring Approval

Unless otherwise ordered by regulation of the Public Procurement Review Board (PPRB), the following listed items are exempt from the competitive bid process provided they follow 3.109.02; however, these purchases do require P-1 approval of the Office of Purchasing, Travel and Fleet Management.

(1) Non-competitive items that are available from only one source;

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(2) Items purchased for research that are available from only one source 3.102 General Provisions 3.102.01 Extension of Time for Bid or Proposal Acceptance

After opening bids or proposals, the Agency Procurement Officer may request bidders or offerers to extend the time during which the State entity may accept their bids or proposals, provided that, with regard to bids, no other change is permitted. The reasons for requesting such extension shall be documented. 3.102.02 Extension of Time on Indefinite Quantity Contracts

The time of performance of an indefinite quantity contract may be extended upon agreement of the parties, provided the extension(s) do not cause the contract to exceed 60 months and that there shall be no increase in price, unless originally allowed by the bid specifications, and the Chief Procurement Officer or Agency Procurement Officer determines that it is not practical to award another contract at the time of such extension. 3.102.03 Only One Bid or Proposal Received, No Bid Received

3.102.03.1 One Bid Received

If only one responsive bid is received in response to an Invitation for Bids (including multi-step bidding), an award may be made to the single bidder if the Agency Procurement Officer finds that the price submitted is fair and reasonable, and that either;

(1) The other prospective bidders had reasonable opportunity to respond, or

(2) There is not adequate time for re-solicitation.

Otherwise, the bid may be rejected pursuant to the provisions of Subsection 3.112.04, Cancellation of Solicitation; Rejection of all Bids or Proposals and:

(1) The bid may be re-advertised and new bids or offers may be solicited; or

(2) The proposed procurement may be canceled.

3.102.03.2 One Proposal Received

If only one proposal is received in response to a Request for Proposals, the Agency Procurement Officer may either make an award in accordance with the procedures set forth in Section 3.107, Competitive Sealed Proposals, of these regulations or, if time permits, re-solicit for the purpose of obtaining competitive sealed proposals.

3.102.03.3 No Bid or Proposal Received

If no bid or proposal is received in response to an Invitation,

(1) The bid may be re-advertised and new bids or offers may be solicited;

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(2) The proposed procurement may be canceled; or

(3) An emergency procurement may be made in compliance with Section 3.110, Emergency Procurements. 3.102.04 Alternate Bids or Proposals

If alternate bids or proposals are allowed, the solicitation shall state that such bids or proposals shall be accepted, and the solicitation shall specify their treatment. The solicitation shall state that such bids or proposals shall be accepted. 3.102.05 Procuring Commodities and Services Produced or Offered by State Agencies

Agency requirements may be fulfilled by procuring supplies produced or services performed incident to the State's own programs, such as Mississippi Industries for the Blind. The Chief Procurement Officer or the head of the purchasing agency shall determine whether such supplies or services meet the State's requirements and whether the price represents a fair market value for such supplies or services. When such procurements are made from other state agencies, the private sector need not be solicited to compete against other agencies. 3.102.06 Bid and Performance Bonds for Commodity Contracts or Service Contracts

Bid and performance bonds or other security may be required for supply contracts or service contracts as the Chief Procurement Officer or the Agency Procurement Officer deems advisable to protect the interest of the State. Any such requirements must be set forth in the solicitation. Bid or performance bonds should not be used as a substitute for a determination of bidder or offerer responsibility. Section 31-5-51, Mississippi Code of 1972, Annotated, sets forth bonding requirements applicable to construction contracts and may be considered when establishing any such requirements for supply contracts or service contracts. 3.102.07 Conditioning Bids or Proposals Upon Other Awards Not Acceptable

Any bid or proposal which is conditioned upon receiving award of both the particular contract being solicited and another Mississippi contract shall be deemed non-responsive and not acceptable. 3.103 Unsolicited Offers 3.103.01 Defined

An unsolicited offer is any offer other than one submitted in response to a solicitation. 3.103.02 Processing of Unsolicited Offers

The Chief Procurement Officer or the Agency Procurement Officer shall consider the offer as provided in this section. If an agency that receives an unsolicited offer is not authorized to enter into a contract for the supplies or services offered, the Agency Procurement Officer shall forward the offer to the Chief Procurement Officer who shall have final authority with respect to evaluation, acceptance, and rejection of such unsolicited offers.

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3.103.03 Conditions for Consideration

To be considered for evaluation, an unsolicited offer: (1) Must be in writing; (2) Must be sufficiently detailed to allow a judgment to be made concerning the potential utility of the offer to the State;

(3) Must be unique or innovative to State use;

(4) Must demonstrate that the proprietary character of the offering warrants consideration of the use of sole-source procurement;

(5) May be subject to testing under terms and conditions specified by Mississippi; and

(6) Must be a commodity that is not included on any state contract. 3.103.04 Evaluation

The unsolicited offer shall be evaluated to determine its utility to the State and whether it would be to the State's advantage to enter into a contract based on such offer. 3.103.05 Confidentiality

Any written request for confidentiality of data contained in an unsolicited offer that is made in writing shall be honored. If an award is made, confidentiality of data shall be agreed upon by the parties and governed by the provisions of the contract subject to Mississippi Public Records Act of 1983, Section 25-6-1, Mississippi Code of 1972, Annotated. 3.104 Novation or Change of Name (Assignment) 3.104.01 No Assignment

No Mississippi contract is transferable or otherwise assignable without the written consent of the Chief Procurement Officer; provided, however, that a contractor may assign monies receivable under a contract after due notice to the State, the contracting entity, and with approval of the Chief Procurement Officer. 3.104.02 Recognition of a Successor in Interest; Novation

When, in the best interest of the State, a successor in interest may be recognized in a novation agreement in which the transferor and the transferee shall agree that:

(1) The transferee assumes all of the transferor's obligations;

(2) The transferor waives all rights under the contract as against the State; and

(3) Unless the transferor guarantees performance of the contract by the transferee, the transferee shall, if required, furnish a satisfactory performance bond.

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3.104.03 Change of Name

When a contractor requests to change the name in which it holds a contract with the State, the Chief Procurement Officer responsible for the contract shall, upon receipt of a document indicating such change of name (for example, an amendment to the articles of incorporation of the corporation), enter into an agreement with the requesting contractor to effect such a change of name. The agreement changing the name shall specifically indicate that no other terms and conditions of the contract are thereby changed. 3.104.04 Reports

All change of name or novation agreements effected hereunder other than by the Chief Procurement Officer shall be reported to the Chief Procurement Officer within 30 days of the date that the agreement becomes effective. 3.104.05 Actions Affecting More Than One Purchasing Agency

Notwithstanding the provisions of Subsection 3.104.01, No Assignment, Subsection 3.104.02, Recognition of a Successor in Interest; Novation, Subsection 3.104.03, Change of Name, and Subsection 3.104.04, No Assignment, Recognition of a Successor in Interest; Novation, Change of Name, Reports, when a contractor holds contracts with more than one purchasing agency of the State, the novation or change of name agreements herein authorized shall be processed only through the office of the Chief Procurement Officer. 3.105 Method of Source Selection

Unless otherwise authorized by law, all contracts for commodities, equipment and printing shall be negotiated contracts by the OPTFM as set forth in Subsection 2.103.04, Commodities, Equipment and Printing, or shall be awarded by competitive sealed bidding pursuant to Section 3.106, Competitive Sealed Bids, except as provided in:

(1) Section 3.107, Competitive Sealed Proposals; (2) Section 3.108, Purchases less than $50,000.01; (3) Section 3.109, Sole-Source Procurement; (4) Section 3.110, Emergency Procurements; and

(5) Section 3.111, Competitive Selection Procedures for Services. 3.106 Competitive Sealed Bids

(1) Conditions for Use

Contracts shall be awarded by competitive sealed bidding only after exemption from reverse auction is approved per Section 3.106.22 and except as otherwise provided in Section 3.105, Method of Source Selection.

(2) Invitation for Bids

An Invitation for Bids shall be issued and shall include a purchase description and all

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contractual terms and conditions applicable to the procurement. (3) Public Notice Public notice of Invitation for Bids when anticipated expenditure is more than, $50,000, shall be made in compliance with Section 31-7-13(c), Mississippi Code of 1972, Annotated.

(4) Bid Opening

Bids shall be opened publicly in the presence of one or more witnesses at the time and place designated in the Invitation for Bids. The name of each bidder shall be recorded. The amount of each bid and such other relevant information as may be specified by regulation may be recorded; the record and each bid shall be open to public inspection as provided in Section 1.108, Public Access to Procurement Information.

(5) Bid Acceptance and Bid Evaluation

Bids shall be unconditionally accepted without alteration or correction, except as authorized in these regulations. Bids shall be evaluated based on the requirements set forth in the Invitation for Bids, which may include criteria to determine acceptability such as inspection, testing, quality, workmanship, delivery, and suitability for a particular purpose. Those criteria that will affect the bid price and be considered in evaluation for award shall be objectively measurable. The Invitation for Bids shall set forth the evaluation criteria to be used. No criteria may be used in evaluation that are not set forth in the Invitation for Bids.

(6) Correction or Withdrawal of Bids; Cancellation of Awards

Correction or withdrawal of inadvertently erroneous bids before or after award, or cancellation of awards or contracts based on such bid mistakes shall be permitted in accordance with regulations promulgated by the Office of Purchasing, Travel and Fleet Management. After bid opening, no changes in bid prices or other provisions of bids prejudicial to the interest of the State or fair competition shall be permitted.

Except as otherwise provided by regulation, all decisions to permit the correction or withdrawal of bids, or to cancel awards or contracts based on bid mistakes shall be supported by a written determination made by the Chief Procurement Officer or head of a purchasing agency with the approval of the Chief Procurement Officer.

(7) Award

The contract shall be awarded with reasonable promptness by written notice to the lowest responsible bidder whose bid meets the requirements and criteria set forth in the Invitation for Bids.

(8) Multi-Step Sealed Bidding

When it is considered impractical to initially prepare a purchase description to support an award based on price, an Invitation for Bids may be issued requesting the submission of unpriced offers to be followed by an Invitation for Bids limited to those bidders whose

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offers have been qualified under the criteria set forth in the first solicitation. 3.106.01 Application

The provisions of this regulation apply to every procurement made by competitive sealed bidding, including multi-step sealed bidding. 3.106.02 Use of Competitive Sealed Bidding

Competitive sealed bidding is the preferred method for the procurement of commodities, services, or construction. 3.106.03 Invitation for Bids

3.106.03.1 Use

The Invitation for Bids is used to initiate competitive sealed bid procurement.

3.106.03.2 Content

Invitation for Bids shall include the following:

(1) Instructions and information to bidders concerning the bid submission requirements, including the time and date set for receipt of bids, the address of the office to which bids are to be delivered, the maximum time for bid acceptance by the State, and any other special information.

(2) The purchase description, evaluation factors, delivery or performance schedule, and such inspection and acceptance requirements as are not included in the purchase description.

(3) The contract terms and conditions, including warranty and bonding or other security requirements, as applicable.

3.106.03.3 Incorporation by Reference

The Invitation for Bids may incorporate documents by reference provided that the Invitation for Bids specifies where such documents can be obtained.

3.106.03.4 Invitation for Bids Packet

Normally the Invitation for Bids Packet will be divided into the following sections: (1) General Conditions This section is sometimes referred to as the “boilerplate”. This section includes instructions and information which should be considered by the bidders. This information is standard for all bids and may include how to complete and submit the bid forms, how errors will be handled, how to obtain clarification of the specifications, etc.

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(2) Instructions and Special Conditions

This section includes instructions and information which is pertinent and unique to the particular Invitation for Bids. This may include special delivery requirements, bonding, installation, etc. This section should include information concerning the method used to evaluate and award the contract (i.e., all or none, line item, life-cycle-cost, etc.)

(3) Specifications

This section should clearly describe the minimum requirements and any testing requirements.

(4) Bid Form

A bid form should be provided so that all bidders are submitting pricing in a similar format. Instructions on the proper completion of the bid form should be included if needed.

(5) Execution Page

The packet should include a page for the bidder to complete showing bidder information such as name, contract administrator, address, phone, e-mail, fax, etc. This should also include a space for the bidder to provide a signature indicating the bidder’s acceptance of the terms and conditions and commitment to honoring the prices bid. 3.106.04 Bidding Time

Bidding time is the period of time between the date of distribution of the Invitation for Bids and the time and date set for receipt of bids.

3.106.04.1 Bid Form

The Invitation for Bids should provide a bid form which shall include space in which the bid price shall be inserted and which the bidder shall sign and submit along with all other necessary submissions.

3.106.04.2 Bid Sample and Descriptive Literature

(1) "Descriptive literature" means information available in the ordinary course of business which shows the characteristics, construction, or operation of an item which enables the purchasing entity to consider whether the item meets its needs.

(2) "Bid sample" means a sample to be furnished by a bidder to show the characteristics of the item offered in the bid.

(3) Bid samples or descriptive literature may be required when it is necessary to evaluate required characteristics of the items bid.

(4) The Invitation for Bids may state that bid samples or descriptive literature should not be submitted unless expressly requested and that, regardless of any attempt by a bidder to condition the bid, unsolicited bid samples or descriptive literature which are submitted at

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the bidder's risk will not be examined or tested and will not be deemed to vary any of the provisions of the Invitation for Bids. Further, any sample submitted will be returned only at bidder's expense. It should also be known that when samples are requested, it may be necessary that the sample be damaged or destroyed in the process of evaluation in which case neither the State nor the purchasing agency shall be responsible for reimbursement to the bidder. 3.106.05 Public Notice

3.106.05.1 Publication

Every procurement in excess of $50,000 must be publicized: Section 31-7-13, Mississippi Code of 1972, Annotated.

(1) In a newspaper published in the county or municipality in which the agency is located or a newspaper of statewide general circulation;

(2) By submitting notice to be published to Mississippi Procurement Technical Assistance Program on the same day that the notice is submitted to the newspaper;

3.106.05.2 Content of Advertisement

When composing the advertisement to appear in the legal notice section of the newspaper, the intent is to include information that will promote competition.

Commentary

The following is a suggested guide for a legal advertisement:

The (name of the entity) will accept sealed bids until (time of bid opening), (day of the week), (month), (date), (year) for the purpose of purchasing the following:

o Name of commodity/service you wish to procure,

o Bid file number

o Detailed specifications may be obtained by contacting (name of contact person) at (telephone number), at (physical mailing address) or at (email address).

3.106.05.3 Mississippi Procurement Technical Assistance Program

Section 31-7-13(c)(i), Mississippi Code of 1972, Annotated, clearly states, "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 that contains the same information as that in the published notice."

Agencies which utilize the MAGIC system to publicize the Invitation for Bids shall be deemed in

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compliance with this provision by ensuring that the start date of the RFx corresponds with the first date of advertisement in the newspaper.

3.106.05.4 Advertising Time

Advertising time is the period of time between the date of publication of the advertisement and the time and date set for receipt of bids. This time is set by Section 31-7-13(c), Mississippi Code of 1972, Annotated. This section shall be interpreted to mean the advertisement for bids must be published once each week for two consecutive weeks with the second notice being published on or after the 7th calendar day after the first notice was published. The date set for the bid opening for commodities, equipment or printing must not be less than seven (7) working days after the last notice appears in the newspaper. Therefore, the bid opening must not be sooner than the 8th working day. The bid opening for construction projects with total cost in excess of $50,000 must not be less than 15 working days after the last notice appears in the newspaper. Therefore, the bid opening must not be sooner than the 16th working day. Working days are defined as days that your entity is officially open for business.

3.106.05.5 Public Availability

The Invitation for Bids must be made available for any interested party at the location specified in the published notice. 3.106.06 Bidders Lists

3.106.06.1 Purpose

Bidder’s lists should be compiled to provide the purchasing entity with the names of businesses that may be interested in competing for various types of Mississippi contracts. Unless otherwise provided, inclusion or exclusion of the name of a business does not indicate whether the business is responsible in respect to a particular procurement or otherwise capable of successfully performing a Mississippi contract.

3.106.06.2 Deletion of Bidders

Businesses that fail to respond to four consecutive bid invitations on any item within a class may be removed from the applicable bidders list after notice to the bidder for that particular class/item. Prospective bidders currently meeting the criteria for inclusion on the list may be reinstated on such lists at their request.

3.106.06.3 Public Availability

Names and addresses on bidder’s lists may be available for public inspection provided these lists must not be used for private promotional, commercial, or marketing purposes. 3.106.07 Pre-Bid Conferences

Pre-bid conferences may be conducted to explain the procurement requirements. They must be announced to all prospective bidders known to have received an Invitation for Bids. The conference should be held long enough after the Invitation for Bids has been issued to allow bidders to become familiar with it but sufficiently before bid opening to allow bidders to make any adjustments based on clarifications made during the conference. Nothing stated at the pre-

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bid conference shall change the Invitation for Bids unless a change is made by written amendment as provided in Subsection 3.106.08, Amendments to Invitations for Bids. In no case shall it be mandatory for any prospective bidder to attend any such pre-bid conference. 3.106.08 Amendments to Invitations for Bids

3.106.08.1 Form

Amendments to Invitations for Bids shall be identified as such and may require that the bidder acknowledge receipt of all amendments issued. The amendment shall reference the portions of the Invitation for Bids it amends.

3.106.08.2 Distribution

Amendments must be sent to all prospective bidders known to have received an Invitation for Bids.

3.106.08.3 Timelines

Amendments shall be distributed within a reasonable time to allow prospective bidders to consider them in preparing their bids. If the time and date set for receipt of bids will not permit such preparation, such time shall be increased to the extent possible in the amendment. As per Section 31-7-13(c)(ii), Mississippi Code of 1972, Annotated, 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.

Commentary

Amendments should be used to:

(1) Make any changes in the Invitation for Bids such as changes in quantity, purchase descriptions, delivery schedules, and opening dates;

(2) Correct defects or ambiguities; or

(3) Furnish to other bidders information given to one bidder if such information will assist the other bidders in submitting bids or if the lack of such information would prejudice the other bidders. Any such information when not given to all bidders shall be cause for rejecting all bids.

3.106.09 Pre-Opening Modification or Withdrawal of Bids

3.106.09.1 Procedure

Bids may be modified or withdrawn by written notice received in the office designated in the Invitation for Bids prior to the time and date set for bid opening.

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3.106.09.2 Records

All documents relating to the modification or withdrawal of bids shall be made a part of the appropriate procurement file. 3.106.10 Late Bids, Late Withdrawals, and Late Modifications

3.106.10.1 Definition

Any bid received after the time and date set for receipt of bids is late. Any withdrawal or modification of a bid received after the time and date set for opening of bids at the place designated for opening is late.

3.106.10.2 Treatment

No late bid, late modification, or late withdrawal will be considered unless receipt would have been timely but for the action or inaction of state personnel directly serving the procurement activity.

3.106.10.3 Notice

Bidders submitting late bids which shall not be considered for award shall be so notified as soon as practicable.

3.106.10.4 Records

Records equivalent to those required in Subsection 3.106.09.2, Pre-Opening Modification or Withdrawal of Bids, Records, shall be made and kept for each late bid, late modification, or late withdrawal. 3.106.11 Receipt, Opening, and Recording of Bids

3.106.11.1 Receipt

Upon its receipt, each bid and modification shall be date-stamped or time/date-stamped but not opened and shall be stored in a secure place until the time and date set for bid opening. Electronic bids received will be stored in an electronic lockbox until the time designated for the bid opening.

3.106.11.2 Opening and Recording

Bids and modifications shall be opened publicly, in the presence of two or more individuals, at the time, date, and place designated in the Invitation for Bids. The name of each bidder, the bid price, and such other information as is deemed appropriate by the Agency Procurement Officer, shall be read aloud or otherwise made available. Such information also may be recorded at the time of bid opening; that is, the bids may be tabulated or a bid abstract made. The names of required witnesses shall also be recorded at the opening. The opened bids shall be available for inspection by participants except to the extent the bidder designates trade secrets or other proprietary data to be confidential as set forth in Subsection 3.106.11.3, Confidential Data. Material so designated shall accompany the bid and shall be readily separable from the bid in order to facilitate public inspection of the nonconfidential portion of the bid. Prices and makes and models or catalog numbers of the items offered, deliveries, and terms of payment shall be publicly available at the time of bid opening regardless of any designation to the contrary. Bids

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shall be available for inspection at any time subsequent to the awarding of the contract affected by those bids. Inspection shall be in compliance with Section 1.108, Public Access to Procurement Information.

3.106.11.3 Confidential Data

The Agency Procurement Officer shall examine the bids to determine the validity of any requests for nondisclosure of trade secrets and other proprietary data identified in writing. If the parties do not agree as to the disclosure of data, the Agency Procurement Officer shall inform the bidders in writing what portions of the bids will be disclosed and that, unless the bidder protests under Chapter 6, Legal and Contractual Remedies, the bids will be so disclosed. The bids shall be open to inspection as set forth in Section 1.108, Public Access to Procurement Information, subject to any continuing prohibition on the disclosure of confidential data.

Commentary

It may be appropriate to establish bid receipt times for commodity contracts no earlier than 2:00 p.m. on Tuesday through Friday and not to set bid receipt for the day after a legal holiday.

3.106.12 Mistakes in Bids

3.106.12.1 General

Correction or withdrawal of a bid because of an inadvertent, nonjudgmental mistake in the bid requires careful consideration to protect the integrity of the competitive bidding system and to assure fairness. If the mistake is attributable to an error in judgment, the bid may not be corrected. Bid correction or withdrawal by reason of a nonjudgmental mistake is permissible but only to the extent it is not contrary to the interest of the State or the fair treatment of other bidders.

3.106.12.2 Mistakes Discovered Before Opening

A bidder may correct mistakes discovered before the time and date set for bid opening by withdrawing or correcting the bid as provided in Subsection 3.106.09, Pre-Opening Modification or Withdrawal of Bids.

3.106.12.3 Confirmation of Bid

When the Agency Procurement Officer knows or has reason to conclude that a mistake has been made, such officer should request the bidder to confirm the bid. Situations in which confirmation should be requested include obvious, apparent errors on the face of the bid or a bid unreasonably lower than the other bids submitted. If the bidder alleges mistake, the bid may be corrected or withdrawn if the conditions set forth in Subsection 3.106.12.4, Mistakes Discovered After Opening but Before Award, Subsection 3.106.12.5, Mistakes Discovered After Award, and 3.106.12.6, Determinations Required, are met.

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3.106.12.4 Mistakes Discovered After Opening but Before Award

This subsection sets forth procedures to be applied in three situations described in Subsection 3.106.12.4 (1), Minor Informalities, Subsection 3.106.12.4 (2), Mistakes Where Intended Correct Bid Is Evident, and Subsection 3.202.13.4 (3), Mistakes Where Intended Correct Bid is Not Evident, in which mistakes in bids are discovered after the time and date set for bid opening but before award.

(1) Minor Informalities

Minor informalities are matters of form rather than substance evident from the bid document, or insignificant mistakes that can be waived or corrected without prejudice to other bidders; that is, the effect on price, quantity, quality, delivery, or contractual conditions is negligible. The Agency Procurement Officer shall waive such informalities or allow the bidder to correct them depending on which is in the best interest of the State. Examples include the failure of a bidder to:

(a) Return the number of signed bids required by the Invitation for Bids;

(b) Sign the bid, but only if the unsigned bid is accompanied by other material indicating the bidder's intent to be bound;

(c) Failure to submit literature or samples with bid provided that such literature or samples shall be received prior to any award being made; or

(d) Acknowledge receipt of an amendment to the Invitation for Bids, but only if:

(i) It is clear from the bid that the bidder received the amendment and intended to be bound by its terms; or

(ii) The amendment involved had a negligible effect on price, quantity, quality, or delivery.

(2) Mistakes Where Intended Correct Bid Is Evident

If the mistake and the intended correct bid are clearly evident on the bid document, the bid shall be corrected on the intended correct bid and may not be withdrawn. Examples of mistakes that may be clearly evident on the bid document are typographical errors, errors in extending unit prices, and mathematical errors.

(3) Mistakes Where Intended Correct Bid is Not Evident

A bidder may be permitted to withdraw a low bid if:

(a) A mistake is clearly evident on the bid document, but the intended correct bid is not similarly evident; or

(b) The bidder submits proof of evidentiary value which clearly and convincingly demonstrates that a mistake was made.

3.106.12.5 Mistakes Discovered After Award

Mistakes shall not be corrected after award of the contract except where the Chief Procurement Officer or the Agency Procurement Officer makes a written determination that it would be

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unconscionable not to allow the mistake to be corrected.

3.106.12.6 Determinations Required

When a bid is corrected or withdrawn, or correction or withdrawal is denied, under Subsections 3.106.12.4, Mistakes Discovered After Opening but Before Award, or 3.106.12.5, Mistakes Discovered After Award, the Chief Procurement Officer or the Agency Procurement Officer shall prepare a written determination showing that the relief was granted or denied in accordance with these regulations, except that the Agency Procurement Officer shall approve the determination required under Subsection 3.106.12.4 (1), Minor Informalities. 3.106.13 Bid Evaluation and Award

3.106.13.1 General

The contract is to be awarded to the lowest and best responsible/responsive bidder whose bid meets the requirements and criteria set forth in the Invitation for Bids. See Subsection 3.106.14.2, Award. The Invitation for Bids shall set forth the requirements and criteria which will be used to determine the lowest and best responsible/ responsive bidder. No bid shall be evaluated for any requirement or criterion that is not disclosed in the Invitation for Bids.

3.106.13.2 Responsibility and Responsiveness

Responsibility of prospective contractors is covered by Section 3.113, Responsibility of Bidders and Offerers. Responsiveness of bids is covered by Subsection 3.101.01 (6), Responsive Bidder, which defines responsive bidder as "a person who has submitted a bid which conforms in all material respects to the Invitation for Bids."

3.106.13.3 Product Acceptability

The Invitation for Bids shall set forth any evaluation criterion to be used in determining product acceptability. It may require the submission of bid samples, descriptive literature, technical data, or other material. It may also provide for accomplishing any of the following prior to award:

(1) Inspection or testing of a product prior to award for such characteristics as quality or workmanship.

(2) Examination of such elements as appearance, finish, taste, or feel.

(3) Other examinations to determine whether it conforms with any other purchase description requirements.

The acceptability evaluation is not conducted for the purpose of determining whether one bidder's item is superior to another but only to determine that a bidder's offering is acceptable as set forth in the Invitation for Bids. Any bidder's offering which does not meet the acceptability requirements shall be rejected as non-responsive.

3.106.13.4 Determination of Lowest and Best Bidder

Following determination of product acceptability as set forth in Subsection 3.106.13.3, Product Acceptability, if any is required, bids will be evaluated to determine which bidder offers the lowest cost to the State in accordance with the evaluation criteria set forth in Subsection 3.106.03, Invitation for Bids. Only objectively measurable criteria which are set forth in

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Subsection 3.106.13.4, Determination of Lowest and Best Bidder, shall be applied in determining the lowest and best bidder. Examples of such criteria include, but are not limited to, guaranteed buy back and ownership or life-cycle cost formulas. Evaluation factors need not be precise predictors of actual future costs, but to the extent possible such evaluation factors shall:

(1) Be reasonable estimates based upon information the State has available concerning future use; and

(2) Treat all bids equitably.

3.106.13.5 Restrictions

Nothing in this section shall be deemed to permit contract award to a bidder submitting a higher quality item than that designated in the Invitation for Bids if such bidder is not also the lowest bidder as determined under Subsection 3.106.13.4, Determination of Lowest and Best Bidder. Further, this section does not permit negotiations with any bidder.

Commentary

The following is an example of a life cycle cost evaluation procedure for purchasing window air conditioners.

Life Cycle Cost Evaluation

All proposals meeting the requirements of this specification will be evaluated on the basis of Life Cycle Cost (LCC). The LCC is the initial purchase price, plus the operating costs over an anticipated life expectancy. The LCC evaluation formula is as follows:

EC = CO ÷ EER + P

Where: EC = Total evaluated cost ($) over the 5-year compressor warranty period.

P = Bid Price ($)

CO = Anticipated operating cost factor of the unit over the 5-year warranty period.

EER = The certified Energy Efficiency Ratio.

The EER is the quotient obtained by dividing the BTU/hr. output by the electrical watts input during cooling.

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This value represents the relative electrical efficiency of room air conditioners. (Use higher EER where there is a dual voltage.) CO = (R) (H) (K) Where: R = Rated minimum capacity from the bid form.

H = Total operating hours over 5-year period in each area. (5000 hours)* K = Cost of electricity within each area in $/watt hour K = $0.07 per kilowatt-hour = $0.00007 per watt-hour

Vendor A bid $375 for a 12,000 btu unit with an EER of 10.0

Vendor B bid $345 for a 12,000 btu unit with an EER of 9.2

Looking only at price the contract would be awarded to Vendor B. Using the calculations: Vendor A, EC = (12,000 x 5000 x .00007) / 10 + $375 = $795.00

Vendor B, EC = (12,000 x 5000 x .00007) / 9.2 + $345 = $801.52

As can be seen by this example, the higher priced air conditioner with the higher energy efficiency ratio is the better purchase because of the lower total cost over the life of ownership. The contract would be awarded to Vendor A.

3.106.14 Low Tie Bids

3.106.14.1 Definition

Low tie bids are low responsive bids from responsible bidders that are identical in price and which meet all the requirements and criteria set forth in the Invitation for Bids.

3.106.14.2 Award

The prime criterion for making an award where tie bids are involved shall be in compliance with Section 31-7-15(1), Mississippi Code 1972, Annotated; i.e., that resident vendors shall be given preference over non-resident vendors. Award shall not be made by a coin toss, except as set forth below, or by dividing business among identical bidders. In the discretion of the Chief Procurement Officer or the Agency Procurement Officer, award shall be made in any permissible manner that will discourage tie bids. If no permissible method will be effective in discouraging tie bids, and a written determination is made so stating, award may be made by a coin toss. In such case, those bidders involved shall be invited to attend the procedure, and two agency employees shall act as witnesses.

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3.106.14.3 Record

Records shall be made of all Invitation for Bids on which tie bids are received showing at least the following information:

(1) The identification number of the Invitation for Bids. (2) The supply, service, or construction item. (3) A listing of all the bidders and the prices submitted. 3.106.15 Documentation of Award

Following award, a record showing the basis for determining the successful bidder shall be made a part of the procurement file.

3.106.16 Publicizing Awards

Written notice of award shall be sent to the successful bidder. Notice of award shall be made available to the public. 3.106.17 Multi-Step Sealed Bidding

3.106.17.1 Definition

Multi-step sealed bidding is a two-phase process consisting of a technical first phase composed of one or more steps in which bidders submit unpriced technical offers to be evaluated by the State, and a second phase in which those bidders whose technical offers are determined to be acceptable during the first phase have their price bids considered. It is designed to obtain the benefits of competitive sealed bidding by the awarding of a contract to the lowest responsive, responsible bidder and at the same time obtain the benefits of the competitive sealed proposals procedure through the solicitation of technical offers and the conduct of discussions to evaluate and determine the acceptability of technical offers.

3.106.17.2 Conditions for Use

The multi-step sealed bidding method may be used when it is not practical to prepare initially a definitive purchase description which will be suitable to permit an award based on price. No multi-step sealed bidding method of purchasing will be permitted unless approved by the Chief Procurement Officer or his/her designee. Multi-step sealed bidding may, thus, be used when it is considered desirable:

(1) To invite and evaluate technical offers to determine their acceptability to fulfill the purchase description requirements;

(2) To conduct discussions for the purposes of facilitating understanding of the technical offer and purchase description requirements and, where appropriate, obtain supplemental information, permit amendments of technical offers, or amend the purchase description;

(3) To accomplish Subsections 3.106.17.2 (1)and (2), Multi-Step Sealed Bidding, Conditions for Use, prior to soliciting priced bids; and

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(4) To award the contract to the lowest responsive and responsible bidder in accordance with the competitive sealed bidding procedures. 3.106.18 Pre-Bid Conferences in Multi-Step Sealed Bidding

Prior to the submission of unpriced technical offers, a pre-bid conference as contemplated by Subsection 3.106.07, Pre-Bid Conferences, may be conducted by the Agency Procurement Officer. The Agency Procurement Officer may also hold a conference of all potential bidders in accordance with Subsection 3.106.07, Pre-Bid Conferences, at any time during the evaluation of the unpriced technical offers. 3.106.19 Procedure for Phase One of Multi-Step Sealed Bidding

3.106.19.1 Form

Multi-step sealed bidding shall be initiated by the issuance of an Invitation for Bids in the form required by Subsection 3.106.03, The Invitation for Bids, except as hereinafter provided. In addition to the requirements set forth in Subsection 3.106.03, The Invitation for Bids, shall state:

(1) That unpriced technical offers are requested;

(2) Whether priced bids are to be submitted at the same time as unpriced technical offers; if they are, such priced bids shall be submitted in a separate sealed envelope;

(3) That it is a multi-step sealed bid procurement, and priced bids will be considered only in the second phase and only from those bidders whose unpriced technical offers are found acceptable in the first phase;

(4) The criteria to be used in the evaluation of the unpriced technical offers;

(5) That the State, to the extent the Agency Procurement Officer finds necessary, may conduct oral or written discussions of the unpriced technical offers;

(6) That bidders may designate those portions of the unpriced technical offers which contain trade secrets or other proprietary data which are to remain confidential; and

(7) That the item being procured shall be furnished in accordance with the bidder's technical offer as found to be finally acceptable and shall meet the requirements of the Invitation for Bids.

3.106.19.2 Amendments to the Invitation for Bids

After receipt of unpriced technical offers, amendments to the Invitation for Bids shall be distributed only to bidders who submitted unpriced technical offers, and they shall be permitted to submit new unpriced technical offers or to amend those submitted. If, in the opinion of the Agency Procurement Officer, a contemplated amendment will significantly change the nature of the procurement, the Invitation for Bids shall be canceled in accordance with Subsection 3.112.04, Cancellation of Solicitation; Rejection of All Bids or Proposals, and a new Invitation for Bids issued.

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3.106.19.3 Receipt and Handling of Unpriced Technical Offers

Unpriced technical offers shall not be opened publicly but shall be opened in front of two or more (procurement) officials. Such offers shall not be disclosed to unauthorized persons. Bidders may request nondisclosure of trade secrets and other proprietary data identified in writing.

3.106.19.4 Evaluation of Unpriced Technical Offers

The unpriced technical offers submitted by bidders shall be evaluated solely in accordance with the criteria set forth in the Invitation for Bids. The unpriced technical offers shall be categorized as:

(1) Acceptable;

(2) Potentially acceptable; that is, reasonably susceptible of being made acceptable; or

(3) Unacceptable. The Agency Procurement Officer shall record in writing the basis for finding an offer unacceptable and make it part of the procurement file.

The Agency Procurement Officer may initiate Phase Two of the procedure if, in the Agency Procurement Officer’s opinion, there are sufficient acceptable unpriced technical offers to assure effective price competition in the second phase without technical discussions. If the Agency Procurement Officer finds that such is not the case, the Agency Procurement Officer shall issue an amendment to the Invitation for Bids or engage in technical discussions as set forth in Subsection 3.106.19.5, Discussion of Unpriced Technical Offers.

3.106.19.5 Discussion of Unpriced Technical Offers

The Agency Procurement Officer may conduct discussions with any bidder who submits an acceptable or potentially acceptable technical offer. During the course of such discussions, the Agency Procurement Officer shall not disclose any information derived from one unpriced technical offer to any other bidder. Once discussions are begun, any bidder who has not been notified that its offer has been finally found unacceptable may submit supplemental information amending its technical offer at any time until the closing date established by the Agency Procurement Officer. Such submission may be made at the request of the Agency Procurement Officer or upon the bidder’s own initiative.

Commentary

It is considered desirable for the Agency Procurement Officer to keep a record of the date, place, and purpose of meeting and those attending.

3.106.19.6 Notice of Unacceptable Unpriced Technical Offer

When the Agency Procurement Officer determines a bidder’s unpriced technical offer to be unacceptable, such offerer shall not be afforded an additional opportunity to supplement its technical offer.

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3.106.20 Mistakes During Multi-Step Sealed Bidding

Mistakes may be corrected or bids may be withdrawn during Phase One at any time. During Phase Two, mistakes may be corrected or withdrawal permitted in accordance with Subsection 3.106.12, Mistakes in Bids. 3.106.21 Procedure for Phase Two

3.106.21.1 Initiation

Upon the completion of Phase One, the Agency Procurement Officer shall either:

(1) Open priced bids submitted in Phase One (if priced bids were required to be submitted) from bidders whose unpriced technical offers were found to be acceptable;

or

(2) If priced bids have not been submitted, technical discussions have been held, or amendments to the Invitation for Bids have been issued, invite each acceptable bidder to submit a priced bid.

3.106.21.2 Conduct

Phase Two shall be conducted as any other competitive sealed bid procurement except:

(1) No public notice need be given of this invitation to submit priced bids because such notice was previously given;

(2) After award the unpriced technical offer of the successful bidder shall be disclosed as follows. The Agency Procurement Officer shall examine written requests of confidentiality for trade secrets and proprietary data in the technical offer of such bidder to determine the validity of any such requests. If the parties do not agree as to the disclosure of data, the Agency Procurement Officer shall inform the bidder in writing what portions of the unpriced technical offer will be disclosed and that, unless the bidder protests under Chapter 6, Legal and Contractual Remedies, the offer will be so disclosed. Such technical offer shall be open to public inspection subject to any continuing prohibition on the disclosure of confidential data; and

(2) Unpriced technical offers of bidders who are not awarded the contract shall not be open to public inspection unless the Chief Procurement Officer determines in writing that public inspection of such offers is essential to assure confidence in the integrity of the procurement process; provided, however, that the provisions of Subsection 3.106.21.2, Procedure for Phase Two, Conduct, shall apply with respect to the possible disclosure of trade secrets and proprietary data.

Commentary

The obligation to keep data confidential is not intended to create any liability that would not otherwise exist under State law.

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3.106.22 Reverse Auctions Reverse auctions shall be the primary method for receiving bids during the bidding process. Generally speaking, reverse auctions are not recommended for highly customized specifications where only a small number of suppliers will be able to respond. Commodities that are clearly defined by industry standards (e.g., “off the shelf” items), with very many suppliers, where the supplier relationship is transactional and costs to switch among suppliers are negligible are good candidates for reverse auctions. By comparison, a procurement for a patented or highly technical and complex good that has a single or few suppliers may not be a good candidate for reverse auctions.

3.106.22.1 Initiation

In general, purchasing entities should follow the procedures set forth in Section 3.106 regarding Invitations for Bids and Public Notice, modifying the Advertisement and Invitation for Bids to reflect the use of reverse auction.

3.106.22.2 Invitation for Bids Packet

In addition to the content prescribed in Section 3.106.03, the Invitation for Bids must contain sections detailing:

(1) The Timing of the Auction

The Invitation for Bids shall be advertised in accordance with Section 3.106.05.4 herein, and the deadline to receive initial responses by suppliers shall be not less than seven (7) working days after the last notice appears in the newspaper. After such deadline has passed, the submissions shall be taken under advisement for prequalification. The reverse auction should occur only after the purchasing agent has had sufficient time to prequalify the suppliers. Such anticipated time shall be included in the Invitation for Bids Packet; however, the purchasing agent should reserve the right to extend the auction date if necessary to complete prequalification.

(2) The Prequalification Process

The initial response to the Invitation for Bids shall include a proposed product, including specifications and/or samples, for the purchasing entity to evaluate and determine responsiveness to requirements. Once a supplier’s product is determined to be responsive, the supplier may participate in the reverse auction.

(3) Quotes

Responding suppliers must provide a quote with the initial response. Quotes are utilized by the purchasing agent to determine market pricing and set the auction parameters (e.g., Start Price).

(4) Instructions on Accessing the Auction

Suppliers should be given detailed instructions on how to access the reverse auction event, including how to gain access to the system utilized and what technical requirements may be involved. However, no supplier may be prohibited from participating in person by paper through surrogate bidding.

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(5) The Award Process

Suppliers should be advised that no award will automatically result from a reverse auction, and that the purchasing entity will review the results of the auction and make a determination in a timely manner.

3.106.22.3 State Agencies

State agencies shall utilize the State’s ERP system, MAGIC, to perform reverse auctions. Detailed instructions for both agency buyers and suppliers may be accessed on OPTFM’s website.

3.106.22.4 Governing Authorities

Governing authorities may utilize any responsible reverse auction company to provide the auction services, however OPTFM recommends that governing authorities utilize the state contracts established for such services by the Mississippi Department of Information Technology Services.

3.106.22.5 Alternative Processes

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 the 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 OPTFM.

State agencies may request approval to use an alternative process through MAGIC. Governing authorities may request approval to use an alternative process through use of the Exemption Form provided on OPTFM’s website.

The Public Procurement Review Board must approve any contract entered into by alternative processes.

3.106.22.6 Exemptions

Reverse auction shall not be required for:

(1) Any public contract for design or construction of public facilities, including buildings, roads and bridges; or

(2) Procurements made by the individual state institutions of higher learning via competitive sealed bidding.

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3.106.23 Electronic Bidding

3.106.23.1 Application

When utilizing the Competitive Sealed Bidding method provided herein agencies and governing authorities shall provide a secure electronic interactive system for the submittal of such bids as an additional bidding option for those bidders who choose to submit their bids electronically. No bidder shall be required 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.

3.106.23.2 State Agencies

State agencies shall utilize MAGIC for the receipt of bids electronically and shall include in the Invitation for Bids packet instructions for supplier access to MAGIC.

3.106.23.3 Governing Authorities

Governing authorities may utilize any responsible electronic bidding company to provide the electronic bidding services, however OPTFM recommends that governing authorities utilize the state contracts established for such services by the Mississippi Department of Information Technology Services.

3.106.23.4 Exemptions

The electronic bidding option does not have to be provided by:

(1) Any governing authority without available high speed Internet access,

(2) any county having a population of less than twenty thousand (20,000), or

(3) any municipality having a population of less than ten thousand (10,000). 3.107 Competitive Sealed Proposals 3.107.01 Application

Except as otherwise provided by law, the provisions of Section 3.107 shall apply to every procurement of commodities, supplies, equipment, construction, technology, personal and

professional services other than those in Section 27-104-7(2)(f) and (8), state agency employee benefits, supplemental insurance and cafeteria plans, that are solicited by any state agency by a request for proposals or request for qualifications. The following provisions are intended to ensure that the best practices for soliciting requests for proposals or requests for qualifications are implemented.

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3.107.02 Conditions for Use (1) Competitive sealed bidding is the preferred method of procurement; however, if it is not practicable and advantageous, a request for proposals or request for qualifications may be used. The terms "practicable" and "advantageous" are to be given ordinary dictionary meanings. The term "practicable" denotes what may be accomplished or put into practical application. "Advantageous" denotes a judgmental assessment of what is in the state's best interest.

(2) The following factors shall be considered when determining advantageousness:

(a) The need for flexibility;

(b) The type of evaluations that will be needed after offers are received;

(c) Whether the evaluation factors involve the relative abilities of offerers to perform, including degrees of technical or professional experience or expertise;

(d) Whether the type of need to be satisfied involves weighing artistic and aesthetic values to the extent that price is a secondary consideration;

(e) Whether the types of supplies, services or construction may require the use of comparative judgmental evaluations to evaluate them adequately; and

(f) Whether prior procurements indicate that a request for proposals may result in more beneficial contracts for the state.

(3) The following factors shall be considered when determining practicability:

(a) Whether the contract needs to be a contract other than a fixed-price type contract;

(b) Whether oral or written discussions may need to be conducted with offerers concerning technical and price aspects of their proposals;

(c) Whether offerers may need to be afforded the opportunity to revise their proposals, including price;

(d) Whether the award may need to be based upon a comparative evaluation of differing price and contractual factors as well as quality factors that include technical and performance capability and the content of the technical proposal; and (e) Whether the primary consideration in determining award may not be price.

(4) If the head purchasing agent at an agency or his or her designee determines, in writing, that the use of competitive sealed bidding is either not practicable or not advantageous to the state, he or she shall submit a detailed explanation of the reasons for that determination to the Public Procurement Review Board by submitting same in writing on agency letterhead to OPTFM. If the Public Procurement Review Board determines that competitive sealed bidding is either not practicable or not advantageous to the state, then a contract may be entered into for the procurement of commodities, supplies, equipment, construction, technology, personal and professional services, state agency purchased employee benefits or state agency supplemental

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insurance and cafeteria plans, by a request for proposals or request for qualifications. However, these procurements contracted for through a request for proposals or request for qualifications may not be combined or included in a contract with other procurements that are required to be procured through competitive sealed bidding so as to avoid the statutory obligation for procurement through competitive sealed bidding. The board may modify or revoke its determination at any time, and the determination should be reviewed for current applicability from time to time.

(5) In addition to determining whether a request for proposals or request for qualifications would be practicable and advantageous to the state, when making the decision to use a request for proposals or request for qualifications, the head purchasing agent shall consider the following factors:

(a) Whether quality, availability or capability is overriding in relation to price in procurements for research and development, technical supplies or services;

(b) Whether the initial installation needs to be evaluated together with later maintenance and service capabilities and what priority should be given to these requirements in the best interests of the state; and

(c) Whether the marketplace will respond better to a solicitation permitting not only a range of alternative proposals but evaluation and discussion of them before making the award. 3.107.03 Content of the Request for Proposals or Request for Qualifications

(1) The request for proposals or request for qualifications shall include the following:

(a) Instructions and information to offerers concerning the request for proposals or request for qualifications submission requirements, including the time and date set for receipt of proposals or qualifications, the address of the office to which proposals or qualifications are to be delivered, the maximum time for proposal or qualification acceptance by the state, the manner in which proposals or qualifications are to be submitted, including any forms for that purpose and any other special information;

(b) The purchase description, evaluation factors, delivery or performance schedule and any inspection and acceptance requirements that are not included in the purchase description;

(c) The contract terms and conditions, including warranty and bonding or other security requirements, as applicable;

(d) A statement that discussions may be conducted with offerers who submit proposals or qualifications determined to be reasonably susceptible of being selected for the award, but that proposals or qualifications may be accepted without such discussions; and

(e) A statement of when and how price should be submitted.

(2) The request for proposals or request for qualifications may incorporate documents by reference provided that the request for proposals or request for qualifications specifies where those documents can be obtained.

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(3) Proposal or qualification preparation time shall be set to provide offerers a reasonable time to prepare their proposals or qualifications. A minimum of thirty (30) days shall be provided unless a shorter time is deemed necessary for a particular procurement as determined in writing by the head purchasing agent of the requesting agency. 3.107.04 Public Notice

(1) In addition to any method of public notice regarding the solicitation of requests for proposals or requests for qualifications currently being used by state agencies, the head purchasing agent shall also have posted on the Mississippi procurement portal and on the soliciting agency's website, public notification of a pending procurement through request for proposals or request for qualifications. The notice shall include the following:

(a) The due date for responses;

(b) The name and phone number of the officer conducting the procurement; and

(c) The means of obtaining the solicitation.

(2) The notice shall be posted at least thirty (30) days before the date that proposals or qualifications are to be submitted to the head purchasing agent, unless a shorter time is deemed necessary for a particular procurement as determined in writing by the head purchasing agent of the requesting agency.

(3) Each head purchasing agent may determine that other methods of public notification are best for that particular agency or that particular request for proposals or request for qualifications. If such a determination is made, the head purchasing agent may provide notice in an alternative manner about the request for proposals or request for qualifications in addition to the methods provided for in Section 3.107.

(4) OPTFM shall monitor agency websites and the Mississippi procurement portal to ensure that the agencies are posting the required notice. OPTFM shall audit agencies and report its findings to the Chairs of the House of Representatives and Senate Accountability, Efficiency and Transparency Committees and House of Representatives and Senate Appropriations Committees by December 31 of each year. 3.107.05 Pre-Proposal Conferences

(1) Pre-proposal conferences may be conducted to explain the procurement requirements. If a head purchasing agent plans to hold such a conference, he or she shall prominently place the notification in the request for proposals or request for qualifications solicitation. The notification shall include the date, time and location of the conference. If the head purchasing agent decides to hold a pre-proposal conference after the request for proposals or request for qualifications has been sent out, then he or she shall notify all prospective offerers known to have received a request for proposals or request for qualifications.

(2) If a pre-proposal conference is held, it shall be at least fourteen (14) days after the request for proposals or request for qualifications has been issued. In setting the time for the conference,

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the head purchasing agent shall consider the complexity of the procurement and the potential modifications that may need to be made after the conference and any amendments to the solicitation that the head purchasing agent may need to make after the conference.

(3) The head purchasing agent issuing the request for proposals or request for qualifications shall serve as chair of the conference. Offerers attending the conference shall be required to sign an attendance sheet provided by the soliciting agency. The chair shall announce at the beginning of the conference how the conference is to be handled. The conference shall be recorded. The head purchasing agent may mandate attendance at a conference if he or she feels it is critical to understanding the solicitation. Once the conference is over, the head purchasing agent shall put the recordings from the conference and the questions and answers from the conference in writing and send them to the offerers who received the request for proposals or request for qualifications and post them on the Mississippi procurement portal and the soliciting agency's website. 3.107.06 Drafting the Request for Proposals or Request for Qualifications

(1) In addition to the items listed in Section 3.107, the contents of a request for proposals or request for qualifications shall also include the following:

(a) A statement that discussions may be conducted with offerers who submit proposals or qualifications determined to be reasonably susceptible of being selected for the award, but that proposals or qualifications may also be accepted without those discussions; and

(b) A statement of when and how price should be submitted.

(2) The request for proposals or request for qualifications shall indicate, either by the order listed, weights or some other manner, the order of importance of the evaluation criteria.

(3) The request for proposals or request for qualifications, its amendments, the offerer's proposals or qualifications and the best and final offer shall constitute the contract. 3.107.07 Evaluation Factors in the Request for Proposals or Request for Qualifications

(1) When the head purchasing agent submits the determination that the use of competitive sealed bidding is either not practicable or not advantageous to the state to the Public Procurement Review Board for its approval, he or she shall include in that submission the evaluation factors that will be used in reviewing the submitted proposals or qualifications. The evaluation factors shall be approved by the Public Procurement Review Board in the same way that the decision to solicit procurements through a request for proposals or request for qualifications must be approved.

(2) (a) The request for proposals or request for qualifications shall state all of the approved evaluation factors, including price, and their relative importance. When the head purchasing agent is determining the weights and importance of each evaluation factor, price as an evaluation factor shall be given the highest criteria weighting and at least thirty- five percent (35%) out of the one hundred percent (100%) total weight of all the other evaluation factors. The evaluation shall be based on the evaluation factors set forth in the request for proposals or request for qualifications. The evaluation factors used and the weights given to each shall be decided and agreed to by the evaluation committee before

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the opening of any proposal or qualification. Numerical rating systems shall be used when determining the weight and importance of each evaluation factor. Factors not specified in the request for proposals or request for qualifications shall not be considered. Upon completion of the evaluation, the evaluation score sheets used to review the submitted proposals or qualifications shall be made part of the report required under Section 3.107.12(1) herein.

(b) The following, as appropriate to individual circumstances, shall be used as criteria for evaluating requests for proposals or requests for qualifications under the request for proposals or request for qualifications process described in Section 3.107 herein. These factors are not intended to be limiting or all-inclusive, and they may be adapted or supplemented in order to meet a soliciting agency's individual needs as the competitive procurement process requires.

(i) Technical factors (Proposed methodology):

1. Does the offerer's proposal or qualification demonstrate a clear understanding of the scope of work and related objectives?

2. Is the offerer's proposal or qualification complete and responsive to the specific request for proposals or request for qualifications requirements?

3. Has the past performance of the offerer's proposed methodology been documented?

4. Does the offerer's proposal or qualification use innovative technology and techniques?

(ii) Management factors (Factors that will require the identity of the offerer to be revealed must be submitted separately from other factors):

1. Project management:

a. How well does the proposed scheduling timeline meet the needs of the soliciting agency?

b. Is there a project management plan?

2. History and experience in performing the work:

a. Does the offerer document a record of reliability of timely delivery and on-time and on-budget implementation?

b. Does the offerer demonstrate a track record of service as evidenced by on-time, on-budget, and contract compliance performance?

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c. Does the offerer document industry or program experience?

d. Does the offerer have a record of poor business ethics?

3. Availability of personnel, facilities, equipment and other resources:

a. To what extent does the offerer rely on in-house resources vs. contracted resources?

b. Are the availability of in-house and contract resources documented?

4. Qualification and experience of personnel:

a. Documentation of experience in performing similar work by employees and when appropriate, sub-contractors?

b. Does the offerer demonstrate cultural sensitivity in hiring and training staff?

(iii) Cost factors (Factors must be submitted separately from other factors unless specifically approved by the Public Procurement Review Board):

1. Cost of goods to be provided or services to be performed:

a. Relative cost: How does the cost compare to other similarly scored proposals or qualifications?

b. Full explanation: Is the price and its component charges, fees, etc. adequately explained or documented?

2. Assurances of performance:

a. If required, are suitable bonds, warranties or guarantees provided?

b. Does the proposal or qualification include quality control and assurance programs?

3. Offerer's financial stability and strength: Does the offerer have sufficient financial resources to meet its obligations? 3.107.08 Evaluation Committee

(1) Evaluation committees shall be used to evaluate request for proposals or request for qualifications and award contracts. Persons appointed to an evaluation committee shall have

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the relevant experience necessary to evaluate the proposal or qualification. The members of the evaluation committee shall have no personal, financial or familial interest in any of the contract offerers, or principals thereof, to be evaluated.

(2) The names of the members of the evaluation committee shall not be publicly disclosed until their evaluation report as required under Section 3.107.12(1) herein. The members' names and job titles shall be made available to the public. Where evaluation committee members are not public employees, those members' names, educational and professional qualifications, and practical experience, that were the basis for the appointment, shall be made available to the public.

(3) Before evaluating proposals or qualifications, each individual participating in the evaluation of a proposal or qualification shall execute a statement in accordance with subsection (1) of this section certifying that he or she does not have a conflict of interest. The statement shall be filed with the head purchasing agent of the soliciting agency, before beginning the evaluation process. The certification shall be as follows:

"I hereby certify that I have reviewed the conflict of interest standards prescribed herein, and that I do not have a conflict of interest with respect to the evaluation of this proposal or qualification. I further certify that I am not engaged in any negotiations or arrangements for prospective employment or association with any of the offerers submitting proposals or qualifications or their parent or subsidiary organization."

(4) Committee members may conduct their work separately or together.

(5) The committee may use advisors, as it deems necessary to give opinions on evaluating proposals or qualifications, except that such advisors shall be subject to the provisions of subsection (3) of this section. The names of the advisors shall be made public at the same time as members of the evaluation committee as provided in subsection (2) of this section. For the purposes of this section, the term "advisors" shall mean those individuals who provide such significant input to a member or members of the evaluation committee that the advisor's opinions are fundamental in shaping the committee member's evaluation of the submitted proposals or qualifications.

(6) The process of establishing weighting criteria and evaluating proposals or qualifications shall result in a finding that a specific proposal or qualification is the most practical and advantageous, price and other factors considered, or that all proposals or qualifications should be rejected. 3.107.09 Receipt and Registration of Proposals or Qualifications

(1) Submitted proposals or qualifications shall be opened at the time designated for opening in the request for proposals or request for qualifications. Proposals or qualifications and modifications shall be date-stamped or time and date-stamped upon receipt and held in a secure place until the established due date. Electronic proposals or qualifications received will be stored in an electronic lockbox until the time designated for the opening of the proposal or qualification.

(2) As each proposal or qualification is submitted but before those proposals or qualifications are opened, the head purchasing agent shall designate a person to prepare a register of proposals

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or qualifications, which shall include the number of modifications received, if any, and a description sufficient to identify the supply, service, commodity or other item offered. The designated person shall assign each submitted proposal or qualification an identifying letter, number, or combination thereof, without revealing the name of the offerer who submitted each proposal or qualification to the head purchasing agent or any person named to the evaluation committee for that proposal or qualification. The designated person shall keep the names of the offerers and their identifying numbers or letters, or combination thereof, in a sealed envelope or other secure location until factors not requiring knowledge of the name of the offerer have been evaluated and scored. If the designated person reveals the names of the offerers and the corresponding identifying information before such time, the procurement process shall be terminated and the proposal or qualifications resolicited. The register of proposals or qualifications shall be made part of the report required under Section 3.107.12(1) herein. 3.107.10 Evaluating Submitted Proposals or Qualifications

(1) The evaluation committee shall evaluate proposals or qualifications only in accordance with the methodology and weighting criteria described in the request for proposals or request for qualifications. Proposals or qualifications shall be initially classified as: (a) acceptable; (b) potentially acceptable, which means reasonably susceptible of being made acceptable; or (c) unacceptable. Offerers whose proposals or qualifications are unacceptable shall be so notified promptly.

(2) Discussions may be held with offerers to:

(a) Promote understanding of the state's requirements and the offerer's proposals or qualifications; and

(b) Facilitate arriving at a contract that will be the most practicable and advantageous to the state taking into consideration price and the other evaluation factors set forth in the request for proposals or request for qualifications.

(c) Offerers shall be accorded fair and equal treatment with respect to any opportunity for discussions and revisions of proposals or qualifications. Any discussions that take place under the provisions of this section shall be recorded and the recordings shall be made public upon award of the contract. The head purchasing agent shall establish procedures and schedules for conducting discussions. If, during discussions, there is a need for any substantial clarification of or change in the request for proposals or request for qualifications, the request shall be amended to incorporate the clarification or change. Auction techniques, revealing one offerer's price to another, and disclosure of any information derived from competing proposals is prohibited. Any substantial oral clarification of a proposal or qualification shall be reduced to writing by the offerer. 3.107.11 Best and Final Offers

The head purchasing agent shall establish a common date and time for the submission of best and final offers. Best and final offers shall be submitted only once; however, the head purchasing agent may make a written determination that it is in the state's best interest to conduct additional discussions or change the state's requirements and require another submission of best and final offers. Otherwise, no discussion of or changes in the best and final offers shall be allowed before the award. Offerers shall also be informed that if they do not submit a notice of withdrawal or

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another best and final offer, their immediate previous offer will be construed as their best and final offer. 3.107.12 Awarding the Contract

(1) After proposals or qualifications have been evaluated, the evaluation committee shall prepare a report evaluating and recommending the award of a contract or contracts. The report shall list the names of all potential offerers who submitted a proposal or qualification and shall summarize the proposals or qualifications of each offerer. The report shall rank offerers in order of evaluation, shall recommend the selection of an offerer or offerers, as appropriate, for a contract, shall be clear in the reasons why the offerer or offerers have been selected among others considered, and shall detail the terms, conditions, scope of services, fees and other matters to be incorporated into the contract. The report shall be available to the public at least forty-eight (48) hours before the awarding of the contract.

(2) The head purchasing agent shall publish a notice on the agency's website and the Mississippi procurement portal summarizing the award of the contract, which shall include but not be limited to, the nature, duration and amount of the contract, the name of the offerer and a statement that the contract is on file and available for public inspection in the office of the head purchasing agent.

3.108 Purchases less than $50,000.01

Any procurement not exceeding the amount established by Section 31-7-13(b), Mississippi Code of 1972, Annotated, shall be made in accordance with the provision of Section 31-7-13(b), Mississippi Code of 1972, Annotated; provided, however, that procurement requirements shall not be artificially divided so as to constitute a purchase under this section. This is not to be interpreted to apply to those purchases which in total do not exceed $5,000. Purchases which do not total more than $5,000 may be purchased under regulations promulgated by the Agency Procurement Officer. 3.108.01 Application

In accordance with Section 3.108, Purchases less than $50,000.01, this regulation is established for procurements of not more than $50,000 for commodities, equipment or printing.

Commentary

These small purchase regulations present general guidance and reporting requirements to encourage that competition is obtained and the small purchase system is not abused. Governing authorities should provide more detailed treatment in operational procedure manuals, with added coverage to include the use of blanket orders and necessary audit trails.

3.108.02 Authority to Make Small Purchases

3.108.02.1 Amount

The Office of the Chief Procurement Officer or a purchasing agency may use this regulation if

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the procurement is to be less than $50,000.01 for commodities, equipment or printing. If these methods are not used, the other methods of source selection provided in Section 3.105, Method of Source Selection, shall apply.

3.108.02.2 Existing State Contracts

Commodities, equipment or printing which may be obtained under current state contracts shall be procured under such agreements in accordance with the terms of such contracts, unless authority to do otherwise is granted by the Department of Finance and Administration acting through the Chief Procurement Officer or his designee.

3.108.02.3 Available from One Source Only

If the commodity, equipment or printing is available from only one source, the sole-source procurement method set forth in Section 3.109, Sole-Source Procurement, of these regulations and Section 31-7-13(m), Mississippi Code of 1972, Annotated, shall be used even if the procurement is a small purchase as specified in Subsection 3.108.04, Purchases less than $5,000.01.

3.108.03 Competitive Written Bid Between $5,000.01 and $50,000

3.108.03.1 Procedure

As provided by Statute for small purchases of commodities, equipment or printing costing more than $5,000 but not more than, $50,000, no less than two businesses shall be solicited to submit written bids that are recorded and placed in the procurement file. Written bids are defined in Section 31-7-13(b), Mississippi Code of 1972, Annotated, and the definition is as follows:

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. 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.

Award shall be made to the business offering the lowest responsive quotation provided at least two competitive written bids have been obtained.

3.108.03.2 Records

The written bids shall be recorded and maintained as a public record. 3.108.04 Purchases less than $5,000.01

The Chief Procurement Officer or his designee, or Agency Procurement Officer shall adopt operational procedures for making small purchases of not more than $5,000. Such operational procedures shall provide for obtaining adequate and reasonable competition and for making records to properly account for funds and to facilitate auditing of the purchasing agency.

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3.109 Sole-Source Procurement

A contract may be awarded for commodities without competition when the Chief Procurement Officer, the head of a purchasing agency, or a designee of either officer determines in writing that there is only one source for the required commodity. Such purchases shall be in compliance with Section 31-7-13, Mississippi Code of 1972, Annotated. State agencies must obtain approval for sole-source purchases from the Office of Purchasing, Travel and Fleet Management. Proper procedures for submitting a Request for Authority to Purchase, P-1, are covered in Subsection 3.124.01, Request for Authority to Purchase, P-1. 3.109.01 Application

The provisions of this regulation apply to all sole-source procurements unless emergency conditions exist as defined in Section 3.110, Emergency Procurements. 3.109.02 Conditions for Use of Sole-Source / Research Procurement(s)

Sole-source procurement is not permissible unless a requirement is available from only a single supplier. A requirement for a particular proprietary item does not justify sole-source procurement if there is more than one potential bidder or offerer for that item. The following are examples of circumstances which could necessitate sole-source procurement:

(1) Where the compatibility of equipment, accessories, or replacement parts is the paramount consideration (and manufacturer is sole supplier).

(2) Where a sole supplier's item is needed for trial use or testing.

(3) Where a sole supplier's item is to be required when no other item will serve the need of the user entity.

Any agency seeking sole source procurement authority for commodities shall advertise in the same manner provided in Section 31-7-13(c), Mississippi Code of 1972, Annotated. Such advertisement shall direct vendors to the procurement portal website established by Sections 25-53-151 and 27-104-165, where the agency shall publish for a minimum of fourteen (14) days the terms of the proposed sole source procurement. The portal publication shall include, but is not limited to, the following information:

1. A description of the commodity that the agency is seeking to procure;

2. An explanation of why the commodity is the only one that can meet the needs of the agency;

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

4. An explanation of why the amount to be expended for the commodity is reasonable;

5. The efforts that the agency went through to obtain the best possible price for the commodity; and

6. Procedures for any person or entity that objects and proposes that the commodity published on the procurement portal is not sole source and can be provided by another person or entity. These procedures shall direct the objecting person or entity to notify

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the agency that published the proposed sole source procurement request with a detailed explanation of why the commodity is not a sole source procurement. If such an objection has been raised, the agency shall follow the following steps:

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

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

(c) If the Public Procurement Review Board has any reasonable doubt as to whether the commodity can only be provided by one (1) source, then the agency must submit the procurement of the commodity to an advertised competitive bid or selection process.

Once the procedures listed above have been followed, and an item has been certified as a single source item, the item may be purchased without complying with provisions for competitive bidding. Authority must be granted by the Office of Purchasing, Travel and Fleet Management prior to acquisition of the item by using the electronic P-1 process. A letter must be accompanied as an attachment to the P1 request outlining the results of the procedures that have been detailed above.

Following the approved purchase, per Section 31-7-13 (m)(viii), Mississippi Code of 1972, Annotated, 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 when submitting the applicable payment request as more particularly prescribed in the DFA MAAPP Manual. In the case of Institutions of Higher Learning, this can be done by adding an attachment to the university’s previously approved P1 request. 3.109.03 Negotiation in Sole-Source Procurement

Once an item has been certified as sole source, the head of the purchasing agency or his/her designee shall conduct negotiations, as appropriate, as to price, delivery, and terms. 3.109.04 Sole-Source for Governing Authorities

In connection with the purchase by governing authorities of non-competitive items only available from one (1) source, a certification of the conditions and circumstances requiring the purchase shall be filed by the governing authority with the board of the governing authority. 3.110 Emergency Procurements

Notwithstanding any other provisions of this regulation, the Chief Procurement Officer, the head of a purchasing agency, or a designee of either officer may make or authorize others to make emergency procurements under emergency conditions as defined in Section 31-7-1(f), Mississippi Code of 1972, Annotated; provided, that such emergency procurements shall be made with such competition as is practicable under the circumstances. A written determination

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of the basis for the emergency and for the selection of the particular contractor shall be included in the contract file. Such purchases shall be made in compliance with Section 31-7-13(j), Mississippi Code of 1972, Annotated. Agencies shall notify or seek approval from, where required, the Office of Purchasing, Travel and Fleet Management by using the electronic P-1 process.

(1) Emergencies threatening health and safety or property

If such emergency threatens the health or safety of any person, or the preservation or protection of property, then the provisions of 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 provide justification and certification in writing detailing from whom the purchase was made or with whom the repair contract was made to the Office of Purchasing, Travel and Fleet Management using the electronic P-1 process. The justification should be written in sufficient detail so that a person not familiar with the situation could be expected to understand the need to forego the normal purchasing procedure. As per Section 31-7-13(j), Mississippi Code of 1972, Annotated, the certification for an emergency purchase must be submitted on letterhead and signed by the executive head or his/her designee(s) of the requesting agency. Agencies shall address the following when preparing the justification:

(a) Does it fall under the definition of an emergency set forth in Sections 31-7-1(f), Mississippi Code of 1972, Annotated?

(b) What happened to cause the emergency?

(c) What would be the negative consequences of following normal purchasing procedures?

(d) Does it threaten the health or safety of any person, or the preservation or protection of property?

(e) The total purchases made shall only be for the purpose of meeting the 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 when submitting the applicable payment request as more particularly prescribed in the DFA MAAPP Manual. In the case of Institutions of Higher Learning, this can be done by adding an attachment to the university’s P1 request.

(2) Emergencies Requiring Approval Prior to Purchase

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 seek approval of the Office of Purchasing, Travel and Fleet Management using the electronic P- 1 process.

The justification should be written in sufficient detail so that a person not familiar with the situation could be expected to understand the need to forego the normal purchasing procedure.

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As per Section 31-7-13(j), Mississippi Code of 1972, Annotated, the certification for an emergency purchase must be submitted on letterhead and signed by the executive head or his/her designee(s) of the requesting agency. Agencies shall address the following when preparing the justification:

(a) Does it fall under the definition of an emergency set forth in Sections 31-7-1(f), Mississippi Code of 1972, Annotated?

(b) What happened to cause the emergency?

(c) What would be the negative consequences of following normal purchasing procedures? (d) The total purchases made shall only be for the purpose of meeting the needs created by the emergency situation.

Upon receipt of the justification and any applicable board certification, the State Fiscal Officer or his designees, may authorize the purchase or repair without having to comply with competitive bidding requirements.

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 when submitting the applicable payment request as more particularly prescribed in the DFA MAAPP Manual. In the case of Institutions of Higher Learning, this can be done by adding an attachment to the university’s P1 request. 3.110.01 Application

The provisions of this regulation apply to every procurement made under emergency conditions that will not permit other source selection methods to be used. 3.110.02 Definition of Emergency Conditions

The term "emergency" shall mean any circumstances caused by fire, flood, explosion, storm, earthquake, epidemic, riot, insurrection, or caused by any inherent defect due to defective construction, or when the immediate preservation of order or public health is necessary by reason of unforeseen emergency, or when the restoration of a condition of usefulness of any public building, equipment, road or bridge appears advisable, or in the case of a public utility when there is a failure of any machine or other thing used and useful in the generation, production or distribution of electricity, water or natural gas or in the transportation or treatment of sewage; or when the delay incident to obtaining competitive bids could cause adverse impact upon the governing authorities or agency, its employees or its citizens. See Section 31-7-1(f), Mississippi Code of 1972, Annotated. 3.110.03 Scope of Emergency Procurement

Emergency procurement shall be limited in scope to those supplies, services, or construction items necessary to meet the emergency and limited in term to the time necessary to meet the emergency; however in no event shall any emergency contract exceed a term of one (1) year. 3.110.04 Authority to Make Emergency Procurements

Any state agency may make emergency procurements when an emergency condition arises and

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the need cannot be met through normal procurement methods, provided approval by the executive head of the agency shall be obtained prior to the procurement and provided 3.110 is followed. Governing authorities shall comply with Section 31-7-13(k), Mississippi Code of 1972, Annotated. 3.110.05 Source Selection Methods

3.110.05.1 General

The procedure used shall be selected to assure that the required commodities are procured in time to meet the emergency. Given this constraint, such competition as is practicable shall be obtained.

3.110.05.2 After Unsuccessful Competitive Sealed Bidding

Competitive, sealed bidding is unsuccessful when bids received pursuant to an Invitation for Bids are unreasonable, non-competitive, or the low bid exceeds available funds as certified by the appropriate fiscal officer, and time or other circumstances will not permit the delay required to re-solicit competitive sealed bids. If emergency conditions exist after an unsuccessful attempt to use competitive sealed bidding, an emergency procurement may be made. 3.110.06 Emergency Purchase for Governing Authorities

The procedures required for a governing authority to make an emergency purchase are set forth in Section 31-7-13(k), Mississippi Code of 1972, Annotated, governing authorities are not required to obtain approval from the Office of Purchasing, Travel and Fleet Management.

3.111 Competitive Selection Procedures for Services

See Office of Personal Services Contract Review Rules and Regulations.

3.112 Cancellation of Invitations for Bids or Requests for Proposals

An Invitation for Bids, a Request for Proposals, or other solicitation may be canceled, or any or all bids or proposals may be rejected in whole or in part as may be specified in the solicitation, when it is in the best interest of the State. The reasons, therefore, shall be made part of the contract file. 3.112.01 Scope of this Regulation

The provisions of this regulation shall govern the cancellation of any solicitations whether issued by the State under competitive sealed bidding, competitive sealed proposals, small purchases, or any other source selection method, and rejection of bids or proposals in whole or in part. 3.112.02 Policy

Solicitations should only be issued when there is a valid procurement need unless the solicitation states that it is for informational purposes only.

Preparing and distributing a solicitation requires the expenditure of time and funds. Businesses

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likewise incur expense in examining and responding to solicitations. Therefore, although issuance of a solicitation does not compel award of a contract, a solicitation is to be canceled only when there are compelling reasons to believe that the cancellation of the solicitation is in the State's best interest. 3.112.03 Cancellation of Solicitation Notice

Each solicitation issued may state that the solicitation may be canceled as provided in this regulation. 3.112.04 Cancellation of Solicitation; Rejection of All Bids or Proposals

3.112.04.1 Prior to Opening

(1) As used in this section, "opening" means the date set for opening of bids, receipt of unpriced technical offers in multi-step sealed bidding, or receipt of proposal in competitive sealed proposals.

(2) Prior to opening, a solicitation may be canceled in whole or in part when the Chief Procurement Officer or the head of a purchasing agency determines in writing that such action is in the State's best interest for reasons including but not limited to:

(a) The buying agency no longer requires the supplies, services, or construction; (b) The buying agency no longer can reasonably expect to fund the procurement; or, (c) Proposed amendments to the solicitation would be of such magnitude that a new solicitation is desirable.

(3) When a solicitation is canceled prior to opening, notice of cancellation shall be sent to all businesses solicited.

(4) The notice of cancellation shall: (a) Identify the solicitation; (b) Briefly explain the reason for cancellation; and

(c) Where appropriate, explain that an opportunity will be given to compete on any re-solicitation or any future procurements of similar supplies, services, or construction.

3.112.04.2 After Opening

(1) After opening but prior to award, all bids or proposals may be rejected in whole or in part when the Chief Procurement Officer or the head of a purchasing agency determines in writing that such action is in the State's best interest for reasons including but not limited to:

(a) The supplies, services, or construction being procured are no longer required; (b) Ambiguous or otherwise inadequate specifications were part of the solicitation;

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(c) The solicitation did not provide for consideration of all factors of significance to the buying entity;

(d) Prices exceed available funds and it would not be appropriate to adjust quantities to come within available funds;

(e) All otherwise acceptable bids or proposals received are at clearly unreasonable prices; or (f) There is reason to believe that the bids or proposals may not have been independently arrived at in open competition, may have been collusive, or may have been submitted in bad faith.

(2) A notice of rejection should be sent to all businesses that submitted bids or proposals, and it shall conform to Subsection 3.112.04.1, Prior to Opening.

3.112.04.3 Documentation

The reasons for cancellation or rejection shall be made a part of the procurement file and shall be available for public inspection.

3.112.05 Rejection of Individual Bids or Proposals

3.112.05.1 General

This section applies to rejections of individual bids or proposals in whole or in part.

3.112.05.2 Notice in Solicitation

Each solicitation issued may provide that any bid or proposal may be rejected in whole or in part when in the best interest of the State as provided in this regulation.

3.112.05.3 Reasons for Rejection

(1) Bids

As used in this section, "bid" means any offer providing pricing submitted in competitive sealed bidding or in the second phase of multi-step sealed bidding and includes submissions under Section 3.108, Purchases less than $50,000.01, if no changes in offers are allowed after submission. Reasons for rejecting a bid include but are not limited to:

(a) The business that submitted the bid is non-responsible as determined under Subsection 3.113.05, Written Determination of Non-responsibility Required;

(b) The bid is not responsive; that is, it does not conform in all material respects to the Invitation for Bids, see Subsection 3.106.13.2, Responsibility and Responsiveness; or

(c) The supply or service item offered in the bid is unacceptable by reason of its failure to meet the requirements of the specifications or permissible alternates or other acceptability criteria set forth in the Invitation for Bids. See Subsection 3.106.13.3, Product Acceptability.

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(2) Proposals As used in this section, "proposal" means any offer submitted in response to any solicitation for a proposal, except a bid as defined in Subsection 3.112.05.3, Reasons for Rejection. Unless the solicitation states otherwise, proposals need not be unconditionally accepted without alteration or correction, and the stated requirements may be revised or clarified after proposals are submitted. This flexibility must be considered in determining whether reasons exist for rejecting all or any part of a proposal. Reasons for rejecting proposals include but are not limited to:

(a) The business that submitted the proposal is non-responsible as determined under Section 3.113, Responsibility of Bidders and Offerers.

(b) The proposal ultimately (that is, after any opportunity has passed for altering or clarifying the proposal) fails to meet the announced requirements of the State in some material respect; or

(c) The proposed price is clearly unreasonable.

3.112.05.4 Notice of Rejection

Vendors that have submitted bids or proposals which are rejected shall be notified of the rejection and the reasons therefore. 3.112.06 “All or None" Bids or Proposals

Only when provided by the solicitation may a bid or proposal limit acceptance to the entire bid or proposal offering. Otherwise, such bids or proposals shall be deemed to be non-responsive. If the bid or proposal is properly so limited, the buying entity shall not reject part of such bid or proposal and award on the remainder. "All or none" bids shall not be requested unless it is determined that a multiple number of bidders can provide pricing on all items requested. If the "all or none" requirement limits the bidding to the point that only a single responsive bid is received, the Office of Purchasing, Travel and Fleet Management will not approve the request unless ample justification is presented. 3.112.07 Disposition of Bids or Proposals

When bids or proposals are rejected, or a solicitation canceled after bids or proposals are received, the bids or proposals which have been opened shall be retained in the procurement file, or if unopened, returned to the bidders or offerers. 3.113 Responsibility of Bidders and Offerers

(1) Determination of Non-responsibility

A written determination of non-responsibility of a bidder or offerer shall be made. The unreasonable failure of a bidder or offerer to promptly supply information in connection with an inquiry with respect to responsibility may be grounds for a determination of non- responsibility with respect to such bidder or offerer.

(2) Right of Nondisclosure Information furnished by a bidder or offerer pursuant to this section shall not be disclosed outside of the office of the Chief Procurement Officer or the purchasing

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agency if so requested by the bidder or offerer. 3.113.01 Application

A determination of responsibility or non-responsibility shall be governed by this regulation. 3.113.02 Standards of Responsibility

3.113.02.1 Standards

Factors to be considered in determining whether the standard of responsibility has been met include whether a prospective contractor has:

(1) Available the appropriate financial, material, equipment, facility, and personnel resources and expertise, or the ability to obtain them, necessary to indicate its capability to meet all contractual requirements;

(2) A satisfactory record of performance; (3) A satisfactory record of integrity; (4) Qualified legally to contract with the State; and

(5) Supplied all necessary information in connection with the inquiry concerning responsibility.

3.113.02.2 Information Pertaining to Responsibility

The prospective contractor shall supply information requested by the Agency Procurement Officer concerning the responsibility of such contractor. If such contractor fails to supply the requested information, the Agency Procurement Officer shall base the determination of responsibility upon any available information or may find the prospective contractor non- responsible if such failure is unreasonable. 3.113.03 Ability to Meet Standards

The prospective contractor may demonstrate the availability of necessary financing, equipment, facilities, expertise, and personnel by submitting upon request:

(1) Evidence that such contractor possesses such necessary items; (2) Acceptable plans to subcontract for such necessary items; or (3) A documented commitment from, or explicit arrangement with, a satisfactory source to provide the necessary items. 3.113.04 Duty Concerning Responsibility

Before awarding a contract, the Agency Procurement Officer must be satisfied that the prospective contractor is responsible

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3.113.05 Written Determination of Non-responsibility Required

If a bidder or offerer who otherwise would have been awarded a contract is found non- responsible, a written determination of non-responsibility setting forth the basis of the finding shall be prepared by the Chief Procurement Officer or the head of a purchasing agency. A copy of the determination shall be sent promptly to the non-responsible bidder or offerer. The final determination shall be made part of the procurement file. 3.114 Prequalification of Suppliers

Prospective suppliers may be pre-qualified for particular types of supplies, services, and construction. Solicitation mailing lists of potential contractors shall include but shall not be limited to such pre-qualified suppliers. 3.114.01 Prequalification

3.114.01.1 General

Prospective contractors may be pre-qualified for bidder lists, but distribution of the solicitation shall not be limited to pre-qualified contractors, nor may a prospective contractor be denied award of a contract simply because such contractor was not pre-qualified. The fact that a prospective contractor has been pre-qualified does not necessarily represent a finding of responsibility.

3.114.01.2 Qualified Products Lists

This section is not applicable to qualified products lists which are treated in Subsection 4.103.01.2, Authority to Contract for Preparation of Specifications. 3.115 Cost or Pricing Data

(1) Contractor Certification

A contractor shall when requested by the buying entity except as provided in Subsection 3.115 (3), Cost or Pricing Data Not Required, submit cost or pricing data and shall certify that, to the best of its knowledge and belief, the cost or pricing data submitted was accurate, complete, and current as of a mutually determined specified date.

(2) Price Adjustment

Any contract, change order, or contract modification under which a certificate is required shall contain a provision that the price to the State, including profit or fee, shall be adjusted to exclude any significant sums by which the State finds that such price was increased because the contractor furnished cost or pricing data was inaccurate, incomplete, or not current as of the date agreed upon between the parties.

(3) Cost or Pricing Data Not Required

The requirements of this section need not be applied to contracts:

(a) Where the contract price is based on adequate price competition;

(b) Where the contract price is based on established catalog prices or market prices;

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(c) Where contract prices are set by law or regulations; or (d) Where it is determined in writing that the requirements of this section may be waived, and the reasons for such waiver are stated in writing.

(4) When it is determined that offerer or bidder should provide cost or pricing data to justify a bid or proposal, this regulation may be used as a guideline for such negotiation. 3.115.01 Scope of Regulation

This regulation sets forth the pricing policies which are applicable to contracts of any type and any price adjustments thereunder when cost or pricing data are required to be submitted. The provisions of this regulation requiring submission of cost or pricing data do not apply to a contract let by competitive sealed bidding (including multi-step bidding) or small purchases except as may be provided herein. 3.115.02 Requirement for Cost or Pricing Data

3.115.02.1 Submission of Cost or Pricing Data

Cost or pricing data may be required in support of a proposal when:

(1) Any contract expected to exceed the limit set in the PSCRB Manual is to be awarded by competitive sealed proposals or by sole-source procurement;

(2) An emergency procurement is made in excess of the limit set in the PSCRB Manual, but such data may be submitted after contract award; or

(3) The Agency Procurement Officer makes a written determination that the circumstances warrant required submission of cost or pricing data; provided, however, cost or pricing data shall not be required where the contract award is made pursuant to competitive sealed bidding.

3.115.03 Meaning of Terms "Adequate Price Competition," "Established Catalog Prices” or “Market Prices," and "Prices Set by Law or Regulation"

3.115.03.1 Application

The terms "adequate price competition," "established catalog prices or market prices," and "prices set by law or regulations" shall be construed in accordance with the following definitions.

3.115.03.2 Adequate Price Competition

Price competition exists if competitive sealed proposals are solicited and at least two responsible offerers independently compete for a contract to be awarded to the responsible offerer submitting the lowest evaluated price by submitting priced offers (or best and final offers) meeting the requirements of the solicitation. If the foregoing conditions are met, price competition shall be presumed to be "adequate" unless the Agency Procurement Officer

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determines in writing that such competition is not adequate.

3.115.03.3 Established Catalog Prices or Market Prices

(1) "Established Catalog Price" means the price included in a catalog, price list, schedule, or other form that:

(a) Is regularly maintained by a manufacturer or contractor;

(b) Is either published or otherwise available for inspection by customers; and

(c) States prices at which sales are currently or were last made to a significant number of any categories of buyers or buyers constituting the general buying public for the supplies or services involved.

(2) "Established Market Price" means a current price, established in the usual and ordinary course of trade between buyers and sellers, which can be substantiated from sources which are independent of the manufacturer or supplier and may be an indication of the reasonableness of price.

(3) If, despite the existence of an established catalog price or market price, and after consultation with the prospective contractors, the Agency Procurement Officer considers that such price is not reasonable, cost or pricing data may be requested. Where the reasonableness of the price can be assured by a request for cost or pricing data limited to data pertaining to the differences in the item or services being procured and those listed in the catalog or market, requests should be so limited.

3.115.03.4 Prices Set by Law or Regulation

The price of a supply or service is set by law or regulation if some governmental body establishes the price that the offerer or contractor may charge the State and other customers. 3.115.04 Submission of Cost or Pricing Data and Certification

3.115.04.1 Time and Manner

When cost or pricing data are required, they shall be submitted to the Agency Procurement Officer prior to beginning price negotiations at any reasonable time and in any reasonable manner prescribed by the Agency Procurement Officer. When the Agency Procurement Officer requires the offerer or contractor to submit cost or pricing data in support of any proposal, such data shall either be actually submitted or specifically identified in writing.

3.115.04.2 Obligation to Keep Data Current

The offerer or contractor is required to keep such submission current until the negotiations are concluded or, if applicable, until the contract is expired.

3.115.04.3 Time for Certification

The offerer or contractor shall certify as soon as practicable after agreement is reached on price that the cost or pricing data submitted are accurate, complete, and current as of a mutually

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determined date prior to reaching agreement.

3.115.04.4 Refusal to Submit Data

A refusal by the offerer to supply the required data shall be referred to the Chief Procurement Officer or the head of a purchasing agency, whose duty shall be to determine in writing whether to disqualify the non-complying offerer, to defer award pending further investigation, or to enter into the contract. A refusal by a contractor to submit the required data to support a price adjustment shall be referred to the Chief Procurement Officer or the head of a purchasing agency who shall determine in writing whether to further investigate the price adjustment, not to allow any price adjustment, or to set the amount of the price adjustment, subject to the contractor's rights under Chapter 6, Legal and Contractual Remedies. 3.115.05 Price Analysis Techniques

Price analysis is used to determine if a price is reasonable and acceptable. It involves an evaluation of the prices for the same or similar items or services. Examples of price analysis criteria include but are not limited to:

(1) Price submission of prospective bidders or offers in the current procurement;

(2) Prior price quotations and contract prices charged by the bidder, offerer, or contractor; (3) Prices published in catalogs or price lists; (4) Prices available on the open market; and

(4) In–house estimates of cost.

(a) In making such analysis, consideration must be given to any differing terms and conditions. 3.115.06 Cost Analysis Techniques

Cost analysis includes the appropriate verification of cost or pricing data, and the use of this data to evaluate:

(1) Specific elements of costs;

(2) The necessity for certain costs;

(3) The reasonableness of amounts estimated for the necessary costs; (4) The reasonableness of allowances for contingencies; (5) The basis used for allocation of indirect costs;

(6) The appropriateness of allocations of particular indirect costs to the proposed contract; and

(7) The reasonableness of the total cost or price.

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3.115.07 Evaluations of Cost or Pricing Data

Evaluations of cost or pricing data should include comparisons of costs and prices of an offerer's cost estimates with those of other offerers and any independent Mississippi price and cost estimates. They shall also include consideration of whether such costs are reasonable and allowable. 3.116 Types of Contracts

Subject to the limitations of this section, any type of contract which will promote the best interests of the State may be used. A cost reimbursement contract may be used only when a determination is made in writing that such contract is to be less costly to the State than any other type or that it is impracticable to obtain the supplies, services, or construction required except under such a contract. 3.116.01 Scope of Regulation

This regulation contains descriptions of types of contracts and limitations as to when they should be utilized by the State in its procurements. 3.116.02 Cost-Plus-a-Percentage-of-Cost Contracting

Except for a cost-plus-a-percentage-of-cost contract which agencies are urged to avoid, the use of any type of contract is permissible.

Commentary

A cost-plus-a-percentage-of-cost contract is one in which, prior to beginning the work, the parties agree that the fee will be a predetermined percentage of the total cost of the work. Thereby, the more the contractor spends, the greater its fee, and the contractor's incentive may, therefore, be to incur cost at the expense of the State and not to economize.

3.116.03 Policy Regarding Selection of Contract Types

3.116.03.1 General

The selection of an appropriate contract type depends on factors such as the nature of the commodities or equipment to be procured, the uncertainties which may be involved in contract performance, and the extent to which the State or the contractor is to assume the risk of the cost of performance of the contract. Contract types differ in the degree of responsibility assumed by the contractor.

The objective when selecting a contract type is to obtain the best value in needed commodities or equipment in the time required and at the lowest cost or price to the State. In order to achieve this objective, the Agency Procurement Officer, before choosing a contract type, should review those elements of the procurement which directly affect the cost, time, risk, and profit incentives bearing on the performance.

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Among the factors to be considered in selecting any type of contract are:

(1) The type and complexity of the commodities or equipment item being procured;

(2) The difficulty of estimating performance costs such as the inability of the State to develop definitive specifications, to identify the risks to the contractor inherent in the nature of the work to be performed, or otherwise to establish clearly the requirements of the contract;

(3) The administrative costs to both parties;

(4) The degree to which the State must provide technical coordination during the performance of the contract;

(5) The effect of the choice of the type of contract on the amount of competition to be expected;

(6) The stability of material or commodity market prices or wage levels; (7) The urgency of the requirement; and (8) The length of contract performance.

Commentary

It is self-defeating for the State to select a type of contract that would place an unreasonable economic risk on the contractor, since such action may tend to jeopardize satisfactory performance of the contract.

3.116.03.2 Use of Contract Types not Herein Described

The provisions of Section 3.116, Types of Contracts, describe and define the principal contract types. Any other type of contract may be used provided the Chief Procurement Officer or the head of a purchasing agency determines that such use is in the State's best interest. 3.116.04 Types of Fixed-Price Contracts

3.116.04.1 General

A fixed-price contract places responsibility on the contractor for the delivery of the commodity or equipment in accordance with the contract terms at a price that may be firm or may be subject to contractually specified adjustments. The fixed-price contract is appropriate for use when the extent and type of work necessary to meet requirements can be reasonably specified and the cost can be reasonably estimated, as is generally the case for construction or standard commercial products. A fixed-price type of contract is the only type of contract that can be used in competitive sealed bidding.

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Commentary

Fixed-price contracts are preferred for use in procurements and should be used whenever possible. However, when risks are unknown or not readily measurable in terms of cost, the use of such contracts can result in inflated prices and inadequate competition; poor performance, disputes, and claims when performance proves difficult; or excessive profits when anticipated contingencies do not occur.

3.116.04.2 Firm Fixed-Price Contract

A firm fixed-price contract provides a price that is not subject to adjustment because of variations in the contractor's cost of performing the work specified in the contract. It should be used whenever prices which are fair and reasonable to the State can be established at the outset. Bases upon which firm fixed prices may be established include:

(1) Adequate price competition for the contract;

(2) Comparison of prices in similar prior procurements in which prices were fair and reasonable;

(3) Establishment of realistic costs of performance by utilizing available cost or pricing data and identifying uncertainties in contract performance; or

(4) Use of other adequate means to establish a firm price.

3.116.04.3 Fixed-Price Contract with Price Adjustment

(1) A fixed-price contract with price adjustment provides for variation in the contract price under special conditions defined in the contract. 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 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. State agencies shall submit proposed specifications containing price adjustment clauses to the Office of Purchasing, Travel and Fleet Management for review and approval prior to soliciting bids. An adjustment would be implied in the authority for change orders as would be applicable to construction contracts.

(2) If the contract permits unilateral action by the contractor to bring about the condition under which a price increase may occur, the contract shall reserve to the State the right to reject the price increase and terminate without cost the future performance of the contract. The contract shall also require that notice of any such price increase shall be given within such time prior to its effective date as is specified in the contract.

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3.116.05 Definite Quantity and Indefinite Quantity Contracts

3.116.05.1 Definite Quantity

A definite quantity contract is a fixed-price contract that provides for delivery of a specified quantity of supplies or services either at specified times or when ordered.

3.116.05.2 Indefinite Quantity

An indefinite quantity contract is a contract for an indefinite amount of supplies or services to be furnished at specified times, or as ordered, that establishes unit prices of a fixed-price type. Generally an approximate quantity or the best information available as to quantity is stated in the solicitation. The contract may provide a minimum quantity the State is obligated to order and may also provide for a maximum quantity provision that limits the State's obligation to order.

3.116.05.3 Requirements Contracts

A requirements contract is an indefinite quantity contract for supplies or services that obligates the State to order all the actual requirements of designated using agencies during a specified period of time. The obligation to order the State's actual requirements is limited only by the provisions of Section 31-7-12(1), Mississippi Code of 1972, Annotated. For the protection of the State and the contractor, requirements contracts shall include the following:

(1) A provision which requires the State and any other users named in the solicitation to order their actual requirements of the supplies or services covered. However, the State may reserve in the solicitation and in the resulting contract the right to take bids separately if a particular quantity requirement arises which exceeds the State's normal requirements or an amount specified in the contract.

(2) Three exemptions from ordering under the contract occur when:

(a) The Chief Procurement Officer or the head of a purchasing agency approves a finding that the supply or service available under the contract will not meet a non- recurring, special need of the buying entity;

(b) Commodities are produced or services are performed incidental to the State's own programs, such as Mississippi Industries for the Blind, that can satisfy the need; or

(c) The Chief Procurement Officer approves a finding that prices obtained in compliance with paragraph (a), (b), or (c) of Section 31-7-13, Mississippi Code of 1972, Annotated, provide a cost effective alternative to the established state contract. 3.117 Lease Contracts 3.117.01 Description

A lease is a contract for the use of equipment or other commodities under which title will not pass to the State at any time. Subsection 3.117.03, Option Provisions, applies to a lease with purchase option where title may pass to the State.

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3.117.02 Use

A lease may be entered into provided:

(1) It is in the best interest of the State;

(2) All conditions for renewal and costs of termination are set forth in the lease; and

(3) The lease is not used to circumvent normal procurement procedures. 3.117.03 Option Provisions

3.117.03.1 Contract Provision

When a contract is to contain an option for renewal, extension, or purchase, notice of such provision shall be included in the solicitation.

3.117.03.2 Exercise of Option

Before exercising any option for renewal, extension, or purchase, the Agency Procurement Officer should attempt to ascertain whether a competitive procurement is practical, in terms of pertinent competitive and cost factors, and would be more advantageous to the State than renewal or extension of the existing contract.

3.117.03.3 Lease with Purchase Option

Because a purchase option changes the nature of the procurement, it has been determined that agencies shall not enter into lease contracts which contain a purchase option.

Commentary

The justification for prohibiting the lease with an option to purchase has several issues. If an agency were to solicit bids and enter into a contract based upon the lowest lease cost, and then, at the end of the contract period, determine that they desire to take advantage of a purchase option, it is possible that the change from a lease to a purchase would have caused a different bidder to actually be the lowest bidder. In addition, during a lease, funds generally come from a contractual service fund while in a purchase, funds come from the “equipment” budget. If an agency were to lease an item for a period of time and then take advantage of the purchase option, they would have used “contractual service” funds to purchase equipment. Finally, since all lease/purchase by state agencies shall fall under the Master Lease Purchase Program, the implementation of the purchase option would create a situation where the agency has lease/purchased the item without using the Master Lease Purchase Program.

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3.117.04 Lease-Purchase Contracts

3.117.04.1 General

Lease-purchase contracts are authorized under Sections 31-7-10 and 31-7-13(m), Mississippi Code of 1972, Annotated. These are extended term contracts requiring payment over a specified period of time up to the useful life of the equipment as determined by the Asset Depreciation Range (ADR) established by the Federal Internal Revenue Service. Such contracts almost certainly will transcend a fiscal year. Therefore, it is required that any such contract shall include a non-appropriation clause. This clause provides that should the contract be canceled for nonavailability of funds the equipment shall be returned to the lessor with no further obligations on the part of the lessee except that all payments due up to the end of the fiscal year in which funding was available shall be paid. No agency shall enter into any lease-purchase contract without approval of the Department of Finance and Administration. Any lease-purchase contract is considered to be a purchase transaction; therefore, payments made pursuant to such contracts shall be made from the funding category of capital outlay equipment. The universities should preview the Institutions of Higher Learning's policies concerning lease-purchase contracts.

3.117.05 Multi-year or Short-term Rental Lease Agreements

3.117.05.1 General

Multi-year or short-term rental lease agreements may be used when:

(1) It would promote economy in procurement by obtaining the benefits of reduced monthly rental cost due to extended term rental and sufficient funds are not available for purchase; (2) The equipment requested is for a special project that would not warrant a purchase as the project is of short duration and with the termination of that project there would be no further need for the equipment; and

(3) Such reason as may be prescribed by law for certain entities.

3.117.05.2 Procedures

Subsection 2.103.03, Rental, Lease, Lease-Purchase of Equipment and Furniture, sets forth the procedures for state agencies to follow when entering into a rental agreement.

Commentary

Careful evaluation of the economics of leasing versus buying is required prior to making the decision to award a lease or lease-purchase contract. Such evaluation examines the comparative costs of leasing and the costs of outright purchase and maintenance, projected as total costs for the estimated use of the item, and the consideration of other pertinent factors such as continuing need and functional obsolescence or inefficiencies which could result from technological advancements.

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The question of leasing versus buying involves policy matters important to the budget function as well as to procurement, and the budget and procurement entities need to collaborate in establishing criteria or guidelines applicable to lease and lease-purchase.

Any contract that by the terms of such contract obligates the lessee to make payments for any period past the last day of the fiscal year in which the contract was entered into shall include a non-appropriation clause.

3.117.05.3 Automatic Renewal Clause

Agencies shall not enter into contracts which contain an automatic renewal clause without first obtaining the written approval of the Office of Purchasing, Travel and Fleet Management.

3.117.05.4 Rental Agreement for use by Mississippi Departments and Vendors

All rentals under the terms of a state contract must utilize the Rental Agreement. In addition, agencies are urged to use the Rental Agreement for all other rentals.

3.117.06 Lease Termination

Multi-year agreements frequently offer lower monthly rental charges as they carry a certain assurance that the equipment will be in service for the specified time, thereby providing a greater return to the owner on the original investment. Early cancellation of leases may result in termination removal charges. Therefore, only two reasons are considered justifications for requesting cancellation:

(1) Equipment is inoperative or inefficient and the lessor either cannot or will not correct the situation.

(2) Funding for the succeeding fiscal year is not available and the provisions of the funding- out clause must be exercised.

In the case of inoperative or inefficient equipment, no termination or removal charges will be paid by state agencies.

When exercising provisions of the funding-out clause, the removal charges as presented in the original contract shall be due and payable; however, no payment of termination charges will be allowed. 3.118 Multi-Term Contracts

(1) Specified Period

Unless otherwise provided by law, a contract for commodities may be entered into for a period of time not to exceed 60 months provided the term of the contract and conditions of renewal or extension, if any, are included in the solicitation, and funds are available for the first fiscal period at the time of contracting. Payment and performance obligations for succeeding fiscal periods shall be subject to the availability and appropriation of funds thereof.

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(2) Determination Prior to Use

Prior to the utilization of a multi-term contract, the following must be determined:

(a) Estimated requirements cover the period of the contract and are reasonably firm and continuing; and

(b) Such a contract will serve the best interests of the State by encouraging effective competition or otherwise promoting economies in State procurement. 3.118.01 Multi-Term Contracts - General

3.118.01.1 General

A multi-term contract is appropriate when it is in the best interest of the State to obtain uninterrupted services or firm pricing for commodities extending over more than one fiscal period, where the performance of such services involves high start-up costs or where a changeover of service contractors involves high phase-in/phase-out costs during a transition period. The multi-term method of contracting is also appropriate when special production of definite quantities of supplies for more than one fiscal period is necessary to best meet the State's needs, but funds are available only for the initial fiscal period. Special production refers to production for contract performance which requires alteration of the contractor's facilities or operations involving high start-up costs. The contractual obligation of both parties in each fiscal period succeeding the first is subject to the appropriation and availability of funds thereof. The contract must provide that in the event that funds are not available for any succeeding fiscal period, the remainder of such contract shall be canceled.

3.118.01.2 Multi-Term Contract Regulation Inapplicable

Section 3.118, Multi-Term Contracts, applies only to contracts for commodities or services described in Subsection 3.118.01.1, General, and does not apply to any other contract including, but not limited to, contracts for construction and leases. 3.118.02 Conditions for Use of Multi-Term Contracts

A multi-term contract may be used when it is determined by the Agency Procurement Officer that:

(1) Special production of definite quantities or the furnishing of long-term services are required to meet needs of the State; and

(2) A multi-term contract will serve the best interests of the State by encouraging effective competition or otherwise promoting economies in State procurement. 3.118.03 Multi-Term Contract Procedure

3.118.03.1 Solicitation

The solicitation must state:

(1) The amount of supplies or services required for the proposed contract period.

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(2) That a unit price must be given for each supply or service, and that such unit prices must be the same throughout the contract.

(3) That the multi-term contract will be canceled only if funds are not appropriated or otherwise made available to support continuation of performance in any fiscal period succeeding the first; however, this does not affect either the State's rights or the contractor's rights under any termination clause in the contract.

(4) That the Agency Procurement Officer must notify the contractor on a timely basis that the funds are or are not available for the continuation of the contract for each succeeding fiscal period.

(5) That a multi-term contract may be awarded and how award will be determined including the fact that prices must be firm for the full term of the contract or, that a price adjustment is allowed, provided that the basis and method of adjusting unit prices must be included in the solicitation.

3.118.03.2 Award

Award must be made as stated in the solicitation and permitted under the source selection method utilized.

3.118.03.3 Cancellation

(1) "Cancellation," as used in multi-term contracting, means the cancellation of the total requirements for the remaining portion of the contract because funds were not appropriated or otherwise made available. The contract for the first fiscal period shall not be canceled. Cancellation results when the Agency Procurement Officer:

(a) Notifies the contractor of nonavailability of funds for contract performance for any fiscal period subsequent to the first; or

(b) Exercises cancellation provision of the original contract.

(2) These provisions on cancellation of multi-term contracts do not limit the rights of the State or the contractor under any termination clause of the contract if the contract is terminated pursuant to that clause rather than canceled as provided in this subsection. If a contract is canceled for lack of funding, all obligations due the contractor for the period during which funding was available shall be paid. Cancellation for reasons of nonavailability of funding relieves the purchaser of all contractual obligations for any contract period subsequent to the date of cancellation. No contract shall be canceled for lack of funds during a fiscal year period when funds were allocated for such contract.

Commentary

Multi-term contracts as set forth in this section should be interpreted to mean a contract having effective dates that would span two fiscal years or two appropriation periods and would obligate the purchasing entity to purchase a specified quantity of supplies over that period. It does not refer to a term contract that only establishes a price for which an unspecified quantity of supplies may be purchased.

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3.119 Multiple Source Contracting

3.119.01 Incremental Award

3.119.01.1 General

An incremental award is an award of portions of a definite quantity requirement to more than one contractor. Each portion is for a definite quantity and the sum of the portions is the total definite quantity required. An incremental award may be used only when awards to more than one bidder or offerer for different amounts of the same item are necessary to obtain the total quantity for the required delivery.

3.119.01.2 Intent to Use

If an incremental award is anticipated prior to issuing a solicitation, the State must reserve the right to make such an award and the criteria for award must be stated in the solicitation.

3.119.01.3 Determination Required

The Agency Procurement Officer shall make a written determination setting forth the reasons for the incremental award, which shall be made a part of the procurement file.

3.119.02 Multiple Award

3.119.02.1 General

A multiple award is an award of an indefinite quantity contract for one or more commodities or services to more than one bidder or offerer when the State is obligated to order all of its actual requirements for the specified supplies or services from those contractors. The obligation to order the State's actual requirements is limited by the provisions of Uniform Commercial Code Section 2.306(1), Section 75-2-306, Mississippi Code of 1972, Annotated.

3.119.02.2 Limitations on Use

A multiple award may be made when award to two or more bidders or offerers for similar products is necessary for adequate delivery, service, or product compatibility. Any multiple award shall be made in accordance with the provisions of Section 3.106, Competitive Sealed Bids, Section 3.107, Competitive Sealed Proposals, Section 3.108, Purchases less than $50,000.01, and Section 3.110, Emergency Procurements, as applicable. Multiple awards shall not be made when a single award will meet the State's needs without sacrifice of economy or service. Awards shall not be made for the purpose of dividing the business, making available product or supplier selection to allow for user preference unrelated to utility or economy, or avoiding the resolution of tie bids. Any such awards shall be limited to the least number of suppliers necessary to meet the valid requirements of using agencies.

3.119.02.3 Contract and Solicitation Provisions

All eligible users of the contract must be named in the solicitation, and it must be mandatory that the actual requirements of such users that can be met under the contract be obtained in accordance with the contract, provided, that:

(1) The State shall reserve the right to take bids separately if a particular quantity requirement arises which exceeds its normal requirement or an amount specified in the

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contract;

(2) The State shall reserve the right to take bids separately if the Chief Procurement Officer approves a finding that the supply or service available under the contract will not meet a non-recurring special need of the agency; and

(3) The contract may allow the State to procure commodities produced, or services performed, incidental to the State's own programs, such as, Mississippi Industries for the Blind, when such supplies or services satisfy the need.

3.119.02.4 Intent of Use

If a multiple award is anticipated prior to issuing a solicitation, the State shall reserve the right to make such an award, and the criteria for award must be stated in the solicitation.

3.119.02.5 Determination Required

The Agency Procurement Officer shall make a written determination setting forth the reasons for a multiple award, which must be made a part of the procurement file.

Commentary

Within these regulations, purchase arrangements which establish more than one source of supply are either multiple or progressive award contracts. Competitive sealed bidding is the conventional procurement method for establishing such contracts, although competitive sealed proposals, small purchase procedures, and emergency procurements may be used if appropriate as determined in accordance with Section 3.106, Competitive Sealed Bids, Section 3.107, Competitive Sealed Proposals, Section 3.108, Purchases less than $50,000.01, and Section 3.110, Emergency Procurements, respectively.

3.120 Right to Inspect Plant

The State may, at reasonable times during normal posted business hours, inspect the part of the plant or place of business of a contractor or any subcontractor which is related to the performance of any contract awarded or to be awarded by the State. 3.120.01 Inspection of Plant or Site

Circumstances under which the State may perform inspections include, but are not limited to, inspections of the contractor's plant or site in order to determine:

(1) Whether the standards set forth in Subsection 3.113.02, Standards of Responsibility, have been met or are capable of being met; and

(2) If the contract is being performed in accordance with its terms. 3.120.02 Access to Plant or Place of Business

The State may enter a contractor's or subcontractor's plant or place of business to:

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(1) Inspect supplies or services for acceptance by the State pursuant to the terms of a contract; and

(2) Investigate in connection with an action to debar or suspend a person from consideration for award of contracts pursuant to Section 6.102, Authority to Debar or Suspend. 3.120.03 Inspection and Testing of Supplies and Services

3.120.03.1 Solicitation and Contractual Provisions

Mississippi contracts may provide that the State may inspect supplies and services at the contractor's or subcontractor's facility and perform tests to determine whether they conform to solicitation requirements or, after award, to contract requirements and are, therefore, acceptable. Such inspections and tests shall be conducted in accordance with the terms of the solicitation and contract.

3.120.03.2 Procedures for Trial Use and Testing

The Chief Procurement Officer may establish operational procedures governing the testing and trial use of equipment, materials, and other supplies by any state agency and the application of resulting information and data to specifications or procurements. 3.120.04 Conduct of Inspections

3.120.04.1 Inspectors

Inspections or tests shall be performed so as not to unduly delay the work of the contractor or subcontractor. No inspector other than the Agency Procurement Officer may change any provision of the specifications or the contract without written authorization of the Agency Procurement Officer. The presence or absence of an inspector shall not relieve the contractor or subcontractor from any requirements of the contract.

3.120.04.2 Location

When an inspection is made in the plant or place of business of a contractor or subcontractor, such contractor or subcontractor must provide without charge all reasonable facilities and assistance for the safety and convenience of the person performing the inspection or testing.

3.120.04.3 Time

Inspection or testing of supplies and services performed at the plant or place of business of any contractor or subcontractor must be performed at reasonable times during normal posted business hours. 3.120.05 On-site Inspection

On-site inspection of the construction of the equipment must be performed in accordance with the terms of the contract.

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3.121 Finality of Determinations The determinations required by Subsection 3.106.09, Pre-Opening Modification or Withdrawal of Bids, Subsection 3.106 (6), Competitive Sealed Bids, Cancellation of Awards, Subsection 3.107 (1), Competitive Sealed Proposals, Conditions for Use, Subsection 3.107. (4), Competitive Sealed Proposals, Award, Section 3.109, Sole-Source Procurement, Section 3.110, Emergency Procurements, Section 3.111, Competitive Selection Procedures for Services, Subsection 3.113 (2), Responsibility of Bidders and Offerers, Determination of Non-responsibility, Subsection 3.115 (3), Cost or Pricing Data, Cost or Pricing Data Not Required, Section 3.116, Types of Contracts, and Subsection 3.118 (2), Multi-Term Contracts, Determination Prior to Use, are final and conclusive unless they are clearly erroneous, arbitrary, capricious, or contrary to law.

3.122 Reporting of Anticompetitive Practices When for any reason collusion or other anticompetitive practices are suspected among any bidders or offerers, a notice of the relevant facts shall be transmitted to the Attorney General. 3.122.01 Anticompetitive Practices

For the purposes of this regulation, an anticompetitive practice is a practice among bidders or offerers which reduces or eliminates competition or restrains trade. An anticompetitive practice can result from an agreement or understanding among competitors to restrain trade such as submitting collusive bids or proposals, or result from illicit business actions which have the effect of restraining trade, such as controlling the resale price of products or an improper collective refusal to bid. Indications of suspected anticompetitive practices include, but are not limited to, identical bids or proposals, rotated low bids or proposals, sharing of the business, "tie-in" sales, resale price maintenance, and group boycotts. See Subsection 3.122.05, Other Anticompetitive Practices.

Commentary

Bidders and offerers are prohibited by federal and some states' law from collectively responding to a solicitation in a manner that controls directly or indirectly the price of a supply, service, or construction item sought. This prohibition may extend generally to such actions as establishing any of the following: minimum or maximum prices, uniform list prices, uniform credit terms, uniform discounts, uniform costs and mark-ups, uniform trade-in allowances, specified price differentials between varying grades of the same product, price ranges, price scales or price calculation formulas, and minimum fee schedules.

3.122.02 Independent Price Determination

Every solicitation may provide that by submitting a bid or offer, the bidder or offerer certifies that the price submitted was independently arrived at without collusion.

Editorial Note: Some agencies may want to require the signing of a separate form which certifies that the price in the bid or offer was arrived at independently. 3.122.03 Detection of Anticompetitive Practices In order to assist in ascertaining whether or not an anticompetitive practice may have occurred or may be occurring, the Agency Procurement Officer should be alert and sensitive to conditions of the market place and will often find it necessary to study past procurements including, as

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appropriate, the following:

(1) A study of the bidding history of a commodity or service item over a period of time sufficient to determine any significant bidding patterns or changes.

(2) A review of similar Mississippi contract awards over a period of time.

(3) Consultation with outside sources of information, such as bidders or offerers who have competed for similar Mississippi business in the past but who are no longer competing for such business.

Commentary

Guidance on the detection of collusive bidding may be found in Government Purchasing and the Antitrust Laws at pages 21-24 (National Association of Attorneys General and National Association of State Purchasing Officials, May 1977).

3.122.04 Identical Bidding and Price Fixing

The term "identical bidding" means the submission by bidders or offerers of the same total price or the same price on a particular line item. The submission of identical bids may or may not signify the existence of collusion. In some instances, price controls imposed by state or federal governments result in the submission of identical bids. Identical bids for supplies are more likely to occur in the absence of collusion if:

(1) The supply is a commodity with a well-established market price or a brand name with a "suggested retail price;"

(2) The quantity being purchased is small in relation to the supplier's total sales; (3) Early delivery is required; or (4) Transportation expenses are low relative to total costs.

In seeking to determine whether collusion has taken place, the Agency Procurement Officer should view the identical bids against present and past pricing policies of the bidders or offerers, the structure of the industry involved including comparisons of prices f.o.b. shipping point and f.o.b. destination, and the nature of the supply, service, or construction involved, such as whether it is a basic chemical or metal. Identical bids may also result from resale price maintenance agreements which are described in Subsection 3.122.05.3, Resale Price Maintenance. Any other attempt by bidders or offerers to fix prices should also be reported.

Commentary

Executive Order No. 10,936, 26 Fed. Reg. 3555 (1961) directs the U.S. Attorney General to invite state and local governments to report tie bids.

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3.122.05 Other Anticompetitive Practices

3.122.05.1 General

The practices which are described in Subsection 3.122.05.2, Rotated Low Bids or Proposals, through 3.122.05.6, Group Boycott, and which the Agency Procurement Officer suspects might be anticompetitive shall be reported in accordance with Subsection 3.122.06, Reporting Suspected Anticompetitive Practices.

3.122.05.2 Rotated Low Bids or Proposals

Rotated low bids or proposals result where all bidders or offerers participating in the collusive scheme submit bids and by agreement alternate being the lowest bidder or offerer. To aid in determining whether rotation may be occurring, the agency Procurement Office must review past similar procurements in which the same bidders or offerers have participated.

3.122.05.3 Resale Price Maintenance

The practice of resale price maintenance consists of an agreement between a manufacturer and a distributor or a dealer to fix the resale price of a supply. An Agency Procurement Officer should consider the possibility that such an agreement exists where prices offered adhere to an established pattern, such as a published price schedule and when identical bidding occurs.

3.122.05.4 Sharing of the Business

Sharing of the business occurs where potential bidders or offerers allocate business among themselves based on the customers or the territory involved. Thus, an Agency Procurement Officer might discover that a potential bidder or offerer is not participating in a Mississippi procurement because a particular Mississippi agency, or a particular territory, has not been allocated to such bidder or offerer by the producer or manufacturer.

3.122.05.5 “Tie-in" Sales

"Tie-in" sales are those in which a bidder or offerer attempts to sell one supply or service only upon the condition that the Agency Procurement Officer purchase another particular supply or service.

3.122.05.6 Group Boycott

A group boycott results from an agreement between competitors not to deal with another competitor or not to participate in, for instance, a Mississippi procurement until the boycotting competitors' conditions are met by the boycotted competitor or the State. The boycott of a competitor by other competitors may have an effect on the market structure or price of a supply, service, or construction item needed by the State. 3.122.06 Reporting Suspected Anticompetitive Practices

The Chief Procurement Officer, in consultation with the Attorney General, shall develop procedures, including forms, for reporting suspected anticompetitive practices. An Agency Procurement Officer who suspects that an anticompetitive practice has occurred or may be occurring shall follow these procedures.

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Commentary

Protecting the principles of competition in public procurement is a difficult and often complex task. A program of communication and cooperation between procurement and legal offices, institutionalized to the extent feasible, is essential in combating anticompetitive practices.

3.123 Retention of Procurement Records All procurement records shall be retained and disposed of in accordance with records retention guidelines and schedules by the Department of Archives and History.

3.124 Purchasing and Disposal – and Their Application 3.124.01 Request for Authority to Purchase, P-1

The P-1 process should now be accomplished by using an electronic method. The paper process has been phased out; however, there are still some instances where the electronic process cannot be used. Instructions for entering an electronic P-1 are shown on the Office of Purchasing, Travel and Fleet Management website. The P-1 is used when requesting authority to purchase commodities under the following conditions:

(1) Emergency Purchases when total amount of purchase exceeds $5,000. (2) Single Source Purchase when total amount of purchase exceeds $5,000. (3) Purchases or rentals in excess of $50,000 for commodities not covered by a state or agency contract.

(4) Acquisition of equipment by lease-purchase. (The universities are exempt from this requirement but must follow the Institutions of Higher Learning's procedures for all lease- purchase transactions.)

(5) Purchase or rental of items covered on competitive bid state contracts from other than the contract vendor. Exception: similar items under $1,000, see Subsection 2.103.01.1, Competitive Bid Contracts.

(6) Any agency construction contract which exceeds $50,000.

The P-1 originates at the agency level. The agency submits the request and applicable attachments electronically. If approval is granted, the agency is notified electronically and may then issue the appropriate purchase order. All electronic documents are archived electronically for future reference.

P-1's for a lease-purchase are processed using paper P-1’s. Rather than returning the two (2) copies to the agency, only one (1) copy is returned to the agency. One (1) copy is forwarded to the Bureau of Financial Control where it is kept on file for the duration of the agreement. The agency must then reference the P-1 number on each purchase order pertaining to the agreement. Agencies should refer to the online P-1 document for proper instructions.

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3.124.02 Request for Authority to Dispose of Personal Property An Inventory Deletion Form must be completed on any inventory item. The completed document is first sent to the Office of Purchasing, Travel and Fleet Management along with all applicable documents. If approved by the Office of Purchasing, Travel and Fleet Management, all three (3) copies are then forwarded to the Division of Property Control of the Office of the State Auditor for approval. If the Property Control Officer grants approval, one (1) copy is retained on file with the Division of Property Control, and the two (2) remaining copies are returned to the Office of Purchasing, Travel and Fleet Management. One (1) copy is retained on file with the Office of Purchasing, Travel and Fleet Management, and one (1) copy returned to the originating agency. An approved Inventory Deletion Form must be in the possession of the agency disposing of the property before said property can be released to the successful bidder, except as provided for in Section 8.101.01.3, Personal property may be transferred from one state agency to another state agency, including transfers to the Office of Surplus Property.

Approval from the Office of Purchasing, Travel and Fleet Management is not required for sale or transfer of property, excluding vehicles, between state agencies. The agencies must still submit the completed Inventory Deletion Form to the Division of Property Control and must obtain their approval prior to disposing of the property. 3.125 Protective Orders Any party seeking a protective order for a procurement contract awarded by state agencies shall give notice to and provide the reasons for the protective order to the party requesting the information in accordance with the Mississippi Rules of Civil Procedure. The notice and reasons for the protective order must be posted on the Mississippi procurement portal for a minimum of seven (7) days before filing the petition seeking the protective order in chancery court. Any party seeking a protective order in violation of this subsection may be barred by a state agency from submitting bids, proposals or qualifications for procurement for a period not to exceed five (5) years.

Agencies may access detailed instructions on entering this information into MAGIC on OPTFM’s website.

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Chapter 4 Specifications 4.101 Definition of Terms Used in this Chapter 4.101.01 Definitions

(1) Brand Name Specification – a specification limited to one or more items by manufacturers' names or catalog numbers.

(2) Brand Name or Equal Specification – a specification which uses two or more manufacturer's names or catalog numbers to describe the standard of quality, performance, and other characteristics needed to meet Mississippi requirements and which provides for the submission of equivalent products. The use of Brand Name or Equal Specifications that contain less than two manufacturer’s names or catalog numbers may be cause for rejection of the purchase request by the Office of Purchasing, Travel and Fleet Management.

(3) Qualified Products List – an approved list of supplies, services, or construction items described by model or catalog numbers, which, prior to competitive solicitation, the State has determined will meet the applicable specification requirements.

(4) Specification – any description of the physical, functional, or performance characteristics or of the nature of a supply, service, or construction item. A specification includes, as appropriate, requirements for inspecting, testing, or preparing a supply, service, or construction item for delivery.

(5) Specification for a Common or General Use Item – a specification which has been developed and approved for repeated use in procurements in accordance with the provisions of Subsection 4.104.01, Procedures for the Development of Specifications. 4.102 Duties of the Office of Purchasing, Travel and Fleet Management

The Office of Purchasing, Travel and Fleet Management shall promulgate regulations with approval of the Public Procurement Review Board (PPRB) governing the preparation, maintenance, and content of specifications for commodities and equipment required by the State. 4.102.01 General Purpose and Policies

4.102.01.1 Purpose

The purpose of a specification is to serve as a basis for obtaining a supply, service, or construction item adequate and suitable for the State's needs in a cost-effective manner, taking into account, to the extent practicable, the costs of ownership and operation as well as initial acquisition costs. It is the policy of the State that specifications permit maximum practicable competition consistent with this purpose. Specifications shall be drafted with the objective of clearly describing the State's requirements.

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4.102.01.2 Use of Functional or Performance Descriptions

Specifications shall, to the extent practicable, emphasize functional or performance criteria while limiting design or other detailed physical descriptions to those necessary to meet the needs of the State. To facilitate the use of such criteria, using agencies shall endeavor to include as a part of their purchase requisitions the principal functional or performance needs to be met. It is recognized, however, that the preference for use of functional or performance specifications is primarily applicable to the procurement of supplies and services. Such preference is often not practicable in construction, apart from the procurement of supply-type items for a construction project.

4.102.01.3 Preference for Commercially Available Products

It is the general policy of this State to procure standard commercial products whenever practicable. In developing specifications, accepted commercial standards shall be used and unique requirements shall be avoided, to the extent practicable. 4.102.02 Availability of Documents

Except as provided in Subsection 4.104.01, Procedures for the Development of Specifications, regarding testing and confidential data, specifications, and any written determination or other document generated or used in the development of a specification shall be available for public inspection pursuant to Section 1.108, Public Access to Procurement Information. 4.103 Duties of the Chief Procurement Officer

The Chief Procurement Officer or their designee shall prepare, issue, revise, maintain, and monitor the use of specifications for commodities and equipment required by the State. 4.103.01 Authority to Prepare Specifications

4.103.01.1 Authority of the Chief Procurement Officer and State Agencies

The Chief Procurement Officer is authorized to prepare specifications. The Chief Procurement Officer may delegate the authority to prepare and utilize specifications to purchasing agencies and using agencies for any type of commodities and equipment provided such delegations may be revoked by the Chief Procurement Officer.

4.103.01.2 Authority to Contract for Preparation of Specifications

When a determination is made by the Chief Procurement Officer or the head of a purchasing agency authorized to prepare such specifications that there will be no substantial conflict of interest involved and it is otherwise in the best interest of the State, a contract to prepare specifications for State use in procurement of commodities or equipment may be entered into provided such officer has the authority to approve the specifications.

4.103.01.3 Small Purchase and Emergency Authority

If a specification for general or common use or a qualified products list exists for an item to be procured under Section 3.108, Purchases less than $50,000.01, it may be used except as otherwise provided by the Chief Procurement Officer or the head of a purchasing agency. If no such specification exists, purchasing and using agencies are hereby granted the authority to prepare specifications for use in such purchases. In an emergency under Section 3.110,

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Emergency Procurements, any necessary specifications may be utilized by the purchasing or using agency without regard to the provisions of this chapter. 4.104 Procedures for the Development of Specifications

4.104.01.1 Provisions of General Application

(1) Application of Section

This section applies to all persons who may prepare a specification for State use, including the Chief Procurement Officer, the head of a purchasing agency, the head of a using agency, and the designees of such officers.

(2) Specification of Alternates

A specification may provide alternate descriptions of supplies, services, or construction items where two or more design, functional, or performance criteria will adequately meet the State's requirements.

(3) Use of Existing Specifications

If a specification for a common or general use item has been developed in accordance with Subsection 4.104.01, Procedures for the Development of Specifications, or a qualified products list has been developed in accordance with Subsection 4.104.01.2 (4), Qualified Products List, for a particular commodity or equipment item, it may be used unless the Chief Procurement Officer or the head of a purchasing agency makes a written determination that its use is not in the State's best interest and that another specification shall be used.

Commentary

The Chief Procurement Officer may provide for the periodic review of certain specifications to determine whether any existing specification needs revision or a new specification is needed to reflect changes in:

(1) The state-of-the-art;

(2) The characteristics of the available supplies, services, or construction items; or

(3) Needs of the using agency.

4.104.01.2 Special Additional Procedures

(1) Specifications for Common or General Use Items

(a) Preparation and Utilization

A specification for common or general use items shall, to the extent practicable, be prepared to be utilized when:

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(i) A commodity or equipment item is used in common by several using agencies or used repeatedly by one using agency, and the characteristics of the commodity or equipment item, as commercially produced or provided, remain relatively stable while the frequency or volume of procurements is significant;

(ii) The State's recurring needs require uniquely designed or specially produced items; or

(iii) The Chief Procurement Officer, or the head of a purchasing or using agency authorized to prepare such specifications finds it to be in the State's best interest.

In the event a using agency requests the preparation of a specification for a common or general use item, the Chief Procurement Officer may prepare such a specification if such officer determines the conditions in Subsections 4.104.01.2 (1)(a)(i), (ii), or (iii), Preparation and Utilization, have been met.

(b) Comments on the Draft

The Chief Procurement Officer or the head of a purchasing or using agency preparing a specification for a common or general use item may provide the using agencies, and a reasonable number of manufacturers and suppliers as such officer deems appropriate, an opportunity to comment on the draft specification.

(c) Final Approval

Final approval of a proposed specification for a common or general use item shall be given only by the Chief Procurement Officer or by the head of a purchasing or using agency authorized to give such approval.

(d) Revisions

Revisions to specifications for common or general use items which do not change the technical elements of the specifications but which are necessary for clarification may be made upon approval of the Chief Procurement Officer or the head of a purchasing or using agency authorized to approve such specifications. Interim revisions for a particular procurement which change the technical elements of the specification may be made by the Chief Procurement Officer or the head of a purchasing or using agency authorized to approve such specifications. All other revisions shall be made in accordance with 4.104.01.2 (1)(b), Comments on the Draft, and Subsection 4.104.02.2 (1)(c), Final Approval.

(e) Cancellation

A specification for a common or general use item may be canceled by the Chief Procurement Officer, or by the head of a purchasing or using agency authorized to give final approval to such specifications.

(2) Brand Name or Equal Specification

(a) Applicability of this Subsection

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Subsection, 4.104.01.2(2), Brand Name or Equal Specification, shall apply whenever brand names are used in specifications except as provided in Subsection 4.104.01.2(3), Brand Name Specification.

(b) Use

Brand name or equal specifications may be prepared to be used when the Chief Procurement Officer or the head of a purchasing agency determines that:

(i) No specification for a common or general use item or qualified products list is available;

(ii) Time does not permit the preparation of another form of specification, not including a brand name specification;

(iii) The nature of the product or the nature of the State's requirements makes use of a brand name or equal specification suitable for the procurement; or

(iv) Use of a brand name or equal specification is in the State's best interest. (c) Designation of Several Brand Names Brand name or equal specifications shall seek to designate as many different brands as are practicable as "or equal" references and shall further state that substantially equivalent products to those designated will be considered for award.

(d) Required Characteristics

Unless the Chief Procurement Officer or the head of a purchasing or using agency authorized to approve specifications determines that the essential characteristics of the brand names included in the specifications are commonly known in the industry or trade, brand name or equal specifications shall include a description of the particular design, functional, or performance characteristics which are required.

(e) Non-restrictive Use of Brand Name or Equal Specifications

Where a brand name or equal specification is used in a solicitation, the solicitation shall contain explanatory language that the use of a brand name is for the purpose of describing the standard of quality, performance, and characteristics desired and is not intended to limit or restrict competition.

(3) Brand Name Specification

(a) Use

Since use of a brand name specification is restrictive, it may be used only when the Chief Procurement Officer makes a determination that only the identified brand name item or items will satisfy the State's needs.

(b) Competition

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The Agency Procurement Officer shall seek to identify sources from which the designated brand name item or items can be obtained and shall solicit such sources to achieve whatever degree of competition is practicable. If only one source can supply the requirement, the procurement shall be made under Section 3.109, Sole-Source Procurement.

(4) Qualified Products List

(a) Use

A qualified products list may be developed with the approval of the Chief Procurement Officer, or the head of a purchasing or using agency authorized to develop qualified products lists, when testing or examination of the commodities prior to issuance of the solicitation is desirable or necessary in order to best satisfy the requirements.

(b) Comments, Final Approval, Revisions, and Cancellation

Comments on final approval of and revisions to the proposed criteria and methodology for establishing and maintaining a qualified products list, and the cancellation thereof, shall follow the procedures of Subsections 4.104.01.2 (1) (b), Comments on the Draft, through 4.104.01.2 (1) (e), Cancellation, applicable to specifications for common or general use items.

(c) Solicitation

When developing a qualified products list, a representative group of potential suppliers shall be solicited in writing to submit products for testing and examination to determine acceptability for inclusion on a qualified products list. Any potential supplier, even though not solicited, may offer its products for consideration.

(d) Testing and Confidential Data

Inclusion on a qualified products list shall be based on results of tests or examinations conducted in accordance with prior published requirements. Except as otherwise provided by law, trade secrets, test data, and similar information provided by the supplier will be kept confidential when requested in writing by the supplier. However, qualified products lists test results shall be made public but in a manner so as to protect the confidentiality of the identity of the competitors by, for example, using numerical designations.

Commentary

The obligation to keep data confidential is not intended to create any liability that would not otherwise exist under State law.

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4.105 Relationship with Using Agencies

The Chief Procurement Officer may obtain expert advice and assistance from personnel of using agencies in the development of specifications and may delegate in writing to a using agency the authority to prepare and utilize its own specifications. 4.106 Formulation and Restriction

Specifications written to invite bidding for term contracts when issued for the first time will be sent to selected competitive vendors for their review and comment prior to the request for formal bid. A standard form will be furnished with these specifications with questions that should be answered by all those surveyed and a request for comments if appropriate.

It will not be the intent of the Office of Purchasing, Travel and Fleet Management to either write or approve any specifications that are restrictive and preclude competitive bidding. Neither will it be the intent or policy of the Office of Purchasing, Travel and Fleet Management to write or allow to be written specifications that are so open and nonspecific as to invite participation by vendors offering less than quality products.

In the formulation of specifications, we would both welcome and invite vendor participation, but we would have it clearly understood that we will not tolerate vendor dictations.

In some cases, it will be absolutely necessary that the specifications be written in a manner that would invite bids on a single product or service or major repair part so as to conform to and be compatible with items of equipment or furnishings presently in use. When such cases arise, no consideration will be given to an alternate bid. 4.107 Maximum Practicable Competition

All specifications shall seek to promote overall economy for the purposes intended and encourage competition in satisfying the State's needs, and shall not be unduly restrictive. Specifications shall not be written so as to exclude equipment of domestic manufacture as provided for in Section 31-7-13(c), Mississippi Code of 1972, Annotated. 4.107.01 Non-restrictiveness Requirement

All specifications shall be written in such a manner as to describe the requirements to be met, without having the effect of exclusively requiring a proprietary commodity or equipment item, or procurement from a sole source, unless no other manner of description will suffice. In that event, a written determination shall be made that it is not practicable to use a less restrictive specification.

4.108 Specifications Prepared by Architects and Engineers

The requirements of this chapter regarding the purposes and non-restrictiveness of specifications shall apply to all specifications, including, but not limited to, those prepared by architects, engineers, designers, and draftsmen for public contracts. 4.108.01 Specifications Prepared by Other Than State Personnel

The requirements of this chapter shall apply to all specifications prepared by other than State

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personnel including, but not limited to, those prepared by consultants, architects, engineers, designers, and other draftsmen of specifications for public contracts. Contracts for the preparation of specifications by other than State personnel shall require the specification writer to adhere to such requirements. When persons other than State personnel prepare specifications, the State shall not be relieved from the comment and review requirements of this chapter.

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Chapter 5 Modification and Termination of Contracts for Commodities 5.101 Introduction

The following contract clauses are available for use in commodity contracts at the discretion of the Chief Procurement Officer, the head of a purchasing agency, or the designee of either officer. Alternative clauses are provided in some instances to permit accommodation of differing contract situations. 5.101.01 Variations in Estimated Quantities Clause

5.101.01.1 Definite Quantity Contracts

The following clause is authorized for use in definite quantity commodity contracts:

Variation in Quantity

“Upon the agreement of the parties, the quantity of commodities specified in this contract may be increased by a maximum of ten percent (10%) provided:

(1) The unit prices will remain the same (except for any price adjustments otherwise applicable); and

(2) The Agency Procurement Officer makes a written determination that such an increase will either be more economical than awarding another contract or that it would not be practical to award another contract.”

5.101.01.2 Indefinite Quantity Contracts

No clause is provided here because in indefinite quantity contracts the flexibility as to the State’s obligation to order and the contractor’s obligation to deliver should be designed to meet using agency needs while making the contract as attractive as possible to potential contractors, thereby attempting to obtain maximum practicable competition in order to assure the best economy for the State of Mississippi. However, in each case, the contract should state:

(1) The minimum quantity, if any, the State is obligated to order and the contractor to provide;

(2) Whether there is a quantity the State expects to order and how this quantity relates to any minimum and maximum quantities that may be ordered under the contract;

(3) Any maximum quantity the State may order and the contractor must provide; and

(4) Whether the State is obligated to order its actual requirements under the contract, or in the case of a multiple award as defined in Section 3.119, Multiple Source Contracting, that the State will order its actual requirements from the contractors under the multiple award subject to any minimum or maximum quantity stated.

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5.101.02 Termination for Default Clause

Termination for Default

(1) Default

If the contractor refuses or fails to perform any of the provisions of this contract with such diligence as will ensure its completion within the time specified in this contract, or any extension thereof otherwise fails to timely satisfy the contract provisions, or commits any other substantial breach of this contract, the Agency Procurement Officer may notify the contractor in writing of the delay or non-performance and if not cured in ten (10) days or any longer time specified in writing by the Agency Procurement Officer, such officer may terminate the contractor’s right to proceed with the contract or such part of the contract as to which there has been delay or a failure to properly perform. In the event of termination in whole or in part, the Agency Procurement Officer may procure similar supplies or services in a manner and upon terms deemed appropriate by the Agency Procurement Officer. The contractor shall continue performance of the contract to the extent it is not terminated and shall be liable for excess costs incurred in procuring similar goods or services.

(2) Contractor’s Duties

Notwithstanding termination of the contract and subject to any directions from the Agency Procurement Officer, the contractor shall take timely, reasonable, and necessary action to protect and preserve property in the possession of the contractor in which the State has an interest.

(3) Compensation

Payment for completed supplies delivered and accepted by the State shall be at the contract price. The State may withhold from amounts due the contractor such sums as the Agency Procurement Officer deems to be necessary to protect the State against loss because of outstanding liens or claims of former lien holders and to reimburse the State for the excess costs incurred in procuring similar goods and services.

(4) Excuse for Non-performance or Delayed Performance

Except with respect to defaults of subcontractors, the contractor shall not be in default by reason of any failure in performance of this contract in accordance with its terms (including any failure by the contractor to make progress in the prosecution of the work hereunder which endangers such performance) if the contractor has notified the Agency Procurement Officer within 15 days after the cause of the delay and the failure arises out of causes such as: acts of God; acts of the public enemy; acts of the State and any other governmental entity in its sovereign or contractual capacity; fires; floods; epidemics; quarantine restrictions; strikes or other labor disputes; freight embargoes; or unusually severe weather. If the failure to perform is caused by the failure of a subcontractor to perform or to make progress, and if such failure arises out of causes similar to those set forth above, the contractor shall not be deemed to be in default, unless the supplies or services to be furnished by the subcontractor were reasonably obtainable from other sources in sufficient time to permit the contractor to meet the contract requirements. Upon request of the contractor, the Agency Procurement Officer shall ascertain the facts and extent of such failure, and, if such officer determines that any failure to perform was occasioned by any one or more of the excusable causes, and that, but for the excusable cause, the contractor’s progress and performance would have met the terms of the

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contract, the delivery schedule shall be revised accordingly, subject to the rights of the State under the clause entitled (in fixed-price contracts, “Termination for Convenience,” in cost-reimbursement contracts, “Termination”). (As used in this paragraph of this clause, the term “subcontractor” means subcontractor at any tier).

(5) Erroneous Termination for Default

If, after notice of termination of the contractor’s right to proceed under the provisions of this clause, it is determined for any reason that the contract was not in default under the provisions of this clause, or that the delay was excusable under the provisions of Subsection 5.101.02 (4), Excuse for Non-performance or Delayed Performance, of this clause, the rights and obligations of the parties shall, if the contract contains a clause providing for termination for convenience of the State, be the same as if the notice of termination had been issued pursuant to such clause. If, in the foregoing circumstances, this contract does not contain a clause providing for termination for convenience of the State, the contract shall be adjusted to compensate for such termination and the contract modified accordingly subject to the contractor’s rights under Chapter 6, Legal and Contractual Remedies.

(6) Additional Rights and Remedies

The rights and remedies provided in this clause are in addition to any other rights and remedies provided by law or under this contract. 5.101.03 Liquidated Damages Clause

5.101.03.1 With Termination for Default Clause

The following clause is authorized for use in commodity contracts when it is difficult to determine with reasonable accuracy the amount of damage to the State due to delays caused by late contractor performance or non-performance and the contract contains the termination for default clause set forth in Subsection 5.101.02, Termination for Default Clause.

Liquidated Damages

"When the contractor is given notice of delay or non-performance as specified in Subsection 5.101.02 (1), Termination for Default Clause, of this contract and fails to cure in the time specified, the contractor shall be liable for damages for delay in the amount of $______ per calendar day from date set for cure until either the State reasonably obtains similar commodities if the contractor is terminated for default, or until the contractor provides the supplies or services if the contractor is not terminated for default. To the extent that the contractor's delay or non-performance is excused under Subsection 5.101.02 (4), Excuse for Non-performance or Delayed Performance of the Termination for Default Clause of this contract, liquidated damages shall not be due the State. The contractor remains liable for damages caused other than by delay."

5.101.03.2 In Other Situations

If the contract will not have a Termination for Default Clause or the liquidated damages are to be assessed for reasons other than delay, the Chief Procurement Officer or the head of a purchasing agency may approve the use of any appropriate liquidated damages clause.

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5.101.04 Termination for Convenience Clause

Termination for Convenience

(1) Termination

The Agency Procurement Officer may, when the interests of the State so require, terminate this contract in whole or in part, for the convenience of the State. The Agency Procurement Officer shall give written notice of the termination to the contractor specifying the part of the contract terminated and when termination becomes effective.

(2) Vendor’s Obligations

The vendor shall incur no further obligations in connection with the terminated work and on the date set in the notice of termination the contractor will stop work to the extent specified. The contractor shall also terminate outstanding orders and subcontracts as they relate to the terminated work. The contractor shall settle the liabilities and claims arising out of the termination of subcontracts and orders connected with the terminated work. The Agency Procurement Officer may direct the contractor to assign the contractor's right, title, and interest under terminated orders or subcontracts to the State. The contractor must still complete the work not terminated by the notice of termination and may incur obligations as are necessary to do so.

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Chapter 6 Legal and Contractual Remedies 6.101 Authority to Resolve Protested Solicitations and Awards

(1) Right to Protest

Any actual or prospective bidder, offerer, or contractor who is aggrieved in connection with the solicitation or award of a contract may protest to the Head of the Purchasing Agency and copy the Chief Procurement officer. The protest shall be submitted in writing within 7 days after such aggrieved person knows or should have known of the facts giving rise thereto.

(2) Authority to Resolve Protests

The Chief Procurement Officer, the head of a purchasing agency, or a designee of either officer shall have the authority to settle and resolve a protest of an aggrieved bidder, offerer, or contractor, actual or prospective, concerning the solicitation or award of a contract.

(3) Decision

If the protest is not resolved by mutual agreement, the Chief Procurement Officer, the head of a purchasing agency, or a designee of either officer shall promptly issue a decision in writing. The decision shall:

(a) state the reasons for the action taken; and

(b) inform the protestant of its right to administrative review as provided in this Chapter. (4) Notice of Decision A copy of the decision under Subsection (3) of this section shall be mailed or otherwise furnished immediately to the protestant and any other party intervening.

(5) Finality of Decision

A decision under Subsection (3) of this section shall be final and conclusive, unless fraudulent, or:

(a) Any person adversely affected by the decision appeals administratively to the Procurement Review Board in accordance with Section 6.204, Protest of Solicitations or Awards.

(5) Stay of Procurements During Protests

In the event of a timely protest under Subsection (1) of this section, the State shall not proceed further with the solicitation or with the award of the contract until the Chief Procurement Officer, after consultation with the head of the using agency or the head of a purchasing agency, makes a written determination that the award of the contract

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without delay is necessary to protect substantial interests of the State. 6.101.01 Definitions

6.101.01.1 Interested Party means an actual or prospective bidder, offerer, or contractor that may be aggrieved by the solicitation or award of a contract, or by the protest.

6.101.01.2 Protestor means any actual or prospective bidder, offerer, or contractor who is aggrieved in connection with the solicitation or the award of a contract and who files a protest.

6.101.01.3 Attorney General shall mean the individual assigned by the Attorney General to provide legal assistance to the Department of Finance and Administration. 6.101.02 Complaint to Procurement Officer

Complainants should seek resolution of their complaints initially with the Procurement Officer or the office that issued the solicitation. Such complaints may be made verbally or in writing. 6.101.03 Filing of Protest

6.101.03.1 When Filed

Protests shall be made in writing to the head of the purchasing agency and copied to the Chief Procurement Officer, and shall be filed in duplicate within seven (7) days after the protestor knows or should have known of the facts giving rise thereto. A protest is considered filed when received by the Chief Procurement Officer or the head of a purchasing agency. Protests filed after the seven (7) day period shall not be considered.

6.101.03.2 Subject of Protest

Protestors may file a protest on any phase of solicitation or award including, but not limited to, specification preparation, bid solicitation, award, or disclosure of information marked confidential in the bid or offer.

6.101.03.3 Form

To expedite handling of protests, the envelope should be labeled "Protest." The written protest shall include as a minimum the following:

(a) the name and address of the protestor;

(b) appropriate identification of the procurement and if a contract has been awarded, its number;

(c) a statement of reasons for the protest; and

(d) supporting exhibits, evidence, or documents to substantiate any claims unless not available within the filing time in which case the expected availability date shall be indicated.

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6.101.03.4 Notification of the Attorney General

The Chief Procurement Officer shall submit a copy of the protest to the Attorney General within three days of receipt of the written protest. 6.101.04 Requested Information; Time for Filing

Any additional information requested by any of the parties should be submitted within the time period established by the requesting source in order to expedite consideration of the protest. Failure of any party to comply expeditiously with a request for information by the Chief Procurement Officer or the head of a purchasing agency may result in resolution of the protest without consideration of any information which is untimely filed pursuant to such request. 6.101.05 Stay of Procurements During Protest

When a protest has been filed within 7 days and before an award has been made, the Chief Procurement Officer or the head of a purchasing agency shall make no award of the contract until the protest has been settled unless the Chief Procurement Officer makes a written determination, after consulting with the head of the using agency or the head of the purchasing agency, that the award of the contract without delay is necessary to protect substantial interests of the State. 6.101.06 Making Information on Protests Available

The Chief Procurement Officer or the head of a purchasing agency shall upon written request make available to any interested party information submitted that bears on the substance of the protest except where information is proprietary, confidential, or otherwise permitted or required to be withheld by law or regulation. Persons who wish to keep such information submitted by them confidential should so request by specifically identifying such information within documents submitted, and indicating on the front page of each document that it contains such information. The availability of such information shall be in compliance with 1.301, Public Access to Procurement Information. 6.101.07 Decision by the Chief Procurement Officer or the Head of a Purchasing Agency

6.101.07.1 Time for Decisions

A decision on a protest shall be made by the Chief Procurement Officer or the head of a purchasing agency as expeditiously as possible after receiving all relevant, requested information. If a protest is sustained, the available remedies include, but are not limited to, those set forth in Section 6.201.01, Determination that Solicitation or Award Violates Law, and Regulation 6.202, Remedies Prior to an Award. 6.101.08 Request for Reconsideration

6.101.08.1 Request

Reconsideration of a decision of the Chief Procurement Officer or the head of a purchasing agency may be requested by the protestor, appellant, any interested party who submitted comments during consideration of the protest, or any agency involved in the protest. The request for reconsideration shall contain a detailed statement of the factual and legal grounds

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upon which reversal or modification is deemed warranted, specifying any errors of law made or information not previously considered.

6.101.08.2 Time for Filing

Requests for reconsideration of a decision of the Chief Procurement Officer or the head of a purchasing agency shall be filed not later than 7 days after receipt of such decision.

6.101.08.3 Time for Acting

A request for reconsideration shall be acted upon as expeditiously as possible. The Chief Procurement Officer or the head of a purchasing agency may uphold the previous decision or reopen the case as such officer deems appropriate. 6.101.09 Effect of Judicial or Administrative Proceedings

The Chief Procurement Officer or the head of a purchasing agency will refuse to decide any protest when a matter involved is the subject of a proceeding before the Procurement Review Board or has been decided on the merits by the Board. If an action concerning the protest has commenced in court, the Chief Procurement Officer or the head of a purchasing agency shall not act on the protest but refer the protest to the Attorney General. This section shall not apply where the Board or a court requests, expects, or otherwise expresses interest in the decision of the Chief Procurement Officer or the head of a purchasing agency. 6.102 Authority to Debar or Suspend

(1) Authority

After reasonable notice to the person involved and reasonable opportunity for that person to be heard, the Chief Procurement Officer or the head of a purchasing agency, after consultation with the using agency and the Attorney General, shall have authority to debar a person for cause from consideration for award of contracts. The debarment shall be for a period of two years. The same officer, after consultation with the using agency and the Attorney General, shall have authority to suspend a person from consideration for award of contracts if there is probable cause for debarment. The suspension shall not be for a period exceeding three months.

(2) Causes for Debarment or Suspension

The causes for debarment or suspension include the following:

(a) conviction for commission of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract;

(b) conviction under State or Federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty which currently, seriously, and directly affects responsibility as a Mississippi contractor;

(c) conviction under State or Federal antitrust statutes arising out of the submission of bids or proposals;

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(d) violation of contract provisions, as set forth below, of a character which is regarded by the Chief Procurement Officer or the head of a purchasing agency to be so serious as to justify debarment action:

(i) deliberate failure without good cause to perform in accordance with the specifications or within the time limit provided in the contract; or

(ii) a recent record of failure to perform or of unsatisfactory performance in accordance with the terms of one or more contracts; provided that failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor shall not be considered to be a basis for debarment;

(e) any other cause the Chief Procurement Officer or the head of a purchasing agency determines to be so serious and compelling as to affect responsibility as a Mississippi contractor, including debarment by another governmental entity for any cause listed herein; and

(f) for violation of the ethical standards set forth in Chapter 9 (Ethics in Public Contracting). (3) Decision The Chief Procurement Officer or the head of a purchasing agency shall issue a written decision to debar or suspend. The decision shall:

(a) state the reasons for the action taken; and

(b) inform the debarred or suspended person involved of its rights to administrative review as provided in this Chapter.

(4) Notice of Decision

A copy of the decision under Subsection (3) of this section shall be mailed or otherwise furnished immediately to the debarred or suspended person and any other party intervening.

(5) Finality of Decision

A decision shall be final and conclusive, unless fraudulent, or:

(a) the debarred or suspended person commences an action in court; or

(b) the debarred or suspended person appeals administratively to the Procurement Review Board in accordance with Section 6.205, Suspension or Debarment Procedures. 6.102.01 Application

This Regulation applies to all debarments or suspensions of persons from consideration for award of contracts imposed by the Chief Procurement Officer or the head of a purchasing agency.

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6.102.02 Suspension

6.102.02.1 Initiation

After consultation with the affected using agency, the Attorney General, and, where practicable, the contractor or prospective contractor who is to be suspended, and upon written determination by the Chief Procurement Officer or the head of a purchasing agency that probable cause exists for debarment as set forth in Section 6.102, Authority to Debar or Suspend, a contractor or prospective contractor shall be suspended. A notice of suspension, including a copy of such determination, shall be sent to the suspended contractor or prospective contractor. Such notice shall state that:

(a) the suspension is for the period it takes to complete an investigation into possible debarment including any appeals of a debarment decision but not for a period in excess of three months;

(b) bids or proposals will not be solicited from the suspended person, and, if they are received, they will not be considered during the period of suspension; and

(c) if a hearing has not been held, the suspended person may request a hearing in accordance with Section 6.102.04, Request for Hearing.

6.102.02.2 Effect of Decision

A contractor or prospective contractor is suspended upon issuance of the notice of suspension. The suspension shall remain in effect during any appeals. The suspension may be ended by the officer who issued the notice of suspension by the Procurement Review Board but otherwise shall only be ended when the suspension has been in effect for three months or a debarment decision takes effect. 6.102.03 Initiation of Debarment Action

Written notice of the proposed debarment action shall be sent by certified mail, return receipt requested, to the contractor or prospective contractor. This notice shall:

(a) state that debarment is being considered; (b) set forth the reasons for the action; (c) state that if the contractor or prospective contractor so requests, a hearing will be held, provided such request is received by the Chief Procurement Officer or the head of a purchasing agency within seven days after the contractor or prospective contractor receives notice of the proposed action.

Such notice shall also be sent to the Attorney General and the affected using agency. The affected using agency is that agency that has used the commodities or equipment supplied by the contractor. If more than one affected using agency is involved, the Chief Procurement Officer or the head of a purchasing agency may designate one or more representatives to be consulted in respect to this action.

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6.102.04 Request for Hearing

A contractor or prospective contractor that has been notified of a proposed debarment action may request in writing that a hearing be held. Such request must be received by the official proposing the action within 7 days of receipt of notice of the proposed action under Section 6.102.03, Initiation of Debarment Action. If no request is received within the seven-day period, a final determination may be made as set forth in Section 6.102.08, Determination of Hearing Officer; Final Decision, after consulting with the Attorney General and the affected using agency. 6.102.05 Notice of Hearing

If a hearing is requested, the Chief Procurement Officer or the head of a purchasing agency may appoint a hearing officer to conduct the hearing and recommend a final decision. Otherwise, the Chief Procurement Officer or the head of a purchasing agency shall act as the hearing officer. The hearing officer shall send a written notice of the time and place of the hearing. Such notice shall be sent by certified mail, return receipt requested, and shall state the nature and purpose of the proceedings. Copies shall be sent to the Attorney General and the using agency. 6.102.06 Authority of Hearing Officer

The hearing officer, in the conduct of the hearing, has the power, among others, to:

(a) hold informal conferences to settle, simplify, or fix the issues in a proceeding, or to consider other matters that may aid in the expeditious disposition of the proceeding either by consent of the parties or upon such officer's own motion;

(b) require parties to state their positions with respect to the various issues in the proceeding;

(c) require parties to produce for examination those relevant witnesses and documents under their control;

(d) rule on motions, and other procedural items on matters pending before such officer; (e) regulate the course of the hearing and conduct of participants therein; (f) receive, rule on, exclude, or limit evidence, and limit lines of questioning or testimony which are irrelevant, immaterial, or unduly repetitious;

(g) fix time limits for submission of written documents in matters before such officer;

(h) impose appropriate sanctions against any party or person failing to obey an order under these procedures, which sanctions may include:

(i) refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;

(ii) excluding all testimony of an unresponsive or evasive witness; and

(iii) expelling any party or person from further participation in the hearing;

(i) take official notice of any material fact not appearing in evidence in the record, if such

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fact is among the traditional matters of judicial notice. 6.102.07 Hearings Procedures

(1) Hearings shall be as informal as may be reasonable and appropriate under the circumstances and in accordance with applicable due process requirements. The weight to be attached to evidence presented in any particular form will be within the discretion of the hearing officer. Stipulations of fact agreed upon by the parties may be regarded and used as evidence at the hearing. The parties may stipulate the testimony that would be given by a witness if the witness was present. The hearing officer may require evidence in addition to that offered by the parties.

(2) A hearing may be recorded but need not be transcribed except at the request and expense of the contractor or prospective contractor. A record of those present, identification of any written evidence presented, and copies of all written statements and a summary of the hearing shall be sufficient record.

(3) Opening statements may be made unless a party waives this right.

(4) Witnesses shall testify under oath or affirmation. All witnesses may be cross-examined. 6.102.08 Determination of Hearing Officer; Final Decision

The hearing officer shall prepare a written determination recommending a course of action. Such determination shall be given to the Chief Procurement Officer or the head of a purchasing agency. Copies shall also be sent to the contractor or prospective contractor, the Attorney General, and the affected using agency. The contractor or prospective contractor shall have seven days to file comments upon the hearing officer's determination. The Chief Procurement Officer or the head of a purchasing agency may request oral argument. After consultation with the affected using agency and the Attorney General, the Chief Procurement Officer or the head of a purchasing agency shall issue a final decision. Both the hearing officer's determination and the final decision shall recite the evidence relied upon. When debarment is recommended or ordered, the reasons for such action, and to what extent affiliates are affected, shall be set forth. In addition, the final determination shall inform the debarred person of its rights to administrative review. 6.102.09 Effect of Debarment Decision

A debarment decision will take effect upon issuance and receipt by the contractor or prospective contractor. After the debarment decision takes effect, the contractor shall remain debarred until the debarment period specified in the decision expires. 6.102.10 Maintenance of List of Debarred and Suspended Persons

The Chief Procurement Officer shall maintain and update a list of debarred and suspended persons. All agencies of the State shall be supplied with this list. The Chief Procurement Officer shall send updates of this list to all agencies of the State as necessary. Such list shall be available to the public upon request.

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6.103 Authority to Resolve Contract and Breach of Contract Controversies

(1) Applicability

This section applies to controversies between the State and a contractor and which arise under, or by virtue of, a contract between them. This includes without limitation controversies based upon breach of contract, mistake, misrepresentation, or other cause for contract modification or rescission.

(2) Authority

The Chief Procurement Officer, the head of a purchasing agency, or a designee of either officer is authorized to settle and resolve a controversy described in Subsection (1) of this section.

(3) Decision

If such a controversy is not resolved by mutual agreement, the Chief Procurement Officer, the head of a purchasing agency, or the designee of either officer shall promptly issue a decision in writing. The decision shall:

(a) state the reasons for the action taken; and

(b) inform the contractor of its right to administrative review as provided in this Chapter. (4) Notice of Decision A copy of the decision under Subsection (3) of this section shall be mailed or otherwise furnished immediately to the contractor.

(5) Finality of Decision

The decision under Subsection (3) of this section shall be final and conclusive, unless fraudulent, or:

(a) the contractor appeals administratively to the Procurement Review Board in accordance with Section 6.206, Contract and Breach of Contract Controversies.

(6) Failure to Render Timely Decision

If the Chief Procurement Officer, the head of a purchasing agency, or the designee of either officer does not issue the written decision required under Subsection (3) of this section within 60 days after written request for a final decision, or within such longer period as may be agreed upon by the parties, then the contractor may proceed as if an adverse decision had been received. 6.103.01 General

The Mississippi Procurement Code establishes procedures and remedies to resolve contract and breach of contract controversies between the State and a contractor. It is the State's policy, consistent with the Code, to try to resolve all controversies by mutual agreement. In appropriate circumstances, informal discussions between the parties can aid in the resolution of differences

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by mutual agreement and are encouraged. If such informal discussions do not resolve the controversy, individuals who have not participated substantially in the matter in controversy may be brought in to conduct discussions if this is feasible. Independent committees and panels which review controversies expeditiously and informally with a view to fair settlement possibilities also are encouraged at this stage. 6.103.02 Scope of Regulations

Section 6.103, Authority to Resolve Contract and Breach of Contract Controversies, is applicable to controversies between the State and a contractor which arise under, or by virtue of, a contract between them. This includes without limitation controversies based upon breach of contract, mistake, misrepresentation, or other cause for contract modification, reformation, or rescission. The word "controversy" is meant to be broad and all-encompassing. It includes the full spectrum of disagreements from pricing of routine contract changes to claims of breach of contract. 6.103.03 Delegation of Authority to Procurement Officer

6.103.03.1 Procurement Officer Authority

Subject to Subsection 6.103.03.2 of this section, unless a provision of the contract specifies that the authority to settle and resolve controversies and to issue decisions is reserved to the Chief Procurement Officer or the head of a purchasing agency, such authority is hereby delegated to the Procurement Officer. Within this Regulation, therefore, "Procurement Officer" denotes the person with such authority whether that is the Procurement Officer, the Chief Procurement Officer, the head of a purchasing agency, or a designee of such officer.

6.103.03.2 Prior Approval of Large Settlements

The settlement or resolution of controversies involving claims in excess of $15,000 is subject to the prior written approval of the Chief Procurement Officer or the head of a purchasing agency. In such cases, the Procurement Officer shall prepare a recommended decision for the Chief Procurement Officer or the head of a purchasing agency. 6.103.04 Procurement Officer's Decision

6.103.04.1 Procedures Prior to Issuing Decision

When a controversy cannot be resolved by mutual agreement, the Procurement Officer shall, after written request by the contractor for a final decision, promptly issue a written decision. Before issuing a final decision, the Procurement Officer shall: (a) review the facts pertinent to the controversy; and

(b) secure any necessary assistance from legal, fiscal, and other advisors.

6.103.04.2 Final Decision

The Procurement Officer shall immediately furnish a copy of the decision to the contractor, by certified mail, return receipt requested, or by any other method that provides evidence of receipt, and include in the decision:

(a) a description of the controversy;

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(b) a reference to pertinent contract provisions;

(c) a statement of the factual areas of agreement or disagreement;

(d) a statement of the Procurement Officer's decision, with supporting rationale; (e) a paragraph substantially as follows: "This is the final decision of the Procurement Officer. This decision may be appealed to the Procurement Review Board. If you decide to make such an appeal, you must mail or otherwise furnish written notice of appeal to the Procurement Review Board within 7 days from the date you receive this decision. A copy of the notice of appeal shall be furnished to the Procurement Officer from whose decision the appeal is taken. The notice shall indicate that an appeal is intended, reference the decision from which the appeal is being taken, and identify the contract involved."

6.103.04.3 Failure to Timely Issue Final Decision

If the Procurement Officer does not issue a written decision within 60 days after written request by the contractor for a final decision, or within such longer period as may be agreed upon by the parties, then the contractor may proceed as if an adverse decision has been received.

6.103.04.4 Payments of Amounts Found Due

The amount determined payable pursuant to the decision, less any portion already paid, normally should be paid without awaiting contractor action concerning appeal. Such payment shall be without prejudice to the rights of either party and where such payments are required to be returned by a subsequent decision, interest on such payments shall be paid at the statutory rate from the date of payment; provided, however, that any payment made shall be in compliance with State law. 6.103.05 Controversies Involving Mississippi Claims Against the Contractor

All controversies involving claims asserted by the State against a contractor which cannot be resolved by mutual agreement shall be the subject of a decision by the Procurement Officer, the Chief Procurement Officer, or the head of a purchasing agency, as applicable. 6.103.06 Interest

6.103.06.1 Payable on Claims

Interest on amounts ultimately determined to be due to a contractor or the State shall be payable at the statutory rate applicable to judgments from the date the claim arose through the date of decision or judgment, whichever is later. Reference Section 31-7-301 through 31-7-317 Mississippi Code.

6.103.06.2 Contract Clause

Each contract between the State and a contractor may contain a paragraph substantially similar to Subsection 6.103.06.1 of this section.

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6.103.07 Disputes Clause

Language substantially similar to the following clause may be inserted in all Mississippi contracts:

"Disputes

(1) All controversies between the State and the contractor which arise under, or are by virtue of, this contract and which are not resolved by mutual agreement, shall be decided by the Chief Procurement Officer in writing, within 60 days after a written request by the contractor for a final decision concerning the controversy; provided, however, that if the Chief Procurement Officer does not issue a written decision within 60 days after written request for a final decision, or within such longer period as may be agreed upon by the parties, then the contractor may proceed as if an adverse decision had been received.

(2) The Chief Procurement Officer shall immediately furnish a copy of the decision to the contractor, by certified mail, return receipt requested, or by any other method that provides evidence of receipt.

(3) Any such decision shall be final and conclusive, unless fraudulent, or:

(a) within the 7 days from the date of receipt of the decision, the contractor mails or otherwise furnishes written notice of appeal to the Procurement Review Board.

(4) The contractor shall comply with any decision of the Procurement Officer and proceed diligently with performance of this contract pending final resolution by the Procurement Review Board of any controversy arising under, or by virtue of, this contract, except where there has been a material breach of the contract by the State; provided, however, that in any event the contractor shall proceed diligently with the performance of the contract where the Chief Procurement Officer has made a written determination that continuation of work under the contract is essential to the public health and safety." 6.201 Applicability of this Part

The provisions of this Part apply where it is determined administratively, or upon administrative or judicial review, that a solicitation or award of a contract is in violation of law. 6.201.01 Determination that Solicitation or Award Violates Law

6.201.01.1 Determination

A solicitation or award may be in violation of the law due to actions of state employees, bidders, offerers, contractors, or other persons. After consultation with the Attorney General, the Chief Procurement Officer or the head of a purchasing agency may determine that a solicitation or contract award is in violation of the provisions of the Mississippi Procurement Code or Regulations. After consultation with the Attorney General, the Ethics Commission may determine that a solicitation or award violates Ethics in Public Contracting of the Mississippi Procurement Regulation or the regulations promulgated thereunder. Any such determination shall be made in writing after an opportunity to be heard is given, and such determination is subject to appropriate appeal. [The Procurement Review Board may determine that a solicitation or contract award is in violation of the provisions of the Mississippi Procurement Regulations.]

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6.201.01.2 Finding of Bad Faith or Fraud

Bad faith or fraud shall not be assumed. Specific findings showing reckless disregard of clearly applicable laws or regulations must support a finding of bad faith. A finding of fraud must be supported by specific findings showing knowing, willful acts in disregard of such laws or regulations. 6.202 Remedies Prior to an Award

If prior to award it is determined that a solicitation or proposed award of a contract is in violation of law, then the solicitation or proposed award shall be:

(a) canceled; or

(b) revised to comply with the law. 6.202.01 Cancelling or Revising Solicitation or Proposed Award to Comply with Law

A finding by the Chief Procurement Officer, after consultation with the Attorney General, that the solicitation or proposed award is in violation of law will constitute a compelling reason to cancel or revise a solicitation or proposed award. Such cancellation shall be made in accordance with Regulation 3.112 (Cancellation of Invitations for Bids or Requests for Proposals). 6.203 Remedies After an Award

If after an award, it is determined that the solicitation or award is in violation of the law then the contract will be canceled in accordance with Section 3.112, Cancellation of Invitations for Bids or Requests for Proposals. 6.203.01 Termination

Contracts based on awards or solicitations that were in violation of law shall be terminated at no cost to the State, except as may be approved by the Public Procurement Review Board (PPRB) in compliance with State law. 6.203.02 Effect of Declaring a Contract Null and Void

In all cases where a contract is voided, the State shall endeavor to return those supplies delivered under the contract that have not been used or distributed. No further payments shall be made under the contract and the State is entitled to recover the greater of:

(a) the difference between payments made under the contract and the contractor's actual costs up until the contract was voided; or

(b) the difference between payments under the contract and the value to the State of the supplies, services, or construction if obtained under the contract.

The State may in addition claim damages under any applicable legal theory.

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6.204 Protest of Solicitations or Awards (1) Scope

This section applies to:

(a) a protest of a solicitation or award of a contract addressed to the Procurement Review Board by an aggrieved actual or prospective bidder or offeror, or a contractor; and

(b) an appeal addressed to the Board of a decision under Section 6.101.03. (2) Time Limitations on Filing a Protest or an Appeal (a) For a protest under Subsection (1)(a) of this section, the aggrieved person shall file a protest with the Board within 7 days after the aggrieved person knew or should have known of the facts and circumstances upon which the protest is based.

(b) For an appeal under Subsection (1) (b) of this section, the aggrieved person shall file an appeal within seven days of receipt of a decision under Section 6.101(3). (3) Decision On any direct protest under Subsection (1)(a) of this section or appeal under Subsection (1)(b) of this section, the Board shall promptly decide whether the solicitation or award was in accordance with the Constitution, statutes, regulations, and the terms and conditions of the solicitation. The proceeding shall be de novo. Any prior determinations by administrative officials shall not be final or conclusive.

(4) Standard of Review for Factual Issues

A determination of an issue of fact by the Board under Subsection (3) of this section shall be final and conclusive unless arbitrary, capricious, fraudulent, or clearly erroneous. 6.205 Suspension or Debarment Procedures

(1) Scope

This section applies to a review by the Procurement Review Board of a decision under Section 6.102, Authority to Debar or Suspend. (2) Time Limitations on Filing an Appeal The aggrieved person shall file its appeal with the Board within 7 days of the receipt of a decision under Section 6.102(3), Authority to Debar or Suspend, Decision.

(3) Decision

The Board shall promptly decide whether, or the extent to which, the debarment or suspension was in accordance with the Constitution, statutes, regulations, and the best interests of the State, and was fair. The proceeding shall be de novo. Any prior

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determinations by administrative officials shall not be final or conclusive.

(4) Standard of Review for Factual Issues

A determination of an issue of fact by the Board under Subsection (3) of this section shall be final and conclusive unless arbitrary, capricious, fraudulent, or clearly erroneous. 6.206 Contract and Breach of Contract Controversies

(1) Scope

This section applies to a review by the Procurement Review Board of a decision under Section 6.103, Authority to Resolve Contract and Breach of Contract Controversies. (2) Time Limitations on Filing an Appeal The aggrieved contractor shall file its appeal with the Board within 7 days of the receipt of a decision under Section 6.103(3), Authority to Resolve Contract and Breach of Contract Controversies, Decision.

(3) Decision

The Board shall promptly decide the contract or breach of contract controversy. The proceeding shall be de novo. Any prior determinations by administrative officials shall not be final or conclusive.

(4) Standard of Review for Factual Issues

A determination of an issue of fact by the Board under Subsection (3) of this section shall be final and conclusive unless arbitrary, capricious, fraudulent, or clearly erroneous.

6.207 No Finality to a Decision on an Issue of Law

No determination by the Procurement Review Board on an issue of law shall be final or conclusive.

6.208 Appeal and Review of Procurement Appeals Board Decisions

(1) Appeal

Any person receiving an adverse decision, the State, or both may appeal from a decision by the Procurement Review Board to the designated court or courts of the State.

(2) Authorization of Appeal by the State

No such appeal shall be made by the State unless recommended by the Chief Procurement Officer or the head of the purchasing agency involved and approved by the Attorney General.

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6.209 Discontinuance of Contractor's Appeal

After notice of an appeal to the Procurement Review Board has been filed with the Chief Procurement Officer or the head of a purchasing agency, a contractor may not discontinue such appeal without prejudice, except as authorized by the Board.

6.210 Debriefings

In accordance with Chapter 3, Section 3.107.18 of the Manual, the Agency Procurement Officer is authorized to provide debriefings that furnish the basis of the source selection decision and contract award. Debriefings may only be conducted when utilizing the competitive sealed proposal process as authorized in Chapter 3, Section 3.107.

(1) At the written request of any offeror who has submitted a proposal, debriefings may be given orally, in writing, or by any other method acceptable to the Agency Procurement Officer. Such debriefings may be given at any time on or after the eighth (8th) day after the agency has awarded the contract. In no case may an offeror request a debriefing more than thirty (30) days after the agency has awarded the contract.

(2) An offeror’s written request for a debriefing should include a list of any questions an offeror may have in order to assist the Agency Procurement Officer or agency staff in preparing for the debriefing.

(3) A post-award debriefing may include:

(a) The agency’s evaluation of significant weaknesses or deficiencies in the proposal, if applicable;

(b) The overall evaluated cost or price (including unit prices) and technical rating, if applicable, of the successful offeror and the debriefed offeror; (c) The overall ranking of all proposals, when any such ranking was developed during the source selection;

(d) A summary of the rationale for award;

(e) Reasonable responses to relevant questions about whether source selection procedures contained in the Request for Proposals and applicable law were followed.

(4) Post-award debriefings should not include point-by-point comparisons of the debriefed proposal with those of other offerors.

(5) Any debriefing should not reveal any information prohibited from disclosure by law, or exempt from release under the Mississippi Public Records Act of 1983, including trade secrets, or privileged or confidential commercial or manufacturing information. Agencies should consult their Public Information Officer or agency legal representative for guidance in complying with the Act prior to conducting debriefings.

(6) Debriefings are non-adversarial business meetings. Accordingly, offerors may bring legal representation to any oral debriefing, although it is not necessary. If, however, any offeror has legal representation present during an oral debriefing, the agency must also

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have its legal representative in attendance. Questioning of agency staff by offerors’ legal representative(s) is not permitted.

(7) A summary of any debriefing should be included in the contract file.

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Chapter 7

Intergovernmental Relations 7.101 Definitions of Terms Used in this Chapter

(1) Cooperative Purchasing – procurement conducted by, or on behalf of, more than one Public Procurement Unit, or by a Public Procurement Unit with an External Procurement Activity.

(2) External Procurement Activity – any buying organization not located in this State which, if located in this State, would qualify as a Public Procurement Unit. An agency of the United States is an External Procurement Activity.

(3) Governing Authority – defined in Section 31-7-1, Mississippi Code of 1972, Annotated.

(4) Public Procurement Unit – either a procurement entity of a governing authority or of a state agency.

(5) Agency – defined in Section 31-7-1, Mississippi Code of 1972, Annotated.

7.102 Purchasing by Governing Authorities 7.102.01 Options Available to Purchase Commodities and Equipment

When purchasing commodities and/or equipment, the governing authority may follow the procedures set forth as follows:

(1) Follow statutory purchasing procedures set forth in Section 31-7-13, Mississippi Code of 1972, Annotated.

(2) Make purchases from contracts executed by the Office of Purchasing, Travel and Fleet Management. These contracts may include competitively bid contracts, negotiated contracts, cooperative contracts, and agency contracts which are deemed to be available to all entities by the Office of Purchasing, Travel and Fleet Management. Purchases made under the terms of this section shall be excepted from the normal bid requirements as per Section 31-7-13(m)(i), Mississippi Code of 1972, Annotated.

(3) Purchase the identical commodity or equipment offered on a contract established by the Office of Purchasing, Travel and Fleet Management from a vendor other than the one listed on the contract at a price not exceeding the state contract price. Identical shall mean that the product is the same make, model, item number, product code, manufacturer and description as the item on the state contract. 7.102.02 Purchasing Vehicles Having a Gross Weight Rating of Less Than 26,000 Pounds

When purchasing vehicles having a gross weight rating of less than 26,000 pounds, the governing authority may follow the procedures set forth as follows:

(1) Follow statutory purchasing procedures as set forth in Section 31-7-13, Mississippi Code

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of 1972, Annotated, and award to the low responsive bidder regardless of dealer's location within the State. All vehicle sales firms doing business in Mississippi must have a Mississippi Motor Vehicle License Number as authorized in Section 63-17-73, Mississippi Code of 1972, Annotated.

(2) Follow statutory purchasing procedures as set forth in Section 31-7-13, Mississippi Code of 1972, Annotated, and award to the low responsive bidder domiciled within the county in which the governing authority is located, provided that the bid from the local dealer does not exceed the invoice cost of the vehicle by more than three percent (3%), Section 31-7-18, Mississippi Code of 1972, Annotated.

(3) Make purchases from contracts established by the Office of Purchasing, Travel and Fleet Management. These contracts may include competitively bid contracts, negotiated contracts, agency contracts, and cooperative contracts which are deemed to be available to all entities by the Office of Purchasing, Travel and Fleet Management. Purchases made under the terms of this section shall be excepted from the normal bid requirements as per Section 31-7-13(m)(i), Mississippi Code of 1972, Annotated.

(4) Purchase the identical commodity or equipment offered on a contract established by the Office of Purchasing, Travel and Fleet Management from a vendor other than the one listed on the contract at a price not exceeding the state contract price. Identical shall mean that the product is the same make, model, item number, product code, manufacturer and description as the item on the state contract. 7.103 In-State Cooperative Purchasing 7.103.01 Cooperative Purchasing Agreement Between a State Agency and a Local Governing Authority

Any agreement between the State and a local public procurement unit which provides that certain open-ended procurement contracts (requirement contracts) shall be available to the local public procurement unit shall also provide the following:

(1) The State shall conduct the procurements in compliance with the Mississippi Procurement Manual and applicable statutes.

(2) When the governing authority elects to procure any commodity under the state contract, all of its purchases for such commodities shall be obtained by placing purchase orders against the appropriate state contract in accordance with the terms and conditions of such contract.

(3) Payment for supplies or services ordered by the local public procurement unit under state contracts shall be the exclusive obligation of such jurisdiction.

(4) Inspection and acceptance of supplies or services ordered by the local public procurement unit under state contracts shall be the exclusive obligation of such jurisdiction.

(5) The State may terminate the cooperative agreement for failure of the local public procurement unit to comply with the terms of the contract or pay a contractor to whom the State has awarded a contract.

(6) The exercise of any warranty rights attaching to commodities received by the local public

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procurement unit under state contracts shall be the exclusive obligation of such jurisdiction.

(7) Failure of a local public procurement unit which is procuring commodities under a state contract to secure performance from the contractor in accordance with the terms and conditions of its purchase order will not necessarily require the State or any other local public procurement unit to consider the default or to discontinue procuring under the contract.

(8) Any transactions shall be in compliance with applicable section of Section 31-7, Mississippi Code of 1972, Annotated,

7.104 Sale, Acquisition, or Use of Commodities by a Public Procurement Unit

Any public procurement unit may sell to, acquire from, or use any commodities belonging to another public procurement unit or external procurement activity as authorized by Sections 31-7- 7 and 31-7-13, Mississippi Code 1972, Annotated.

7.105 Multi-State Cooperative Contracts

The Office of Purchasing, Travel and Fleet Management may enter into multi-state contracts which allow state agencies and governing authorities to purchase commodities and equipment, at prices established by the contract.

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Chapter 8 Disposal of Personal Property

8.101 Procedures for Selling, Transferring, or Trading Personal Property are promulgated in accordance with Section 29-9-9. 8.101.01 Methods

Personal property which becomes surplus to the needs of a state agency may be disposed of in any of the following ways:

(1) Sold

(2) Traded

(3) Transferred

State agencies that fall under the purview of the Bureau of Fleet Management should reference the State Fleet Manual for instructions on disposal of vehicles.

8.101.01.1 Disposal of Personal Property

Items with an estimated value of not more than $1,000 may be salvaged, sold, traded, or transferred to other governmental entities.

Items with an estimated value of greater than $1,000 and not more than $5,000 can be traded, transferred or sold. When trading or selling items with a value of greater than $1,000 and not more than $5,000 a minimum of two written quotes must be obtained.

Items with an estimated value greater than $5,000 can be transferred, traded or sold. An item or group of items of personal property with a total estimated value of greater than $5000 may only be sold or traded after complying with the requirements set forth below for sealed bids as set forth in Subsection 8.101.01.2 or by auction as set forth in Subsection 8.101.03, Auction.

8.101.01.2 Personal property which becomes surplus to the needs of an agency or becomes obsolete or inoperable and still has a residual value may be traded as a part of the transaction to acquire new equipment.

This method of disposal may not be used when acquiring any vehicle covered by a state contract. The request for pricing based on a trade-in must be made a part of the specification for the equipment being purchased. The specification shall contain all pertinent information about the item being traded (i.e., make, model, year model, mileage or hours, where it may be seen, etc.). Surplus property may also be traded as a part of an acquisition of items covered by a state contract. All trades must be submitted on an Inventory Deletion Form and approved prior to releasing any equipment. The Inventory Deletion Form may not serve as a purchase request. The Inventory Deletion Form is to be considered as an inventory deletion form only. If an item is to be disposed of by trade-in, the Inventory Deletion Form shall be completed to include all information applicable to the trade-in. However, the agency must at the same time submit electronically the P-1 for approval to purchase the item to which the trade-in applies. Approval of

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both documents must be obtained prior to the issuance of a purchase order.

Commentary

It should be noted that, when trading in a commodity and applying the revenue towards a reduction in the purchase price the agency must evaluate the value of the commodity being traded as well as the value of the item being procured to determine the proper methods of soliciting bids. If the estimated value of the item or items being traded is greater than $1000 but not more than $5000, two written quotes are required. If the estimated value of the “trade-in” commodity exceeds $5000, then the transaction shall be advertised.

If the estimated value of the commodity to be purchased exceeds, $50,000, then the transaction shall be advertised. See Section 31-7-13, Mississippi Code of 1972, Annotated. If the estimated value of the commodity to be purchased exceeds, $5,000, then the transaction shall be entered into after obtaining at least two competitive bids. See Section 31-7-13, Mississippi Code of 1972, Annotated. An example of what is not proper and not allowed would be: an agency wishes to trade in commodities having a value, more than $50,000; in return they would purchase commodities with a value of $51,000 for a total cost of $1,000. The agency would indicate that since the cost is only $1,000, they should not be required to obtain bids. This is not a correct interpretation. The agency is using $50,000 of state resources and acquiring an item with a value of $51,000, therefore, this transaction would require advertising and sealed bids.

Another example would be:

If the estimated value of the commodity to be purchased is less than $50,000, but the trade in value is over $5,000 then the transaction shall be advertised. An example of what is not proper and not allowed would be: an agency wishes to trade in commodities having a value of more than $5,000; in return they would purchase commodities with a value of $40,000 for a total cost of $45,000. The agency would indicate that since the cost is only $45,000, they should not be required to obtain bids. This is not a correct interpretation. The agency has a trade in valued over $5,000 so therefore, this transaction would require advertising and sealed bids.

8.101.01.3 Personal property may be transferred from one state agency to another state agency (including transfers to the Office of Surplus Property).

Property may also be transferred from a state agency to a governing authority. Transfers, or sale of property from one state agency to another, do not require approval of the Office of Purchasing, Travel and Fleet Management. The agencies must still submit the completed Inventory Deletion Form to the Division of Property Control, Office of the State Auditor and must obtain approval prior to disposing of the property.

8.101.01.4 An item or group of items of personal property may be sold to another state agency or governing authority by private treaty sale as set forth in Subsection 8.101.04.1, Private treaty sale is generally intended to refer to a sale based on the buyer's acceptance of a price set by the seller.

An item or group of items of personal property with a total estimated value of not more than

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$1,000 may be sold by private treaty negotiated sale to any private entity as set forth in Subsection 8.101.04.1, Private treaty sale is generally intended to refer to a sale based on the buyer's acceptance of a price set by the seller. An item or group of items of personal property with a total estimated value of not more than $5000 may be sold to the highest bidder after first obtaining at least two written quotes. An item or group of items of personal property with a total estimated value of greater than $5000 may only be sold after complying with the requirements set forth below for sealed bids or auction as set forth in Subsection 8.101.02.1, Sealed Bid, or Subsection 8.101.03, Auction. 8.101.02 Sale of Personal Property may be accomplished by public auction, sealed bid, or private treaty negotiated sale.

8.101.02.1 Sealed Bid

Agencies when disposing of personal property by sealed bid will be required to advertise the sale in the same manner as set forth in Section 31-7-13(c), Mississippi Code of 1972, Annotated (with the exception of providing notice of the advertisement to the Mississippi Procurement Technical Assistance Program (MPTAP) under the Mississippi Development Authority). Such advertisement shall be made one time each week for two consecutive weeks and shall be made in a newspaper published in the county or municipality in which the agency is located or in a newspaper of state circulation. Such advertisement should indicate where, when, and for how long Invitation for Bids may be obtained; generally describe the items being sold; when and where the items may be seen; and contain other pertinent information but is not required to include detailed specifications. Bids received for such sale shall be handled in compliance with Subsection 3.106.11, Receipt, Opening, and Recording of Bids. No equipment sold by sealed bid shall be released to the successful bidder until the Inventory Deletion Form has been approved by the Office of Purchasing, Travel and Fleet Management and Property Control, Office of the State Auditor. The opening of sealed bids for the sale of state owned property shall be in compliance with Subsection 3.106.11, Receipt, Opening and Recording of Bids.

8.101.02.2 Property Disposal Specifications

The specifications or instructions to prospective buyers should provide a listing of all items being offered and such listing shall provide, but is not limited to, the following:

(1) Classification; (i.e., chair, typewriter, automobile, etc.). (2) Make – Model (3) Year of manufacture. (4) Mileage or hours used (5) Location – (Where the item may be seen.).

(6) Date and time when item may be inspected.

(7) Address of location to which the bids shall be delivered. (8) Time and date set for the bid opening. (9) Name of person (include telephone number) to be contacted if additional information is necessary.

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Commentary

This listing, appropriately, should also serve as the Bid Form in which case each item should be numbered in a manner that would be easily recognized by any prospective buyer. The number shown on the item shall be the same as the number shown on the listing applicable to that item.

8.101.02.3 Bid Rejection

The selling agency shall have the authority to reject any or all bids or any part of any or all bids if it is determined by the head of the selling agency, the Chief Procurement Officer, or a designee of either that:

(1) The item should remain in service with the using agency or that it would be to the best interest of the State to transfer, etc., or sell the item to another agency or governing authority;

(2) The best price offered was determined to be too low; or

(3) The information provided on the listing of items was erroneous or misleading in such a manner as to be detrimental to the buyer or the State. 8.101.03 Auction

8.101.03.1 Public auctions have long been an acceptable, as well as preferred method of disposing of surplus property that is advantageous to the State.

Auctions allow buyers to offer more than a single price for any particular item. This is not the case with the sealed bid procedure. Because of this, items sold at auction have historically brought more money than those sold by sealed bid.

8.101.03.2 Selection Process

Auctioneers or auction companies and the selection of them provides for three (3) options which are:

(1) Auctions that are held on agency property; (2) Auctions held at auction company location; and

(3) Online auctions

8.101.03.3 Auctions Held on Agency Property

When conducting an auction at the agency location, a decision must be made as to the extent of the involvement by the auction company. The two options available are:

(1) Will the auction company only be required to sell each item with no involvement in any other aspect; i.e., advertisement, item numbering, paper work, collection, etc; or

(2) Will the auction company provide a "lock and key" job? In which case the auction

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company will be responsible for all aspects of the auction up to the depositing of receipts.

8.101.03.4 If the auction company is responsible only for selling each item, the selling agency may negotiate with a company provided the fee does not exceed an amount equal to ten percent (10%) per item but not to exceed $50 per item.

Example: The fee would be ten percent (10%) on any item selling for not more than $500. Items selling for more than $500 will generate a flat fee of $50 per item to the auction company.

Buyers fee may be allowed. Such contracts may be made without advertising; however, the Chief Procurement Officer or his/her designee must review contract prior to execution.

8.101.03.5 If the auction company fee is in excess of that set forth in 8.101.03.4, the auction company may only be selected through the competitive bid process.

Specifications shall be written which shall set forth all requirements imposed on the auction companies offering bids. No buyer fee is allowed if auction is held on agency property. The intent to contract shall be advertised in compliance with Section 31-7-13(c), Mississippi Code of 1972, Annotated, and approval of specifications must be granted by the Chief Procurement Officer or his/her designee.

8.101.03.6 Dealer Auctions

Vehicles - see State Fleet Manual.

Other equipment - If the dealer auction company is responsible only for selling each item, the selling agency may negotiate with a company, provided the fee does not exceed an amount equal to ten percent (10%) per item but not to exceed $50 per item. Buyers fee may be allowed for this type of disposal (vehicle).

Example: The fee would be ten percent (10%) on any item selling for not more than $500. Items selling for more than $500 will generate a flat fee of $50 per item to the dealer auction company.

8.101.03.7 Any time equipment owned by state agencies is sold at public auction, the Office of Purchasing, Travel and Fleet Management shall be notified in writing not less than 15 days prior to the auction.

This notification shall include:

(1) A detailed list of the items being sold,

(2) The time, date, and place where the auction will be held, (3) A copy of the auctioneer's contract, (4) Copies of specifications and bids for auctioneer's services (if applicable),

(5) A list of potential buyers who are being sent a notification of the auction; and

(6) A copy of, or a draft of, a legal advertisement to notify potential bidders of the day, time, and place of auction. The advertisement should run in a newspaper of general circulation in the county in which the auction will be held and should appear in the paper not less than twice. The second appearance of the advertisement shall be not less than seven (7)

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working days prior to the auction. If a copy of an advertisement is submitted, it should include the days in which it appeared in the newspaper. If a draft of an advertisement is submitted, the agency should indicate the days it will appear in the newspaper.

Included with this information should be a request for authority to proceed with the auction. If approved, the agency shall have authority to release the property to the successful bidders at the time of the auction. Buyers fees are allowed if the agency agrees to the percentage of fee charged. Agencies will still be required to submit the appropriate Authorization to Dispose of Personal Property, Inventory Deletion Form, after the auction. The Office of Purchasing, Travel and Fleet Management reserves the right to attend any auction and to reject any bid which is determined to not be in the best interest of the State. 8.101.04 Private Treaty

8.101.04.1 Private treaty sale is generally intended to refer to a sale based on the buyer's acceptance of a price set by the seller.

Private treaty sale is generally intended to refer to a sale based on the buyer's acceptance of a price set by the seller. An item or group of items of personal property may be sold to another state agency or governing authority by private treaty sale. Such a method of sale applicable to state-owned property can only be used if the buyer is another state agency or is a governing authority (both entities must meet the requirements as set forth in the definitions of each in Section 31-7-1, Mississippi Code of 1972, Annotated); or if the agency determines the value of the state-owned property is less than, $1,000, a private treaty sale may be negotiated with a private entity. Agencies interested in entering into private treaty sales with governing authorities or private entities shall submit an Inventory Deletion Form to the Office of Purchasing, Travel and Fleet Management for review.

8.101.04.2 When using the private treaty method, it should be the consideration of the selling agency that the price not be set too high, such as book retail price.

This could and, in many cases, will create a situation that because no agency or governing authority would pay the price being asked, the equipment was sold at public auction to a private entity buyer at a price less than that which was asked of the government entities. Keep in mind that if another agency or a governing authority has use for equipment that becomes surplus to the selling agency then the selling agency should give every consideration to "cutting a deal" for any other government entity having a need for the item; however, if the selling entity has statutory authority to rebudget the proceeds from the sale of surplus property, they should employ a method which involves competition (auction or sealed bid). In doing so, the seller would realize the best price available at that time and the buyer, should it be another government entity, may get the equipment at a price less than that which had been asked.

Commentary

If your agency has no statutory authority to rebudget proceeds from the sale of the equipment, you may wish to simply transfer the item to another agency or governing authority. Agencies should keep in mind that the Office of Surplus Property is in the business of redistributing surplus property to those entities that have a need for the items. Interested agencies should contact the Office of Surplus Property to ascertain the available options.

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8.101.05 Electronic Recyclers

Agencies seeking to dispose of state-owned personal property that meets the definition of “electronics” found in Section 49-2-101, Mississippi Code of 1972, Annotated may dispose of the property through the use of a certified electronic recycler, after a determination is made that the item(s) have no value and the property will not be sold, traded, or transferred by the agency. Agencies shall only use certified recyclers who appear on the directory maintained by the Mississippi Department of Environmental Quality for the disposal of agency electronics, in accordance with Section 49-2-103, Mississippi Code of 1972, Annotated.

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Chapter 9 Ethics in Public Contracting

Introduction

This chapter is provided for guidance and information only and shall not be considered as superseding any laws or regulations administered and enforced by the State Ethics Commission. Please refer to Sections 25-4-101 through 25-4-119, Mississippi Code of 1972, Annotated. 9.101 Definitions of Terms Used in this Chapter

(1) Confidential Information – any information which is available to an employee only because of the employee's status as an employee of Mississippi and is not a matter of public knowledge or available to the public on request.

(2) Conspicuously – written in such special or distinctive format, print, or manner that a reasonable person against whom it is to operate ought to have noticed it.

(3) Direct or Indirect Participation – involvement through decision, approval, disapproval, recommendation, preparation of any part of a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity.

(4) Financial Interest –

(a) Ownership of any interest or involvement in any relationship from which, or as a result of which, a person within the past year has received, or is presently or in the future entitled to receive, monetary compensation or material gratuity;

(b) Ownership of such interest in any property or any business as may be specified by the Ethics Commission; or

(c) Holding a position in a business such as an officer, director, trustee, partner, employee, or the like, or holding any position of management.

(5) Gratuity – a payment, loan, subscription, advance, deposit of money, services, or anything of more than nominal value, present or promised, unless consideration of substantially equal or greater value is received.

(6) Immediate Family – a spouse, children, parents, brothers and sisters, and such other relatives as may be designated by the Ethics Commission.

(7) Official Responsibility – direct administrative or operating authority, whether intermediate or final, either exercisable alone or with others, either personally or through subordinates, to approve, disapprove, or otherwise direct Mississippi action.

(8) Purchase Request – that document whereby a using agency requests that a contract be entered into for a specified need, and may include, but is not limited to, the technical description of the requested item, delivery schedule, transportation, criteria for

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evaluation, suggested sources of supply, and information supplied for the making of any written determination required by this Code. 9.101.01 Definitions

(1) Bona Fide Employee – a person employed by a prospective contractor and subject to the prospective contractor's supervision and control as to the time, place, and manner of performance, who neither exerts nor proposes to exert improper influence to solicit or obtain Mississippi contracts. In determining whether a bona fide employment relationship exists, the following factors should be considered:

(a) Whether the employment is continuous.

(b) Whether the person is subject to the supervision and control of the prospective contractor.

(c) Whether the size of any contingent fee is reasonable in relation to the service performed.

(d) Whether the method of payment of the contingent fee is customary in the trade. (e) Whether the person is employed solely by the prospective contractor. (2) Bona Fide Established Commercial Selling Agency – a business that neither exerts nor proposes to exert improper influence to solicit or obtain public contracts. In determining whether a business is a bona fide established commercial selling business, the following factors should be considered:

(a) Whether the business is one which has either been active for a considerable period of time or is presently an on-going concern and is likely to continue as such.

(b) Whether the business uses its own name and is characterized by the customary indicia of the conduct of a regular business.

(c) The degree to which the business' activities are directed toward the solicitation of contracts of the State.

(d) Whether the size of any contingent fee is reasonable in relation to the services performed. (e) Whether the method of payment of the contingent fee is customary in the trade. (3) Business Employee – a person, whether compensated or not, who performs personal services for a business.

(4) Employee – as defined in Subsection 1.107(2)(n), Definitions, Employee, is hereinafter referred to as "Mississippi Employee." As used throughout this section, the term "Mississippi Employee" shall include:

(a) A person elected to a Mississippi office;

(b) A non-elected person, whether appointed or selected through a personnel

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selection procedure, receiving a salary, wages, or other compensation from the State; and

(c) A non-compensated or minimally compensated person who is performing personal services for the State.

The term "Mississippi Employee" does not include a person who, as an independent contractor, performs professional, scientific, technical, or advisory service for a state agency and who receives a fee, honorarium, or similar consideration for the services performed.

9.102 Statement of Policy Public employment is a public trust. It is the policy of the State of Mississippi to promote and balance the objective of protecting government integrity and the objective of facilitating the recruitment and retention of personnel needed by the State. Such policy is implemented by prescribing essential standards of ethical conduct without creating unnecessary obstacles to entering public service.

Public employees must discharge their duties impartially so as to assure fair competitive access to governmental procurement by responsible contractors. Moreover, they should conduct themselves in such a manner as to foster public confidence in the integrity of the State procurement organization.

To achieve the purpose of this chapter, it is essential that those doing business with the State of Mississippi also observe the ethical standards prescribed herein.

9.103 General Standards of Ethical Conduct (1) General Ethical Standards for Employees

Any attempt to realize personal gain through public employment by conduct inconsistent with the proper discharge of the employee's duties is a breach of a public trust. In order to fulfill this general prescribed standard, employees must also meet the specific standards set forth in: Section 9.104, Employee Conflict of Interest; Section 9.105, Gratuities; Section 9.106, Prohibition Against Contingent Fees; and Section 9.107, Restrictions on Employment of Present Employees.

(2) General Ethical Standards for Non-employees

Any effort to influence any public employee to breach the standards of ethical conduct set forth in this section and Section 9.104, Employee Conflict of Interest; Section 9.105, Gratuities; Section 9.106, Prohibition Against Contingent Fees; Section 9.107, Restrictions on Employment of Present Employees; and Section 9.108, Restriction on Employees Purchasing Under Terms of a State Contract is also a breach of ethical standards.

Commentary

The head of each governmental body or such official's designee is encouraged to explain and to discuss at least annually with such official's employees the provisions of these regulations.

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9.104 Employee Conflict of Interest

(1) Conflict of Interest

It shall be a breach of ethical standards for any employee to participate directly or indirectly in a procurement when the employee knows that:

(a) The employee or any member of the employee's immediate family has a financial interest pertaining to the procurement;

(b) A business or organization in which the employee, or any member of the employee's immediate family, has a financial interest pertaining to the procurement; or

(c) Any other person, business, or organization with whom the employee or any member of the employee's immediate family is negotiating or has an arrangement concerning prospective employment is involved in the procurement.

(2) Discovery of Actual or Potential Conflict of Interest, Disqualification, and Waiver

Upon discovery of an actual or potential conflict of interest, an employee shall promptly file a written statement of disqualification and shall withdraw from further participation in the transaction involved. The employee may, at the same time, apply to the Ethics Commission for an advisory opinion as to what further participation, if any, the employee may have in the transaction.

(3) Notice

Notice of this prohibition shall be provided in accordance with regulations promulgated by the Ethics Commission.

Commentary

Section 9.104, Employee Conflict of Interest, covers instances in which a state employee involved in procurement is actively negotiating for employment with a contractor or prospective contractor. Such an employee must recuse himself or herself from participation in a procurement involving such contractor or prospective contractor and apply to request an advisory opinion from the Ethics Commission for a waiver of the conflict of interest prohibition regarding any further participation in that procurement. Offers of employment under certain circumstances may also be gratuities which are prohibited by Section 9.105, Gratuities.

9.105 Gratuities

It shall be a breach of this regulation for any person to offer, give, or agree to give any employee or former employee, or for any employee or former employee to solicit, demand, accept, or agree to accept from another person, a gratuity or an offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other

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particular matter, pertaining to any program requirement or proposal thereof. 9.105.01 Gratuities Prohibition

9.105.01.1 Relationship of Gratuity

In addition, the gratuity or offer of employment must be made in relation to any proceeding or application, request for a ruling, determination, claim or controversy, or other particular matter, to constitute a breach, and in connection with any:

(1) Decision; (2) Approval; (3) Disapproval;

(4) Recommendation;

(5) Preparation of any part of a program requirement or a purchase request;

(6) Action to influence the content of any specification or procurement standard; (7) Rendering of advice; (8) Investigation; (9) Auditing; or (10) Other advisory capacity.

9.105.01.2 Family

This prohibition extends to the giving of gratuities to anyone on the state employee's or former state employee's behalf such as a member of that employee's immediate family. 9.105.02 When Prohibition Against Gratuities Not Applicable

Section 9.105, Gratuities, does not prohibit:

(1) The solicitation or acceptance of anything of monetary value from a friend, parent, spouse, child, or other close relative when the circumstances make it clear that the motivation for the transaction is unrelated to any procurement or program requirement with the State and is based upon a personal or family relationship;

(2) The participation in the activities of, or the acceptance of an award for, a meritorious public contribution or achievement from a charitable, religious, professional, social, or fraternal organization, or from a non-profit educational, recreational, public service, or civic organization;

(3) Acceptance only on current customary terms of finance of a loan from a bank or other financial institution for proper and usual activities of state employees, such as home mortgage loans; or

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(4) Acceptance of unsolicited advertising products or promotional material, such as pens, pencils, note pads, calendars, and other such items. 9.106 Prohibition Against Contingent Fees

It shall be a breach of ethical standards for a person to be retained, or to retain a person, to solicit or secure a state contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, except for retention of bona fide employees or bona fide established commercial selling agencies for the purpose of securing business. 9.106.01 Influence Peddling

The prohibition in Section 9.106, Prohibition Against Contingent Fees, covers influence peddling and particularly that which might occur when a former state official is hired on a contingent basis by a business seeking state contracts. 9.106.02 Improper Influence

A business employee or a commercial selling business should be conclusively presumed not to be bona fide if the Ethics Commission determines that improper influence has been or is being used to secure a state contract. 9.107 Restrictions on Employment of Present Employees

Except as may be permitted by advisory opinions regulations or rulings of the Ethics Commission, it shall be a breach of ethical standards for any employee who is participating directly or indirectly in the procurement process to become or be, while such an employee, the employee of any person contracting with the governmental body by whom the employee is employed. Notice of this provision shall be provided in accordance with opinions promulgated by the Ethics Commission. 9.108 Restriction on Employees Purchasing Under Terms of a State Contract

Section 25-4-105(1), Mississippi Code of 1972, Annotated, states, "No public servant shall use his official position to obtain pecuniary benefit for himself other than that compensation provided for by law, or to obtain or attempt to obtain pecuniary benefit for any relative or any business with which he is associated."

In layman's terms, this means that anyone purchasing a product is free to negotiate the best price possible with the seller but any attempt to tie the sale to a state contract based upon employment with a governmental entity could be considered to be a violation of the ethics law. 9.109 Restriction on Employees Buying Surplus Property

Section 25-4-105(3)(b), Mississippi Code of 1972, Annotated, states, "No public servant shall be a purchaser, direct or indirect, at any sale made by him in his official capacity or by the governmental entity of which he is an officer or employee, except in respect of the sale of goods and services when provided as public utilities or offered to the general public on a uniform price schedule." In the case of a sale by a state agency, no state employee, regardless of the agency affiliation of the selling party or the purchaser, may participate in the sale as a purchaser.

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9.110 Contractor/Consultant Conflict of Interest

It is the policy of the State of Mississippi to identify, avoid or mitigate conflicts of interest in contracting with independent contractors and consultants for services related to the subsequent competitive acquisition of commodities as defined in Section 31-7-1(e), Mississippi Code of 1972, Annotated.

The underlying principles of this policy are:

(1) Preventing the existence of conflicting roles that may bias a contractor's or consultant's judgment in its work for the State; and

(2) Preventing unfair competitive advantage.

An independent contractor or consultant hired by any state agency for the purpose of preparing or furnishing complete or essentially complete specifications which are to be used in competitive acquisition for the furnishing of the same services or equipment shall not:

(1) Be awarded a contract in the subsequent competitive acquisition of commodities; or

(2) Be a subcontractor or consultant to a bidder participating in the competitive acquisition of the same.

The Chief Procurement Officer may waive this policy by determining that its application in a particular situation would not be in the best interest of the State of Mississippi. Any request for a waiver must be in writing, shall set forth the extent of the conflict, and requires approval by the Chief Procurement Officer.

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Chapter 10 Special Procedures 10.101 Special Procedures

This section sets forth unique policies and procedures to be used when purchasing certain items or when using specialized techniques as follows:

(1) Section 10.102, Purchasing Petroleum Products

(2) Section 10.103, Purchasing Hi–Tech and Surveillance Equipment

(3) Section 10.104, Acquiring Copiers

(4) Section 10.105, Purchasing Commodities Produced from Recovered Materials

(5) Section 10.106, Procedures for Establishing an Agency Contract

(6) Section 10.107, Procedures for Issuance of Open Purchase Orders

(7) Section 10.108, Procedures for Applying Preference to Resident Contractors

(8) Section 10.109, Information Applicable to Construction

(9) Section 10.110, Information Applicable to Taxes

(10) Section 10.111, Information Applicable to Services

(11) Subsection 10.111.03, Small Purchase Procurement Card 10.102 Purchasing Petroleum Products

Section 31-7-13(h), Mississippi Code of 1972, Annotated, provides that when any agency or governing authority shall have a need for gas, diesel fuel, oils and/or other petroleum products in excess of, $5,000 the agency or governing authority may purchase the commodity after having solicited and obtained at least two competitive written bids as defined in Section 31-7-13(b), Mississippi Code of 1972, Annotated. If two competitive written bids are not obtained, the entity shall comply with the formal bidding procedures set forth in Section 31-7-13(c), Mississippi Code of 1972, Annotated. After having advertised for bids for the purchase of gas, diesel fuel, oils and other petroleum products and no acceptable bids can be obtained, the agency or governing authority may negotiate in such a manner as to secure the best price available. Therefore, when purchasing these products, the following procedures should be followed:

(1) If the total purchase does not exceed, $5,000 the purchase may be made without any quotes or bids. We recommend that the purchasing entity contact at least two sources to assure that the price paid is not excessive.

(2) If the total purchase exceeds, $5,000 you may obtain two written, signed quotes and purchase from the vendor who has offered the lowest and best bid. State agencies will not be required to submit a P-1 for gasoline purchases.

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(3) If the entity is unable to obtain two written quotes, the entity must advertise as set forth in Section 31-7-13(c), Mississippi Code of 1972, Annotated. We suggest that the advertisement be for a contract to purchase gasoline for a term of 12 months. Upon receipt of bids if the low bid is acceptable, then you may award the contract and make all purchases for the period from the awarded vendor. If no bids are acceptable, then the entity should reject all bids and may negotiate to meet their needs. Please note that a bid with an escalation clause may be an acceptable bid provided that the invitation to bid included a price adjustment clause and the basis and method of adjusting unit prices. After having advertised and received no acceptable bids, we suggest that the entity obtain telephone quotes each time gasoline is needed. After obtaining an adequate number of telephone quotes, the entity should purchase from the vendor offering the lowest and best bid. It will be absolutely imperative that a file be maintained which should include:

(a) The firm name,

(b) Individual contacted,

(c) Vendor phone number,

(d) Price for each vendor contacted,

(e) Copy of the original advertisement for bids, and

(f) A letter of explanation as to why all bids were rejected. 10.102.01 Fuel Management Services

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, 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. 10.102.02 Contract for Fuel Access Card Services

The Bureau of Fleet Management maintains a contract for Fuel Access Card Services which is available for use by all state agencies and governing authorities. Proper use of this contract would exempt the using department from bid procedures for purchases made pursuant to this contract.

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Commentary

When it comes to purchasing gas with a credit card or a fuel access card, it is very important to understand exactly what the card does and for what you are being charged. It is improper for an entity to pay interest on debt unless they have specific authority to do so. Therefore, the use of a credit card which charges a service charge or interest should not be allowed. On the other hand, the use of a fuel access card or gas identification card is considered acceptable as long as there are no service charges or interest charges. If these purchases are individual purchases less than $5,000.01 and the purchases are not being artificially broken up so as to circumvent the law, there would not be any reason to require quotes or formal advertisement.

12 Miss. Admin. Code Pt. 6, R. 10.103 Purchasing Hi –Tech and Surveillance Equipment

The Mississippi Bureau of Narcotics and any other such department of state or local government involved in any type of undercover operations relating to drug enforcement will be required to comply with this regulation when making any purchase as permitted in Section 31-7-13(m)(xix), Mississippi Code of 1972, Annotated. 10.103.01 Objective

The objective of this regulation is to provide a procedure that would allow for the acquisition of surveillance equipment or any other hi-tech equipment used by law enforcement agents in undercover operations in the most cost-effective manner without requiring public notification of the intent to purchase the equipment. 10.103.02 Definitions

The following definitions will apply when used throughout this regulation.

(1) Surveillance Equipment – any equipment or device used to monitor, track, or observe persons or things related to any type of investigation or evidence gathering process wherein the need for the highest degree of security is mandatory so as not to compromise the operation in general or personnel in particular.

(2) Hi-Tech Equipment – any equipment considered by the industry and law enforcement personnel to be specialized, sophisticated and secretive in nature that to publicize its acquisition could or would jeopardize the success of the mission or the safety of those persons involved in that mission.

(3) Quote – any price solicitation as described in Section 31-7-13(b), Mississippi Code of 1972, Annotated. 10.103.03 Conditions for Soliciting Competition

Section 31-7-13(m)(xix), Mississippi Code of 1972, Annotated, exempts the purchase of surveillance and other hi-tech equipment used by law enforcement agents in undercover operation from competitive bid requirements. This should be interpreted to mean that no notification of the intent to purchase need be published as required by Section 31-7-13(c), Mississippi Code of 1972, Annotated. It should not be interpreted to mean that competition be ignored.

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12 Miss. Admin. Code Pt. 6, R. 10.103.04 Procedures

12 Miss. Admin. Code Pt. 6, R. 10.103.04.1 State Agency Procedures

When acquiring the equipment referenced herein, state agencies will solicit multiple quotes unless it is determined that the item being purchased is available from only a single supplier. If the purchase is in excess of $50,000 the Request for Authority to Purchase, P-1, must be submitted to the Office of Purchasing, Travel and Fleet Management. In completing the P-1, the item description section need only reflect the term “surveillance” or “hi-tech” equipment. No specific description need be presented. In listing the quotes when multiple suppliers are available, the suppliers’ name may be listed by name and address, or they may simply be designated as supplier 1, supplier 2, etc. The agency shall maintain a file for each such purchase which shall contain, but is not limited to:

(1) Description of the equipment being purchased; (2) Specifications (if used); (3) List of vendors receiving solicitation; (4) Copies of quotes; (5) Justification for single-source purchase (if single-source provision is exercised);

(6) Justification for accepting other than the low bid (if other than the low bid is receiving the award); and

(7) Any other documentation relative to the purchase.

12 Miss. Admin. Code Pt. 6, R. 10.103.04.2 Governing Authority Procedures

Law enforcement units which are entities of governing authorities are not required to obtain approval of the Office of Purchasing, Travel and Fleet Management when making purchases as set forth in this regulation. The Board of the governing authority having jurisdiction over the law enforcement unit making the purchase shall set the guidelines to be followed in making those purchases. However, where competition is available, the purchases shall be made on the basis of competitive quotes. These entities shall also maintain a bid file on each purchase made under the provisions of Section 31-7-13(m)(xix), Mississippi Code of 1972, Annotated, and the file will contain the same information as set forth in the above requirements applicable to state agencies. 10.104 Acquiring Copiers 10.104.01 Methods

The following is an explanation of the methods available to state agencies and governing authorities to acquire copiers:

12 Miss. Admin. Code Pt. 6, R. 10.104.01.1 Purchase

There are a number of copiers on contract with a net cost of $50,000 and below. State agencies may purchase from any of the vendors listed in these contracts Copiers with a net cost which exceeds $50,000 and copiers not covered by state contracts may be purchased in compliance

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with statutory bidding requirements set forth in Section 31-7-13, Mississippi Code of 1972, Annotated. Governing authorities may purchase from any vendor offering the contract item at or below the contract price.

12 Miss. Admin. Code Pt. 6, R. 10.104.01.2 Rental

There are a number of copiers available on contract for one and/or multiple-year rental programs. Agencies may rent from any of the vendors listed in these contracts. Governing authorities may rent from any vendor offering the contract items at or below the contract prices. When renting a copier, state agencies must use the Vendor Rental Agreement for use by Mississippi departments and vendors.

12 Miss. Admin. Code Pt. 6, R. 10.104.01.3 Rental, Not on Contract

Rental, by state agencies, of copiers not covered by the contracts and/or longer term rentals may be considered on the basis of competitive bids. The correct procedure for this type of acquisition will be as follows:

(1) The agency should determine their needs in the area of copies per minute, copies per month, duplexing, finishing, collating, reduction/enlargement, electrical capabilities, space allocation, length of commitment, etc. The agency should then contact at least two vendors and ask them to submit a bid which will meet the agency's needs. If the base commitment (monthly rental x number of months) exceeds, $50,000 the agency must advertise as per Section 31-7-13(c) of the Mississippi Code of 1972, Annotated.

(2) The bids should be in writing so that all vendors are submitting an offer based on the same requirements. The agencies must assure that all costs are included and that all vendors are making uniform bids.

(3) Upon receipt of the, bids, the agency should evaluate the bids to determine which is in the best interest of the agency. Upon completion of the evaluation, the agency should submit a P-1 to the Office of Purchasing, Travel and Fleet Management with copies of all bids and a letter of justification explaining the agency's preference. If the agency is not accepting the lowest bid, they will be expected to submit a justification explaining why the low bid is not acceptable. 10.104.02 Trade-In of Office Equipment for Credit

The Office of Purchasing, Travel and Fleet Management will permit trade-in of equipment for credit when state agencies enter into a rental contract. However, all applicable credit must be extinguished prior to any payments being made by the agency. Contracts wherein that credit is spread out over the term of the contract will not be allowed. 10.104.03 Assignment of Contracts

This is a reminder that no contract for commodities, supplies or equipment, with a state agency, may be assigned without the express written consent of the Office of Purchasing, Travel and Fleet Management.

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12 Miss. Admin. Code Pt. 6, R. 10.105 Rule 10.105

Purchasing Commodities Produced from Recovered Materials 10.105.01 Objective

The objective of this regulation is to establish procedures to be followed when state agencies purchase products that can be produced from recovered materials. 10.105.02 Specifications

When preparing specifications for products that can be produced from recovered materials, the agency should include a clause indicating the desire for recycled products. The agency should also define, for the purposes of the specific purchase, the minimum percentage of recovered material which will be required to be considered for the ten percent (10%) preference. In addition, the agency should describe the award process so that all vendors know how the evaluation and award is to be made.

Specification Clause for Products Made from Recovered Materials

It is suggested that all agencies consider using the following clause when issuing specifications for products made from recovered materials. This applies to printing, paper, corrugated boxes, paper bags, toilet tissue, etc.

Mississippi law requires that specifications be written so as to promote the use of products made from recovered materials. Therefore, bidders are asked to consider bidding on a product made from recovered materials; provided, however, that any product bid must be equal in quality, weight, texture, and color to the product required by these specifications. For the purposes of these specifications, a commodity made from recovered materials must be at least 20% post- consumer waste as defined by EPA and ASTM.

Products made from recovered materials will be given a preference in the award procedure as follows:

(1) The low bid which meets specifications will be determined.

(2) If the low bid meeting specifications is made from recovered materials, then the award will be made to the vendor offering the low bid.

(3) If the low bid is not made from recovered materials, then the award will be made to the low bid meeting specifications which is made from recovered materials; provided, however, that the price paid may not be more than ten percent (10%) higher than the lowest bid received.

(4) If there are no bids for recycled products within ten percent (10%) of the lowest bid, then the award will be made to the vendor offering the lowest bid. 10.106 Procedures for Establishing an Agency Contract 10.106.01 Objective

The objective of this regulation is to establish the procedures for agencies and institutions of the State of Mississippi to enter into Agency Contracts for the purchase of commodities, supplies, and equipment.

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12 Miss. Admin. Code Pt. 6, R. 10.106.02 Definition

Agency Contract is defined as an agreement between an agency and a vendor, wherein the agency purchases specific products from the vendor for a specific period of time and, in most cases, at firm prices. 10.106.03 Procedures for Items Where Multiple Bids can be Obtained

(1) When multiple bids can be obtained, the agency should develop specifications, advertise, and solicit bids as per Section 31-7-13(c), Mississippi Code of 1972, Annotated. If the agency intends to award on an "all or none" basis, they must indicate estimated usage for each item on the bid form.

(2) After receipt of bids and evaluation, the agency should prepare an electronic Request for Authority to Purchase, P-1.

(3) The agency should also submit:

(a) Two (2) copies of the proposed prices, (not required if using electronic process; (b) A copy of the advertisement; (c) A bid tabulation sheet; and

(d) Copies of the bids.

If preparing copies of the bids appears to be too cumbersome, agencies may request approval to send only the tabulation sheet. The Office of Purchasing, Travel and Fleet Management will reserve the right to require copies of any and all bids at any time.

(4) The agency should also submit any letters of justification or information which relate to the proposed contract(s).

(5) If there are multiple vendors being awarded items, a separate P-1 shall be done for each awarded vendor.

(6) The Office of Purchasing, Travel and Fleet Management will approve the contract at which time the agency will receive an e-mail notification of the approval and may then begin issuing purchase orders against the contract.

(7) All purchase orders issued by the agency during the term of the contract for the commodities covered shall indicate the P-1 number in the space provided. 10.106.04 Procedures for Single-Source Items, Firm Price

(1) For items wherein the agency cannot obtain competitive bids but can obtain firm prices for a fixed period of time, the agency should submit an electronic Request for Authority to Purchase, P-1.

(2) The agency should submit a copy of the proposed prices

(3) The agency should also submit any letters of justification or information which relate to the proposed contract(s). This should include an explanation why the need fulfilled by

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the commodity cannot be met by any other available product.

(4) The Office of Purchasing, Travel and Fleet Management will approve the contract at which time the agency will receive an e-mail notification of approval and may then begin issuing purchase orders against the contract.

(5) All purchase orders issued by the agency, during the term of the contract, for the commodities covered, shall indicate the P-1 number in the space provided. 10.106.05 Procedures for Single-Source Items, Firm Price Not Available

(1) For items wherein the agency cannot obtain competitive bids and cannot obtain firm prices for a fixed period of time, the agency should prepare and submit a Request for Authority to Purchase, P-1.

(2) The agency should also submit any letters of justification or information which relate to the proposed contract(s). This should include an explanation why the need fulfilled by the commodity cannot be met by any other available product, as well as an explanation as to why firm pricing is not available.

(3) The Office of Purchasing, Travel and Fleet Management will approve the contract at which time the agency will receive an e-mail notification of approval and may then begin issuing purchase orders against the contract.

(4) All purchase orders issued by the agency, during the term of the contract for the commodities covered shall indicate the P-1 number in the space provided. 10.107 Procedures for Issuance of Open Purchase Orders 10.107.01 Objective

The objective of this regulation is to establish procedures for open purchase orders which may be used for multiple purchases from a single vendor for a period of not more than an allotment period. The purchase order may be issued on or after the first day of the allotment period. Partial payments may be made as valid invoices are received and verified. This procedure is established in accordance with Section 31-7-9, Mississippi Code of 1972, Annotated. 10.107.02 State Agency Procedures for Open Purchase Orders in Excess of $5,000 All open purchase orders in excess of $5,000 must have an approved electronic Request for Authority to Purchase, P-1, attached to the purchase order. P-1 approval is not required for open purchase orders for service contracts. To receive P-1 approval, the P-1 must have the following included on the P-1 or attached:

(1) A brief justification of the need for an open purchase order in lieu of normal P.O. procedures. This should include, but not be limited to, an estimate of the quantity of purchase orders that would be required if the Open Purchase Order Procedures are not used.

(2) A general description of the commodities/services and the maximum amount per invoice.

(3) The following certification:

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"This is to certify that only the commodities/services shown will be purchased and that no items currently covered by any state contract will be purchased under the terms of this purchase order without proper approval from the Office of Purchasing, Travel and Fleet Management. This procedure will not be used to separate purchases so as to circumvent any laws, regulations or policies of the State of Mississippi." 10.107.03 State Agency Procedures for Open Purchase Orders for $5,000 or Less

All open purchase orders for $5,000 or less must have the following either included on the P.O. or attached:

(1) A brief justification of the need for an open purchase order in lieu of normal P.O. procedures.

(2) In the case of a rental which requires P-1 approval, the P.O. must include the appropriate P-1 approval number.

(3) A general description of the commodities/services and the maximum amount per invoice.

(4) The following certification:

"This is to certify that only the commodities/services shown will be purchased and that no items currently covered by any state contract will be purchased under the terms of this purchase order without proper approval from the Office of Purchasing, Travel and Fleet Management. This procedure will not be used to separate purchases so as to circumvent any laws, regulations or policies of the State of Mississippi." 10.107.04 Procedures to be Established by State Agencies

The agencies who issue open purchase orders should establish a procedure whereby the person picking up goods or services has a signed or approved purchase requisition form in order to maintain control of the open purchase order balances. The items purchased from all open purchase orders must agree with the proper object of expenditure code recorded for that particular P.O. All responsibility that the proper type of items are being purchased and that all purchasing laws concerning bid or contract items are being followed will fall upon the agency officials. 10.107.05 Institutions of Higher Learning Procedures for Open Purchase Orders

The Institutions of Higher Learning may issue open purchase orders which are in compliance with policies and procedures which have been submitted to and approved by the Department of Finance and Administration. 10.108 Procedures for Applying Preference to Resident Contractors

Sections 31-7-47 and 31-3-21, Mississippi Code of 1972, Annotated, state that, "In the letting of public contracts, preference shall be given to resident contractors, and a non-resident bidder domiciled in a state, city, county, parish, province, nation or political subdivision having laws granting preference to local contractors shall be awarded Mississippi public contracts only on the same basis as the non-resident bidder's state, city, county, parish, province, nation or

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political subdivision awards contracts to Mississippi contractors bidding under similar circumstances. Resident contractors actually domiciled in Mississippi, be they corporate, individuals or partnerships, are to be granted preference over non-residents in awarding of contracts in the same manner and to the same extent as provided by the laws of the state, city, county, parish, province, nation or political subdivision of domicile of the non-resident.

Commentary

In layman's terms, this means that we must penalize out-of-state vendors by the same amount as their state laws would penalize our vendors. If State A has a five percent (5%) in- state preference and a vendor from State A is bidding in Mississippi, then you must give a Mississippi vendor a five percent (5%) preference in the evaluation and award of the contract. Agencies are advised to review the applicable statutes and discuss this matter with their attorney.

12 Miss. Admin. Code Pt. 6, R. 10.109 Information Applicable to Construction

Agencies considering construction projects should become familiar with the applicable sections of the Mississippi Code of 1972, Annotated, and the Planning and Construction Manual developed by the Bureau of Building, Grounds and Real Property Management. The following definitions and commentary are set forth as an introduction and should not be considered to be a complete discussion of construction contracting. 10.109.01 Construction Defined

The Office of Purchasing, Travel and Fleet Management, in cooperation with the Office of the State Auditor, has developed the following guidelines to assist agencies and governing authorities in the interpretation of the purchasing requirements.

As per Section 31-7-1, Mississippi Code of 1972, Annotated, “construction” shall mean the process of building, altering, improving, renovating or demolishing a public structure, public building, or other public real property. It does not include routine operation, routine repair or regularly scheduled maintenance of existing public structures, public buildings or other public real property. As per Section 31-7-13, Mississippi Code of 1972, Annotated, “construction” falls under the public bid laws. The question is, where does “routine repair” end and “construction” begin? In general, it is considered construction if it would add to, restore, or reduce the value of a property.

“Add to” would indicate an addition to or an improvement to the property. This would include such projects as the construction of a new building or road, the construction of an additional office to an existing building, or the installation of a new air conditioning system into an existing building. “Restore” would indicate a situation where a building or road had depreciated significantly, and the project was intended to bring the property back to its original value. “Reduce” would indicate demolition of the property.

In addition, there are other “projects” which would fall under the term “construction” which would not necessarily follow the definition shown above. Routine maintenance to retain value and/or function would not be considered construction, and, therefore, would not require compliance with the public purchasing laws. However, non-routine maintenance to restore value as opposed to retain value would be considered “construction” and would fall under the public bid laws. Therefore, it is important to establish and maintain maintenance schedules on all property in an

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effort to retain the value and not allow property to depreciate.

Please remember that repairs made to a building, road, or bridge in an emergency are exempt from the bidding requirements. Part of the definition of an emergency is “...when the immediate restoration of a condition of usefulness of any public building, equipment, road or bridge appears advisable....” Since “emergency” repairs are exempt from the bidding requirements, this would indicate that repairs which are not an emergency would not be considered exempt.

Another “rule of thumb” is that if the funding source is from a budget line “Capital Outlay” then the project is considered construction. Please do not construe this statement to imply that purchases made from other funds would be exempt from the bidding requirements.

Please note that the lack of a requirement to obtain competitive bids should not preclude the purchasing agent from attempting to obtain the best possible price for the entity. If in doubt, follow the statutory bid laws set forth in Section 31-7-13, Mississippi Code of 1972, Annotated. A few examples will help to give some guidelines to follow in determining if bids are required.

(1) Pouring of concrete to add a parking area would be considered construction since value is being added to the property. Resealing of an existing parking area, on a routine basis, would not necessarily be considered construction since this would be considered routine maintenance, and the value of the property is being retained at its original value and not increased. (2) Adding new pipe to an existing structure so as to provide water to a new part of the building would be considered construction. Replacing existing pipe would not be considered routine maintenance and would be considered construction.

(3) Painting of a building on a routine basis would not necessarily be considered construction since you would be retaining the value of the building. This may be considered a contractual service and would not necessarily require bidding. If, however, you purchased paint and hired a painter, you would need to follow the statutory procedures for purchasing of the paint. If there was not a maintenance schedule, this project would appear to be an effort to restore the value and should be considered as a construction project and compliance with the bid laws would be required.

(4) Demolition of existing walls and replacement with new walls would not be considered routine maintenance. The “renovations” would have an impact upon the value of the building; this would be considered construction. Since it is not routine maintenance, it must be construction. In this case, it may be better to be safe than sorry; put it out for bids.

12 Miss. Admin. Code Pt. 6, R. 10.109.02 Public Projects

When preparing Instructions and Specifications for a public project, it may be wise to include the specific requirements for information to be shown on the outside of the envelope, except where bidders are submitting electronically in MAGIC, in which case the certificate of responsibility may be submitted with the electronic bid. As per Section 31-3-21(2), Mississippi Code of 1972, Annotated, all p a p e r bids submitted for public projects where said bid is in excess of $50,000 shall contain on the outside of the envelope the contractors current certificate of responsibility number. Also, please remember that no bids for a public project shall be opened unless such certificate number appears on the envelope or unless there appears a statement on the outside of the envelope to the effect that the bid enclosed therewith did not exceed $50,000.

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For informational purposes, a public project is defined as, “Any project for erection, building, construction, reconstruction, repair, maintenance or related work which is funded in whole or in part with public funds.”

Commentary

In layman’s terms, this means that you need to remind the bidders that if they plan to bid on a public project, they better put the certificate number on the envelope or a statement that the bid is not over $50,000. Without one or the other, you cannot open the bid. Interested parties may want to review Section 31-3-21, Mississippi Code of 1972, Annotated.

12 Miss. Admin. Code Pt. 6, R. 10.109.03 Architectural or Engineering Service Contracts

Section 31-11-3, Mississippi Code of 1972, Annotated, requires that the Department of Finance and Administration shall review and preapprove all architectural or engineering service contracts entered into by any state agency, institution, commission, board or authority other than architectural or engineering contracts paid for by self-generated funds of any of the state institutions of higher learning or community college projects that are funded form local funds.

Also, this requirement does not apply to any construction or design projects of the State Military Department that are funded from federal funds or other non-state sources, nor shall they apply to any project of the State Department of Transportation. Prior to entering into any such contract or agreement, agencies should contact the Bureau of Building, Grounds, and Real Property Management.

12 Miss. Admin. Code Pt. 6, R. 10.110 Information Applicable to Taxes

In general, state agencies have limited authority to pay taxes. Therefore, any reference to taxes owed in contracts should be reviewed with legal counsel. Agencies should may want to consider deleting sections pertaining to the payment of taxes during negotiations with the vendor advise vendors that the state is exempt from taxes on the sale of property, labor, services and products sold directly to the state or its departments or institutions. 10.111 Information Applicable to Services

Agencies under the authority of Office of Personal Service Contract Review shall follow the guidelines set forth in the Personal Service Contract R u l e s a n d Regulations. 10.111.01 Services Requiring Competition

The services shown below require competition as indicated.

(1) Fuel management services, see Subsection 10.102.01, Fuel Management Services.

(2) Garbage collection or disposal, solid waste collection or disposal, sewage collection or disposal. Contracts in excess of $50,000 for these services may be entered into after following a formal request for proposal procedure and advertising in accordance with

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Subsection 3.106.05, Public Notice.

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 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 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. 10.111.02 Small Purchase Procurement Card Services

In accordance with Section 7-7-23, Mississippi Code of 1972, Annotated, the State Fiscal Officer established a general rule to allow state agencies to make certain purchases without first issuing a purchase order. The various state agencies may make purchases under the Small Purchase Procurement Card Program established by the Office of Purchasing, Travel and Fleet Management provided, however, that all such purchases shall be made in compliance with the minimum policies and procedures established by the Office of Purchasing, Travel and Fleet Management. The Chief Procurement Officer or his/her designee of Office of Purchasing, Travel and Fleet Management shall have the authority to limit the ability of any agency to use the Small Purchase Procurement Card Program if it is determined that the agency is not in compliance with the policies and procedures. Policies, procedures, and guidelines on the Procurement Card Program can be found in the State Procurement Card Guidelines. 10.111.03 State of Mississippi Procurement Card Program

The Office of Purchasing, Travel and Fleet Management maintains a contract for a Procurement Card Program. The intent of this Procurement Card Program is to allow government entities to make small purchases of commodities, repairs, or services easier and more economical. This card is accepted by a wide variety of businesses offering goods and services. Government entities may use the Procurement Card to make purchases which are bona fide needs of the entity.

The maximum amount of a single purchase transaction shall be $5,000 (entities may establish stricter guidelines.) Municipalities need to follow requirements by law for issuing purchase orders. The procedures for the program can be found in the State Procurement Card Guidelines. 10.111.04 Procurement Card Program Exception

If an agency establishes the fact that the State Procurement Card program cannot or will not meet the needs of the agency, the agency may submit a request for approval from the Office of Purchasing, Travel and Fleet Management to establish their own procurement card program.

When the approval from the Office of Purchasing, Travel and Fleet Management has been received, the procedures established in Section 3.107, Competitive Sealed Proposals, must be followed. Prior to any award, justification must be submitted to the Office of Purchasing, Travel and Fleet Management indicating how their program better meets the needs of the agency and indicate the differences from that of the State Procurement Card Program.

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If a governing authority establishes the fact that the Small Purchase Procurement Card cannot or will not meet the needs of the governing authority, the governing authority may submit a request for approval from their governing board to establish their own Procurement Card program by following the procedures established in Section 3.107, Competitive Sealed Proposals. Approval of such action shall be placed on the minutes of the board of the governing authority and a copy of the approval sent to the Office of Purchasing, Travel and Fleet Management.

12 Miss. Admin. Code Pt. 6, R. 10.112 Credit Cards and Club Membership Cards

In accordance with Section 31-7-1(1)(b), Mississippi Code of 1972, Annotated the Office of Purchasing, Travel and Fleet Management has established these purchasing regulations governing the use of credit cards and purchasing club membership cards to be used by state agencies and governing authorities. Use of the cards shall be in strict compliance with these regulations. 10.112.01 Balances On Accounts

Balances on credit cards shall be paid at the receipt of the monthly statement, once the statement has been reconciled for accuracy. Balances on credit cards shall not be carried over to the next month except on disputed claims and only for the disputed amount. Any amounts due on credit cards shall incur interest charges as set forth in Section 31-7-305, Mississippi Code of 1972, Annotated, which only allows for an interest rate of 1 ½% per month to be applied to any unpaid balance not paid within 45 days. 10.112.02 Limitations of Use

The Chief Procurement Officer or his/her designee shall have the authority to limit the ability of any government entity to use procurement cards, credit cards and club membership cards if it is determined that the entity is not in compliance with the minimum policies and procedures established by this office. 10.112.03 Merchant-Specific Credit Cards

The use of the Small Purchase Procurement card should prevent the need for merchant specific credit cards (i.e. Walmart, Home Depot, Texaco, etc.) and should be utilized if the need for a credit card is established. Exceptions may be approved if circumstances arise which require the need for a merchant specific credit card. State agencies desiring to obtain a merchant specific credit card shall submit to the Office of Purchasing, Travel and Fleet Management for approval, written justification for the need of a merchant-specific credit card.

Governing authorities desiring to obtain a merchant specific credit card shall submit to their governing board for approval, written justification for the need of a merchant specific credit card. Approval of such action shall be placed on the minutes of the board of the governing authority. 10.112.04 Merchant Specific Credit Card Minimum Requirements

The following are the minimum requirements for use of credit cards. Individual entities may decide to implement stricter or additional requirements. Each entity should develop written policies and procedures to present to cardholders prior to receipt of any credit card. The minimum requirements are as follows:

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(1) Assure any purchases made using a credit card adheres to all applicable purchasing procedures, as set forth in Section 31-7-1, Mississippi Code of 1972, Annotated.

(2) Assure that the items purchased are required for bona fide government purposes. (3) Assure that the prices paid are fair and reasonable. (4) Notify the merchant that the purchase is being made in the name of a government entity which is exempt from state and local taxes.

(5) Assure that a list of the items purchased (either in the form of a detailed sales receipt or an order description) is reviewed and confirmed in writing by the cardholder. This list should have the cardholder’s printed name and signature.

(6) Assure that all items are received (no back orders allowed).

(7) Assure that state contract items are purchased only from the state contract vendor at or below the state contract price. (8) Assure that purchases are within the limits set by the individual entity and available budget authority.

(9) State Agencies shall assure that no purchases are made for travel purposes; In general, Governing Authorities shall not use a credit card for travel purposes except where allowed by statue, such as Section 19-24-13, Mississippi Code of 1972, Annotated, which allows a sheriff and his deputies to use an approved credit card to pay expenses incurred when traveling in or out of state in the performance of their official duties.

(10) Assure that no cash advances are made with the card.

(11) Upon receipt of the monthly statement, the cardholder shall review all charges to assure accuracy, complete applicable dispute documents, reconcile the statement with copies of receipts and order logs, and approve and sign the statement.

(12) Forward the statement, copies of receipts, logs, and dispute documents to the appropriate official within the agency according to agency policy. This should be done within one day after receipt of the statement. The documents may be mailed, but it is recommended that these items be sent via facsimile.

(13) Appropriate official within the agency should review statements and applicable documents to assure that only proper purchases have been made and that the statement accurately reflects the charges indicated on the receipts, logs, and dispute documents. If correct, the appropriate official shall approve the statements for payment and process to the agency accounting office. The agency accounting office shall verify all statements and submit for payment.

(14) The appropriate agency official shall maintain a file with the statements and all applicable receipts and dispute documents.

(15) Prior to receiving a credit card, the cardholder shall sign a statement verifying that he/she has read these minimum requirements, and any additional policies established by the agency, and that it is understood he/she will be personally liable for any purchase that is made which is not in compliance with these procedures; and in addition to being responsible for any such charges, the cardholder may lose the privilege of using the credit card.

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(16) Prior to any credit cards being issued, the appropriate agency official shall sign a statement verifying that he/she has read these minimum requirements and that it is understood he/she may be held jointly liable for any purchase that he/she approved which is not in compliance with these procedures; and in addition to being responsible for any such charges, the agency may lose the privilege of using the credit cards. 10.112.05 Membership Club Cards

Membership club card fee’s, such as Sam’s club cards, are allowed but should be justified by the agency or governing authority to show that the anticipated savings from using the card would exceed the cost of the card fee. This justification should be maintained on file with the government entity. Each subsequent year, the government entity shall document actual savings for the previous year which substantiate the cost of the card. This would not mean documenting savings on each and every purchase but enough documentation to substantiate adequate savings to justify the expense of the card.

State agencies desiring to obtain a membership club card shall submit to the Office of Purchasing, Travel and Fleet Management for approval with written justification for the need of a membership club card.

Mississippi Procurement Manual Effective Date: 01/01/18 Page 142

Appendix A Summary of Laws

The following is a summary of various laws which pertain to public purchasing. It is not intended to be a complete summary, nor is it guaranteed to be 100% accurate. It is a good general reference guide.

Alpha Index of Applicable Purchasing Laws

Section Description

31-7-13 (n) 60 Month Limit 31-7-13 (i) Adjustment Clause 31-7-13 (f) Alternate Bids 31-5-51 Bonds, Performance and Payment 31-11-1 Bureau of Building Creation 31-11-3 Bureau of Building Powers 31-11-1 Bureau of Building, Grounds, and Real Property Management 25-53-5 Information Technology Services Powers 25-53-1 Information Technology Services Purpose 31-3-13 Certificate of Responsibility 31-3-21 Certificate of Responsibility Number to be on Envelope 31-3-15 Certificate of Responsibility Required for Bid 31-7-13 (g) Change Orders 31-7-101 Counties, Central Purchasing 21-17-1 Disposal of City Property 19-7-3 Disposal of County Property 41-13-35(i) Disposal of Hospital Property 37-29-75 Disposal of Junior College Property 37-29-419 Disposal of Junior College Property 37-7-451 Disposal of School District Property 37-7-471 Disposal of School Property 29-9-9 Disposal of State Property 19-5-3 Dogs, Purchasing by Counties 21-21-5 Dogs, Purchasing by Municipalities for Police Department 31-7-13 (k) Emergency Purchase, Governing Authorities 37-7-13 (j) Emergency Purchase, State Agencies 31-7-14 Energy Efficiency Services 25-4-105 Ethics 31-7-13 (k) Emergency Purchase, Governing Authorities 31-7-13 (j) Emergency Purchase, State Agencies 31-7-14 Energy Efficiency Services 25-4-105 Ethics 31-7-13 (m) Exemptions to Purchase Laws 31-7-59 GSA, Municipalities Over 100,000 May Purchase from 17-13-1 Interlocal Agreements 31-7-13 (e) Lease/Purchase 31-7-10 Lease/Purchase 31-7-13 (s) Minority Preference 25-1-53 Nepotism 31-9-1 Office of Surplus Property

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31-7-13 (n) Open Purchase Orders 31-7-55 Penalties 31-7-13 (h) Petroleum Purchases 31-7-15 Preference Law, Ties, and Recycled 31-7-47 Preference Laws, Reciprocal 31-3-1 Public Contractors Board 27-104-7 Public Procurement Review Board 31-5 Public Works Contracts 31-7-13 (r) Purchase Defined 7-7-23 Purchase Order, Why Agencies Must Issue a PO 31-7-13 (o) Purchase Orders, Split 31-7-13 Purchasing, General Bid Laws and Exceptions 31-7-13 (d) Purchasing, Lowest and Best Bid 31-7-13 (c) Purchasing, Over $50,000, Advertising, Restrictive Specifications 31-7-13 (a) Purchasing, Under $5,000.01 31-7-13 (b) Purchasing, $5,000.01 to $50,000 31-7-1 Purchasing Definitions 49-31-15 Recycling, State Agencies to Have Program, DFA to Participate 49-31-17 Recycling Market Development Council 31-8-3 Rentals, Counties and Municipalities 37-41-81 School Buses 37-41-101 School Buses, Department of Education Bid Requirements 37-41-81 School Bus 31-7-13 (m) Single Source Certification 31-7-12 State Contracts 31-9-9 Surplus Property, Bid Laws Waived for Purchases from 19-7-5 Surplus Property, Counties, Disposal of 21-17-1 Surplus Property, Municipalities 21-39-21 Surplus Property, Municipalities, Recovered Lost or Stolen Items 19-13-19 Surplus Road Equipment, Counties May Purchase from Feds 27-65-105 Taxes, Exemption from Sales Tax 27-31-1 Taxes, State Is Exempt from AD Valorem Tax 31-7-201 Telecommunications 37-47-25 Textbooks, School Districts 37-43-19 Textbooks 31-7-301 Timely Payments 25-3-41 Travel Contracts 25-3-41 Travel Expenses, DFA to Make Rules 25-1-85 Vehicles, Agencies Allowed to Operate Fixed Number 25-1-87 Vehicles, Marking of Public Vehicles

Mississippi Procurement Manual Effective Date: 01/01/18 Page 144

Numeric Index of Applicable Purchasing Laws

Section Description

7-7-23 Purchase Order, Why Agencies Must Issue a PO 17-13-1 Interlocal Agreements 19-5-3 Dogs, Purchasing by Counties 19-7-3 Disposal of County Property 19-7-5 Surplus Property, Counties, Disposal of 19-13-19 Surplus Road Equipment, Counties May Purchase from Feds 21-17-1 Disposal of City Property 21-17-1 Surplus Property, Municipalities 21-21-5 Dogs, Purchasing by Municipalities for Police Department 21-39-21 Surplus Property, Municipalities, Recovered Lost or Stolen Items 25-1-53 Nepotism 25-1-85 Vehicles, Agencies Allowed to Operate Fixed Number 25-1-87 Vehicles, Marking of Public Vehicles 25-3-41 Travel Expenses, DFA to Make Rules 25-3-41 Travel Contracts 25-4-105 Ethics 25-53-1 Information Technology Services Purpose 25-53-5 Information Technology Services Powers 27-31-1 Taxes, State Is Exempt from Ad Valorem Tax 27-65-105 Taxes, Exemption from Sales Tax 27-104-7 Public Procurement Review Board 29-9-9 Disposal of State Property 31-3-1 Public Contractors Board 31-3-13 Certificate of Responsibility 31-3-15 Certificate of responsibility Required for Bid 31-3-21 Certificate of Responsibility Number to be on Envelope 31-5 Public Works Contracts 31-5-51 Bonds, Performance and Payment 31-7-1 Purchasing Definitions 31-7-10 Lease/Purchase 31-7-12 State Contracts 31-7-13 Purchasing, General Bid Laws and Exceptions 31-7-13 (o) Purchase Orders, Split 31-7-13 (a) Purchasing, Under $5,000.01 31-7-13 (b) Purchasing, $5,000.01 to $50,000 31-7-13 (c) Purchasing, Over $50,000, Advertising, Restrictive Specifications, Reverse Auctions 31-7-13 (d) Purchasing, Lowest and Best Bid 31-7-13 (e) Lease/Purchase 31-7-13 (f) Alternate Bids 31-7-13 (g) Change Orders 31-7-13 (h) Petroleum Purchases 31-7-13 (i) Adjustment Clause 31-7-13 (j) Emergency Purchase, State Agencies 31-7-13 (k) Emergency Purchase, Governing Authorities 31-7-13 (m) Exemptions to Purchase Laws 31-7-13 (m) Single Source Certification 31-7-13 (n) 60 Month Limit

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31-7-13 (n) Open Purchase Orders 31-7-13 (r) Purchase Defined 31-7-13 (s) Minority Preference 31-7-14 Energy Efficiency Services 31-7-15 Preference Law, Ties, and Recycled 31-7-47 Preference Laws, Reciprocal 31-7-55 Penalties 31-7-59 GSA, Municipalities Over 100,000 May Purchase From 31-7-101 Counties, Central Purchasing 31-7-201 Telecommunications 31-7-301 Timely Payments 31-8-3 Rentals, Counties and Municipalities 31-9-1 Office of Surplus Property 31-9-9 Surplus Property, Bid Laws Waived for Purchases from 31-11-1 Bureau of Building, Grounds and Real Property Management 31-11-1 Bureau of Building Creation 31-11-3 Bureau of Building Powers 37-7-451 Disposal of School District Property 37-7-471 Disposal of School Property 37-29-75 Disposal of Junior College Property 37-29-419 Disposal of Junior College Property 37-41-81 School Bus 37-41-81 School Buses 37-41-101 School Buses, Department of Education Bid Requirements 37-43-19 Textbooks 37-47-25 Textbooks, School Districts 41-13-35(i) Disposal of Hospital Property 49-31-15 Recycling, State Agencies to Have Program, DFA to Participate 49-31-17 Recycling Market Development Council

Part 7 Bond Advisory Division

Chapter 1 Debt Management Policy

12 Miss. Admin. Code Pt. 7, R. 1.1 Introduction

This debt management policy is designed to provide for the effective management of the general obligation debt issued by the State of Mississippi under the purview of the State Bond Commission in a manner consistent with state and federal law and State Bond Commission policies.

History

• Source: §31-17-1, 31-18-3, 31-18-5, 31-17-153

12 Miss. Admin. Code Pt. 7, R. 1.2 Debt Management Objectives

The State Bond Commission’s objectives within this policy are to maintain (1) compliance with state and federal law, (2) cost-effective access to the capital markets through prudent policies, and (3) moderate debt and debt service payments with effective planning.

The State Bond Commission will revise this document as needed to comply with changes to federal and state guidelines or State Bond Commission policies.

History

• Source: §31-17-1, 31-18-3, 31-18-5, 31-17-153

12 Miss. Admin. Code Pt. 7, R. 1.2A Project Compliance with Debt Management Objectives

Unless otherwise directed by law, the State Bond Commission may only issue general obligation debt on behalf of the State of Mississippi if the project for which the debt is issued meets the following criteria: (1) In the instance of issuance of a tax-exempt bond, the project is for public use and does not meet any of the Private Activity Bond tests specified in 26 U.S. Code § 141, et. seq. (Subpart A – Private Activity Bonds); or, in the instance of issuance of a Private Activity Bond, the Commission has clear and convincing evidence of economic use and benefit, including economic development, job creation, or other improvement of the public welfare; (2) The project asset has a life equal to or longer than the life of its corresponding debt;

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(3) No expenditures were made before the anticipated delivery date of the bonds, except in situations where the entity obtains a Declaration of Intent from the State Bond Commission; (4) The authorized entity has submitted sufficient information to ensure the project asset is specific, not generic in nature; and (5) The project is not the funding of salaries or other recurring expenses.

For purposes of examining projects, the State Bond Commission may use definitions also utilized by the Governmental Accounting Standards Board, or GASB, where appropriate. Members of the Bond Commission may consider the financial impact on taxpayers throughout the state and over the lifetime of the bond repayment. Members of the Bond Commission may also consider whether the benefit of the project is primarily to the state or to the local economy, and whether other state, federal or private funding mechanisms (including but not limited to, local bonds, privilege taxes, grants, loans from the Mississippi Development Bank, Mississippi Development Authority, the Mississippi Department of Environmental Quality, USDA Rural Development, and/or from a direct appropriation) might be available and more appropriate to generate the required funding for the project.

The members of the Bond Commission should endeavor to make themselves fully available to the members of the Legislature so that only projects that meet the above criteria are included in bond bills brought before the Legislature for passage. Entities with projects authorized by the Legislature in bond bills are strongly urged not to rely on such funds until such time as the Bond Commission has approved the corresponding debt. The members of the Bond Commission should endeavor to ensure that all projects included in any resolution brought before the Bond Commission meet the above criteria. Entities with projects authorized by the Legislature in bond bills are urged to provide the members of the Bond Commission with any information requested and as necessary to ensure that these guidelines are met. The Department of Finance and Administration shall gather sufficient information from non-State agency entities to allow the members of the Bond Commission to evaluate the project based on these criteria.

History

• Source: §31-17-1, 31-18-3, 31-18-5, 31-17-153, 31-17-101

12 Miss. Admin. Code Pt. 7, R. 1.3 Debt Issuance Authority and Limitations

The State Bond Commission is established under the statutory authority of Section 31-17-1, Mississippi Code of 1972. The State of Mississippi issues its general obligation debt only upon authorization granted by the Mississippi Legislature through the passage of legislation. The authority for the Bond Commission to issue variable rate debt is found in Sections 31- 18-3 and 31-18-5. The Bond Commission is further authorized by Section 31-17-153 to make temporary borrowings in anticipation of the issuance of state-supported debt.

History

• Source: §31-17-1, 31-18-3, 31-18-5, 31-17-153

12 Miss. Admin. Code Pt. 7, R. 1.4 Solicitation and Procurement

When allowed by state law, the State Bond Commission may use a competitive or a negotiated process to select the bond counsel, financial advisor, swap advisor, underwriter, swap counterparty, liquidity provider, paying agent, insurer, remarketing agent, trustee, surety provider, etc. for its debt as the State believes business, market or competitive conditions justify such a process.

History

• Source: §31-17-1, 31-18-3, 31-18-5, 31-17-153

12 Miss. Admin. Code Pt. 7, R. 1.4A Selection of Bond Counsel

The State of Mississippi selects bond counsel through a competitive selection process to provide bond and tax counsel services related to the issuance of general obligation and revenue bonds of the State. Bond counsel are expected to provide validity opinions, tax opinions, tax counsel services, disclosure counsel services related to the State’s preliminary statement and final official statement, and additional special services as may be required from time to time. It is essential that bond counsel have the necessary expertise to provide an opinion that can be relied on and will be able to assist the issuer in completing transactions in a timely manner.

The State Bond Commission, by and through the Mississippi Department of Finance and Administration (DFA), may enter into an engagement with an eligible firm to serve as bond counsel. Bond counsel will be selected through a Request for Qualifications (RFQ) issued on behalf of the Commission through the DFA. The RFQ will set out eligibility requirements for respondents, selection process, scope of services, conditions for submitting responses, proposal content, evaluation criteria, and any additional information necessary for ensuring both that the highest quality bond counsel is selected and that the selection process is transparent, fair, and efficient. The Bond Commission shall review its relationship with bond counsel on a regular basis.

Prospective bond counsel must, at a minimum, meet the following criteria:

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1. Must be listed in the section entitled “Municipal Bond Attorneys” in the Mississippi section of the most recent edition of The Bond Buyer’s Municipal Marketplace; 2) Must have given solo validity and tax opinions in municipal financing transactions since passage of the federal Tax Reform Act of 1986 or must have served as co-counsel in giving validity and tax opinions in at least four separate municipal financing transactions since passage of the federal Tax Reform Act of 1986; 3) In instances for which specialized tax advice beyond normal bond counsel services may be required, must have attorneys who practice full-time in the area of public finance tax law or must be able to identify a sufficient alternative to providing competent specialized tax advice; 4) In instances for which specialized securities law services beyond normal bond counsel services may be required, must have attorneys who practice full-time in the area of municipal securities law or must be able to identify a sufficient alternative to providing competent specialized municipal securities law advice; 5) Must have no relationships or activities that might present a conflict of interest for the State; 6) The lawyer(s) who will be primarily responsible for providing the legal services necessary (a) must be licensed or admitted to practice law in Mississippi, (b) must satisfy the requirements of (2) above, and (c) must agree to primarily perform the legal service requested in Mississippi; and 7) Must carry a level of malpractice insurance, including deductible, to cover errors and omissions, improper judgment, or negligence appropriate for the magnitude of the issue. No member of the Mississippi Legislature, any elected or appointed State official, or any partner or associate of any member of the Legislature or any elected or appointed State official may receive any compensation from any selected bond counsel which is any way related to the legal services to be performed by the bond counsel.

History

• Source: §31-17-1, 31-18-3, 31-18-5, 31-17-153, 31-17-101

12 Miss. Admin. Code Pt. 7, R. 1.5 Build America Bonds

The American Recovery and Reinvestment Act of 2009 (“ARRA”) authorized bonds known as Build America Bonds (“BABs”). ARRA added Section 54AA to the Internal Revenue Code (the “Code”), which authorizes state and local governments to issue BABs as taxable governmental bonds with federal subsidies for a portion of the borrowing costs. Direct Payment BABs are a type of Build America Bond that provides a direct federal subsidy to the government issuer in an amount equal to 35% of the state interest on the bonds. Recovery Zone Economic Development Bonds, like the Direct Payment BABs, provide a federal subsidy to the issuer in an amount equal to 45% of the state interest on the bonds. IRS Notice 2009-26 sets forth guidance on issuing BABs and on the payment of the interest

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subsidy. BABs had to be issued prior to January 1, 2011.

In general, a Build America Bond is any obligation that (1) is not a private activity bond, (2) but for Section 54AA of the Code, it would be a tax exempt obligation under Section 103 of the Code, (3) is issued before January 1, 2011, and (4) the issuer makes an election to have Section 54AA apply. In order for an issuer to receive the 35% subsidy from the US Treasury, the Build America Bonds must be “qualified bonds” under Section 54AA which means that 100% of “available project proceeds” of the bond issue must be used for capital expenditures after allowing for a reasonably required reserve fund. “Available project proceeds” are the excess of the proceeds of the sale of the BABs over costs of issuance financed by the issue of not more than 2 percent, plus investment earnings on the excess.

History

• Source: §31-17-1, 31-18-3, 31-18-5, 31-17-153

12 Miss. Admin. Code Pt. 7, R. 1.6 Rule 1.6

Variable Rate Debt Variable rate debt is a useful tool for the State Bond Commission to utilize to diversify its debt portfolio, reduce interest costs, provide interim financing for capital projects and improve the match of assets to liabilities. The State Bond Commission will use the guidelines set forth below to evaluate potential uses of variable rate debt and/or derivatives in managing the State’s overall interest rate risk profile. Each transaction will be evaluated and analyzed for the long-term implications of such agreements for the State’s finances and will be structured to complement the overall asset/liability position of the State. When recommending the use of variable rate debt and/or derivatives, the State Bond Commission will examine, among other things, the cost of borrowing, historical interest rate trends, risk- reward trade-offs, variable rate debt capacity, and opportunities to refund associated debt obligations. The Commission must approve all state supported debt and derivative transactions.

A. Variable Rate Debt Guidelines Permitted Instruments – The State may use at its discretion variable rate instruments and interest rate swaps or similar agreements which result in the State effectively paying interest at a rate or rates which vary from time to time. Decisions about which mode of variable rate debt to incur at any point in time will be based on the relative costs, benefits and risks to the State. Factors to consider will include:

1. Cost and availability of liquidity facilities and/or letters of credit/bond insurance; 2. Cost to implement and manage the program on an ongoing basis; 3. Ability to convert to a different interest rate mode or redemption flexibility; 4. Trading performance of underlying variable rate securities;

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5. Demand in the market.

B. Budgeting for Variable Rate Debt The State Treasury Bond Director and the Deputy Treasurer will use conservative budgeting practices in association with its variable rate debt so that a cushion, which may change from year to year depending upon budget conditions as well as other factors enumerated in this policy, is built into the budget to guard against an unexpected increase in the variable interest rates.

C. Evaluation and Management of Risks for Variable Rate Debt The State recognizes that variable rate exposure carries inherent risks not present in traditional fixed rate transactions. The following areas of potential risk shall be included in the evaluation of the proposed transaction and monitored on an ongoing basis after issuance to determine if the variable rate debt is still achieving its objectives:

1. Interest Rate Risk – the risk that the State will be exposed to rising interest rates. This risk can be mitigated through conservative budgeting practices, matching variable rate liabilities with offsetting investment assets that will produce higher income in rising interest rate environments or by utilizing derivatives;

2. Liquidity Risk – arises when a variable rate borrowing has a demand feature that allows bondholders to tender their bonds or notes back to the issuer at their option, or upon occurrence of certain designated events. If the State has secured liquidity through a bank agreement, then the terms of the bank agreement could require the State to repay the bank in a relatively short period (the “term-out”). If the State has provided self liquidity, then the risk would be the possibility of drawing against current funds;

3. Rollover/Renewal Risk – arises when the variable rate borrowing has a demand feature and the liquidity support does not extend for the life of the bonds. In this situation, the State may lose access to the liquidity facility and face the need to either identify an alternative provider, at a potentially higher costs, or convert bonds to a payment mode that does not have a demand feature, potentially on relatively short notice and at a potentially higher rate of interest;

4. Remarketing/Auction Failure Risk – arises when a failure occurs in the ongoing remarketing or the periodic auctions. In case of Variable Rate Demand Bonds (VRDBs) this may result in replacing a remarketing agent or a put on the bonds to the liquidity provider, and ultimately, to the State. In the case of Auction Rate Notes (ARNs), this may result in paying the maximum rate or replacing the auction

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agent/broker-dealer; and

5. Tax Risk – the risk of potential changes to the Federal and/or State income tax laws, regulation, etc. affecting interest payments on variable rate debt obligations. This risk in inherent in any issuance of VRDBs or ARNs since the interest rates are reset periodically at market levels and are not fixed at the time of issuance.

History

• Source: §31-17-1, 31-18-3, 31-18-5, 31-17-153

12 Miss. Admin. Code Pt. 7, R. 1.7 Derivatives

This section sets forth the State’s policy as it relates to derivatives, which may be entered into prior to, simultaneously with or subsequent to any related fixed or variable rate transaction. The use of derivatives is intended to reduce the State’s exposure to fluctuations in interest rates incurred through the issuance of variable-rate debt or to hedge interest rates on the future issuance of general obligation debt. However, these instruments can be used in certain instances to reduce the burden of high-interest, fixed-rate debt by converting State’s obligations from fixed-rate to variable-rate.

A. Guidelines 1. Permitted Instruments – The State may use the following instruments on either a previously issued, current or forward basis in connection with state-supported debt with the objectives of lowering the cost of borrowing and/or interest rate risk: a. Interest Rate Swaps – including fixed/floating swaps, basis swaps and constant maturity swaps; b. Interest rate caps, floors and collars; c. Options associated with interest rate swaps (swaptions), caps, floors and collars; d. Forward swap agreements; or e. Other interest rate hedge agreements.

2. Term Limit – The term of any derivatives agreement shall not extend beyond the final maturity date of the underlying debt related to such derivative agreement.

3. Counterparties a. Credit Rating Requirement – The counterparty shall have a credit rating that is within the two highest investment grade categories from at least one nationally recognized rating agency and ratings which are obtained from any other nationally recognized rating agencies shall also be within the highest three investment grade categories, or the payment obligations of the counterparty shall be unconditionally guaranteed by an entity with such credit

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ratings. b. Collateral Requirement – The obligations of the counterparty shall be fully and continuously collateralized by direct obligations of, or obligations the principal and interest on which are guaranteed by the United States of America with a net market value of at least 102 percent of the net market value of the contract (subject to minimum threshold amounts specified by the State) if the ratings of the counterparty or guaranteeing entity fall below the required levels. c. Net Worth Requirement – The counterparty must either have a net worth of at least $100 million or the counterparty’s obligations under the derivative contract must be guaranteed by an entity having a net worth of at least $100 million. d. Diversification – In managing the State’s overall derivative risk position, an effort should be made to diversify the State’s exposure to any single counterparty.

4. Security and Source of Repayment The State may establish a fund that maintains a minimum balance of one month’s payment to alleviate any cash flow issues by the timing of any transaction payments related to its outstanding derivative agreements.

5. Structure of the Derivatives Contract The State will use the terms and conditions set forth in the International Swap and Derivatives Association, Inc. (“ISDA”) Master Agreement, including the Schedule to the Master Agreement, its related Confirmation(s) and an ISDA Credit Support Annex, if necessary (collectively the “Agreement”).

Final documentation of a derivative contract shall include at a minimum the following: a. Authorizing Resolutions and Certificates; b. ISDA Master Agreement; c. Schedule to the Master Agreement; d. ISDA Credit Support Annex, if necessary; e. Confirmation(s) of transaction(s) covered by the Agreement; f. Guarantee of the Counterparty’s obligations, if necessary; g. Validation Order Documents; h. Legal Opinions from Associated Counsel; i. Counterparty (and guarantor, if applicable) Net Worth and Ratings Certificate; and j. In negotiated transactions, a fair pricing opinion from the financial advisor or

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swap advisor. 6. FMV Certificate The State will obtain from its financial advisor or swap advisor a certificate stating that the terms and conditions of the derivatives contract reflect market value of such agreement as of the date of execution. The State’s advisor will perform due diligence to determine the market value of the derivatives contract based on the type of credit, the complexity of the derivative structure and the underlying debt obligation, and the market at the time of the transaction.

7. Termination Provisions a. Optional Termination – Any derivative contract procured on behalf of the State may include an Optional Early Termination Provision, which will permit the State to unilaterally terminate the agreement if it is deemed financially advantageous to do so. b. Mandatory Termination – In the event that a derivative contract is terminated due to a termination event such as a default or decline in credit quality, the State will determine if it is feasible or beneficial to attempt to find a replacement counterparty or if the better option would be to make or receive a termination payment.

In determining the structure of a derivative contract, the State should evaluate the costs and benefits of incorporating a provision that would allow for termination payments by the State to be made over time as an alternative to lump-sum payment. The State will continuously monitor its termination payment exposure to ensure that if a termination event occurs on the State’s outstanding derivatives contracts, the termination payments would not be overly burdensome.

8. Evaluation and Management of Risks Prior to the execution of any derivative transaction, the State shall evaluate the proposed transaction and report the findings using the Derivatives Checklist in Exhibit B. Such review shall include the identification and evaluation of the proposed benefits and potential risks and the measures that may be taken to mitigate these risks. The following areas of potential risks shall be considered:

a. Amortization Risk – the mismatch between the amortization schedule of the underlying debt obligation and the amortization of the notional amount of the derivative contract. This can be mitigated by matching the amortization of the notional amount of the derivative contract to the amortization of the underlying debt obligation. b. Basis Risk – the mismatch between indices used to calculate debt service

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payments and the payments due under the derivatives contract. This risk is minimized by using the same index to calculate both the debt service and the derivatives contract payments. Basis risk also includes the mismatch between the interest actually paid on variable rate bonds and the variable rate payments received under a derivative agreement, such as a floating-to-fixed interest rate swap, entered into as a hedge of the variable rate exposure. c. Counterparty Risk – the risk that the counterparty will be unable to make its required payments. This is particularly important if the State has more than one derivative contract with the counterparty and the documents contain cross-default provisions. This risk can be mitigated through the credit rating requirements, collateral requirements, net worth requirements, and diversification requirements set forth in this policy. d. Credit Risk – the occurrence of an event modifying the credit rating of the State or the counterparty. This risk is mitigated somewhat by the established credit standards in this policy; this risk can also be addressed through minimizing cross defaults; posting of collateral, net worth requirements, and diversification requirements set forth in this policy. e. Interest Rate Risk – how the movement of interest rates over time affects the market value of the instrument after execution. Changes in the market value of the derivatives contract after execution may change the accounting treatment of the derivatives contract for financial reporting purposes and have an effect on the State’s financial statements. Careful monitoring of the value of the contract is necessary after execution. f. Market Access Risk – the risk that the State will not be able to enter credit markets or that credit will become more costly. For example, to complete a derivative’s objective, a new money issuance or a refunding may be planned in the future. If at that time, the State is unable to enter the credit markets, the expected costs savings may not be realized while the State will continue to be subject to its obligations required by the derivative contract. This risk can be mitigated by careful negotiation of the optional termination provisions and termination payment provisions of the derivative contract. g. Ratings Risk – the risk that the execution of a derivative contract would have an adverse effect on the State’s credit rating. It is anticipated that credit rating agencies would look favorably upon the types of derivative contracts that have as their objective the reduction of interest rate risk and the cost of borrowing such as interest rate swaps, caps, floors, collars, and options associated with such derivatives. However, careful attention should be paid to any potential impact on the State’s rating and any long-term implications of any derivative contract under consideration. h. Tax Event Risk – the risk of potential changes to the Federal and/or State income tax laws, regulations, etc. affecting the interest payments on debt obligations. All

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issuers who issue tax-exempt variable rate debt, the interest rate on which is periodically reset at levels reflecting the tax-exempt market, inherently accepts risk stemming from changes in marginal income tax rates. Decreases in marginal income tax rates for individuals and corporations could result in tax-exempt variable rates rising faster than taxable variable rates. This is the result of the tax code’s impact on the trading value of tax-exempt bonds. This risk is a form of basis risk under swap contracts. Percentage of LIBOR and certain BMA swaps can also expose issuers to tax event risk. Some BMA swaps have tax event triggers which can change the basis under the swap from BMA to a LIBOR basis. i. Termination Risk – the risk that the transaction may be terminated by either party in a market that dictates a termination payment by the State. This risk may be mitigated through the identification of revenue sources for and budgeting of potential termination payments, structuring the derivative transactions so that bond proceeds can be used for termination payments (i.e. assuring that the derivative is a “qualified hedge” under tax rules), deferral of such payments over time, and subordinating the lien status of potential payments. This risk may also be minimized by recommending the selection of counterparties with strong creditworthiness, under certain circumstances requiring the counterparty to post collateral in excess of the contract’s market value, negotiating limits on the circumstances under which a payment may be required (particularly mandatory terminations triggered by the counterparty’s bankruptcy or credit downgrade) and permitting the assignment of the contract to a creditworthy entity in lieu of termination. When considering the relative advantage of adding provisions to the contract that would mitigate risks, the State will evaluate these provisions for their cost effectiveness.

9. Independent Third Party Advisors The State may retain the services of an independent third party advisor or manager to evaluate the risks and market value of any proposed derivative contract and to assist the State with the monitoring and reporting requirements for executed contracts.

History

• Source: §31-17-1, 31-18-3, 31-18-5, 31-17-153

12 Miss. Admin. Code Pt. 7, R. 1.8 Post Issuance Compliance

The Director of the Bond Advisory Division of the Department of Finance and Administration (DFA) shall be the Bond Compliance Officer responsible for each bond issuance under the purview of the State Bond Commission of the State of Mississippi. All information related to State-issued bonds and the facilities/projects financed by the bonds shall be submitted to the Bond Compliance Officer.

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A. Post-Issuance Compliance Checklist and Continuing Education 1. Post-Issuance Compliance Checklist - Immediately upon issuing any bonds, the Bond Compliance Officer in conjunction with Bond Counsel shall complete the Post- Issuance Compliance Checklist (Exhibit A) and the attached Schedules in order to establish and clearly define the roles and responsibilities relating to the ongoing compliance activities for a bond issue and to identify compliance requirements. 2. Continuing Education – The Bond Compliance Officer will actively seek out advice of Bond Counsel on any matters that appear to raise ongoing compliance concerns and will attend or participate in seminars, teleconferences, etc. sponsored by organizations such as GFOA, SIFMA, NABL or NAST that address compliance issues and developments in the tax-exempt bond arena.

B. Continuing Disclosure 1. Disclosure Repositories – Effective July 1, 2009, “repository” in this section shall mean the Electronic Municipal Market Access system (“EMMA”) established by the Municipal Securities Rulemaking Board. 2. Financial information relating to the State (the Mississippi Comprehensive Annual Financial Report) is due to the Repository 180 days after the close of the fiscal year. The Bond Compliance Officer or his designee will provide this information to the Repository. 3. SEC Rule 15c2-12 governs the preparation and dissemination requirements of the Official Statement. In order to comply with these requirements, the Bond Compliance Officer will notify Bond Counsel and the underwriters of any fact or event that might cause the official statement to contain any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. 4. Material Events Disclosure - SEC Rule 15c2-12 also governs secondary market disclosure. As required in this rule, the Bond Compliance Officer will notify the Repository in a timely manner, when any of the following events that would be considered material within the meaning of the federal securities law occur: a. Principal and interest payment delinquencies; b. Non-payment related defaults; c. Unscheduled draws on debt service reserves reflecting financial difficulties; d. Unscheduled draws on credit enhancements reflecting financial difficulties; e. Substitution of credit or liquidity providers, or their failure to perform; f. Adverse tax opinions or events affecting the tax-exempt status of the bonds; g. Modifications to rights of holders to the bonds; h. Bond calls; i. Defeasances;

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j. Release, substitution or sale of property securing payment of the bonds; and k. Rating changes.

C. State Bond Commission Updates 1. General Obligation Bonds The Bond Compliance Officer will at least annually (immediately following the end of the fiscal year) provide a report to the State Bond Commission to include the following: a. Amount of outstanding debt; b. Description of any pending transactions; c. Any compliance issues with the Debt Management Policy.

2. Variable Rate Debt If the State has any outstanding variable rate debt at fiscal year end, the Bond Compliance Officer will provide an annual report to the State Bond Commission on its variable rate debt portfolio. The report will include the following information: a. A description of the outstanding variable rate debt transactions, including a status report detailing any material changes that may have occurred since the last report; b. A description of any new transactions and any proposed new transactions; c. An evaluation of the debt portfolio with a recommendation on any changes to the balance of structure for variable rate, fixed rate, and synthetic fixed rate debt; d. Rate comparisons in the event that multiple remarketing agents or broker dealers are used.

3. Derivatives The derivative contracts of the State will be part of the annual report on variable rate debt that the Bond Compliance Officer will provide to the State Bond Commission. The derivatives section of the report will include the following information: a. A description of any outstanding derivative contracts of the State, including a status report detailing any material changes that may have occurred since the last report; b. A description of any new agreements and any proposed new agreements; c. A cash flow activity report for the derivative portfolio, including any payments made or received; d. A current assessment of counterparty risk, termination risk and any other applicable risks associated with the agreements in place; e. A calculation, if possible, of any actual debt service savings realized from entering into the various derivative contracts. This calculation would be delayed

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in the case of forward derivative contracts made in relation to a planned future new issuance.

D. Contract Monitoring 1. Ratings of Financial Product Providers a. The Bond Compliance Officer will continuously monitor ratings of swap counterparties, remarketing agents, trustees, etc. on the State’s various financial products and bond issues. b. The State Bond Commission may subscribe to online information services provided by Moody’s, Fitch Ratings, or Standard and Poor’s in order to access data pertaining to the ratings of financial institutions. c. The State may also contract with a third party to monitor the ratings of our financial providers and give notice when rating triggers have been activated. 2. The State may contract with a third party to calculate, verify and/or monitor the value of its derivative contracts. 3. The State may contract with a third party or develop spreadsheets internally to monitor and track the performance of its remarketing agents for variable rate debt.

E. Direct Payment BABs Direct Payment BABs provide a direct federal subsidy paid by the US Treasury to the government issuer in an amount equal to 35% of the interest. Recovery Zone Economic Development bonds (like the Direct Payment BABs) provide a direct federal subsidy to the government issuer in an amount equal to 45% of the interest. IRS Notice 2009-26 provides guidance on Direct Payment BABs and the payment of the federal subsidy procedures.

1. Procedures for Completing and Filing the IRS Form 8038-G for Direct Payment BABs The Bond Director at the State Treasury will confirm that Bond Counsel has reported the issuance of Direct Payment Build America Bonds on IRS Form 8038-G. The Form 8038-G shall be prepared by Bond Counsel in accordance with IRS guidance. The form shall be filed with the IRS immediately after the issuance of the BABs but at least 30 days before the first Form 8038-CP is filed to request payment with respect to an interest payment date for that issue. 2. Procedures for Completing and Filing the IRS Form 8038-CP for Fixed Rate Debt Direct Payment BABs The Bond Director at the State Treasury (in cooperation with Deutsche Bank) shall file a Form 8038-CP no less than 45 days before the applicable interest payment date but no more than 90 days before the relevant interest payment date. 3. Procedures for Recording Payments and Receipts

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Upon completion of the Form 8038-CP, the Bond Director at State Treasury shall send a memo to Deutsche Bank stating the amount and date of the State’s upcoming interest payment and the anticipated amount and date of the corresponding credit payment with a copy of the Form 8038-CP attached. 4. The Bond Director at State Treasury shall keep a spreadsheet of each Direct Payment BAB issue and record each federal subsidy payment received. The spreadsheet shall include the date and amount of the interest payment submitted on the Form 8038-CP and the amount and date of the federal subsidy payment received. If the amount of the federal subsidy is different than expected, an explanation for the difference will be included on the spreadsheet. A copy of the Form 8038-CP will be attached to the Cash Receipt (CR) document when submitted to DFA.

F. Tax-Exempt Compliance Monitoring and “Qualified Bond” Compliance Monitoring for BABs 1. Restrictions Against Private Use – The State will continuously monitor the expenditure of bond proceeds and the use of facilities or equipment financed with tax- exempt bonds, Direct Payment BABs and Recovery Zone Economic Development Bonds to ensure compliance with Section 14 1 of the IRC. 2. Direct Payment BABs – Direct payment BABs shall also comply with Section 54AA of the Code which requires that 100% of the available project proceeds be used for capital expenditures after allowing for a reasonably required reserve fund and for costs of issuance not exceeding 2 percent. 3. Monitoring for Use of Proceeds - The Bond Compliance Officer will monitor and maintain records with respect to expenditures to ensure that bond proceeds are being used on capital expenditures for governmental purposes in accordance with bond documents by reviewing and maintaining the records of expenditures described in Section 3CVI herein. 4. Qualification for Initial Temporary Periods and Compliance with Restrictions Against Hedge Bonds a. Expectations as to Expenditure of bond proceeds (tax-exempt and Direct Payment BABs) i. In order to qualify under the arbitrage rules for an initial temporary period of 3 or, in some cases, 5 years during which bond proceeds can be invested without regard to yield (but potentially subject to rebate), the State must reasonably expect to spend at least 85% of “spendable proceeds” by the end of the temporary period. ii. In general, under IRC Section 149, in order to avoid classification of an issue of bonds as “hedge bonds”, the State must reasonably expect to

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spend 85% of the “spendable proceeds” of the bond issue within the 3 year period beginning on the date the bonds are issued and invest not more than 50% of the proceeds of the issue in investments having a substantially guaranteed yield for 4 years or more. If these two tests cannot be satisfied, a longer spend down period of 5 years may apply if certain percentage expenditure tests are reasonably expected to be met throughout the 5 year period and costs of issuance must not be contingent and must be expected to be paid within 180 days of bond issuance. b. Project Draw Schedule Compliance Monitoring – The Bond Compliance Officer will semi-annually compare the original project draw schedule and the actual expenditure payouts on each project. The purpose of this analysis is to determine the variances from each draw schedule and to document the reasons for these variances to provide a record of the progress on the project. Factors to include in the analysis should be unexpected delays in the project timeline, extreme weather, contract time extensions due to unexpected events, supplemental agreements and any other factor with a potential to impact the project. There should be no effect on the tax-exempt status of the bonds (or the BABs being “qualified bonds”) under either the temporary period rules or the hedge bond rules if the actual disbursements do not meet the original project draw schedule, unless circumstances surrounding the actual events cast doubt on the reasonableness of the stated expectations on the issuance date. 5. Arbitrage Rebate Compliance a. Tax-exempt bonds lose their tax-exempt status if they do not comply with the arbitrage restrictions of Section 148 of the Code. Direct Payment BABs are also subject to the arbitrage restrictions of Section 148 in order to be “qualified bonds” under Section 54AA. Two general sets of requirements under the Code must be applied in order to determine whether tax-exempt bonds are arbitrage bonds: the yield restriction requirements of Section 148(a) and the rebate requirements of Section 148(f). b. Yield Restriction Requirements – The yield restriction requirements provide, in general terms, that gross proceeds of a tax-exempt bond issue may not be invested in investments earning a yield materially higher than the yield of the bond issue, except for investments (i) during one of the temporary periods permitted under the regulations (including the initial three year or five year temporary period described above), (ii) in a reasonably required reserve or replacement fund or (iii) in an amount not in excess of the lesser of 5% of the sale proceeds of the issue or $100,000. Under limited circumstances, the yield on investments subject to yield restriction can be reduced through payments to the IRS known as “yield reduction payments.” c. Rebate Requirements

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i. If amounts treated as bond proceeds are invested at a yield in excess of the yield on the bonds (whether pursuant to one of the three exceptions to yield restriction referred to above or because the investment yield is higher than the bond yield, but not “materially higher”), rebate payments may be required to be made to the US Treasury. Under the applicable regulations, the aggregate rebate amount is the excess of the future value of all the non-purpose receipts over the future value of all the non-purpose payments. The future value is computed as of the Computation Date using the Bond Yield as the interest factor. At least 90% of the rebate amount calculated must be paid no later than 60 days after the end of the first Computation Period. The amount of rebate payments required for subsequent Computation Periods (other than the final period) is that amount which, when added to the future value of prior rebate payments, equals at least 90% of the rebate amount. For the final Computation Period, 100% of the calculated amount must be paid. ii. The State has retained the services of an independent rebate analyst to annually calculate any rebate that may result for that year and annually provide the rebate report to the Office of the State Treasurer. d. The State Treasurer’s Office will ensure the proper calculation and payment of any rebate payment and/or yield reduction payment at the required time: i. First installment due no later than 60 days after the fifth anniversary of bond issuance; ii. Succeeding installments at least every five years; iii. Final installment no later than 60 days after retirement of the last bond in the issue.

G. Record Retention 1. Section 6001 of the Internal Revenue Code provides the general rule for the proper retention of records for federal tax purposes. The IRS regularly advises taxpayers to maintain sufficient records to support their tax deductions, credits and exclusions. In the case of a tax-exempt bond transaction, the primary taxpayers are the bond holders. In order to ensure the continued exclusion of interest by the bond holders, it is important that the State retain sufficient records to support the continued exclusion being taken by the bond holders. In the case of Direct Payment BABs, the government issuer receiving the subsidy is the primary taxpayer. In order to ensure the continued payment of the federal subsidy to the State, it is important that the State retain sufficient records to support the finding that the BABs are “qualified bonds” under Section 54AA.

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Additionally, in the case of many private activity bonds, the conduit borrowers are also primary taxpayers. Conduit borrowers are also often entitled to claim depreciation deductions for bond-financed property. Consequently, conduit borrowers should maintain sufficient records to support their interest deductions, depreciation deductions or other tax deductions, exclusions or credits related to the tax-exempt bond issue.

Moreover, issuers and conduit borrowers should retain sufficient records to show that all tax-exempt bond related returns submitted to the IRS are correct. Such returns include, for example, IRS Forms 8038, 8038-G, 8038-GC, 8038-T, and 8038-R.

2. General a. All records associated with any tax-exempt bond issuance of the State shall be stored electronically in a centralized electronic document management repository (CEDMR). The Bond Advisory Division is responsible for maintaining and supporting this document management facility but the Bond Compliance Officer is responsible for ensuring the various documents are scanned, uploaded and indexed. b. The DFA Information Systems Director will also ensure that proper back-ups are performed on the CEDMR and that the State has proper offsite storage of these back-ups in accordance with ITS standards of practice and policy. These procedures are subject to an electronic data processing audit by the State Auditor. c. The CEDMR shall conform to Rev. Proc. 97-22, 1997-1 C.B. 652 (as the same may be amended, supplemented or superseded), which provides guidance on maintaining books and records by using an electronic storage system. d. The State Treasurer or his designee will conduct an annual review of the CEDMR to verify that all of the records described below are properly stored and indexed in the CEDMR.

3. Tax Exempt Bonds and BABs – The State shall maintain the bond record as defined in this section for the life of the bonds plus three years or the life of the refunding bonds which refunded the original bonds plus three years. The bond record shall include the following documents: a. Pre-Issuance Documents i. Pre-Issuance Derivative Documents – The Bond Compliance Officer shall retain all documentation relating to the selection of counterparties and the pricing and determination of fair market value of the derivative contracts with copies stored in the CEDMR. ii. Pre-Issuance Investment of Defeasance Escrows – The Bond Compliance Officer shall retain all documentation regarding the procurement of the

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investments, including as applicable the request for bids, bid sheets, documentation of procurement method (competitive or negotiated), etc., with copies stored in the CEDMR. If investments other than SLGs are used for a defeasance escrow, the documentation should include an explanation of the reason for the purchase of open market securities and compliance with safe harbor bidding rules. If SLGs are purchased, a copy of the final subscription shall be maintained. iii. Project Draw Schedules – The Bond Compliance Officer shall retain all documentation and calculations relating to the draw schedule used to meet the “reasonable expectations” test and use of proceeds tests with copies stored in the CEDMR. iv. Issue Sizing – The Bond Compliance Officer shall maintain copies of all spreadsheets prepared and presented to the State Bond Commission regarding the projects to be included in the issue. In addition, all underwriter structuring booklets shall be maintained with copies stored in the CEDMR. v. Bond Insurance (if applicable) – The Bond Compliance Officer shall maintain a copy of insurance quotes and calculations supporting the cost benefit of bond insurance, if any, with a copy stored in the CEDMR.

b. Issuance Documents i. Bond Transcript - The Bond Compliance Officer shall retain the bond transcript with a copy stored in the CEDMR. ii. Costs of Issuance – The Bond Compliance Officer shall retain all invoices, payments, and documentation of State Bond Commission approval of such costs, with copies stored in the CEDMR. c. Post-Issuance Documents i. Post-Issuance Derivative Contracts – The Bond Compliance Officer shall retain all documentation relating to the selection of counterparties and the pricing and determination of fair market value of the derivative contract swap with copies stored in the CEDMR. ii. Post-Issuance Investment of Defeasance Escrows – The Bond Compliance Officer shall retain all documentation regarding the procurement of the investments, including as applicable the request for bids, bid sheets, documentation of procurement method (competitive or negotiated), etc., with copies stored in the CEDMR. If investments other than SLGs are used for a defeasance escrow, the documentation should include an explanation of the reason for the purchase of open market securities and compliance with safe harbor bidding rules. If SLGs are purchased, a copy of the final subscription shall be maintained.

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iii. Record of Investments – The Bond Compliance Officer shall coordinate with the Chief Investment Officer at the Office of the State Treasurer to document and retain all investments purchased with tax-exempt or BABs bond proceeds, with a copy stored in the CEDMR. iv. Investment Activity Statements – The Bond Compliance Officer shall coordinate with the Chief Investment Officer at the Office of the State Treasurer to retain all investment activity statements related to the tax- exempt bonds and BABs, with a copy stored in the CEDMR. v. Trustee Activity Statements – The Bond Compliance Officer shall retain copies with copies stored in the CEDMR. vi. Record of Expenditures – The Bond Compliance Officer shall scan invoices, etc. related to the projects funded by the tax-exempt bond proceeds or the BABs, along with the appropriate SAAS-produced documents such as payment vouchers, intergovernmental transfer documents, etc. vii. Records Establishing the Use of Property – The Bond Compliance Officer shall retain documents regarding the use of property financed with tax- exempt bonds/notes or Direct Payment BABs. This includes leases and service contracts. Copies of these documents shall be store in the CEDMR. viii. Arbitrage Rebate Reports – The Bond Compliance Officer shall retain documents prepared by the third party independent rebate analyst as described in Section VIII.F.5. herein. Copies of these documents shall be retained in the CEDMR. ix. Records of Continuing Disclosure – All continuing disclosure documents described in Section VIII B. shall be maintained by the Bond Compliance Officer with a copy stored in the CEDMR. x. Contracts under which any bond proceeds are spent (architectural, engineering, consulting, ROW, construction, etc.) – The Bond Compliance Officer shall obtain copies of these contracts and store in the CEDMR. xi. Grant Agreements under which any bond proceeds are spent – The Bond Compliance Officer shall obtain copies of these agreements and store in the CEDMR. xii. Records of the Federal Subsidy Payments for Direct Payment BABs – The Bond Compliance Officer shall obtain a copy of the filed IRS Form 8038- CP and store in the CEDMR. xiii. Record of Debt Service Payments – The Bond Compliance Officer should coordinate with the Office of the State Treasurer to obtain documentation of debt service payments made for each issue and store copies in the

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CEDMR. Documentation should include debt service payment schedules, SAAS-generated documents, wire advices, etc. xiv. Reports of any IRS examinations or inquiries – The Bond Compliance Officer will maintain copies of any such examinations or inquiries and store in the CEDMR.

4. Short Term Borrowings – The State shall maintain all documents related to short term or interim borrowings as defined in this section for the life of the borrowing plus three years. The documents should be filed in the CEDMR in such a way as to directly associate the short term borrowing with the long term issuance used to retire it. i. Record of Expenditures – The Bond Compliance Officer shall scan invoices, etc. related to the projects funded by the tax-exempt note proceeds, along with the appropriate SAAS-produced documents such as payment vouchers, intergovernmental transfer documents, etc. ii. Arbitrage Rebate Reports – The Bond Compliance Officer shall retain documents prepared by the third party independent rebate analyst as described in Section VIII.F.5. herein. Copies of these documents shall be retained in the CEDMR. iii. Records of Continuing Disclosure – All continuing disclosure documents described in Section VIII B. shall be maintained by the Bond Compliance Officer with a copy stored in the CEDMR. iv. Contracts under which any note proceeds are spent (architectural, engineering, consulting, ROW, construction, etc.) – The Bond Compliance Officer shall obtain copies of these contracts and store in the CEDMR. v. Grant Agreements under which any note proceeds are spent – The Bond Compliance Officer shall obtain copies of these agreements and store in the CEDMR. vi. Record of Debt Service Payments – The Bond Compliance Officer should coordinate with the Office of the State Treasurer to obtain documentation of debt service payments made for each short term borrowing and store copies in the CEDMR. Documentation should include debt service payment schedules (if applicable), SAAS-generated documents, wire advices, etc.

History

• Source: §31-17-1, 31-18-3, 31-18-5, 31-17-153

12 Miss. Admin. Code Pt. 7, R. 1.9 Page 22 of 38

Voluntarily Correcting Failures to Comply with Post-Issuance Compliance Activities If the persons responsible for ensuring compliance with activities defined in this policy discover that a violation with federal tax laws may have occurred, it may address the violation through the applicable method listed below:

A. Taking remedial actions as described in Section 141 of the Internal Revenue Code. B. Utilizing the Voluntary Closing Agreement Program (VCAP) – Section 7.2.3 of the Internal Revenue Manual establishes the voluntary closing agreement program for tax-exempt bonds (TEB VCAP) whereby issuers of tax-exempt bonds can resolve violations of the Internal Revenue Code through closing agreements with the Internal Revenue Service. The applicability of the remedial action regulations and VCAP to Direct Payment BABs is unclear at this time.

History

• Source: §31-17-1, 31-18-3, 31-18-5, 31-17-153

12 Miss. Admin. Code Pt. 7, R. 1.10 Coordination with State Agencies to Ensure Compliance with Debt Management Policies

The State Bond Compliance Officer is charged with the responsibility throughout this document of ensuring compliance with matters related to the pre-issuance and post-issuance of tax-exempt debt and Direct Payment BABs issued by the State of Mississippi through the State Bond Commission. Many of these compliance activities will require coordination with various state agencies and other entities outside of state government.

A. Each state agency or other entity receiving bond proceeds through the issuance of tax- exempt bonds/notes or Direct Payment BABs shall designate a person to serve as the Debt Management Compliance Coordinator. 1. The Debt Management Compliance Coordinator for each entity receiving proceeds from the issuance of tax-exempt bonds/notes or Direct Payment BABs shall meet with the Debt Compliance Officer (via telephone conference call or in person) to ensure that all requirements are clearly understood. The meeting shall include a discussion on record retention and record submission for the following documents: a. Bid advertisements/actual bids related to contracts for services (engineering, architectural, construction, etc.) and documentation of bid acceptance/contract approval b. Copies of contracts for services to be rendered c. Invoices related to all phases of projects

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d. Advertisement related to availability of grant funds, if applicable e. Actual grant applications and documentation of grant review process f. Approved list of grant recipients g. Change orders related to the project h. Documentation for payment of invoices (payment vouchers, checks, wire transfers, etc.)

2. The Debt Management Coordinator shall ensure the Debt Compliance Officer is familiar with the terms of any legislation regarding the transfer of interest earnings to the State Treasury for the purpose of assisting with debt service. The Debt Management Coordinator shall consult with the Director of the Bond Division at the State Treasury to ensure these transfers are being made.

3. The Debt Management Coordinator shall periodically review the Schedule of Unspent Proceeds provided by the Office of the State Treasurer to ensure that bond proceeds are being spent according to schedule to avoid arbitrage penalties. In the event a question arises regarding the “spend down” of the bond proceeds, the Debt Management Coordinator shall contact the Debt Compliance Officer within each state agency/other entity for explanation. Any concerns that may potentially affect the arbitrage status or the tax-exempt status of the bonds shall be reported to the State Bond Commission.

History

• Source: §31-17-1, 31-18-3, 31-18-5, 31-17-153

12 Miss. Admin. Code Pt. 7, R. 1.11 Debt Management Policy Review

The State Bond Commission shall designate representatives (to include the Debt Management Coordinator) to review this policy at least annually, and suggest revisions or updates as deemed appropriate.

(The remainder of this page left blank intentionally.)

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Exhibit A Post Issuance Compliance Checklist (Name of Bond Issue)

Overall Responsible Party for Debt Management Activities Bond Counsel Trustee Paying Agent Rebate Specialist Underwriter(s) A. Tax Law Requirements Document Reference Responsibility 1. General Matters

a) Proof of filing Form 8038, 8038-G, or 8038-GC.

b) Significant modification to bond documents that result in reissuance under Treas. Reg1.1001-3 requires the filing of a new 8038 etc.

2. Use of Proceeds: Governmental Bonds

a) No private business use arrangement with private entity (including the federal government) beyond permitted de minimis amount unless cured by remedial action under Treas. Reg. 1.141-12.

(i) Sale of facilities.

(ii) Lease, concession, or similar arrangement.

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(iii) Nonqualified management contract (Rev. Proc 97-13.)

(iv) “Special legal entitlement”

b) Remedial action may consist generally of redemption or defeasance of bonds (with notice of defeasance to IRS).

c) Direct Payment BABs – 100% of available project proceeds must be used for capital expenditures after allowing for a reasonably required reserve fund and for costs of issuance not to exceed 2% as required by IRC 54AA.

3. Arbitrage

a) Yield Restriction. IRC 148 and Treas Reg 1.148-2. Monies treated as bond proceeds may not be invested at a “materially higher” yield except for investments during a permitted temporary period, investments in a reasonable required reserve or replacement fund or investments of a “minor portion.”

b) Rebate. IRC Section 148(f)

(i) First installment of arbitrage rebate due no later than the fifth anniversary of bond issuance plus 60 days.

(ii) Succeeding installments every five years.

(iii) Final installment 60 days after retirement of last bond issue.

(iv) Monitor expenditures, prior to semiannual target dates for six-month, 18 month, or 24 month spending exception.

(v) Monitor expenditures generally against date of issuance expectations for three-year or five-year temporary periods or five-year hedge bond rules.

4. Record Retention

a) Maintain general records relating to issue for longer of life of issue plus 3 years or life or refunding bonds plus 3 years.

b) Maintain special records required by safe harbor for investment contracts or defeasance escrows. (Treasury Reg. Section 1.148.5.

c) Maintain record of identification on issuer’s books and record of “qualified hedge” contract. Treas. Reg.

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Sections 1.148-4(h)(2)(viii) and 1.148-11A(i)(3)

d) Maintain records supporting the finding that the Direct Payment BABs are “qualified bonds” under Section 54AA.

5. Allocation of Bond Proceeds to Expenditures.

a) Make any allocations of bond proceeds to expenditures needed under Treas. Reg. Sections 1.148-6(d) and 1.141-6(a) by 18 months after the later of the date the expenditure was made or the date the project was placed in service, but not later than the earlier of five years after the bonds were issued or 60 days after the issue is retired.

B. Disclosure Requirements

1. SEC Rule 15c2-12 Requirements

a) Name of Dissemination Agent, if applicable.

b) Periodically determine that required filings have been prepared, sent to and received by the Repository.

c) Information required to be provided to Repository:

(i) Annual reports – Quantitative financial information and operating date disclosed in the Official Statement and Audited Financial Statements

(ii) Other Information

d) Material Event Disclosure. Notification by obligated person to each Repository, in timely manner, of any of the following events with respect to bonds, if event is material within the meaning of the federal securities laws:

(i) Principal and interest payment delinquencies.

(ii) Non-payment related defaults.

(iii) Unscheduled draws on debt service reserves reflecting financial difficulties.

(iv) Unscheduled draws on credit enhancements reflecting financial difficulties.

(v) Substitution of credit or liquidity providers, or their failure to perform.

(vi) Adverse tax opinions or events affecting the tax- exempt status of the bonds.

(vii) Modifications to rights of holders of bonds.

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(viii)Bond calls.

(ix) Defeasances.

(x) Release, substitution or sale of property securing repayment of bonds.

(xi) Rating changes.

2. Notification to Underwriter of Bonds

Determination of whether bond purchase agreement requires issuer of bonds to notify underwriters for a special period of time of any fact or event that might cause the official statement to contain any untrue statement of material fact or omit to state a material fact necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.

3. Information Required to be Filed with Other Entities.

a) Trustee

b) Rating agencies

c) Bond insurer

d) Credit Enhancer

e) Examples of information to be filed:

(i) Financial records

(ii) Budgets

(iii) Events of default

(iv) Notices of redemption

(v) Amendments to bond documents

Exhibit B Derivatives Checklist

General Information 1. Name of governmental entity entering into the derivative:

2. Type of derivative:

3. (a) Names of officials responsible for procurement of derivative:

(b) Have the individuals received derivatives training? Yes □ No □. If yes, please describe.

4. (a) Names of person and backup(s) responsible for monitoring derivative:

(b) Have the individuals received derivatives training? Yes □ No □. If yes, please describe.

5. Independent derivatives advisor, if any:

6. Independent derivatives monitor, if any: _________________________________________________________________________

7. Counterparty(ies): ___________________________________________________________________

Authority of Contracting Governmental Entity 1. General authority/approval to enter into derivatives:

2. Date of specific approval for this derivative:

3. Date of most recent update to derivatives policy (Debt Management Policy):

Purpose 1. Identify the purpose of entering into the derivative: □ Reduce exposure to possible higher interest rates on variable rate debt. □ Increase refunding savings □ Reduce net debt service costs on new money borrowing □ Receive upfront payment of refunding value □ Provide a better match of interest rate exposures on assets and liabilities □ Offset, in whole or in part, a prior derivative (e.g., swap LIBOR for BMA) □ Hedge the anticipated costs of future borrowings □ Optimize the mix of variable (or synthetic variable) to fixed (or synthetic fixed) rate borrowings □ Other

2. What debt, or asset, is the derivative being used to hedge?

3. Describe the derivative and explain how the purpose indicated above will be achieved.

4. Were other means considered for achieving this purpose? Yes □ No □ If yes, what other options were considered? Why is the derivative the best option?

Terms 1. (a) Expected Trade Date: (b) Effective Date: (c) Scheduled Termination Date: (d) If derivative is an option, exercise date: 2. (a) Notional amount: (b) Principal amount of debt (or assets) being hedged: (c) If the debt is being hedged, will the derivative amortize on the same schedule as the debt? Yes □ No □ If no, on what basis was the notional amount and amortization schedule determined?

(d) If debt is callable, will the derivative potentially interfere with the objective of the call feature? Yes □ No □ If yes, explain:

3. Governmental entity will make payments based on: fixed rate □ floating rate □ If floating rate: (a) BMA □ Libor □ Other (b) Identify the basis on which payments will be made: □ A percentage of an index. What percentage?

□ A spread to an index. What spread?

□ A percentage of an index AND a spread to an index? Define.

(c) Frequency of payments: How closely do they correspond to debt or assets being hedged?

(d) Can future market conditions cause the basis of these payments to change? Yes □ No □ If yes, explain:

4. Counterparty(ies) will make payments based on: fixed rate □ floating rate □ If floating rate: (a) BMA □ Libor □ Other (b) Identify the basis on which payments will be made: □ A percentage of an index. What percentage?

□ A spread to an index. What spread?

□ A percentage of an index AND a spread to an index? Define.

(c) Frequency of payments: How closely do they correspond to debt or assets being hedged?

(d) Can future market conditions cause the basis of these payments to change? Yes □ No □ If yes, explain:

5. Are any non-periodic payments being made by either party? Yes □ No □ If yes, explain:

6. Identify any other embedded options in the derivative: □ Knockout provisions □ Cancellation provisions □ Cap □ Floor □ Other (a) Describe:

(b) Describe cost of such option and reason for inclusion:

7. Does the derivative have an imbedded loan concept? Yes □ No □ If yes, explain:

If yes, describe procedure to be followed to determine and document the portions of payments under the derivative attributable to the imbedded loan and the portions that are “on- market.”

8. Specified Entity, if any (a) For governmental entity: (b) For counterparties:

9. Credit support will be provided by: (a) Governmental entity? Yes □ No □ If yes, name of provider:

(b) Counterparty? Yes □ No □ If yes, name of provider:

10. Identify the methodology for determining any termination payments: □ First method and loss □ First method and market quotation □ Second method and loss □ Second method and market quotation □ Close out amount □ Other

11. Will the counterparty/ies have the right of optional termination? Yes □ No □ If yes, explain:

12. What is the source for any termination payments owed by the governmental entity?

13. What is the maximum estimated termination payment exposure? What, if any, sensitivity analysis was performed on potential termination payment amounts?

14. What is the priority for any termination payments, compared to bond payments, owed by the governmental entity?

Risks 1. Which of the following risks will the Issuer assume upon execution of the derivative? (a) Amortization risk Yes □ No □ (b) Ratings risk Yes □ No □ (c) Basis risk Yes □ No □ (d) Tax risk Yes □ No □ (e) Interest rate risk Yes □ No □ (f) Counterparty risk Yes □ No □

(g) Termination risk Yes □ No □ (h) Market-access risk Yes □ No □ (i) Rollover risk Yes □ No □ (j) Credit risk Yes □ No □ (k) Other Yes □ No □ If Other, explain:

2. How much of the value, if any, of entering into the derivative will come from assuming any particular tax risk?

3. Will the derivative leverage any risks? Yes □ No □ If yes, explain:

4. Have stress tests been run or obtained on how the derivative could affect the budget and financial position under various market conditions? Yes □ No □ If yes, describe:

5. Explain how the risks being assumed will be mitigated:

6. How do the benefits of entering into the derivative outweigh the risks being assumed?

7. (a) Upon execution of this derivative, (i) How many derivatives will the state, directly or indirectly, have outstanding?

(ii) What is the total notional amount of those derivatives?

(iii) Does the total net out offsetting positions? Yes □ No □ If yes, explain:

(b) The total (net of offsetting positions) notional amount is what percentage of the State’s (i) total long term debt? (ii) liquid assets?

8. Explain any expected impact of this derivative on the State’s credit standing.

Documentation 1. Which ISDA documentation will be executed in connection with the derivative? □ Master Agreement □ 1992 □ 2002 □ Schedule □ Credit Support Annex □ Confirmation □ Other 2. (a) Governing Law: (b) Will the State consent to jurisdiction? Yes □ No □ If yes, where?

3. Will State waive sovereign immunity? Yes □ No □

4. Will State waive its right to jury trial? Yes □ No □

5. Who will deliver the legal opinion as to due authorization and legal enforceability for: (a) the State (b) the counterparty(ies)

Counterparty(ies) 1. On what basis were counterparties selected? Competitive □ Negotiated □

2. If competitive, (a) Who was the bidding agent?

(b) How many firms were invited to bid?

(c) How many firms bid?

(d) Is bidding agent providing a closing certificate? Yes □ No □ (e) Were bids uniform? Yes □ No □ If no, how was the winning provider selected?

(f) How was the bidding agent compensated?

In what amount? Was the compensation separately stated? Yes □ No □

3. If negotiated, (a) State reasons for negotiating derivatives:

(b) State reasons for choosing counterparty:

(c) Is an independent derivatives advisor providing a certificate as to fair market valuation? Yes □ No □ (d) Does the counterparty (or an affiliate of the counterparty) have another role in the transaction (e.g., underwriter)? Yes □ No □ If yes, describe role:

(e) Does the counterparty (or an affiliate of the counterparty) have other business relationships with the State? Yes □ No □ If yes, describe:

If yes, what comfort does the State receive that the terms of the derivative are independently determined without regard to the counterparty’s other roles?

4. Does counterparty have: (a) a rating that is within the two highest investment grade categories from a nationally recognized rating agency? Yes □ No □ (b) minimum capitalization of at least $100 million? Yes □ No □ (c) a demonstrated record of successfully executing municipal derivatives transactions? Yes□ No □ 5. What percentage of the State’s, direct or indirect, total notional amount of derivatives will be with the same counterparty?

5. If the State will have more than one direct or indirect derivatives contract with this counterparty or any of the counterparties, are any of them offsetting? Yes □ No □

Credit Support

1. Credit Support will be provided for:

(a) Issuer Yes No If yes, name of provider: (b) Counterparty/ies Yes No If yes, name of provider:

2. Has Issuer’s counsel reviewed Issuer’s credit support obligations? Yes No

3. Has Issuer established procedures sufficient to: (a) Comply with any such obligations Yes No (b) Renew or replace Credit Support, if required? Yes No (c) Monitor the credit level of the Counterparty/ies? Yes No (d) Receive the benefit of, and comply with any obligations relating to, any credit support obligations of Counterparty/ies? Yes No Tax Issues

4. Tax counsel reviewing the documentation:

5. Has Issuer discussed with tax counsel: (a) Integration of the derivative with a bond issue? Yes No (b) Whether yield monitoring is required? Yes No (c) Whether the derivative’s performance or mark-to-market value should be included in arbitrage compliance calculations? Yes No

6. Will tax counsel deliver an opinion in connection with the derivative? Yes No

Operations and Monitoring

1. If the Expected Trade Date and the Effective Date are different, is the derivative part of a series of transactions? Yes No If yes, (a) Describe the subsequent transactions being considered:

(b) Has Issuer established procedures or mechanisms to: (i) Determine how and when any subsequent transaction will occur? Yes No (ii) Evaluate and handle risks to completion of any subsequent transaction? Yes No (iii) Complete, and pay expenses of, any subsequent transactions? Yes No

2. Has Issuer discussed the appropriate accounting treatment for the derivative with its independent auditor? Yes No

3. Does the Issuer intend to use hedge accounting? Yes No If yes, has the issuer received or made arrangements to receive confirmation of hedge effectiveness? Yes No If yes, from:

4. Who is responsible for confirming payment amounts and making necessary payments?

5. What is the source for Issuer’s regular payments?

6. How are such payments budgeted?

7. Who is responsible for monitoring credit ratings of Counterparty/ies?

8. Who is responsible for monitoring mark-to-market valuations?

9. What is the frequency of such monitoring?

10. Who is responsible for monitoring collateralization requirements of Issuer and Counterparty/ies?

11. If Issuer must post collateral, what will be the source?

12. If Counterparty/ies must post collateral, who will monitor?

13. What is the frequency of: (a) Reporting monitoring results to Chief Executive Officer/Chief Financial Officer?

(b) Sharing monitoring results with independent auditor?

14. Has Issuer discussed this derivative with the rating agencies? Yes No

15. Who is responsible for delivery of future documents required by the derivative’s documentation?

16. Who is responsible for answering investors’ questions about Issuer’s derivatives exposure?

Information Provided By:

History

• Source: §31-17-1, 31-18-3, 31-18-5, 31-17-153

Part 8 Part 8: RPM Manual

12 Miss. Admin. Code Pt. 8, R. 100.1 Rule 100.1

PURPOSE 1 100.2 LEASING RELATED LAWS & REGULATIONS 1 100.3 SUPPLEMENTARY GENERAL PRINCIPLES OF LAW APPLICABLE 2 100.4 REQUIREMENT OF GOOD FAITH 2 100.5 APPLICATION 2 100.6 SEVERABILITY 2 100.7 DURATION 2 100.8 DEFINITIONS 2 100.9 PUBLIC ACCESS TO PROCUREMENT INFORMATION 4

SECTION 200: PROCUREMENT ORGANIZATION

12 Miss. Admin. Code Pt. 8, R. 200.1 Rule 200.1

ORGANIZATION 5 200.2 REAL PROPERTY MANAGEMENT DIVISION 5 200.3 LEASE PROCUREMENT REGULATIONS 5 200.4 DEVIATION FROM THESE REGULATIONS 5 200.5 ITEMS REQUIRING BOARD APPROVAL 5 200.6 SUBMISSION REQUIREMENTS 6 200.7 RESPONSIBILITY OF THE REAL PROPERTY MANAGEMENT DIVISION 7

SECTION 300: SOURCE SELECTION & CONTRACT FORMATION

12 Miss. Admin. Code Pt. 8, R. 300.1 Rule 300.1

DEFINITION OF TERMS USED IN THIS SECTION 8 300.2 EXEMPTIONS NOT REQUIRING APPROVAL 9 300.3 EXEMPTIONS REQUIRING APPROVAL 9 300.4 REAL PROPERTY DIVISION PRE-APPROVAL 9 300.5 GENERAL PROVISIONS 10 300.6 ASSIGNMENT & NOVATION 11 300.7 METHOD OF SOURCE SELECTION 11 300.8 COMPETITIVE SEALED LEASE PROPOSALS 12 300.9 NON-COMPETITIVE PROPOSALS 16 300.10 CANCELLATION OF SOLICITATIONS 18 300.11 REJECTION OF INDIVIDUAL PROPOSALS 19 300.12 LEASE CONTRACTS 20 300.13 SPACE UTILIZATION GUIDELINES 21

ii RPM Leasing Manual February 2018

SECTION 400: SPECIFICATIONS

12 Miss. Admin. Code Pt. 8, R. 400.1 Rule 400.1

DEFINITION OF TERMS USED IN THIS SECTION 23 400.2 TENANTABLE CONDITION 23 400.3 UTILITIES 26 400.4 JANITORIAL 26 400.5 SECURITY 27 400.6 PARKING 28 400.7 GROUNDS 28 400.8 LAYOUT 28 400.9 COMPLIANCE 29 400.10 INSURANCE 29 400.11 TAXES 30 400.12 QUIET ENJOYMENT 30 400.13 SUPPLEMENTARY PROVISIONS 30 400.14 PROHIBITED PROVISIONS 31

SECTION 500: MODIFICATION & TERMINATION

12 Miss. Admin. Code Pt. 8, R. 500.1 Rule 500.1

INCREASES OR DECREASES IN SPACE 32 500.2 EXTENSION OR REDUCTION OF TERM 32 500.3 MODIFICATION OF TERMS AND CONDITIONS 34 500.4 TERMINATION FOR DEFAULT 34 500.5 TERMINATION FOR CONVENIENCE 34 500.6 TERMINATION FOR STATE-OWNED SPACE 35

SECTION 600: LEGAL & CONTRACTUAL REMEDIES

12 Miss. Admin. Code Pt. 8, R. 600.1 Rule 600.1

DEFINITION OF TERMS USED IN THIS SECTION 36 600.2 PROTESTS 36 600.3 ADMINISTRATIVE PROCEEDINGS 37 600.4 AUTHORITY TO SUSPEND OR DEBAR 38 600.5 SUSPENSION 39 600.6 DEBARMENT 40 600.9 DEBRIEFINGS 42

SECTION 700: ETHICS

12 Miss. Admin. Code Pt. 8, R. 700.1 Rule 700.1

DEFINITION OF TERMS USED IN THIS SECTION 43 700.2 STATEMENT OF POLICY 44 700.3 GENERAL STANDARD OF ETHICAL CONDUCT 44

iii RPM Leasing Manual February 2018 700.4 EMPLOYEE CONFLICT OF INTEREST 45 700.5 GRATUITIES 45 700.6 PROHIBITION AGAINST CONTINGENT FEES 46 700.7 RESTRICTIONS ON EMPLOYMENT OF PRESENT EMPLOYEES 46

SECTION 100: GENERAL 100.10 PURPOSE

The purpose of the Department of Finance and Administration (DFA), Bureau of Building, Grounds and Real Property Management Leasing Manual is to set forth all laws and regulations, along with any other pertinent information, that shall be in effect with the implementation of Title 29, Chapter 5, Section 2, Paragraph c, Mississippi Code of 1972, Annotated. The policies and procedures set forth herein apply to any lease or rental agreements by any state agency or department, including any state agency financed entirely by federal and special funds, for space outside the buildings under the jurisdiction of the Department of Finance and Administration and subject to the approval of the Public Procurement Review Board (PPRB). Also included are policies and procedures applicable to the leasing of agricultural and other lands under the control of the Department of Corrections (DOC) and the Department of Wildlife, Fisheries and Parks (DWFP) to private entities subject to the approval of the PPRB. This Manual is intended to be a thorough representation of procedures relative to leasing by all state agencies. Further, it shall serve as a source of information for vendors instructing them as to the proper procedures that must be followed in doing business with the State. For the purpose of this document, all definitions found in Section 31-7-1, Mississippi Code of 1972, Annotated, shall apply.

100.11 LEASING RELATED LAWS & REGULATIONS

Laws relative to the Department of Finance and Administration, Bureau of Building, Grounds and Real Property Management and the leasing process in general may be found in Title 29, Chapter 5, Section 2 of the Mississippi Code of 1972, Annotated. Additional laws applicable to leasing include, but are not limited to the following: (1) Mississippi Code of 1972, Annotated, Section 7-7-27(1) addressing no pre-payment of leases unless waived by PPRB upon recommendation of DFA Financial Control. (2) Mississippi Code of 1972, Annotated, Section 25-9-15(e) addressing leasing of space for records storage. (3) Mississippi Code of 1972, Annotated, Section 27-104-7(c) addressing posting of need for space, review and preapproval of leases prior to advertisement. (4) Mississippi Code of 1972, Annotated, Section 29-13-1(1) addressing insurance of buildings and personal property in floodplains. (5) Mississippi Code of 1972, Annotated, Section 31-7-301 addressing timely payments. (6) Mississippi Code of 1972, Annotated, Sections 47-5-64, 47-5-66 and 49-5-13 addressing leasing of agricultural and other lands of DOC and DWFP to private entities. (7) Mississippi Code of 1972, Annotated, Section 71-11-3 addressing employee status verification.

(8) Code of Federal Regulations, 36 CFR part 61 addressing professional qualifications when alterations to Mississippi Landmark, or potentially eligible properties are involved. (9) Code of Federal Regulations, 28 CFR parts 35 and 36 addressing Americans with Disabilities Act of 1990, Title II and Title III.

100.12 SUPPLEMENTARY GENERAL PRINCIPLES OF LAW APPLICABLE

Unless displaced by the particular provisions of these regulations, the principles of law and equity, including the Uniform Commercial Code of this State, the law merchant, and law relative to the capacity to contract, agency, fraud, misrepresentation, duress, coercion, mistake, or bankruptcy shall supplement the provisions of these regulations. 100.13 REQUIREMENT OF GOOD FAITH

These regulations require all parties involved in the negotiation, performance or administration of Mississippi contracts to act in good faith. 100.14 APPLICATION

(1) General Application: These regulations only apply to contracts solicited or entered into after the effective date of this manual or portion thereof unless the parties agree to its application to a contract solicited or entered into prior to the effective date. (2) Conflicting Regulations: Where grant, gift, or other Federal requirement is applicable such additional requirements shall apply. Where a conflict exists, the guidelines of a grant, gift or Federal law shall prevail, however; where specific provisions of this manual are more restrictive and are not explicitly contradicted by Federal law, the most restrictive provisions shall apply.

100.15 SEVERABILITY

If any provision of these regulations or any application thereof to any person or circumstance is held invalid, such invalidity shall not affect any other provision or application of these regulations which can be given effect without the invalid provision or application to this end the provisions of these regulations are declared to be severable. 100.16 DURATION

These regulations, when approved by the PPRB as authorized by Section 24-104-7, Mississippi Code of 1972, Annotated, shall be in effect as written until amended or repealed by the Board. 100.17 DEFINITIONS

The words defined in this section shall have the meanings set forth below whenever they appear in the regulations, unless:

(1) The context in which they are used clearly requires a different meaning; or (2) A different definition is prescribed for a particular section or provision. a. Agency – as defined in Section 31-7-1, Mississippi Code of 1972, Annotated.

b. Agency Procurement Officer – any person duly authorized to enter into and administer contracts and make written determinations with respect thereto. The term also includes an authorized representative acting within the limits of authority. c. Board – the Public Procurement Review Board (PPRB). d. Business – any corporation, partnership, individual, sole proprietorship, joint stock company, joint venture, or any other private legal entity. e. BRICKS – Bureau of Building, Grounds and Real Property Management’s Building & Real Estate Information Collaborative Knowledge System. f. Contract – all types of Mississippi agreements, regardless of what they may be called, for the procurement or disposal of commodities, equipment, services, or construction. g. Contract Modification – any written alteration in specifications, delivery point, rate of delivery, period of performance, price, quantity, or other provisions of any contract accomplished by mutual action of the parties to the contract. h. Contractor – any person having a contract with a governmental body. i. Data – recorded information, regardless of form or characteristic. j. Day – calendar day, unless otherwise specified. k. Designee – a duly authorized representative of a person holding a superior position. l. Employee – an individual drawing a salary from a governmental body, whether elected or not, and any non-compensated individual performing personal services for any governmental body. m. May – denotes the permissive. n. MAGIC – Mississippi’s Accountability System for Government Information and Collaboration. o. Person – any business, individual, union, committee, club, other organization, or group of individuals. p. Procurement – buying, purchasing, renting, leasing, or otherwise acquiring any commodities, equipment, services, or construction. It also includes all functions that pertain to the obtaining of any commodities, equipment, services,

or construction, including description of requirements, selection and solicitation of sources, preparation and award of contract and all phases of contract administration. q. Procurement Officer – any agency personnel duly authorized to enter into and administer contracts and make written determinations with respect thereto. The term also includes an authorized agency representative acting within the limits of authority. r. Purchasing Agency – any governmental body which is authorized by regulations to enter into contracts. s. Purchasing Agent – any administrator, superintendent, purchase clerk or other chief officer so designated having general or special authority to negotiate for and make private contract for or purchase for any governing authority or agency, including issue purchase orders, invitations for bid, requests for proposals, and receive and accept bids. t. Regulation – a governmental body's statement, having general or particular applicability and future effect, designed to implement, interpret, or prescribe law or policy, or describing organization, procedure, or practice requirements, which has been promulgated in accordance with Section 31-7-9, Mississippi Code o f 1 9 7 2 , A n n o t a t e d. u. Services – the furnishing of labor, time, or effort by a vendor or supplier, not involving the delivery of a specific end product other than reports which are merely incidental to the required performance. This term shall not include employment agreements or collective bargaining agreements. v. Shall – denotes the imperative. 100.18 PUBLIC ACCESS TO PROCUREMENT INFORMATION

Procurement information shall be public record to the extent provided in Section 25-61-1, Mississippi Code of 1972, Annotated, in accordance with each state entity’s policies and procedures.

SECTION 200: PROCUREMENT ORGANIZATION 200.1 ORGANIZATION

Within the Department of Finance and Administration is the Public Procurement Review Board (PPRB) as provided for under Section 27-104-7, Mississippi Code of 1982, Annotated. The Board shall adopt regulations governing any lease or rental agreement by any state agency or department and shall act upon those leases and rental transactions as may be, from time to time, designated by the Board as requiring Board approval. The Board shall also act on other such transactions as would be required by the procedures set forth in the regulations presented herein.

200.2 REAL PROPERTY MANAGEMENT DIVISION

It shall be the responsibility of the Bureau of Building, Grounds and Real Property Management, Real Property Management (RPM) Division to supervise the lease and rental of space outside the buildings under the jurisdiction of the Department of Finance and Administration entered into by agencies and departments of the State.

Each agency and department of the State shall be responsible for the procurement of leases and rental agreements needed by that agency or department in compliance with Section 27- 104-7, Mississippi Code of 1972, Annotated, and with the policies and procedures established herein.

200.3 LEASE PROCUREMENT REGULATIONS

(1) Regulations shall be promulgated by the RPM Division with approval of the PPRB. (2) Regulations shall not change existing contract rights.

200.4 DEVIATION FROM THESE REGULATIONS

The rental markets throughout the State are, in many cases, unique to their particular area as to the availability and cost of the different types of rental property. Additionally, agencies and departments have property needs and requirements that are often unique to that particular agency or department. In recognition of these factors, the PPRB may approve deviations to these regulations on a case by case basis and may delegate the authority to approve such deviations to the RPM Division Director. Any such deviation shall be based on a determination by the Board or the RPM Division Director that it is in the best interest of the State.

200.5 ITEMS REQUIRING BOARD APPROVAL

The requesting agencies and departments are required to submit all Lease Requests to the RPM Division through BRICKS prior to entering of Lease Contracts in MAGIC. As outlined below, the RPM Division will be required to obtain PPRB approval prior to processing these requests. Agencies and departments are advised that they shall not award any lease or rental agreement prior to approval by the PPRB if the lease or rental agreement requires PPRB approval. When approval requests are received, the RPM Division will evaluate the request and provide a recommendation to the Board. The PPRB has regularly scheduled monthly meetings. Requests should be submitted not later than the deadline posted on PPRB’s website. Requests received after this time may be delayed until the next

regular meeting of the Board. Requests for new or succeeding leases for agencies and departments in current leases should be submitted not less than three months but not more than twelve months prior to the expiration of current leases to allow for exercising of the unilateral 90 day extension clause contained in RPM Division standard lease should new or succeeding lease be rejected by the PPRB. The PPRB requires that the following items be brought before the Board for approval:

(1) Any lease of office, warehouse or other space in a building outside the jurisdiction of the Department of Finance and Administration; (2) Any lease of vacant land; (3) Any lease of parking or hangers; (4) Any lease of residential space; (5) Any lease of sixteenth section land; (6) Any lease to private entity of agricultural or other lands under the control of DOC; (7) Any lease to private entity of agricultural lands under the control of DWFP; (8) Any amendments to any of the above lease types: (9) Renewals of any of the above lease types; (10) Requests for deviation from regulations; and, (11) Policies and procedures which relate to the leasing or rental of space outside of buildings under the jurisdiction of the Department of Finance and Administration. 200.6 SUBMISSION REQUIREMENTS Requests for PPRB approval submitted to the RPM Division through BRICKS shall include all pertinent documentation required to review and validate that Lease or proposed modifications thereto are in compliance with applicable provisions of these regulations and shall include, but not necessarily be limited to the following: (1) RPM Division Statement of Facts Form; (2) RPM Division Lease Proposal Forms & Required Attachments (All Proposals Received); (3) RPM Division Space Evaluation Form; (4) RPM Division Market Rent Survey Form (Succeeding Leases Only); (5) Lease / Amendment Form executed by Lessor (Not Signed by Lessee); (6) Proof of Advertisement (New Competitive Leases Only); (7) RLP Package (Including Any / All Addenda); (8) RPM Division Total Cost Evaluation Form (Including Documentation for Estimated Costs); (9) Evaluation Report (New Competitive Leases Only); and (10) Any / all applicable Justification Letters (Location Flexibility, Space Utilization, Minimum Overall Space Efficiency, Deviation from Regulations).

200.7 RESPONSIBILITY OF THE REAL PROPERTY MANAGEMENT DIVISION

The PPRB, acting through the RPM Division of the Bureau of Building, Grounds and Real Property Management, shall have approval authority over the types of transactions listed in this section and in accordance with the procedures set forth. The RPM Division has the responsibility to serve the State objectively, economically and efficiently; to provide effective service to the state agencies and departments; and to follow fair and ethical practices with all suppliers. However, this authority does not extend to governing authorities. Governing authorities are not required to obtain approval of PPRB for lease and rental agreements.

SECTION 300: SOURCE SELECTION & CONTRACT FORMATION

300.1 DEFINITION OF TERMS USED IN THIS SECTION

(1) Award – acceptance by an agency or department of a proposal submitted by a Lessor with the intention of entering into a Lease Contract. (2) BOMA – Building Owners and Managers Association (3) Building Amenity Area – conference rooms, break rooms and similar spaces that are available for use by all tenants of a multi-tenant building at no additional cost or with SF rental cost pro-rated among all tenant spaces. (4) Building Service Area – building lobby, public corridors, and public restrooms in multi-tenant buildings as well as janitors’ closets, mechanical, electrical and communications rooms and closets, loading docks, shipping and receiving areas, building management and maintenance areas in all buildings. (5) Demising Wall – a partition or wall separating one tenant’s leased space from that of another tenant. (6) Graduated Rental Rate – rental payments that begin at a low fixed rate per square foot and increase at set intervals over the Lease term. (7) Lease – a contract by which one party conveys real property to another for a specified period of time and under specific conditions. (8) Lessee – the individual or entity to whom property is rented or leased; tenant (9) Lessor - the individual or entity who rents or leases property to another; landlord (10) Market Rate Survey – up to date information collected and analyzed by a Mississippi Licensed Realtor on available or leased real property in a given area for the purpose of establishing fair market value. (11) Major Vertical Penetration – elevators, stairwells, mechanical chases and similar spaces.

(12) Occupant Area – the actual square footage of a building that is useable exclusively by the tenant, and excludes Building Service Areas and Major Vertical Penetrations. (13) Rentable Area – in a single-tenant building, is equal to the Occupant Area. For multi-tenant buildings, is equal to the Occupant Area plus the pro-rated portion of Building Amenity Areas attributable to the Occupant Area. In no case are Building Service Areas to be included in Rentable Area. (14) Request for Lease Proposals (RLP) – all documents, whether attached or incorporated by reference, utilized for soliciting proposals. (15) Responsible Offeror – a person or entity who has the capability in all respects to perform fully the contract requirements and the integrity and reliability which will assure good faith performance. (16) Responsive Offeror – a person or entity who has submitted a bid or proposal which conforms in all material respects to the RLP. (17) Succeeding Lease – a non-competitive lease acquisition secured to provide for continued occupancy of the current premises at the end of a lease and all contractually permitted renewals. (18) Tenant Improvements – fixed improvements or modifications to a building prior to start of tenancy. (19) Tenancy – the occupation or holding of land or other real property. (20) Usable Area – the Occupant Area plus the Building Amenity Area. (21) 300.2 EXEMPTIONS NOT REQUIRING APPROVAL

Unless otherwise ordered by regulation of the PPRB, the following items are exempt from the competitive procurement process and do not require approval by the RPM Division or PPRB:

(1) Leases of space in buildings under the jurisdiction of the Department of Finance and Administration; (2) Leases or space rental agreements required for participation at trade shows, conventions, conferences and similar events not hosted by the agency or department where agency or department provides written justification that it is in the best interest of the State to be represented at such event; (3) Leases or space rental agreements required for hosting by agency or department of seminars, conferences, training and similar events where agency or department provides written narrative of efforts made to consider multiple alternatives and to obtain best value for the State. Where such agreements also include provisions related to accommodations and/or meals, additional regulations and/or approvals may be required by the Office of Purchasing, Travel and Fleet Management; and, (4) Leases of vacant land acquired by the Wireless Communication Commission for the construction of towers or to locate equipment supporting the statewide wireless communications system.

300.3 EXEMPTIONS REQUIRING APPROVAL

Unless otherwise ordered by regulation of the PPRB, the following items are exempt from advertisement and competitive procurement but do require approval by the PPRB:

(1) Leases of space in buildings under the jurisdiction of other state agencies and departments, state universities and community colleges, or other subdivisions of government where no rent is assessed or where charges are documented to be limited to direct costs to operate and maintain the building in accordance with 300.9.1; (2) Succeeding Leases in accordance with 300.9.2; (3) Emergency Leases in accordance with 300.9.3; (4) Vacant Land Leases in accordance with 300.9.4; (5) Parking, Hanger & Boat Slip Leases in accordance with 300.9.5; (6) Mini-Storage Leases in accordance with 300.9.6; (7) Month-to-Month Leases in accordance with 300.9.7; and, (8) Sixteenth Section Land Leases in accordance with 300.9.8.

300.4 REAL PROPERTY DIVISION PRE-APPROVAL

For all leases not otherwise exempt from competitive procurement per 300.2 Exemptions Not Requiring Approval or 300.3 Exemptions Requiring Approval, each agency seeking to lease space shall provide the following information that shall be published by the RPM Division on its website on or before the time for advertisement of the RLP in accordance with Mississippi Code of 1972, Annotated, Section 27-104-7(c). Information shall be provided no less than thirty days prior to date proposed for first advertisement. Failure to obtain pre-approval prior to advertisement will necessitate re-advertisement by the agency or department. (1) Proposed RLP Package: The use of applicable RPM Division template RLP forms and template Lease Contracts without deviation is required unless it is determined that such documents are either not practicable or not advantageous to the State for the specific lease request in the opinion of the RPM Division Director. Any proposed deviations and/or supplementary conditions to template forms and/or template Lease Contract shall be clearly identified in the applicable sections of the template documents. Where deviations from template documents are proposed, a written justification by the Agency Head indicating why the template documents are either not practicable or not advantageous to the State shall also be included. (2) Space Evaluation Form: The RPM Division form shall be completely filled out to document that space to be requested is either in compliance with Space Utilization Guidelines or that deviation is requested in which case written justification by the agency shall also be included.

(3) Advertisement Form: Advertisement shall identify the agency or department seeking space, approximate amount of usable square feet requested, type of space requested, desired location of space requested, length of initial term requested, agency contact information and deadline for receipt of proposals. (4) Location Flexibility: Desired location shall be defined as broadly as possible to encourage competition. Space leased for statewide or regional offices should identify multiple counties or municipalities. Where an RLP identifies a single county or municipality, such RLP shall be accompanied by a written justification by the Agency Head indicating why location flexibility is not possible.

300.5 GENERAL PROVISIONS

(1) Extension of Time for Acceptance of Lease Proposal: After opening proposals, the Agency Procurement Officer may request offerors to extend the time during which the State entity may accept their proposals. The reasons for requesting such extension shall be documented. (2) Only One Proposal Received: If only one responsive proposal is received in response to an RLP, an award may be made to the single offeror if the Agency Procurement Officer finds that the price is fair and reasonable, and that either the other prospective offerors had reasonable opportunity to respond, or there is not adequate time for re- solicitation. Otherwise, the proposal shall be rejected pursuant to the provisions of Section 300.8 Competitive Sealed Lease Proposals and the solicitation re-advertised or canceled. If the Agency Procurement Officer determines in writing that the need for space continues, but that the price of the one proposal is not fair and reasonable, and where extension of any current lease by unilateral (where permitted by contract) or mutual consent is not possible, and there is not time for re-solicitation or re-solicitation would likely be futile, the procurement may then be conducted under Section 300.9(3) Emergency Leases if an emergency is justified and declared by the agency. (3) No Proposal Received: If no proposal is received in response to a RLP, the solicitation may be re-advertised or canceled. If the Agency Procurement Officer determines in writing that the need for space continues, extension of any current lease by unilateral (where permitted by contract) or mutual consent is not possible, and that there is not time for re-solicitation or re-solicitation would likely be futile, the procurement may then be conducted under Section 300.9(3) Emergency Leases if an emergency is justified and declared by the agency. (4) Alternates: If pricing for one or more alternates is included in an RLP, the solicitation shall indicate if providing alternate pricing is mandatory or optional and state the conditions under which such alternates may accepted. (5) Conditional Proposals: Any proposal which is conditioned upon receiving award of both the particular lease being solicited and another lease, contract or action of the agency shall be deemed nonresponsive and not acceptable.

(6) Unsolicited Proposals: Any proposal which is submitted other than in response to an advertised solicitation shall not be acceptable where lease is not exempt from competitive procurement but may be considered where lease is exempt, provided proposal complies with all applicable provisions of 300.9 Non-Competitive Proposals.

300.6 ASSIGNMENT & NOVATION

(1) Assignment: No lease contract subject to PPRB approval is transferable or otherwise assignable without prior approval of the PPRB, however; a Lessor may assign monies receivable under a contract after due notice to the State and the contracting entity, and with the approval of the RPM Division Director. (2) Change of Name: When a Lessor requests to change the name in which it holds a contract with the State, or where such change is necessitated by the death of a property owner, the agency shall, upon receipt of a document indicating such change of name (for example, an amendment to the articles of incorporation of the corporation), enter into an agreement with the requesting Lessor to effect the change. The agreement changing the name shall specifically indicate that no other terms and conditions of the contract are changed. (3) Novation: When, in the best interest of the State, a successor in interest may be recognized in a novation agreement, the transferor and the transferee must agree that: a. The transferee assumes all of the transferor’s obligations; b. The transferor waives all rights under the contract as against the State; and, c. Unless the transferor guarantees performance of the contract by the transferee, the transferee shall, if required, furnish a satisfactory performance bond.

300.7 METHOD OF SOURCE SELECTION

Unless otherwise authorized by law, all Mississippi contracts for lease and space rental agreements shall be procured by competitively pursuant to 300.8 Competitive Sealed Lease Proposals, except as provided in:

(1) Section 300.9(1) Leases with Other State Agencies, Institutions and Divisions of Government; (2) Section 300.9(2) Succeeding Leases; (3) Section 300.9(3) Emergency Leases; (4) Section 300.9(4) Vacant Land Leases; (5) Section 300.9(5) Parking, Hanger & Boat Slip Leases; (6) Section 300.9(6) Mini-Storage Leases; (7) Section 300.9(7) Month-to-Month Agreements; (8) Section 300.9(8) Residential Leases; and, (9) Section 300.9(9) Sixteenth Section Land Leases.

300.8 COMPETITIVE SEALED LEASE PROPOSALS

(1) Conditions for Use: Lease contracts shall be awarded by competitive sealed proposals except as otherwise provided in 300.7 Method of Source Selection. (2) Request for Lease Proposals: Proposals shall be solicited through a Request for Lease Proposals. (3) Required Content: Each Request for Lease Proposals shall include the following: a. Instructions and information to offerors concerning the request for lease proposals submission requirements, the address of the office to which proposals are to be delivered, the maximum time for proposal acceptance by the State, the manner in which proposals are to be submitted, including any forms for that purpose and any other special information; b. Timeline for pre-proposal conference (if applicable), questions and posting of answers, submission of proposals, notice of intent to award, post-award debriefing (if applicable) as well as the deadline for protests. Such timeline should be carefully considered to ensure that result of RLP will be ready to submit in BRICKS not less than three months prior to the need for space and/or the expiration of any current lease to allow for exercising of the unilateral 90 day extension clause contained in RPM Division standard lease should new lease be rejected by the PPRB necessitating re-procurement; c. Description of usable space desired, location desired, length of initial term and any renewal terms desired, evaluation factors, performance schedule and any inspection and acceptance requirements that are not included in the description of space; d. Form of lease contract to be utilized including general and any supplementary contract terms and conditions, including warranty and bonding or other security requirements, as applicable; and e. A statement that discussions may be conducted with offerors who submit proposals determined to be reasonably susceptible of being selected for award, but that proposals may be accepted without such discussions. (4) Public Notice: a. Publication: Every lease not otherwise exempt from competition per 300.2 Exemptions Not Requiring Approval or 300.3 Exemptions Requiring Approval, shall be publicized as follows: i. In a newspaper published in the county or municipality in which the space to be leased is sought or a newspaper of statewide general circulation; and ii. On the RPM Division website. b. Content of Advertisement: Content shall be in accordance with 300.4(3) Advertisement Form and shall be posted in the legal notice section of the newspaper.

c. Advertisement Time: Advertisements shall be published once each week for two consecutive weeks with the second notice being published on or after the

th calendar day after the first notice was published. The date set for receipt of proposals must not be less than fourteen (14) working days after the last notice appears in the newspaper. Therefore, the date established for receipt of proposals must not be sooner than the 15 th working day. Working days are defined as days that your entity is officially open for business. d. Public Availability: The Request for Lease Proposal package must be made available for any interested party at the location specified in the published notice. (5) Pre-Proposal Conferences: If provided for in the Request for Lease Proposals a Pre- Proposal Conference may be conducted to explain the procurement requirements. a. Scheduling: The date, time and location of the conference shall be identified in the Request for Lease Proposals. In no case shall a Pre-Proposal Conference be held less than seven (7) working days prior to the date established for receipt of proposals. If a determination is made to hold a Pre-Proposal Conference after the Request for Lease Proposals has been issued, notice of such conference shall be issued as an Addendum to all known offerors and posted on the RPM Division website. b. Attendance: Attendance by offerors shall not be made a requirement for submittal of a lease proposal unless the agency procurement officer makes a determination that attendance is critical to understanding the solicitation, however; all offerors attending shall be required to sign an attendance sheet provided by the soliciting agency and such attendance sheet shall be made available to all offerors. c. Content: The intent of the Pre-Proposal Conference shall to be to provide clarification and explanation of the Request for Lease Proposal requirements. Any questions shall be submitted in writing to the soliciting agency. Soliciting agency shall not be responsible for any oral instruction or interpretation. Any need for amendment to the Request for Lease Proposals generated by the Pre- Proposal Conference shall be issued as an Addendum to all known offerors and posted on the RPM Division website. (6) Amendments: Amendments to Requests for Lease Proposals shall be identified as such and distributed to all known potential offerors and posted on the RPM Division website within a reasonable time prior to the date established for receipt of Lease Proposals to allow prospective offerors to consider them in preparing their offers. If the time and date set for receipt of Lease Proposals will not permit such preparation, such time shall be extended in the amendment. (7) Pre-Opening Modification or Withdrawal: Lease Proposals may be modified or withdrawn by written notice received in the office designated in the Request for Lease Proposals prior to the time and date set for receipt of Lease Proposals. Any withdrawn or modified offer shall remain unopened in the procurement file.

(8) Late Bids, Modifications or Withdrawals: Any Lease Proposal received after the time and date set for the receipt of Lease Proposals shall be deemed late, shall not be considered and shall be returned to the offeror unopened. Requests to modify Lease Proposals after the time and date set for the receipt of Lease Proposals will not be considered. An offeror may be permitted to withdraw a Lease Proposal after the time and date set for the receipt of Lease Proposals only if a mistake is clearly evident on the proposal documents or where the offeror submits proof of evidentiary value which clearly and convincingly demonstrates that a mistake was made within twenty-four (24) hours of the time and date set for the receipt of Lease Proposals. An offeror may freely correct any mistake by modifying their Lease Proposal in conjunction with their best and final offer; however, as agency or department may choose to award based upon initial submission, offerors are cautioned not to rely on this opportunity. (9) Irregularities: The omission of any information requested in the RLP may be considered as an informality, or irregularity, by the awarding public body when in their opinion the omitted information does not alter the amounts contained in the submitted Lease Proposal, or place other offerors at a disadvantage. (10) Receipt: Lease Proposals shall be opened publicly in the presence of one or more witnesses at the time and place designated in the Request for Lease Proposals. The name and proposed location each offer shall be read aloud and recorded on a Register of Proposals. (11) Confidential Data: The Agency Procurement Officer shall examine all offers to identify any written requests for nondisclosure of trade secrets and other proprietary data. Any disclosure of this information is subject to the provisions of Mississippi Code of 1972, Annotated, Sections 25-61-9 and 79-23-1. (12) Evaluation Factors: Where award is to be made based upon criteria other than total cost alone, the Request for Lease Proposals shall clearly identify points to be awarded for price and other evaluation factors. a. For leases of 20,000 square feet or less, evaluation shall be based upon compliance with mandatory minimum requirements and total cost to the State only, except where the procurement officer of the soliciting agency determines, subject to the concurrence of the RPM Division Director this to be not practicable and/or advantageous to the State. b. Evaluation based upon compliance with mandatory minimum criteria and total cost to the State is preferred, however; use of other evaluation factors may be included for leases over 20,000 square feet. Examples of evaluation factors other than cost include, but are not necessarily limited to the following: i. Proposed Space Layout – Consideration may be given to efficiency and operational effectiveness of layout of proposed space. ii. Location – Consideration may be given to proximity of other governmental services, convenience to public access, or centrality to a given service area; however, this factor shall not be used to arbitrarily favor rural / suburban areas over urban areas.

iii. Parking – Consideration may be given to proximity of tenant and/or visitor parking; however, this factor shall not be used to favor covered parking or surface parking over garage parking. iv. References – Consideration may be given to past performance of Lessor based upon written references provided by Offeror and/or obtained from previous tenants of Offeror. c. In no case shall valuation of cost factors be less than 35% of the total points available. (13) Evaluation Committee: Where evaluation factors other than cost are included, an evaluation committee having the relevant experience necessary to evaluate the proposals shall be established. Such committee shall have a minimum of three (3) members from agency or department. Committee may also include members from other agencies deemed to be subject matter experts. (14) Evaluation of Proposals: a. In order to appropriately compare all Lease Proposals on an equal basis, costs shall be evaluated utilizing the RPM Division standard form to calculate total of recurring and one-time costs to the agency or department over the Lease Term including: i. Total Rent over the Lease Term which, in the case of a Flat Rental Rate is the rate times the rentable area times the Lease Term including all renewal periods, and in the case of a Graduated Rental Rate is the rate times the rentable area times each applicable sub-portion of the Lease Term and all renewal periods. ii. Total Cost for Utilities over the Lease Term where not included in Base Rent. In calculation of estimated utility costs, differences in energy efficiency of HVAC and lighting among various proposals may be taken into consideration. iii. Total Cost for Janitorial where not included in Base Rent. iv. Total Cost for Security where not included in Base Rent. v. Total Cost for Parking if not included in Base Rent. Proposals where parking is not included and no parking is available meeting the RLP requirements, such proposals may be deemed non-responsive. vi. Total Cost for any other items to be incurred by agency or department over the Lease Term as a consequence of tenancy. vii. One-Time Cost of moving and relocation excluding costs or loss of efficiency by staff of agency or department. viii. One-Time Cost of information technology installation where not included in Base Rent. b. Each proposed space / layout shall be evaluated on RPM Space Evaluation Form for compliance with space utilization requirements as well as overall space efficiency. Variations of +/-10% for individual spaces may be deemed to be in compliance so long as cumulative impact of such variations does not cause overall space efficiency to exceed 250 SF / Occupant. Where proposals exceed

this space efficiency value but offer a lower overall cost to the State, the agency or department may consider such proposals and seek approval for deviation by PPRB; however, where no such cost advantage exists, such proposals shall be rejected as non-responsive. c. Where evaluation factors other than cost are included, the evaluation committee shall evaluate proposals only in accordance with the methodology and weighting criteria described in the Request for Lease Proposals. Costs shall be evaluated utilizing the RPM Division Total Cost Evaluation Form. Proposals shall be initially classified as: “acceptable”; “potentially acceptable”, which means reasonably susceptible of being made acceptable; or “unacceptable”. Offerors whose proposals are deemed “unacceptable” shall be so notified promptly. d. Discussions with Responsible Offerors and Revisions to Lease Proposals: If provided for in the Request for Lease Proposals and as set forth in these regulations, discussions may be conducted with responsible offerors who submit lease proposals determined to be reasonably susceptible to being selected for award. The discussions shall be for the purpose of clarification to assure full understanding of, and responsiveness to, the solicitation requirements. In conducting discussions, agencies shall be cautious to not disclose information derived from competing offers. Offerors should be accorded fair and equal treatment with respect to any opportunity for discussion. Revision of lease proposals may only be permitted after submissions and prior to award for the purpose of obtaining best and final offers. (15) Best and Final Offers: The agency shall establish a common date and time for the submission of any best and final offers. Best and final offers shall ordinarily be submitted only once; however the agency procurement officer may make a written determination that it is in the State’s best interest to conduct additional discussions or change the State’s requirements and require another submission of best and final offers. Otherwise, no discussion of or changes in the best and final offers shall be allowed before the award. Offerors shall also be informed that if they do not submit a notice of withdrawal or another best and final offer, their immediate previous offer may be construed as their best and final offer. (16) Award: After proposals have been evaluated, the Agency Procurement Officer shall prepare an Evaluation Report recommending the award of a Lease Contract to the offeror whose proposal is determined to be the most advantageous to the State. The report shall list the names of all potential offerors who submitted a proposal and shall summarize the proposals of each offeror. The report shall rank offerors in order of evaluation and shall recommend the selection of an offer among others considered, as well as any irregularities. The report shall be submitted along with unexecuted Lease Contract in BRICKS in order for RPM Division to obtain PPRB approval. (17) Notice of Intent to Award: A Notice of Intent to Award, indicating that award is subject to approval of PPRB, shall be made to the winning offeror in writing and shall

be posted on the RPM Division website in accordance with the timeline identified in the RLP or as extended in accordance with Section 300.5(1) Extension of Time for Acceptance of Lease Proposal.

300.9 NON-COMPETITIVE PROPOSALS

The following types of lease or space agreements are exempt from competitive procurement; however; such leases are subject to PPRB approval and the following requirements. Use of RPM Division template contract documents is required unless it is determined that such documents are either not practicable or not advantageous to the State for the specific lease in the opinion of the RPM Division Director. Any requested modifications and/or supplementary conditions to template forms and/or template contract shall be clearly identified in the applicable sections of the template documents.

(1) Leases with Other State Agencies, Institutions and Divisions of Government: Agencies and departments may enter into Leases with other state agencies, state institutions of higher learning, community and junior colleges, and other subdivisions of government without competition subject to the space being in compliance with space utilization requirements as documented on RPM Space Evaluation Form and the following conditions: a. The cost of the Lease is nominal or limited to no more than the actual documented costs to operate and maintain the premises by the Lessor; or, b. The cost of the Lease is no greater than prevailing market rate as documented on RPM Division Market Rate Survey Form prepared by Mississippi Licensed Realtor and the Agency Head determines in writing that location in such space is in the State’s best interest for the reasons including, but not limited to: i. Co-location with such entity is necessary or advantageous to carry out a joint mission or project; ii. Co-location with such entity allows for shared services or resources; or, iii. Co-location with such entity allows access to multiple governmental services to the citizens of Mississippi at a single location. (2) Succeeding Leases: Agencies and departments may enter into new Leases with a term not to exceed five (5) years, with no renewals, to provide for continued occupancy of the current premises at the end of a lease and all contractually permitted renewals without competition subject to the space being in compliance with space utilization requirements as documented on RPM Space Evaluation Form and the following conditions: a. The proposed lease Rental Rate for the proposed term is no greater than the prevailing market rate, as documented on RPM Division Market Rate Survey Form prepared by a Mississippi Licensed Realtor unaffiliated with the owner of the current property;

b. The cost to relocate, as documented on RPM Division Total Cost Evaluation Form, is substantially greater than any likely savings to be derived from a competitive procurement; and, c. The initial lease plus all previous renewals and/or succeeding leases does not yet exceed thirty-five (35) years. (3) Emergency Leases: If the Agency Head shall determine that an emergency exists in regard to the provision of space, so that the delay incident to giving opportunity for competitive procurement would be detrimental to the interests of the state, then such Agency Head shall file with the RPM Division a statement explaining the conditions and circumstances of the emergency, which shall include a detailed explanation of the events leading up to the situation and the negative impact to the entity if the procurement is made following the requirements of 300.8 Competitive Sealed Lease Proposals, and 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 certification, the State Fiscal Officer, or his designees, may, in writing authorize the leasing of space without having to comply with competitive bidding requirements. The RPM Division shall submit the Emergency Lease to the next regularly scheduled meeting of the PPRB for ratification. Emergency Leases shall be entered into for the minimum amount of time necessary and shall not exceed a term of one (1) year with no permitted renewals. (4) Vacant Land Leases: Agencies and departments may enter into Leases for vacant land without competition but shall submit written justification of need, steps taken to identify the most advantageous property available, and how proposed Rental Rate was determined to be fair and reasonable. (5) Parking, Hangar & Boat Slip Leases: Agencies and departments may enter into Leases for parking, hangars or boat slips without competition but shall submit written justification of need, steps taken to identify the most advantageous location available, and how the proposed cost per car/plane/boat was determined to be fair and reasonable. Such leases are also subject to the following conditions: a. Parking Leases shall be no more than eighteen (18) months with no more than one (1) renewal of not more than eighteen (18) months each. b. Hangar & Boat Slip Leases shall be no more than twelve (12) months with no more than (2) renewals of not more than twelve (12) months each. (6) Mini-Storage Leases: Agencies and departments may enter into Leases for mini- storage leases without competition but shall submit written justification of need, summary of items to be stored, steps taken and/or planned to reduce or eliminate the need for off-site storage, and how the proposed cost was determined to be fair and reasonable. Such leases shall not exceed a term of one (1) year with no permitted renewals. (7) Month-to-Month Agreements: Agencies and departments may enter into agreements on a month-to-month basis, not to exceed twelve (12) months, with no permitted renewals, without competition but shall submit written justification of

need, including justification as to why the delay incident to giving opportunity for competitive procurement would be detrimental to the interests of the state, and how the proposed cost was determined to be fair and reasonable. Such leases shall be made for the minimum amount of time necessary, shall not be entered into to subvert the competitive procurement process and shall include an option to terminate upon receipt of written notice by Lessee not less than ten (10) days prior to the start of the subsequent month. (8) Residential Leases: Agencies and departments may enter into Leases for residential purposes without competition but shall submit written justification of need, steps taken to identify the most advantageous property available, and how proposed Rental Rate was determined to be fair and reasonable. For residential leases, rentable area shall be the heated and cooled area within the house or rental unit. (9) Sixteenth Section Land Leases: Agencies and departments may enter into Leases for Sixteenth Section Land for terms up to forty (40) years without competition but subject to approvals by the Board of Education, County Supervisors and Secretary of State in accordance with Section 29-3-82 of the 1972 Mississippi Code, Annotated. Signatures of Board of Education and County Supervisors and Letter of Compliance from the Office of the Secretary of State shall be obtained and submitted to RPM Division for PPRB Approval. Following approval by PPRB, Lease may be signed by Lessee and forwarded by Lessee to the applicable Chancery Clerk.

300.10 CANCELLATION OF SOLICITATIONS

A Request for Lease Proposals may be canceled, or any or all proposals may be rejected in whole or in part as may be specified in the solicitation, when it is in the best interest of the State. The reasons, therefore, shall be made part of the contract file.

(1) Scope of this Regulation: Solicitations should only be issued when there is a valid procurement need unless the solicitation states that it is for informational purposes only. Preparing and distributing a solicitation requires the expenditure of time and funds. Businesses and other entities likewise incur expense in examining and responding to solicitations. Accordingly, although issuance of a solicitation does not compel award of a contract, a solicitation is to be canceled only when there are compelling reasons to believe that the cancellation of the solicitation is in the best interest of the State. (2) Cancellation of Solicitation Notice: Each solicitation issued by the State shall declare that the solicitation may be canceled as provided herein. Written notice, including reason for cancellation and whether solicitation will be re-solicited, if known, shall be promptly provided to all known offerors and posted on the RPM Division website. (3) Prior to Opening: Prior to the time and date established for the receipt of Lease Proposals, a solicitation may be canceled when the Agency Head determines in writing

that such action is in the State’s best interest for the reasons including, but not limited to: a. The agency or department no longer requires the requested space; b. The agency or department no longer can reasonably expect to fund the Lease; or c. Proposed amendments to the solicitation would be of such magnitude that a new solicitation is desirable. (4) After Opening: After opening of Lease Proposals, but prior to award, a solicitation may be canceled when the Agency Head determines in writing that such action is in the State’s best interest for the reasons including, but not limited to: a. The agency or department no longer requires the requested space; b. Ambiguous or otherwise inadequate specifications were part of the solicitation; c. The solicitation did not provide for consideration of all factors of significance to the agency or department; d. The costs exceed available funds; e. A single proposal is received and the agency procurement official determines the price to be excessive due to inadequate price competition; f. All otherwise acceptable proposals are at clearly unreasonable prices; g. There is reason to believe that the proposals may not have been independently arrived at in open competition, may have been collusive, or may have been submitted in bad faith; or, h. There has been credible evidence presented that the procurement was illegal, contrary to statutory requirements or otherwise tainted.

300.11 REJECTION OF INDIVIDUAL PROPOSALS

An individual proposal may be rejected as may be specified in the solicitation, when it is in the best interest of the State. The reasons, therefore, shall be made part of the contract file.

(1) Rejection Notice: Each solicitation issued by the State shall declare that individual proposals may be rejected as provided herein. Written notice shall be promptly provided to all known offerors and posted on the RPM Division website. (2) Responsiveness: Proposals which do not conform in all material respects to the RLP or proposals within which the space offered is unacceptable by reason of its failure to meet the requirements of the specifications or other acceptability criteria set forth in the RLP may be rejected as non-responsive. (3) Responsibility: Proposals where offeror does not have capability in all respects to comply with the contract requirements and the integrity and reliability which will assure good faith performance may be rejected as not responsible. Factors to be considered in determining whether the standard of responsibility has been met include whether a prospective offeror has:

a. Available the appropriate financial, material, equipment, facility, and personnel resources and expertise, or the ability to obtain them, necessary to indicate its capability to meet all contractual requirements; b. A satisfactory record of performance; c. A satisfactory record of integrity; d. Qualified legally to contract with the State; and, e. Has supplied all necessary information in connection with the RLP concerning responsibility. (4) Ability to Meet Standards: The offeror may demonstrate the availability of necessary financing, equipment, facilities, and personnel by submitting either as a requirement of the RLP or upon request: a. Evidence that such offeror possess such necessary items; b. Acceptable plans to subcontract for such necessary items; or, c. Documented commitment from or explicit arrangement with, a satisfactory source to provide the necessary items. (5) Unreasonable Price: Proposals where cost identified is clearly unreasonable or so in excess of available agency budget for procurement that allowing consideration of a best and final offer from such offeror would be futile may be rejected as “unacceptable”. (6) Collusive Proposals: Proposals where there is reason to believe that the proposal may not have been independently arrived at in open competition, may have been collusive, or may have been submitted in bad faith.

300.12 LEASE CONTRACTS

The use of applicable RPM Division template Lease Contract documents is required unless it is determined that such documents are either not practicable or not advantageous to the State for the specific lease request in the opinion of the RPM Division Director. Any deviations and/or supplementary conditions to template forms and/or template contract shall be clearly identified in the applicable sections of the template documents. Lease Contracts shall generally be on the basis of Rental Rate times Space at a specified Location over a specified Term.

(1) Rental Rate – Rate may be flat and fixed throughout the lease term or may be graduated. Utilities, custodial, security and tenant improvements may be included, but if so, must be incorporated into the rate over the lease term. (2) Space – The methodology for measurement of space in buildings, the Rentable Area, shall be measured in accordance with the BOMA standard, latest edition. The Occupant Area component of the Rentable Area shall be computed by measuring to the inside finish of permanent exterior building walls to the interior face of public corridors and/or other permanent non-tenant partitions, and to the center of demising walls. Excluded from such calculation shall be any / all Building Service Areas and any / all

Major Vertical Penetrations. In multi-tenant buildings only, the pro-rated portion of Building Amenity Areas may be included in the Rentable Area. (3) Location – The city, county or municipality at which the real property is to be leased shall be clearly identified by street address or other definitive description. (4) Term – Real estate markets can be highly volatile and dramatic shifts in prevailing rates can occur over relatively short periods of time. Longer leases can provide predictability, and can hedge against future increases when market conditions rise, but can also expose agencies and departments to higher than prevailing rates when market conditions fall. Shorter leases can provide flexibility, but can also be higher due to uncertainty to potential Lessors. The desired initial and renewal terms, if any, should be carefully analyzed and considered to optimize these factors. Maximum terms shall be as follows: a. Initial Term – Initial term of leases may be entered into for a period of time not to exceed twenty (20) years, unless otherwise indicated in 300.9 Non- Competitive Proposals. b. Renewal Terms – Not required, but if included, shall not exceed two (2) renewal terms of not more than five (5) years each, unless otherwise indicated in 300.9 Non-Competitive Proposals. Where Rental Rate for renewal terms was not identified in the initial RLP, renewal Rental Rate shall be assumed to be the rate effective at the end of the initial term. (5) Normal Working Days – Unless otherwise noted in a specific Lease, shall mean Mondays thru Fridays exclusive of State and Federal Holidays. (6) Normal Working Hours – Unless otherwise noted in a specific Lease, shall mean 8:00 a.m. to 6:00 p.m. each Working Day.

300.13 SPACE UTILIZATION GUIDELINES Space needs shall be carefully analyzed and considered to ensure the least amount of space is consumed to house state government consistent with maintaining the mission of the agency or department. To that purpose, for all leases which are primarily for office space and for all office space portions of other leases, the following office space standards shall be utilized unless deviation is specifically approved by PPRB:

(1) Office Spaces: a. Offices or Primary Workstations: i. Executive, Deputy or Division Directors – 225 SF per person (hard- walled office) ii. Top Management (Office/Bureau Directors or Equivalent) – 175 SF per person (hard-walled office) iii. Middle Management (Assistant Directors, Supervisors or Equivalent) – 125 SF per person (hard-walled office) iv. Executive Administrative Support – 125 SF per person (hard-walled

office) v. Professional and/or Technical – 100 SF per person (hard-walled office or cubicle) vi. Clerical and/or Administrative I – 80 SF per person (cubicle) vii. Clerical and/or Administrative II – 64 SF per person (cubicle) viii. Shared Offices/Workstations – Where persons housed in leased spaces are primarily assigned to off-site work locations (twenty-four (24) or more hours per week), consideration should be given to scheduling of shared offices or group office areas featuring dedicated work areas. Where an office identified above is shared on a scheduled basis, space shall be allocated as above for first person with an additional 5 SF per person that may be added thereafter to allow for secure storage for persons sharing such space. Where multiple, dedicated workstations are provided for transient users, space shall be allocated on the basis of 48 SF per person. (2) Total Office Area: Equal to total of above multiplied by 120% to account for circulation and toilet rooms useable exclusively by the tenant. (3) Support Spaces: a. Waiting Areas – 10 SF per person (based upon average occupancy for a typical one- hour period, receptionist should be accounted for in 300.13(1)(a)(v), (vi) or (vii) category above) b. Conference, Meeting and Training Spaces – 25 SF per person (based upon average occupancy) c. Work Room(s) – 125 SF ea (1 per floor or major subdivision) d. Break Room(s) – 125 SF ea (1 per floor or major subdivision) e. IT Server Room – 200 SF ea f. File Room(s) – 200 SF ea g. Storage Area(s) – 200 SF ea h. Other Area(s) – For any space other than those listed above, the purpose and square footage needed along an explanation of how this square footage was determined. (4) Total Occupant Area: Equal to Total Office Area plus Support Spaces multiplied by 115%. (5) Overall Space Efficiency: Equal to the Total Occupant Area divided by the total number of regular occupants. Persons occupying space for sixteen (16) hours or less per week shall be counted as ½ occupant for the purposes of calculation. Full-time salaried employees, contract workers, and vendors provided space by agency or department may be included in regular occupant total; however, visitors and similar transient occupants shall not be included in regular occupant total. (6) Minimum Overall Space Efficiency: An efficiency value of 225 SF / Occupant or better is recommended and shall in no case exceed 250 SF / Occupant without approval by PPRB.

SECTION 400: SPECIFICATIONS 400.1 DEFINITION OF TERMS USED IN THIS SECTION

(1) ADA – Americans with Disabilities Act (2) Escalation – the right of a Lessor to assess Lessee for all or a portion of increases in Lessor’s costs over the term of the Lease, such as increased utility, property tax or insurance costs. (3) Estoppel Certificate – a written certificate in which a tenant sets forth the condition of the lease agreement at the time of certification, any modifications made to the Lease, and whether any promises made by Lessor have yet to be fulfilled. Required by potential buyers or mortgages of property, as assurance that the Leases held by Lessor are valid and without offsets or claims pending. (4) Expense Stop – the right of a Lessor to pay operating costs up to a certain stipulated amount or amount per square foot, with Lessee paying any amount in excess of this amount. (5) HVAC – Heating, ventilation and air-conditioning system. (6) Substitution of Premises – the right of a Lessor to relocate the tenant to comparable space in a multi-tenant building during the Lease term. (7) Tenantable – habitable, in a condition suitable for a tenant.

400.2 TENANTABLE CONDITION

All leased space shall be required to be furnished in tenantable condition prior to occupancy by agency or department and it shall be the responsibility of the Lessor to maintain such space in tenantable condition throughout the entire Lease term at no additional cost and with minimal disruption to the Lessee. Lessor shall be responsible for moving and/or protecting tenant furniture and equipment as required to maintain space in tenantable condition. All office leases shall include provisions that define tenantable condition requirements for the following components and systems: (1) Flooring: a. Carpet – Carpeted areas shall be in good condition, free from stains, pulls, fraying and shall be less than 10 years old at start of lease or shall be replaced prior to start of lease term. Throughout the initial term and any/all subsequent renewals, all carpet shall be replaced on a stipulated schedule defined in the Lease. b. Resilient – Vinyl Composition Tile, Luxury Vinyl Tile or similar resilient tile / plank floors shall be in good condition, free from scratches, chips, blemishes and shall be less than 15 years old at start of lease or shall be replaced prior to start of lease term. Throughout the initial term and any/all subsequent renewals,

all resilient flooring shall be replaced on a stipulated schedule defined in the Lease. c. Other – Wood, Stone, Terrazzo, Ceramic, Porcelain and other similarly durable flooring shall be in good condition, sound, free from scratches, chips and other damage with any re-finishing, re-sealing, or re-grouting completed prior to start of lease or shall be replaced prior to start of term. Throughout the initial term and any/all subsequent renewals, all such flooring shall be re-finished, re- sealed, or re-grouted on a schedule consistent with respective industry best practice. (2) Walls: a. Painted – Painted drywall or plaster walls and partitions shall be in good condition, free from stains, fading, dents, holes and shall have been painted within the previous 5 years or shall be repainted prior to start of lease term. Throughout the initial term and any/all subsequent renewals, all painted drywall / plaster walls shall be re-painted on a stipulated schedule defined in the Lease. Painting of walls shall include any / all applicable base, door frames / trim, window frames / trim, casing, crown, wainscot and other such trim components. b. Wall Covering – Wall coverings shall be in good condition, free from stains, scratches, peeling, holes and shall have been installed within the previous 5 years or shall be replace or removed with walls painted prior to start of lease term. Throughout the initial term and any/all subsequent renewals, all wall coverings shall be replaced (or removed with walls painted) on a stipulated schedule defined in the Lease. (3) Ceilings: a. Lay-In Acoustical Ceilings – LAT ceilings shall be in good condition, free from warped, yellowed, stained, or otherwise damaged ceiling tiles in properly suspended and supported grid. Ceiling tiles which are in poor condition shall be replaced with tiles matching existing prior to start of lease term. Throughout the initial term and any/all subsequent renewals, all tiles which become damaged over the lease term shall be replaced on at least an annual basis. b. Painted – Painted drywall or plaster ceilings shall be in good condition, free from stains, fading, dents, holes and shall have been painted within the previous 5 years or shall be repainted prior to start of lease term. Throughout the initial term and any/all subsequent renewals, all painted drywall / plaster walls shall be re-painted on a stipulated schedule defined in the Lease. (4) Building Envelope: a. Roof – Roof(s) shall be in good condition, free from leaks, and properly sloped to drains and maintained in such condition throughout the lease term including any/all subsequent renewals. Flat roofs, if any, shall be under manufacturer’s warranty and 20 years or less at start of lease or shall be replaced prior to the start of lease term. Throughout the initial term and any/all subsequent renewals, all flat roofs shall be maintained, repaired, replaced and/or restored such that

roof covering tenant space is under a manufacturer’s warranty continuously throughout the lease term. b. Exterior Walls – Surfaces shall be in good condition, free from cracks, mold, and mildew, water-tight and maintained in such condition throughout the lease term including any/all subsequent renewals. Painted surfaces, if any, shall have been painted within the previous 5 years or shall be repainted prior to start of lease term. Throughout the initial term and any/all subsequent renewals, all painted surfaces shall be re-painted on a stipulated schedule defined in the Lease. Painting of exterior walls shall include any/all applicable exterior doors, door frames / trim, window frames / trim, soffits, and other such trim components and appurtenances. c. Joints – All sealant and caulk joints shall be in good condition, free from voids and gaps, water-tight and maintained in such condition throughout the lease term including any/all subsequent renewals. d. Windows & Doors – All exterior openings shall be in good condition, free from cracked or damaged glass, water-tight and maintained in such condition throughout the lease term including any/all subsequent renewals. Integrity of sealed insulated and/or coated glazing units shall be maintained throughout the lease term with units that fail during the course of the lease promptly removed and replace with units matching existing. Window & door hardware, weather- stripping, and related components shall be sound, secure and properly maintained to provide for proper operation of same and to ensure both water- tightness and security of building. (5) Plumbing: a. General – All existing and/or proposed plumbing work shall be in accordance with applicable provisions of the Plumbing Code and Energy Code. b. Fixture Quantity – Toilets, lavatories and drinking fountains shall be included in quantities complying with applicable provisions of the Plumbing Code. c. Fixture Condition – Toilets, lavatories / vanities and drinking fountains shall be in good working condition, free from cracks, leaks or other damage and maintained in such condition throughout the lease term including any/all subsequent renewals. d. Hot Water Boiler(s) – Equipment shall be in good operational condition, comply with all applicable codes and shall be less than median service life in accordance with ASHRAE Equipment Life Expectancy Chart or replaced prior to start of lease term. Equipment shall be maintained in such condition throughout the lease term including any/all subsequent renewals. Any/all equipment which reaches median service life during the lease term shall be carefully reviewed to determine remaining reliable life and shall be replaced by Lessor when equipment becomes un-reliable or highly inefficient at no additional cost to the Lessee. (6) HVAC:

a. General – All existing and/or proposed HVAC work shall be in accordance with applicable provisions of the Mechanical Code and Energy Code. HVAC system shall be capable of maintaining temperature within a range of 68 to 78 degrees and humidity within a range 30% to 60%. Indoor Air Quality shall be maintained at all times and in accordance with ASHRAE 62.1 Ventilation for Acceptable Indoor Air Quality. b. HVAC Equipment – Major equipment and components including air conditioners, heat pumps, chillers, cooling towers, boilers, VAV boxes, fans, coils, pumps, motors, starters and controls shall be in good operational condition, comply with all applicable codes and shall be no less than median service life in accordance with ASHRAE Equipment Life Expectancy Chart or replaced prior to start of lease term. Equipment shall be maintained in such condition, including filter replacement, lubrication, provision of chemicals and other required servicing on a regularly scheduled basis, throughout the lease term including any/all subsequent renewals. Any/all equipment which reaches median service life during the lease term shall be carefully reviewed to determine remaining reliable life and shall be replaced by Lessor when equipment becomes un-reliable or highly inefficient at no additional cost to the Lessee. (7) Electrical: a. General – All existing and/or proposed electrical work shall be in accordance with applicable provisions of the Electrical Code and Energy Code. b. Lighting – Fixtures shall be in good operational condition, comply with all applicable codes and shall be maintained in such condition, including ballast, starter, and bulb replacement and other required servicing on a regularly scheduled basis, throughout the lease term including any/all subsequent renewals.

(8) Elevator, Fire Alarm, Fire Suppression, Security, Access Control: a. General – All existing and/or proposed work shall be in accordance with applicable provisions of the Electrical Code and Energy Code. b. Equipment – Any/all such equipment and systems shall be in good operational condition, comply with all applicable codes and shall be maintained in such condition, including any required servicing on a regularly scheduled basis, throughout the lease term including any/all subsequent renewals. Lessor shall comply with any/all applicable inspection requirements by authorities having jurisdiction and furnish copies of any/all inspection reports promptly to Lessee.

400.3 UTILITIES

(1) Utilities Included in Base Rent – Where provided by Lessor and included in Base Rent, Lessor shall have complete responsibility for providing all utilities and paying any/all applicable utility providers on a regular and prompt basis so as to prevent any disruption in provision of utilities to Lessee. (2) Utilities Excluded from Base Rent – Any utility excluded from Base Rent shall be the responsibility of the Lessee, however; the ability to meter the usage of any such utility solely within the leased Occupant Area must be provided by Lessor. Utilities that are excluded from Base Rent shall not be permitted to be billed to the Lessee by the Lessor as additional or pass-thru charges by means of pro-rated values or calculations derived from bills from utility providers in the name of the Lessor. In no instance shall Lessee be responsible for additional charges for utility usage of Building Amenity Areas or Building Service Areas.

400.4 JANITORIAL Janitorial services are not mandatory for inclusion in every State Lease, however; where such are provided, the following services shall be included: (1) The following general services are to be provided in areas such as offices, corridors, conference rooms, work rooms, stairwells, elevators, etc: a. Daily – The following shall be performed on a daily basis each working day: i. Dust and/or spot clean furniture and furnishings; ii. Empty wastebaskets, trash cans and recycling bins and install new liners as needed; iii. Vacuum and spot clean all carpeting; iv. Clean entrance doors, push/kick plates and glass at all other doors and sidelights; v. Spot clean walls and light switch covers; vi. Dust mop and wet mop non-carpeted floors; vii. Clean and disinfect water fountains; and, viii. Wipe chairs and tables and straighten magazines. b. Weekly – The following shall be performed on a weekly basis: i. Polish all surfaces, such as desktops, credenzas, tables, bookcases, filing cabinets, etc; ii. Vacuum upholstered furniture and spot clean; iii. Dust wall décor; iv. Damp wipe stairwell railings; v. Wet mop stairwells, stair treads and landings; and, vi. Clean elevator doors, handrails and switch panels. (2) The following general services are to be provided in all toilet rooms:

a. Daily – The following shall be performed on a daily basis each working day: i. Clean and disinfect toilets, urinals and lavatories; ii. Empty waste receptacles and install new liners as needed; iii. Clean and polish all mirrors; iv. Spot clean walls, partitions, doors and push/kick plates; v. Sweep and wet mop floors with disinfectant; vi. Replenish paper supplies as needed; vii. Refill all dispensers as needed; and viii. Clean and polish bright metal finished items. (3) The following general services are to be provided in all break rooms and kitchens: a. Daily – The following shall be performed on a daily basis each working day: i. Empty wastebaskets, trash cans, and recycling bins and install new liners as needed; ii. Clean all chairs and tables; iii. Sweep and wet mop floors; iv. Spot clean walls, doors and push/kick plates; v. Clean and disinfect water fountains; vi. Clean tops of trash receptacles; vii. Replenish napkin holders; and, viii. Clean appliances and fixtures. (4) The following tasks shall be provided in all areas: a. Monthly – The following shall be performed on a monthly basis: i. Clean the interior of all windows; ii. Dust and vacuum vents and grilles; iii. Remove spider webs; iv. Spot clean exterior entrance walls; and, v. Buff and polish all non-carpeted floors. b. Annually – The following shall be performed each year: i. Deep clean (strip, wax, seal, buff, steam clean as appropriate to floor type) all non-carpeted flooring; and, ii. Deep extraction cleaning of all carpeted areas.

400.5 SECURITY Stipulated security services are not mandatory for inclusion in every State Lease; however, Lessor shall be responsible for the provision of the following in all Leases: (1) Lockable and secure doors to building and tenant spaces; (2) Appropriately lighted lobbies and common areas;

(3) Exterior and parking areas (when provided) free from dimly lit areas of potential concealment; and, (4) Taking of all reasonable steps to prevent loitering, vagrancy or other criminal activity on the premises including, but not limited to promptly reporting all such activity to local law enforcement.

400.6 PARKING Provision of parking is not mandatory for inclusion in every State Lease, however, where provided parking shall meet the following conditions: (1) Painted lines shall clearly delineate spaces, aisles and no parking lanes and shall be maintained in good condition throughout the lease term and any/all subsequent renewals; (2) Signage shall be provided reserving use of spaces allocated to tenant and/or visitors as applicable and shall be maintained in good condition throughout the lease term and any/all subsequent renewals; and, (3) Parking areas and all associated sidewalks shall be kept clear from all litter, waste and debris.

400.7 GROUNDS Ground, pavement and other surfaces directly adjacent to building shall slope away from building to prevent water intrusion. Grade level and sub-grade storm water management features and infrastructure shall be adequate and properly maintained to prevent water intrusion. Lawns, trees, shrubs, landscaped beds, pavements and sidewalks where applicable shall be maintained in good condition throughout the lease term and any/all subsequent renewals and shall meet the following conditions: (1) Lawns shall be full, free from weeds, bare spots, ruts and shall be properly cut on a regularly scheduled basis; (2) Trees and shrubs shall be properly pruned; (3) Landscaped beds shall be properly watered and free from weeds; (4) Joints in pavements and sidewalks shall be properly sealed and free from weeds; and (5) All areas shall be kept clear from all litter, waste and debris. 400.8 LAYOUT Each lease of office, warehouse or other space in a building outside the jurisdiction of the Department of Finance and Administration shall include floor plan(s) or diagram(s) depicting the layout of the space to be leased by the agency or department. Scale and detail shall be sufficient to evaluate compliance with space utilization guidelines and overall

space efficiency. Where offeror is proposing construction or modification of an existing building a part of a Lease Proposal, and such work will equal or exceed one hundred thousand dollars ($100,000.00), such drawings shall be prepared by a Mississippi licensed architect and/or engineer and shall be provided to Lessee prior to issuance of notice to proceed of such work for review and confirmation of compliance with Lease Contract.

400.9 COMPLIANCE It shall be the sole responsibility of the Lessor to provide space that is fully compliant with any/all codes, regulations and other Federal, State and Local requirements. Submission of a Lease Proposal shall constitute representation by offeror that any proposed building including any/all proposed modifications does or will comply with all such items prior to occupancy by Lessee. Applicable requirements include, but are not necessarily limited to the following: (1) Building Code; (2) Fire Code; (3) Plumbing Code (including provisions relating to minimum number of fixtures); (4) Mechanical Code; (5) Electrical Code; (6) Mississippi Conveyance Safety Act; (7) Energy Code; (8) Zoning Regulations; (9) Environmental Regulations; (10) ADA (as applicable to both occupants and visitors); and, (11) Antiquities Law – If proposed space involves any alteration to a National Landmark, Mississippi Landmark or potentially eligible property, obtaining of any required approvals as well as any mitigation must be included at no additional cost to the Lessee. The Lessor, at its sole cost and expense, shall retain the services of a preservation architect who meets or exceeds the Secretary of the Interior’s Professional Qualifications Standards for Historic Architecture as amended and annotated and previously published in the Code of Federal Regulations, 36 CFR part 61 if proposal includes modifications to any such property.

400.10 INSURANCE

(1) All buildings and improvements shall be insured against loss or damage by fire and all standard extended coverage perils for the full, fair insurable value thereof in a solvent and responsible company or companies licensed to do business in the State of

Mississippi. The Lessor shall agree to hold Lessee harmless and indemnified against any liability for injury or death to any person or damage to property in or upon the lased premises not caused directly by an act or omission of the Lessee or employee, agent, or patron of the Lessee. Lessor shall provide proof of insurance policy prior to execution of Lease and shall provide any amendments or changes to such policy throughout the Lease term and any/all subsequent renewals. (2) The Department of Finance and Administration is charged by law with purchasing flood insurance for State-owned buildings and contents in leased properties. All Lease proposals shall clearly identify flood zone designation and elevation for property proposed for Lease. Lessor shall provide elevation certificate and proof of flood insurance policy for properties in zones A, AE, A1-A30, AH, AO, AR, A99, V, VE and V1-V30 prior to execution of Lease and shall provide any amendments or changes to such policy throughout the Lease term and any/all subsequent renewals.

400.11 TAXES

The Lessor shall pay, during the Lease term, and any/all subsequent renewals, all state, county and city ad valorem taxes and special assessments assessed against any leased property excluding any such taxes as may be assessed against Lessee’s fixtures and equipment used in such leased property.

400.12 QUIET ENJOYMENT

The agency or department shall have reasonable expectation of quiet enjoyment of premises. While periodic minimal disruptions in order for Lessor to perform maintenance required to keep premises in tenantable condition are anticipated and generally acceptable to Lessee; however, excessive, repetitive or prolonged disruptions are unacceptable. Lessor shall be entitled to reduce rental payments under such conditions as follows:

(1) Minor Disruptions: Where use of an area constituting less than 25% of the leased area is disrupted due to un-tenantable conditions or maintenance activities for more than 50% of a normal working day, rental payments may be reduced by the Rental Rate times the portion of the Rentable Area so disturbed times the number of days such disruption continues. (2) Major Disruptions: Where 25% or more of the entire leased area is disrupted due to un-tenantable conditions or maintenance activities for more than 50% of a normal working day, or any disruption necessitating closing of offices by agency or department, rental payments may be reduced by the Rental Rate times the entire Rentable Area times the number of days such disruption continues.

(3) Prolonged Disruptions: Disruptions continuing beyond three normal working days, or multiple disruptions in a one month period, shall constitute cause for termination for default of Lease Contract.

400.13 SUPPLEMENTARY PROVISIONS

Requirements that are generally considered above and beyond those included in the RLP Division Template Lease Contract shall be considered as Supplementary Provisions to the Template Lease Contract rather than deviations. Inclusion of Supplementary Provisions addressing the following items shall be permitted without approval by PPRB as deviations: (1) Additional and/or Alternate Hours of Operation: Permitted where agency or department provides justification that occupancy in addition to normal working days or normal working hours, or alternative days or hours of operation is required; (2) Additional Security: Permitted where agency or department provides justification that due to risk assessment of location of premises or type of occupancy proposed that additional security measures, such as cameras, security systems, and/or security personnel stationed or patrolling premises or related parking areas, is required; (3) Server Room Cooling/UPS Systems: Permitted where agency or department provides justification that dedicated cooling and/or UPS supporting critical IT systems is required; (4) Generators: Permitted where agency or department provides justification that continuity of operations of all or a portion of occupancy is required; (5) Vending: Permitted where agency or department provides justification that vending will improve workplace efficiency and/or lack of nearby restaurants or alternatives are available. Where such space is included within Occupant Area, vending needs shall be coordinated with the Department of Rehabilitation Services in accordance with Section 43-3-93, Mississippi Code of 1972, Annotated; (6) Signage: Permitted where agency or department provides justification that signage located on exterior of building, site monument and/or site directional signage is critical to ensure visibility to visitors; or, (7) Other: Other additional requirements may be considered as Supplementary Provisions where agency or department provides justification and inclusion does not otherwise conflict with policies or provisions herein.

400.14 PROHIBITED PROVISIONS Inclusion of provisions pertaining to the following shall be prohibited unless it is determined that exclusion of such provisions is either not practicable or not advantageous to the State for the specific lease request in the opinion of the RPM Division Director and such deviation is approved by PPRB:

(1) Escalations: Escalation clauses decrease exposure to Lessor of future increases in operational costs which are beyond their control; however, the inclusion of such clauses increases exposure to Lessee of such costs and create budget uncertainty for agencies and departments. Offerors may propose graduated rates over the Lease term in anticipation of future increases in operational costs, but shall not include escalation clauses in proposals. RLP’s shall not request escalation provisions and proposals which include, or are contingent upon inclusion of escalation provisions shall be deemed non- responsive. (2) Expense Stops: Expense stops limit exposure to Lessor of future increases in operational costs which are beyond their control; however, the inclusion of such stops lead to unlimited exposure to Lessee of such costs and create budget uncertainty for agencies and departments. Offerors may propose graduated rates over the Lease term in anticipation of future increases in operational costs, but shall not include expense stops in proposals. RLP’s shall not request expense stops and proposals which include, or are contingent upon inclusion of expense stops shall be deemed non-responsive. (3) Tenant Improvement Allowances: Allowances limit exposure to Lessor to a fixed amount to make renovations to proposed space to suit the needs of the Lessee; however, such amounts are often insufficient to address all requirements identified by agency or department in the RLP. Offerors shall be required to include any costs to bring their space into compliance with all requirements identified by agency or department in the RLP in their Base Rent proposal.

SECTION 500: MODIFICATION & TERMINATION 500.1 INCREASES OR DECREASES IN SPACE

(1) Mutually Agreed Increases: Where Lessor and Lessee mutually agree to the addition of space at the same location, such increase, subject to approval of PPRB, may be considered provided: a. The present lease has six (6) months or more remaining prior to end of Lease term; b. RPM Space Evaluation Form documents compliance with space utilization guidelines and overall space efficiency is not negatively impacted by the addition of space; c. The Rental Rate, terms and conditions for the additional space is identical to the present Lease; and, d. The use for the additional space must be totally dependent on the existing space. Agency or department must show that the added space cannot function efficiently at another location.

(2) Decreases Due to Reduction in Space Needs: Where Lessor and Lessee mutually agree to the reduction of space, such decrease, subject to approval of PPRB, may be considered provided: a. The present lease has six (6) months or more remaining prior to end of Lease term; b. The reduction in rent is equal to the space reduced times the current Rental Rate; and, c. No other terms and conditions are effected by proposed reduction. (3) Decreases Due to Reduction in Funds: Lessee’s assumption of occupancy and the payment of rent is conditional on the receipt of Federal and/or State funds. In the event of a discontinuance or decrease in Federal and/or State funds, and in the event of a discontinuance or decrease in Federal and/or State funds for any cause necessitating a reduction in the Lessee’s staff or need for space, the Lessee may unilaterally, and without approval of PPRB, reduce space and corresponding rent in proportion to the reduction in funds without penalty or interest or the Lease may be terminated subject to the following: a. The Lessee shall notify the Lessor in writing by certified mail at least thirty (30) days in advance of any reduction in space or termination of the Lease; b. Where return of a portion of space corresponding to reduction in funds is not feasible for Lessor, Lessor may offer a smaller or larger reduction for consideration, or may require termination rather than reduction; c. The reduction in rent is equal to the space reduced times the current Rental Rate; d. No other terms and conditions are effected by proposed reduction; and, e. The Lessee shall promptly notify the RPM Division of any such reduction or termination.

500.2 EXTENSION OR REDUCTION OF TERM

(1) Unilateral Extension: Provided Lessee provides at least thirty (30) day written notice by certified mail, Lessee shall have the option to unilaterally extend Lease term by up to three (3) months commencing at the expiration of the current Lease term. Approval of PPRB is not required; however, Lessee shall promptly notify the RPM Division of such extension. (2) Mutually Agreed Extension: Where Lease term, all renewals and unilateral extension are exhausted and Lessor and Lessee mutually agree to an extension of space at the same location, such extension, subject to approval of PPRB, may be considered provided: a. The present lease has not yet expired; b. The Rental Rate, terms and conditions for the extension period is identical to the present Lease; c. The extension is on a month-to-month basis for no more than one (1) year, with no permitted renewals; and,

d. The agency or department shall submit written justification of need to extend the current Lease. Such leases shall be made for the minimum amount of time necessary, shall not be entered into to subvert the competitive procurement process and shall include an option to terminate upon receipt of written notice by Lessee not less than ten (10) days prior to the start of the subsequent month. (2) Emergency Extension: Where Lease term, all renewals and unilateral extension are exhausted and Lessor does not agree to an extension under same Rental Rate, terms and conditions, and the Agency Head determines that an emergency exists in regard to the continued provision of space, then such Agency Head shall file with the RPM Division a statement explaining the conditions and circumstances of the emergency, which shall include a detailed explanation of the events leading up to the situation and a certified copy of the appropriate minutes of the board of such agency requesting the emergency extension, if applicable. Upon receipt of the statement and applicable certification, the State Fiscal Officer, or his designees, may, in writing authorize the extension of the lease of space without having to comply with competitive bidding requirements. The RPM Division shall submit the Emergency Lease Extension to the next regularly scheduled meeting of the PPRB for ratification. Emergency Lease Extensions shall be entered into for the minimum amount of time necessary, shall be on a month-to-month basis for not more than one (1) year, with no permitted renewals and shall include an option to terminate upon receipt of written notice by Lessee not less than ten (10) days prior to the start of the subsequent month. (3) Mutually Agreed Reduction: Where Lessor and Lessee mutually agree to the reduction of Lease term, such reduction, subject to approval of PPRB, may be considered provided: a. The present lease has six (6) months or more remaining prior to end of Lease term; b. The reduction in rent is equal to the term reduced times the applicable Rental Rate; and, c. No other terms and conditions are effected by proposed reduction. (4) Reductions Due to Reduction in Funds: Lessee’s assumption of occupancy and the payment of rent is conditional on the receipt of Federal and/or State funds. In the event of a discontinuance or decrease in Federal and/or State funds, and in the event of a discontinuance or decrease in Federal and/or State funds for any cause necessitating a reduction in the Lessee’s staff or need for space, the Lessee may unilaterally, and without approval of PPRB, reduce the Lease term and corresponding rent in proportion to the reduction in funds without penalty or interest or the Lease may be terminated subject to the following: a. The Lessee shall notify the Lessor in writing by certified mail at least thirty (30) days in advance of any reduction in Lease term or termination of the Lease; b. The reduction in rent is equal to the term reduced times the applicable Rental Rate; c. No other terms and conditions are effected by proposed reduction; and,

d. The Lessee shall promptly notify the RPM Division of any such reduction or termination. 500.3 MODIFICATION OF TERMS AND CONDITIONS

Terms and conditions of Lease Contracts shall remain in full force and effect throughout the Lease term and any/all subsequent renewals with the following exceptions:

(1) State or Federal Law: Passage of new, or modification to existing, State or Federal law impacting a provision of the Lease Contract or legal decision by which provision is held invalid. The invalidity of one provision shall not affect any other provision or application of these regulations which can be given effect without the invalid provision or application to this end as the provisions of these regulations are severable. To the extent that any new State or Federal law goes into effect during the Lease term impacting the terms and conditions of the Lease Contract, such law shall be binding on each party of the Lease Contract as applicable; (2) Mutually Agreed Modifications: Where addition, deletion or modification of a term or condition other than amount of space or duration of term is identified following execution of the Lease Contract and Lessor and Lessee mutually agree to the change, such modification, subject to approval of PPRB, may be considered provided: a. The modification was not anticipated prior to the execution of the Lease Contract. b. The modification is either neutral or beneficial to the interest of the State; and, c. Where the modification involves an increase in cost to the agency or department, documentation justifying amount of such increase shall be provided.

500.4 TERMINATION FOR DEFAULT

Failure on the part of either the Lessor or Lessee to promptly and faithfully keep and perform each and every covenant agreed and stipulated in the Lease Contract, or on the part of the Lessee to pay any installment of rent when the same comes due and payable, shall constitute grounds for termination for default subject to the following:

(1) The party claiming default shall make such claim in writing and serve notice on the other party by certified mail, copying RPM Division; (2) The notice shall be provided not less than thirty (30) days prior to effective termination date of the Lease Contract; and, (3) The notice shall give the party claimed to be in default not less than fifteen (15) days from receipt of notice to respond in writing by certified mail, copying RPM Division, with proposed cure to default, which shall not be unreasonably rejected by either party.

500.5 TERMINATION FOR CONVENIENCE

The Lessee and Lessor may terminate all or part of this Lease Contract upon mutual agreement at any time. The Lessee and Lessor shall agree in writing as to the said termination, specifying the part of the Lease terminated and when the termination becomes effective, with notification to the RPM Division.

500.6 TERMINATION FOR STATE-OWNED SPACE

In the event that space becomes available to the Lessee in any State-owned building, this Lease may be unilaterally terminated by Lessee within thirty (30) days of written notice of termination to Lessor by certified mail. Where Lessee is able to provide greater notice, such additional notice should be provided.

SECTION 600: LEGAL & CONTRACTUAL REMEDIES 600.1 DEFINITION OF TERMS USED IN THIS SECTION

(1) Attorney General – shall mean the individual assigned by the Attorney General to the Department of Finance and Administration. (2) Interested Party – means an actual or prospective offeror that may be aggrieved by the solicitation or award of a Lease Contract, or by the protest. (3) Protestor – means any actual or prospective offeror who is aggrieved in connection with the solicitation or the award of a Lease Contract and who files a protest.

600.2 PROTESTS

(1) Initial Complaint: Complainants who are aggrieved in connection with the solicitation or award of a Lease Contract should first seek resolution of their complaints with the procurement officer or the agency or department that issued the solicitation. Such informal complaints may be made verbally or in writing. (2) Authority to Resolve Protests: The RPM Division Director, the head of the purchasing agency, or a designee of either officer shall have the authority to settle and resolve a protest of an aggrieved offeror, actual or prospective, concerning the solicitation or award of a Lease Contract. (3) Filing of Formal Protest: Any actual or prospective offeror who is aggrieved in connection with the solicitation or award of a Lease Contract may protest to the head of the purchasing agency and copy the RPM Division Director. The protest shall be

submitted in writing within seven (7) days after such aggrieved person knows or should have known of the facts giving rise thereto. A protest is considered filed when received by the RPM Division Director or the head of the purchasing agency. Protests filed after this period shall not be considered. (4) Subject of Protest: Protestors may file a protest on any phase of solicitation or award including, but not limited to, specification preparation, RLP solicitation, award, or disclosure of information marked confidential in the offer. (5) Form: To expedite the handling of protests, the envelope should be labeled “Protest”. The written protest shall include as a minimum the following: a. The name, address and contact information of the protestor; b. Appropriate reference of the procurement which is subject of protest and status of award; c. A statement explaining reasons for the protest; and, d. Supporting exhibits, evidence, or documents to substantiate any claims unless not available within the filing time in which case the expected availability date shall be indicated. (6) Notification of the Attorney General: The RPM Division Director shall submit a copy of the protest to the Attorney General within three days of receipt of the written protest. (7) Additional Information: Any additional information requested by any of the parties should be submitted within the time period established by the requesting source in order to expedite consideration of the protest. Failure of any party to comply expeditiously with a request for information by the RPM Division Director or the head of the purchasing agency may result in resolution of the protest without consideration of any information which is untimely filed pursuant to such request. (8) Stay of Procurement During Protests: When a protest has been filed within seven (7) days and before an award has been made, the RPM Division Director or head of the purchasing agency shall proceed with no award of the Lease Contract until the protest has been settled unless the RPM Division Director, after consultation with the head of the purchasing agency, makes a written determination that the award of the Lease Contract without delay is necessary to protect substantial interests of the State. (9) Making Information on Protests Available: The RPM Division Director or the head of the purchasing agency shall upon written request make available to any interested party information submitted that bears on the substance of the protest except where information is proprietary, confidential, or otherwise permitted or required to be withheld by law or regulation. Persons who wish to keep such information submitted by them confidential should so request by specifically identifying such information within documents submitted, and indicating on the front page of each document that it contains such information. The availability of such information shall be in compliance with 100.9 Public Access to Procurement Information. (10) Decision: If the protest is not resolved by mutual agreement, the RPM Division Director, the head of the purchasing agency, or a designee of either officer shall promptly issue a decision in writing after receiving all relevant, requested information. The decision shall: a. State the reasons for the action taken; and, b. Inform the protestant of its right to administrative review as provided in this section.

(11) Notice of Decision: A copy of the decision shall be mailed or otherwise furnished immediately to the protestant and any other party intervening. (12) Request for Reconsideration: Reconsideration of a decision of the RPM Division Director or the head of the purchasing agency may be requested by the protestor, any interested party who submitted comments during consideration of the protest, or any agency involved in the protest. The request for reconsideration shall contain a detailed statement of the factual and legal grounds upon which reversal or modification is deemed warranted, specifying any errors of law made or information not previously considered. Request for reconsideration of a decision of the RPM Director or the head of the purchasing agency shall be filed not later than seven (7) days after receipt of such decision. Such request shall be acted upon as expeditiously as possible. The Chief Procurement Officer or the head of a purchasing agency may uphold the previous decision or reopen the case as such officer deems appropriate. (13) Finality of Decision: A decision under section shall be final and conclusive, unless fraudulent, or any person adversely affected by the decision appeals administratively to the PPRB in accordance with Section 600.3 Administrative Proceedings. (14) Effect of Judicial or Administrative Proceedings: The RPM Division Director or the head of the purchasing agency will refuse to decide any protest when a matter involved is the subject of a proceeding before the Public Procurement Review Board or has been decided on the merits by the Board. If an action concerning the protest has commenced in court, the RPM Division Director or the head of the purchasing agency shall not act on the protest but refer the protest to the Attorney General. This section shall not apply where the Board or a court requests, expects, or otherwise expresses interest in the decision of the RPM Division Director or the head of the purchasing agency.

600.3 ADMINISTRATIVE PROCEEDINGS

(1) Application: This section applies to: a. A protest of a solicitation or award of a Lease Contract addressed to the Public Procurement Review Board by an aggrieved actual or prospective offeror; b. An appeal addressed to the Board of a decision under Section 600.2 Protests; and, c. An appeal addressed to the Board of a decision under Section 600.4 Authority to Suspend or Debar. (2) Time Limitations: The following time limitations apply to the filing of a protest or an appeal to PPRB: a. For protests addressed to PPRB, the aggrieved person shall file a protest with the Board within seven (7) days after the aggrieved person knew or should have known the facts and circumstances upon which the protest is based. b. For appeals addressed to PPRB of a decision under Section 600.2 Protests, the aggrieved person shall file an appeal within seven (7) days of receipt of such decision.

c. For appeals addressed to PPRB of a decision under Section 600.4 Authority to Suspend or Debar, the aggrieved person shall file an appeal within seven (7) days of receipt of such decision. (3) Decision: The following shall apply to decisions made by PPRB: a. For protests and appeals concerning the solicitation or award of Lease Contracts, the Board shall promptly decide whether the solicitation or award was in accordance with the Constitution, statutes, regulations, and the terms and conditions of the solicitation. The proceeding shall be de novo. Any prior determinations by administrative officials shall not be final or conclusive. b. For appeals concerning suspension or debarment, the Board shall promptly decide whether, or the extent to which, the suspension or debarment was in accordance with the Constitution, statutes, regulations and the best interests of the State, and was fair. The proceeding shall be de novo. Any prior determinations by administrative officials shall not be final or conclusive. (4) Standard of Review for Factual Issues: A determination of fact by the Board shall be final and conclusive unless arbitrary, capricious, fraudulent, or clearly erroneous. (5) Appeal of PPRB Decision: Any person receiving an adverse decision concerning the solicitation or award of a Lease Contract or a suspension or debarment action, the State, or both may appeal from a decision by the Public Procurement Review Board to the designated court or courts of the State. No such appeal shall be made by the State unless recommended by the RPM Division Director or the head of the purchasing agency involved and approved by the Attorney General.

600.4 AUTHORITY TO SUSPEND OR DEBAR

(1) Application: This regulation applies to all suspensions or debarments of persons from consideration for award of Lease Contracts imposed by the RPM Division Director. (2) Authority: After reasonable notice to the person involved and reasonable opportunity for that person to be heard, the RPM Division Director, after consultation with the purchasing agency and the Attorney General, shall have authority to debar a person for cause from consideration for award of Lease Contracts. The debarment shall be for a period of two years. The same officer, after consultation with the using agency and the Attorney General, shall have authority to suspend a person from consideration for award of Lease Contracts if there is probable cause for debarment. The suspension shall not be for a period exceeding three months. (3) Causes for Suspension or Debarment: The causes for suspension or debarment include the following: a. Conviction for commission of a criminal offense as an incident to obtaining or attempting to obtain a public or private Lease Contract or subcontract, or in the performance of such Lease Contract or subcontract; b. Conviction under State or Federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen

property, or any other offense indicating a lack of business integrity or business honesty which currently, seriously, and directly affects responsibility as a Mississippi contractor; c. Conviction under State or Federal antitrust statutes arising out of the submission of Lease proposals; d. Violation of Lease Contract provisions, as set forth below, of a character which is regarded by the RPM Division Director to be so serious as to justify debarment action: i. Deliberate failure without good cause to perform in accordance with the specifications or within the time limits provided in the contract; or, ii. A recent record of failure to perform or of unsatisfactory performance in accordance with the terms of one or more Lease Contracts; provided that failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor shall not be considered to be a basis for debarment. e. Any other cause the RPM Division Director determines to be so serious and compelling as to affect responsibility as a Mississippi contractor, including debarment by another governmental entity for any cause listed herein; and, f. For violation of the ethical standards set forth in Section 7 Ethics of these regulations. (4) Decision: The RPM Division Director shall issue a written decision to suspend or debar. The decision shall: a. State the reasons for the action taken; and, b. Inform the suspended or debarred person involved of its rights to administrative review as provided in the section. (5) Notice of Decision: A copy of the decision shall be mailed or otherwise furnished immediately to the suspended or debarred person and any other party intervening. (6) Finality of Decision: A decision shall be final and conclusive, unless fraudulent, or: a. The suspended or debarred person commences an action in court; or, b. The suspended or debarred person appeals administratively to the PPRB in accordance with Section 600.3 Protests and Appeals to PPRB. (7) Suspension and Debarment List: The RPM Division Director shall maintain and update a list of suspended and debarred persons. All agencies of the State shall be supplied with this list. The RPM Division Director shall send updates of this list to all agencies of the State as necessary. Such list shall be available to the public upon request.

600.5 SUSPENSION

(1) Initiation of Suspension Action: After consultation with the affected agency, the Attorney General, and, where practicable, the contractor or prospective contractor who is to be suspended, and upon written determination by the RPM Division Director that probable cause exists for debarment as set forth in Section 600.4 Authority to Suspend or Debar, a contractor or prospective contractor shall be suspended. A notice of suspension, including a copy of such determination, shall be sent to the suspended

contractor or prospective contractor. Such notice shall state that: a. The suspension is for the period it takes to complete an investigation into possible debarment including any appeals of a debarment decision but not for a period in excess of three months; b. Lease Proposals will not be solicited from the suspended person, and, if they are received, they will not be considered during the period of suspension; and c. If a hearing has not been held, the suspended person may request a hearing in accordance with Section 600.6 Request for Hearing. (2) Effect of Suspension Decision: A contractor or prospective contractor is suspended upon issuance of the notice of suspension. The suspension shall remain in effect during any appeals. The suspension may be ended by the RPM Division Director, but otherwise shall only be ended when the suspension has been in effect for three months or a debarment decision takes effect.

600.6 DEBARMENT

(1) Initiation of Debarment Action: Written notice of the proposed debarment shall be sent by certified mail to the contractor or prospective contractor. Such notice shall also be sent to the Attorney General and the affected agency or agencies that have current Leases with the contractor. If more than one affected agency is involved, the RPM Division Director may designate one or more representative to be consulted in respect to this action. The written notice shall: a. State that debarment is being considered; b. Set forth the reasons for the action; c. State that if the contractor or prospective contractor so requests, a hearing will be held, provided such request is received by the RPM Division Director within seven (7) days after the contractor or prospective contractor receives notice of the proposed action. (2) Request for Hearing: A contractor or prospective contractor that has been notified of a proposed debarment action may request in writing that a hearing be held. Such request must be received by the RPM Division Director within seven (7) days of receipt of notice of the proposed action. If no request is received within this period, a final determination may be made in accordance with Section 600.6.5 Determination of Hearing Officer; Final Decision, after consulting with the Attorney General and the affected agency or agencies. (3) Notice of Hearing: If a hearing is requested, the RPM Division Director may appoint a hearing officer to conduct the hearing and recommend a final decision. Otherwise, the RPM Division Director shall act as the hearing officer. The hearing officer shall send a written notice of the time and place of the hearing. Such notice shall be sent by certified mail, and shall state the nature and purpose of the proceedings. Copies shall be sent to the Attorney General and the affected agency or agencies. (4) Authority of Hearing Officer: The hearing officer, in the conduct of the hearing, has the power, among others, to: a. Hold informal conferences to settle, simplify, or fix the issues in a proceeding,

or to consider other matters that may aid in the expeditious disposition of the proceeding either by consent of the parties or upon such officer’s own motion; b. Require parties to state their positions with respect to the various issues in the proceeding; c. Require parties to produce for examination those relevant witnesses and documents under their control; d. Rule on motions, and other procedural items on matters pending before such officer; e. Regulate the course of the hearing and conduct of participants therein; f. Receive, rule on, exclude, or limit evidence, and limit lines of questioning or testimony which are irrelevant, immaterial, or unduly repetitious; g. Fix time limits for submission of written documents in matters before such officer; h. Impose appropriate sanctions against any party or person failing to obey an order under these procedures, which sanctions may include: i. Refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence; ii. Excluding all testimony of an unresponsive or evasive witness; and, iii. Expelling any party or person from further participation in the hearing; i. Take official notice of any material fact not appearing in evidence in the record, if such fact is among the traditional matters of judicial notice. (5) Hearing Procedures: a. Hearings shall be as informal as may be reasonable and appropriate under the circumstances and in accordance with applicable due process requirements. The weight to be attached to evidence presented in any particular form will be within the discretion of the hearing officer. Stipulations of fact agreed upon by the parties may be regarded and used as evidence at the hearing. The parties may stipulate the testimony that would be given by a witness if the witness was present. The hearing officer may require evidence in addition to that offered by the parties. b. A hearing may be recorded but need not be transcribed except at the request and expense of the contractor or prospective contractor. A record of those present, identification of any written evidence presented, and copies of all written statements and a summary of the hearing shall be sufficient record. c. Opening statements may be made unless a party waives this right. d. Witness shall testify under oath or affirmation. All witnesses may be cross- examined. Determination of Hearing Officer; Final Decision: The hearing officer shall prepare a written determination recommending a course of action. Such determination shall be given to the RPM Division Director. Copies shall also be sent to the contractor or prospective contractor, the Attorney General, and the affected agency or agencies. The contractor or prospective contractor shall have seven (7) days to file comments upon the hearing officer's determination. The RPM Division Director may request oral argument. After consultation with

the affected using agency or agencies and the Attorney General, the RPM Division Director shall issue a final decision. Both the hearing officer's determination and the final decision shall recite the evidence relied upon. When debarment is recommended or ordered, the reasons for such action, and to what extent affiliates are affected, shall be set forth. In addition, the final determination shall inform the debarred person of its rights to administrative review. (6) Effect of Debarment Decision: A debarment decision will take effect upon issuance and receipt by the contractor or prospective contractor. After the debarment decision takes effect, the contractor shall remain debarred until the debarment period specified in the decision expires. All active Leases with a contractor so debarred shall remain in full force and effect; however, Lease Proposals will not be solicited from the debarred person, and, if they are received, they will not be considered during the period of debarment.

600.9 DEBRIEFINGS

Debriefings that furnish the basis of the source selection decision and contract award may be provided by the agency procurement officer only when the RLP includes evaluation factors other than total cost alone and in accordance with the following: (1) At the written request of any offeror who has submitted a proposal, debriefings may be given orally, in writing, or by any other method acceptable to the agency procurement officer. Such debriefings may be given at any time on or after the eighth (8 th ) day after the agency has issued Notice of Intent to Award the Lease Contract. In no case may an offeror request a debriefing more than thirty (30) days after the agency has awarded the Lease Contract. (2) An offeror’s written request for a debriefing should include a list of any questions an offeror may have in order to assist the agency procurement officer or agency staff in preparing the debriefing. (3) A debriefing may include: a. The agency’s evaluation of significant weaknesses or deficiencies in the proposal, if applicable; b. The overall evaluated cost and other factor scores, if applicable, of the successful offeror and the debriefed offeror; c. The overall ranking of all proposals; d. A summary of the rationale for award; and, e. Reasonable responses to relevant questions about whether source selection procedures contained in the RLP and applicable law were followed. (4) Debriefings should not include point-by-point comparisons of the debriefed proposal with those of other offerors. (5) Any debriefing should not reveal any information prohibited from disclosure by law, or exempt from release under the Mississippi Public Records Act of 1983, including trade secrets, or privileged or confidential commercial or manufacturing information.

Agencies should consult their public information officer or agency legal representative for guidance in complying with the Act prior to conducting debriefings. (6) Debriefings are non-adversarial business meetings. Accordingly, offerors may bring legal representation to any oral debriefing, although it is not necessary. If, however, any offeror intends to have legal representation present during an oral debriefing, offeror must so advise agency at time of request for debriefing, and the agency must also have its legal representative in attendance. Questioning of agency staff by offeror’s legal representative(s) is not permitted. (7) A summary of any debriefing should be included in the Lease Contract file.

SECTION 700: ETHICS 700.1 DEFINITION OF TERMS USED IN THIS SECTION

(1) Bona Fide Employee – a person employed by a prospective contractor and subject to the prospective contractor’s supervision and control as to the time, place, and manner of performance, who neither exerts no proposes to exert improper influence to solicit or obtain Mississippi Lease Contracts. In determining whether a bona fide employment relationship exists, the following factors should be considered: a. Whether the employment is continuous; b. Whether the person is subject to the supervision and control of the prospective contractor; c. Whether the size of any contingent fee is reasonable in relation to the service performed; d. Whether the method of payment of the contingent fee is customary in the trade; and, e. Whether the person is employed solely by the prospective contractor. (2) Bona Fide Established Commercial Selling Agency – a business that neither exerts nor proposes to exert improper influence to solicit or obtain public Leasing Contracts. In determining whether a business is a bona fide established selling business, the following factors should be considered: a. Whether the business is one which has either been active for a considerable period of time or is presently an on-going concern and is likely to continue as such; b. Whether the business uses its own name and is characterized by the customary indicia of the conduct of a regular business; c. The degree to which the business’ activities are directed toward the solicitation of contracts of the State; d. Whether the size of any contingent fee is reasonable in relation to the services performed; and, e. Whether the method of payment of the contingent fee is customary in the trade.

(3) Business Employee – a person, whether compensated or not, who performs personal services for a business. (4) Confidential Information – any information which is available to an employee only because of the employee’s status as an employee of Mississippi and is not a matter of public knowledge or available to the public on request. (5) Conspicuously – written in such special or distinctive format, print, or manner that a reasonable person against whom it is to operate ought to have noticed it. (6) Direct or Indirect Participation – involvement through decision, approval, disapproval, recommendation, preparation of any part of a Lease request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity. (7) Employee – an individual drawing a salary from a governmental body, whether elected or not, and any non-compensated individual performing personal service for any governmental body. As used throughout this section, the term “Mississippi Employee” does not include a person who, as an independent contractor, performs professional, scientific, technical, or advisory service for a state agency and who receives a fee, honorarium, or similar consideration for the services performed; however, it shall include: a. A person elected to a Mississippi office; b. A non-elected person, whether appointed or selected to a personnel selection procedure, receiving a salary, wages, or other compensation from the State; and, c. A non-compensated or minimally compensated person who is performing services for the State. (8) Financial Interest – shall include any of the following: a. Ownership of any interest or involvement in any relationship from which, or as a result of which, a person within the past year has received, or is presently or in the future entitled to receive, monetary compensation or material gratuity; b. Ownership of such interest in any property or any business as may be specified by the Ethics Commission; or, c. Holding a position in a business such as an officer, director, trustee, partner, employee, or the like, or holding any position of management. (9) Gratuity – a payment, loan, subscription, advance, deposit of money, services, or anything of more than nominal value, present or promised, unless consideration of substantially equal or greater value is received. (10) Immediate Family – a spouse, children, parents, brothers and sisters, and such other relatives as may be designated by the Ethics Commission. (11) Official Responsibility – direct administrative or operating authority, whether intermediate or final, either exercisable alone or with others, either personally or through subordinates, to approve disapprove, or otherwise direct Mississippi action. (12) Lease Request – that document whereby an agency requests that a Lease Contract be entered into for a specific need, and may include, but is not limited to, the technical description of the needed space, term, criteria for evaluation and information supplied for the making of any written determination required by these regulations.

700.2 STATEMENT OF POLICY Public employment is a public trust. It is the policy of the State of Mississippi to promote and balance the objective of protecting government integrity and the objective of facilitating the recruitment and retention of personnel needed by the State. Such policy is implemented by prescribing essential standards of ethical conduct without creating unnecessary obstacles to entering public service. Public employees must discharge their duties impartially so as to assure fair competitive access to governmental procurement by responsible contractors. Moreover, they should conduct themselves in such a manner as to foster public confidence in the integrity of the State procurement organization. To achieve the purpose of this section, it is essential that those doing business with the State of Mississippi also observe the ethical standards prescribed herein. 700.3 GENERAL STANDARD OF ETHICAL CONDUCT (1) Employees: Any attempt to realize personal gain through public employment by conduct inconsistent with the proper discharge of the employee's duties is a breach of a public trust. In order to fulfill this general prescribed standard, employees must also meet the specific standards set forth in: Section 700.4 Employee Conflict of Interest; Section 700.5 Gratuities; Section 700.6 Prohibition Against Contingent Fees; and Section 700.7 Restrictions on Employment of Present Employees. (2) Non-Employees: Any effort to influence any public employee to breach the standards of ethical conduct set forth in this section and Section 700.4 Employee Conflict of Interest; Section 700.5 Gratuities; Section 700.6 Prohibition Against Contingent Fees; and Section 700.7 Restrictions on Employment of Present Employees is also a breach of ethical standards. 700.4 EMPLOYEE CONFLICT OF INTEREST (1) It shall be a breach of ethical standards for any employee to participate directly or indirectly in a procurement when the employee knows that: a. The employee or any member of the employee’s immediate family has a financial interest pertaining to the procurement; b. A business or organization in which the employee, or any member of the employee’s immediate family, has a financial interest pertaining to the procurement; or, c. Any person, business, or organization with whom the employee or any member of the employee’s immediate family is negotiating or has an

arrangement concerning prospective employment is involved in the procurement. (2) Upon discovery of an actual or potential conflict of interest, an employee shall promptly file a written statement of disqualification and shall withdraw from further participation in the transaction involved. The employee may, at the same time, apply to the Ethics Commission for an advisory opinion as to what further participation, if any, the employee may have in the transaction. (3) Notice of this prohibition shall be provided in accordance with regulations promulgated by the Ethics Commission. 700.5 GRATUITIES It shall be a breach of this regulation for any person to offer, give, or agree to give any employee or former employee, or for any employee or former employee to solicit, demand, accept, or agree to accept from another person, a gratuity or an offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a Lease Request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to any program requirement or proposal thereof. (1) Relationship of Gratuity: In addition, the gratuity or offer of employment must be made in relation to any proceeding or application, request for a ruling, determination, claim or controversy, or other particular matter, to constitute a breach, and in connection with any: a. Decision; b. Approval; c. Disapproval; d. Recommendation; e. Preparation of any part of a RLP; f. Action to influence the content of any specification or procurement standard; g. Rendering of advice; h. Investigation; i. Auditing; or, j. Other advisory capacity. (2) Family: The prohibition extends to the giving of gratuities to anyone on the state employee’s or former state employee’s behalf such as a member of that employee’s immediate family. (3) When Prohibition Against Gratuities Not Applicable: This section does not prohibit the following:

a. The solicitation or acceptance of anything of monetary value from a friend, parent, spouse, child, or other close relative when the circumstances make it clear that the motivation for the transaction is unrelated to any procurement or requirement with the State and is based upon a personal or family relationship; b. The participation in the activities of, or the acceptance of an award for, a meritorious public contribution or achievement from a charitable, religious, professional, social or fraternal organization, or from a non-profit educational, recreational, public service, or civic organization; c. Acceptance only on certain customary terms of finance of a loan from a bank or other financial institution for proper and usual activities of state employees, such as home mortgage loans; or d. Acceptance of unsolicited advertising products or promotional material, such as pens, pencils, note pads, calendars, and other such items. 700.6 PROHIBITION AGAINST CONTINGENT FEES It shall be a breach of ethical standards for a person to be retained, or to retain a person, to solicit or secure a state contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, except for retention of bona fide employees or bona fide established commercial selling agencies for the purpose of securing business. (1) Influence Peddling: The prohibition of this section covers influence peddling and particularly that which might occur when a former state official is hired on a contingent basis by a business seeking state contracts. (2) Improper Influence: A business employee or a commercial selling business should be conclusively presumed not to be bona fide if the Ethics Commission determines that improper influence has been or is being used to secure a state contract. 700.7 RESTRICTIONS ON EMPLOYMENT OF PRESENT EMPLOYEES Except as may be permitted by advisory opinions, regulations or rulings of the Ethics Commission, it shall be a breach of ethical standards for any employee who is participating directly or indirectly in the procurement process to become or be, while such an employee, the employee of any person contracting with the governmental body by whom the employee is employed. Notice of this provision shall be provided in accordance with opinions promulgated by the Ethics Commission.

Part 9 Office of Personal Services Contract Review Rules and Regulations

Chapter 14 CONTRACTS ...................................................................................................... 113 14.1 Selection of Contract Type .............................................................................................. 115 14.2 Types of Contracts .......................................................................................................... 115 14.3 Multi-Term Contracts ..................................................................................................... 117 14.4 Multiple Source Contracting ........................................................................................... 119 14.5 Contract Requirements .................................................................................................... 119 14.6 Contract Assignment ....................................................................................................... 120 14.7 Contractor’s Change of Name ......................................................................................... 120 14.8 Submission of Contracts for PPRB Approval .................................................................. 120 14.9 Executed Contracts ......................................................................................................... 122 14.10 Notice of Contract Award, Renewal, or Amendment ..................................................... 123 14.11 Contract Auditing and Monitoring ................................................................................ 123 14.12 Expired or Expiring Contracts ....................................................................................... 124 14.13 Contract Termination .................................................................................................... 125 14.14 Remedies ...................................................................................................................... 125 14.15 Contracting Following Default ...................................................................................... 125 Exhibit 1: Sample Solicitation Language for Price Adjustments.............................................. 127 CHAPTER 15: EXCLUSION OF VENDOR FROM FUTURE CONTRACT AWARDS ......... 128 15.1 Exclusion by a Single Agency ......................................................................................... 129 15.2 Exclusion by PPRB ......................................................................................................... 129 15.3 Standard for Exclusion .................................................................................................... 131 15.4 Scope of Exclusion ......................................................................................................... 132 APPENDIX A: RELEVANT STATUTES .................................................................................... 133 APPENDIX B: OPSCR STAFF AUTHORITY ............................................................................ 134 APPENDIX C: LEGISLATIVE REPORTS ................................................................................. 135 APPENDIX D: THE AGENCY PROCUREMENT FILE ........................................................... 136 APPENDIX E: CONTRACT and SOLICITATION CLAUSES ................................................. 148

12 Miss. Admin. Code Pt. 9, R. 10.1 Rule 10.1

Emergency Contracts .................................................................................................... 101 10.1.1 Emergency Standard .............................................................................................. 101 10.1.2 Agency Head Determination.................................................................................. 101 10.1.3 Limitations on Emergency Contracts ..................................................................... 101 10.1.3.1 Competition ............................................................................................... 101 10.1.3.2 Scope of Services ....................................................................................... 101 10.1.3.3 Period of Performance .............................................................................. 101 10.1.4 Documentation in MAGIC .................................................................................... 101 10.1.5 OPSCR Review of an Emergency Contract ........................................................... 102 10.1.6 Notice of Contract Award ...................................................................................... 102 10.1.7 Reporting Emergency Contracts ............................................................................ 102 10.2 Exigent Circumstances Not Qualifying as an Emergency ........................................... 102 10.2.1 Definition of Exigent Circumstances ..................................................................... 102 10.2.2 Agency Head Determination.................................................................................. 102 10.2.3 Contracting with Incumbent Vendor under Exigent Circumstances ........................ 102 10.2.4 PPRB Approval Required ...................................................................................... 103 10.2.5 Notice of Contract Award ...................................................................................... 103 10.3 Circumvention of Procurement Requirements ............................................................ 103

CHAPTER 10: Emergency and Exigent Circumstances Contracts

PPRB OPSCR Rules and Regulations Effective September 6, 2024 Page 101 of 171

12 Miss. Admin. Code Pt. 9, R. 10.1 Rule 10.1

Emergency Contracts PPRB does not approve or reject emergency contracts. Any determination as to whether such a contract meets the applicable emergency standard is in the sole discretion of the Agency Head of the procuring Agency.

12 Miss. Admin. Code Pt. 9, R. 10.1.1 Rule 10.1.1

Emergency Standard If the Agency Head determines that an emergency exists in regard to the procurement of personal or professional services such that the delay incident to undertaking any other available method of procurement would threaten the health or safety of any person or the preservation or protection of property, then the Agency may contract for personal and professional services using an emergency contract.

12 Miss. Admin. Code Pt. 9, R. 10.1.2 Rule 10.1.2

Agency Head Determination The Agency Head shall make a written determination stating:

• the conditions and circumstances of the emergency situation, • a detailed description of the events leading up to the emergency situation, • an explanation of why the Agency Head determined the health of safety of a person or persons and/or the preservation or protection of property would be threatened if the Agency is required to undertake another available method of procurement, and • the basis for the selection of the particular contractor.

12 Miss. Admin. Code Pt. 9, R. 10.1.3 Limitations on Emergency Contracts

12 Miss. Admin. Code Pt. 9, R. 10.1.3.1 Rule 10.1.3.1

Competition Emergency contracts shall be made with such competition as is practicable under the circumstances.

12 Miss. Admin. Code Pt. 9, R. 10.1.3.2 Rule 10.1.3.2

Scope of Services Emergency contracts shall be limited to those personal or professional services necessary to meet the emergency.

12 Miss. Admin. Code Pt. 9, R. 10.1.3.3 Rule 10.1.3.3

Period of Performance The term of an emergency contract shall be limited to the time necessary to meet the emergency, but in no circumstances shall the term exceed one year. If the Agency will continue to need the personal or professional services beyond the term of the emergency contract, the Agency shall take the necessary steps to competitively procure the services before the emergency contract expires.

12 Miss. Admin. Code Pt. 9, R. 10.1.4 Rule 10.1.4

Documentation in MAGIC The Agency Head determination and the emergency contract shall be uploaded to the contract file in MAGIC and made available for public inspection on the Transparency website within 10 business days of contract execution.

CHAPTER 10: Emergency and Exigent Circumstances Contracts

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12 Miss. Admin. Code Pt. 9, R. 10.1.5 Rule 10.1.5

OPSCR Review of an Emergency Contract When an emergency contract is routed to OPSCR in MAGIC, OPSCR will review the contract to ensure the contractor is providing personal or professional services. If so, OPSCR will immediately approve the contract in MAGIC without further review. Such approval is for processing purposes only and does not represent review or approval by PPRB or OPSCR.

Upon request of the Agency or at the discretion of OPSCR, emergency contracts will undergo a post-approval audit for technical compliance with the requirements in this chapter. It is the sole responsibility of the Agency to correct any errors and ensure full compliance with the requirements of this chapter.

12 Miss. Admin. Code Pt. 9, R. 10.1.6 Rule 10.1.6

Notice of Contract Award A Notice of Contract Award shall be prepared following (1) approval by any boards or required entities, if applicable, and (2) execution of the contract, contract renewal, or contract amendment. The Notice of Contract Award shall be posted publicly on the Agency website and on the Transparency website. The Notice of Contract Award shall include an analysis as to why the personal or professional services contract was awarded, renewed, or amended. Executive Order 1362, Governor Phil Bryant: Promoting Transparency in Public Contracting, July 31, 2015.

12 Miss. Admin. Code Pt. 9, R. 10.1.7 Rule 10.1.7

Reporting Emergency Contracts OPSCR shall report all emergency contracts to PPRB and to the AET Chairs. Agencies submitting emergency contracts shall cooperate with OPSCR in providing the information necessary for such reports.

12 Miss. Admin. Code Pt. 9, R. 10.2 Rule 10.2

Exigent Circumstances Not Qualifying as an Emergency PPRB may approve new contracts or contract renewals beyond those originally contemplated in the original solicitation where exigent circumstances warrant such approval.

12 Miss. Admin. Code Pt. 9, R. 10.2.1 Rule 10.2.1

Definition of Exigent Circumstances Exigent circumstances are circumstances giving rise to a pressing need which cannot be met by undertaking another method of procurement allowed by these rules and regulations, such as supply chain disruptions or impending loss of funding source.

12 Miss. Admin. Code Pt. 9, R. 10.2.2 Rule 10.2.2

Agency Head Determination The Agency Head shall make a written determination that exigent circumstances exist, including an explanation of the circumstances and why the need cannot be met through other available methods of procurement. The determination shall also explain how the Agency sought to maximize competition or provide a detailed description of why competition is unobtainable.

12 Miss. Admin. Code Pt. 9, R. 10.2.3 Rule 10.2.3

Contracting with Incumbent Vendor under Exigent Circumstances In the event a contract or contract renewal is entered under this Section with an incumbent vendor, the incumbent shall agree to extend all terms and conditions in the existing contract, including price.

CHAPTER 10: Emergency and Exigent Circumstances Contracts

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12 Miss. Admin. Code Pt. 9, R. 10.2.4 Rule 10.2.4

PPRB Approval Required The Agency shall submit (1) the Agency Head determination and (2) the exigent circumstances contract to OPSCR pursuant to the deadlines established for submission of all contracts.

OPSCR will review all documentation to determine if the Agency is procedurally in compliance with Section 10.2 and all requirements governing such contracts. If so, OPSCR will submit the contract to PPRB for approval at the next regularly scheduled meeting.

It shall be the sole responsibility of the contracting Agency to explain the exigent circumstances to PPRB and advocate for approval of the contract. OPSCR will advise PPRB as to procedural compliance only. PPRB shall agree that the exigent circumstance requires contracting for personal and professional services outside of any other method of procurement allowed by these rules and regulations.

PPRB must approve an exigent circumstances contract prior to contract execution. Agencies may execute a contract following oral approval of the contract by the PPRB and are not required to delay contract execution until the PPRB’s minutes are final. See Section 1.1.7.3.

12 Miss. Admin. Code Pt. 9, R. 10.2.5 Rule 10.2.5

Notice of Contract Award A Notice of Contract Award shall be prepared following (1) approval of PPRB, if applicable; (2) approval by any other boards or required entities, if applicable; and (3) execution of the contract, contract renewal, or contract amendment. The Notice of Contract Award shall be posted publicly on the Agency website and on the Transparency website. The Notice of Contract Award shall include an analysis as to why the personal or professional services contract was awarded, renewed, or amended. Executive Order 1362, Governor Phil Bryant: Promoting Transparency in Public Contracting, July 31, 2015.

12 Miss. Admin. Code Pt. 9, R. 10.3 Rule 10.3

Circumvention of Procurement Requirements If the PPRB reasonably suspects an Agency is using emergency or exigent circumstances contracts to circumvent the requirement to use other available methods of procurement, the PPRB shall make a report of any such suspicions first to the Agency Head of the procuring Agency. If the PPRB is not satisfied with the explanation or corrective action of the Agency, the PPRB shall make a report to OSA and the AET Chairs.

As of the effective date of these regulations, Agencies shall submit exigent circumstances contracts as a “Purchasing (General)” contract (82000#####) in MAGIC.

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CHAPTER 11: GOVERNMENT-TO-GOVERNMENT CONTRACTING

12 Miss. Admin. Code Pt. 9, R. 11.1 Rule 11.1

Contracting With a State Agency Under Purview of PPRB ........................................ 105 11.2 Contracting With a Governmental Entity Not Under Purview of PPRB .................... 105 11.2.1 Agency Head Determination Required .................................................................. 105 11.2.1.1 Adequate Determination of FMV ............................................................... 105 11.2.2 Approval of PPRB ................................................................................................. 105 11.3 Notice of Contract Award ............................................................................................. 105

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Where another Agency or other public entity in the State of Mississippi offers personal or professional services which would meet the procuring Agency’s needs, Mississippi Code Annotated § 27-104-7(2)(i) allows the procuring Agency to contract with the state Agency or other public entity for provision of the services without soliciting the private sector.

12 Miss. Admin. Code Pt. 9, R. 11.1 Rule 11.1

Contracting with a State Agency Under Purview of PPRB Where an Agency under the purview of PPRB contracts with another Agency under the purview of PPRB to provide personal and professional services, PPRB approval is not required. Such contracts shall be entered into MAGIC and shall be available for public inspection on the Transparency website.

12 Miss. Admin. Code Pt. 9, R. 11.2 Rule 11.2

Contracting with a Governmental Entity Not Under Purview of PPRB Where the procuring Agency is under PPRB’s purview and the state Agency or other public entity with whom the procuring Agency is contracting is not under PPRB’s purview, PPRB approval is required if the contract value is greater than $75,000.00.

12 Miss. Admin. Code Pt. 9, R. 11.2.1 Rule 11.2.1

Agency Head Determination Required The Agency Head shall submit a written determination explaining that : (1) such services meet the Agency’s requirements, and (2) the price represents a fair market value (“FMV”) for such services. This determination shall be made by the Agency Head and may not be made by a designee. The Agency shall provide sufficient documentation supporting the determination that the price represents FMV.

12 Miss. Admin. Code Pt. 9, R. 11.2.1.1 Rule 11.2.1.1

Adequate Determination of FMV PPRB shall have authority to determine whether the Agency’s method of determining FMV was sufficient to show a reasonable, good faith effort to demonstrate FMV. However, neither OPSCR nor PPRB shall be responsible to determine whether the cost of personal and professional services is a true representation of FMV; that determination shall be made solely by the procuring Agency.

12 Miss. Admin. Code Pt. 9, R. 11.2.2 Rule 11.2.2

Approval of PPRB Government-to-government contracts described in Section 11.2 shall be submitted for PPRB approval prior to contract execution. Agencies shall refer to Sections 1.2.1, 1.2.2, and 14.8 regarding submission to OPSCR. Agencies may execute a contract at any point following oral approval of the contract by the PPRB. Agencies are not required to delay contract execution until the PPRB’s minutes are final. See Section 1.1.7.3.

12 Miss. Admin. Code Pt. 9, R. 11.3 Rule 11.3

Notice of Contract Award A Notice of Contract Award shall be prepared following (1) approval of PPRB, if applicable; (2) approval by any other boards or required entities, if applicable; and (3) execution of the contract, contract renewal, or contract amendment. The Notice of Contract Award shall be posted publicly on the Agency website and on the Transparency website. The Notice of Contract Award shall include an analysis as to why the personal or professional services contract was awarded, renewed, or amended. Executive Order 1362, Governor Phil Bryant: Promoting Transparency in Public Contracting, July 31, 2015.

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CHAPTER 12: STATUTORY EXEMPTIONS and NO COST CONTRACTS

12 Miss. Admin. Code Pt. 9, R. 12.1 Rule 12.1

Statutory Exemptions .................................................................................................... 107 12.1.1 Responsibility to Determine Applicability of Exemption ....................................... 107 12.1.2 Exemptions for Any Element of the Procurement Process ..................................... 107 12.1.3 Professional Exemptions ....................................................................................... 107 12.1.3.1 Contracts with Attorneys ........................................................................... 107 12.1.3.2 Contracts with Engineers and Architects ................................................... 108 12.2 No Cost Contracts ......................................................................................................... 108 12.2.1 Responsibility to Determine Applicability of Exemption ....................................... 108 12.3 Notice of Contract Award ............................................................................................. 108 12.4 Reporting Exempt and No Cost Contracts ................................................................... 108 12.5 Circumvention of Procurement Requirements ............................................................ 109

CHAPTER 12: Statutory Exemptions and No Cost Contracts

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12 Miss. Admin. Code Pt. 9, R. 12.1 Rule 12.1

Statutory Exemptions Mississippi Code Annotated § 27-104-7 contains numerous Agency-specific and/or service- specific contracts which do not require PPRB approval. Various other sections of the Mississippi Code may contain additional exemptions from PPRB’s purview. Where an Agency is claiming a contract for personal or professional services is statutorily exempt and does not require PPRB approval, the Agency shall submit a memorandum signed by the Agency Head and the Agency’s legal counsel citing the statutory exemption and explaining how the exemption is applicable to the contract submitted.

12 Miss. Admin. Code Pt. 9, R. 12.1.1 Rule 12.1.1

Responsibility to Determine Applicability of Exemption It shall be the sole responsibility of the procuring Agency to determine whether a contract for personal or professional services meets any relevant statutory exemptions. OPSCR will accept a memorandum executed by the Agency Head and the Agency’s legal counsel without independent analysis as to whether the exemption applies. OPSCR will approve the contract in MAGIC where the requirements of Section 12.1 are met.

12 Miss. Admin. Code Pt. 9, R. 12.1.2 Rule 12.1.2

Exemptions for Any Element of the Procurement Process The Mississippi Code may contain certain Agency-specific or service-specific exemptions for one or more elements of the procurement process rather than a contract being fully exempt from all procurement requirements and PPRB approval. The requirements and responsibilities in Sections 12.1 and 12.1.1 shall be applicable to any such exemption.

For example, Agencies which are required to issue an RFP for certain services are exempt from the requirement to have PPRB approve a petition for relief approving the Agency’s request to use an RFP.

12 Miss. Admin. Code Pt. 9, R. 12.1.3 Rule 12.1.3

Professional Exemptions As of the effective date of these rules and regulations, Mississippi Code Annotated § 27- 104-7 exempts contracts with attorneys, accountants, actuaries, auditors, architects, engineers, anatomical pathologists, and utility rate experts from requiring approval by PPRB. To qualify for the exemption, the Agency shall be contracting with a professional to provide the exempt professional service.

As examples, a contract with a paralegal for legal support services is not exempt under the “attorneys” exemption as the contracting party is not an attorney. Similarly, a contract with an accounting firm to provide call center services is not exempt under the “accountants” exemption as the firm is not providing professional accounting services.

12 Miss. Admin. Code Pt. 9, R. 12.1.3.1 Rule 12.1.3.1

Contracts with Attorneys Although exempt from the requirements herein, contracts with attorneys are not exempt from Mississippi Code Annotated § 27-104-105, the relevant regulations promulgated by the Mississippi State Personnel Board, the relevant regulations promulgated by the Office of the Attorney General, or any other relevant laws.

CHAPTER 12: Statutory Exemptions and No Cost Contracts

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12 Miss. Admin. Code Pt. 9, R. 12.1.3.2 Rule 12.1.3.2

Contracts with Engineers and Architects Although exempt from the requirements herein, contracts with engineers and architects are not exempt from Mississippi Code Annotated § 31-11-3(7), the relevant regulations promulgated by the Bureau of Building, Grounds, and Real Property Management at DFA, or any other relevant laws.

12 Miss. Admin. Code Pt. 9, R. 12.2 Rule 12.2

No Cost Contracts A no cost contract is a contract in which there is no expenditure of public funds from any funding source (state, federal, or other). PPRB does not have purview over these contracts. Where any Agency is claiming a contract for personal or professional services is a no cost contract, the Agency shall submit a memorandum signed by the Agency’s legal counsel and the Agency’s chief financial officer with an explanation as to the source of funding such that the contract meets the definition of no cost contract.

For example, a contract for commissary services at a prison in which inmates purchase items from the commissary using their personal money is a no cost contract if the prison does not directly pay the contractor for any goods or services because the contract is paid entirely with non-public funds (i.e., money from inmates’ personal accounts).

Alternatively, a contractor recovering overpayments made by an Agency administering a public benefit program on a contingency fee basis is not a no cost contract, even where the contractor withholds its payment from the recovered funds prior to returning the remainder of the recovered funds to the Agency. The full amount of recovered funds belongs to the Agency and therefore the percentage of recovered funds paid to the contractor constitutes public funds even if that payment is not processed by the Agency.

12 Miss. Admin. Code Pt. 9, R. 12.2.1 Rule 12.2.1

Responsibility to Determine Applicability of Exemption It shall be the sole responsibility of the procuring Agency to determine whether a contract for personal or professional services is a no cost contract. OPSCR will accept a memorandum executed by the Agency’s legal counsel and the Agency’s chief financial officer without independent analysis as to whether the contract meets the definition of a no cost contract and OPSCR will approve the contract in MAGIC where the requirements of Section 12.2 are met.

12 Miss. Admin. Code Pt. 9, R. 12.3 Rule 12.3

Notice of Contract Award A Notice of Contract Award shall be prepared following (1) approval by any boards or required entities, if applicable and (2) execution of the contract, contract renewal, or contract amendment. The Notice of Contract Award shall be posted publicly on the Agency website and on the Transparency website. The Notice of Contract Award shall include an analysis as to why the personal or professional services contract was awarded, renewed, or amended. Executive Order 1362, Governor Phil Bryant: Promoting Transparency in Public Contracting, July 31, 2015.

12 Miss. Admin. Code Pt. 9, R. 12.4 Rule 12.4

Reporting Exempt and No Cost Contracts All contracts approved in MAGIC as statutorily exempt and/or no cost contracts shall be regularly reported to PPRB and the AET Chairs.

CHAPTER 12: Statutory Exemptions and No Cost Contracts

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12 Miss. Admin. Code Pt. 9, R. 12.5 Rule 12.5

Circumvention of Procurement Requirements If DFA and/or PPRB reasonably suspect an Agency is declaring its contracts to be statutorily exempt and/or no cost contracts in circumvention of the law or other procurement regulations, PPRB shall make a report of any such suspicion first to the Agency Head of the procuring Agency. If PPRB is not satisfied with the explanation or corrective action of the Agency, PPRB shall make a report to OSA and the AET Chairs.

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CHAPTER 13: SMALL PURCHASES

12 Miss. Admin. Code Pt. 9, R. 13.1 Rule 13.1

Application of this Regulation....................................................................................... 111 13.1.1 Artificial Division of Requirements Prohibited ...................................................... 111 13.1.2 Multiple Small Purchase Contracts with the Same Vendor ..................................... 111 13.2 Procuring Services Not Exceeding $50,000.00 .............................................................. 111 13.3 Procuring Services Exceeding $50,000.00 but Not Exceeding $75,000.00 ................... 111 13.3.1 Solicitation of Quotes ............................................................................................ 111 13.3.2 Award ................................................................................................................... 112 13.4 Notice of Contract Award ............................................................................................. 112

CHAPTER 13: Small Purchases

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PPRB is statutorily obligated to review and either approve or disapprove personal and professional service contracts which exceed $75,000.00 and which are not otherwise exempt from PPRB’s purview. Mississippi Code Annotated § 27-104-7(2)(g). Any procurement of personal or professional services which does not result in a contract exceeding $75,000.00 is a small purchase and does not require PPRB approval. Competition is encouraged. Small purchases may be made in accordance with the procedures provided herein.

12 Miss. Admin. Code Pt. 9, R. 13.1 Rule 13.1

Application of this Regulation Agencies may use the procedures set forth in this chapter to procure personal and professional services when the contract value will not exceed $75,000.00. If the Agency chooses not to use the procedures in this chapter, one of the other methods of source selection discussed in Chapter 3 shall be used.

12 Miss. Admin. Code Pt. 9, R. 13.1.1 Rule 13.1.1

Artificial Division of Requirements Prohibited Procurement requirements, including the total funds to be expended, the scope of services, or the timeframe in which such services will be needed, shall neither be artificially divided nor underestimated so as to constitute a small purchase under this chapter. There should be only one contract between a single Agency and a single vendor for a particular service type unless a written justification as to why the Agency requires more than a single contract has been signed by the Agency Head and the Agency’s chief financial officer and uploaded to MAGIC. Agencies should construe this regulation in favor of competition where there is any uncertainty.

12 Miss. Admin. Code Pt. 9, R. 13.1.2 Rule 13.1.2

Multiple Small Purchase Contracts with the Same Vendor If any Agency has multiple contracts for personal and professional services with the same vendor and the cumulative total of those contracts exceeds $75,000.00, SPAHRS and/or MAGIC will automatically route the contract to OPSCR for review. PPRB has delegated authority to OPSCR to approve any such contracts only after the Agency has posted the written justification required by Section 13.1.1 in MAGIC. OPSCR will review the letter for procedural compliance only and will not substitute its judgment for that of the procuring Agency with regard to whether a service has been artificially divided.

12 Miss. Admin. Code Pt. 9, R. 13.2 Rule 13.2

Procuring Services Not Exceeding $50,000.00 The Agency Head shall adopt standard operating procedures for making small purchases which do not exceed $50,000.00. Such procedures shall provide for obtaining adequate and reasonable competition and for making records to properly account for funds and facilitate auditing of the procuring Agency.

12 Miss. Admin. Code Pt. 9, R. 13.3 Procuring Services Exceeding $50,000.00 but Not Exceeding $75,000.00

12 Miss. Admin. Code Pt. 9, R. 13.3.1 Rule 13.3.1

Solicitation of Quotes Insofar as it is practical for small purchases of services greater than $50,000.00 and not exceeding $75,000.00, no less than three quotes shall be solicited. The Agency should request offerors to submit written responses which identify the offeror.

CHAPTER 13: Small Purchases

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The names of the vendors submitting quotes and the date and amount of each quotation shall be recorded and maintained in the Agency Procurement File. In the event three written responses are not obtained, the Agency shall include a memorandum in the Agency Procurement File explaining why this was not accomplished.

12 Miss. Admin. Code Pt. 9, R. 13.3.2 Rule 13.3.2

Award Award shall be made to the vendor submitting the lowest-priced responsive and responsible quote unless a written justification as to why the lowest-priced response did not meet the Agency’s needs. All vendors submitting responses shall be promptly notified in writing of the contract award. A copy of each notification letter shall be kept in the Agency Procurement File.

12 Miss. Admin. Code Pt. 9, R. 13.4 Rule 13.4

Notice of Contract Award A Notice of Contract Award shall be prepared following (1) approval by any boards or required entities, if applicable and (2) execution of the contract, contract renewal, or contract amendment. The Notice of Contract Award shall be posted publicly on the Agency website and on the Transparency website. The Notice of Contract Award shall include an analysis as to why the personal or professional services contract was awarded, renewed, or amended. Executive Order 1362, Governor Phil Bryant: Promoting Transparency in Public Contracting, July 31, 2015.

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CHAPTER 14: CONTRACTS

12 Miss. Admin. Code Pt. 9, R. 14.1 Rule 14.1

Selection of Contract Type ............................................................................................ 115 14.2 Types of Contracts ......................................................................................................... 115 14.2.1 Fixed-Price Contracts ............................................................................................ 115 14.2.1.1 Firm Fixed-Price Contract ........................................................................ 116 14.2.1.2 Fixed-Price Contract with Price Adjustment .............................................. 116 14.2.1.3 Definite Quantity Contracts ....................................................................... 116 14.2.1.4 Indefinite Quantity Contracts..................................................................... 116 14.2.2 Requirements Contracts ......................................................................................... 117 14.2.3 Cost Reimbursement Contract ............................................................................... 117 14.2.4 Cost-Plus-a-Percentage-of-Cost Contract ............................................................... 117 14.2.5 Use of Contract Types Not Herein Described ........................................................ 117 14.3 Multi-Term Contracts ................................................................................................... 117 14.3.1 Maximum Period of Performance .......................................................................... 118 14.3.2 Circumstances in Which to Use a Multi-Term Contract ......................................... 118 14.3.3 Solicitation for a Multi-Term Contract................................................................... 118 14.4 Multiple Source Contracting......................................................................................... 119 14.4.1 Limitations on Multiple Source Contracting .......................................................... 119 14.5 Contract Requirements ................................................................................................. 119 14.5.1 Description of Services to be Provided .................................................................. 119 14.5.2 Monitoring Contract Performance ......................................................................... 119 14.5.3 Insurance, Bonds, and other Requirements ............................................................ 119 14.6 Contract Assignment ..................................................................................................... 120 14.6.1 Novation Required to Document a Contract Assignment ....................................... 120 14.6.2 OPSCR Staff Authority ......................................................................................... 120 14.7 Contractor’s Change of Name ...................................................................................... 120 14.7.1 OPSCR Staff Authority ......................................................................................... 120 14.8 Submission of Contracts for PPRB Approval .............................................................. 120

CHAPTER 14: Contracts

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12 Miss. Admin. Code Pt. 9, R. 14.8.1 Rule 14.8.1

Submission Deadlines ........................................................................................... 120 14.8.2 Renewals and Modifications .................................................................................. 121 14.8.2.1 Modification in Accordance with a Change in Law .................................... 121 14.8.2.2 OPSCR Staff Authority .............................................................................. 122 14.8.3 Regulatory Board Approval ................................................................................... 122 14.8.4 SPAHRS and MAGIC Procedures ......................................................................... 122 14.9 Executed Contracts ....................................................................................................... 122 14.10 Notice of Contract Award, Renewal, or Amendment ................................................ 123 14.11 Contract Auditing and Monitoring ............................................................................. 123 14.11.1 Agency Responsibility ......................................................................................... 123 14.11.1.1 Continuous Internal Audit Required ........................................................ 123 14.11.1.2 Monitoring Contract Performance ........................................................... 123 14.11.2 Audits Requested by PPRB ................................................................................. 123 14.11.3 Contractor’s Books and Records .......................................................................... 124 14.12 Expired or Expiring Contracts ................................................................................... 124 14.12.1 Expired Contracts ................................................................................................ 124 14.12.2 Expiring Contracts ............................................................................................... 124 14.12.2.1 Retroactive PPRB Approval..................................................................... 124 14.12.2.2 Short Term Extension of Period of Performance ...................................... 125 14.13 Contract Termination ................................................................................................. 125 14.14 Remedies ...................................................................................................................... 125 14.15 Contracting Following Default .................................................................................... 125 14.15.1 Parameters of Default .......................................................................................... 125 14.15.2 Terms and Conditions .......................................................................................... 125 14.15.3 Period of Performance ......................................................................................... 126 14.15.4 PPRB Approval ................................................................................................... 126 14.15.5 Where Vendor Refuses to Contract ...................................................................... 126 Exhibit 1: Sample Solicitation Language for Price Adjustments ........................................ 127

CHAPTER 14: Contracts

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This chapter contains descriptions of the various contract types which Agencies may use to contract with vendors providing personal and professional services. This chapter also discusses various contract terms and requirements for contract administration.

12 Miss. Admin. Code Pt. 9, R. 14.1 Rule 14.1

Selection of Contract Type The selection of an appropriate contract type depends on the nature of the services to be procured, the uncertainties which may be involved in contract performance, and the extent to which the Agency or the contractor is to assume the risk of the cost of contract performance.

The objective when selecting a contract type is to obtain the services needed in the time required and in a way that provides best value to the Agency. In order to achieve this objective, the procuring Agency should review those elements of the procurement which directly affect the cost, time, risk, and profit incentive prior to selecting the contract type.

Factors to consider in selecting any type of contract include, but are not limited to:

• the type and complexity of services being procured; • the difficulty of estimating performance costs; • the administrative costs to both parties; • the degree to which the Agency will need to provide technical coordination; • the effect on the amount of competition to be expected; • the stability of market prices or wage levels; • the urgency of the requirement; and • the length of contract performance.

It is self-defeating for a procuring Agency to select a type of contract which would place an unreasonable economic risk on the contractor, since such action may jeopardize satisfactory performance of the contract and/or result in inflated contract pricing.

12 Miss. Admin. Code Pt. 9, R. 14.2 Rule 14.2

Types of Contracts Subject to the limitations herein, any type of contract which will promote the Agency’s best interests may be used.

12 Miss. Admin. Code Pt. 9, R. 14.2.1 Rule 14.2.1

Fixed-Price Contracts A fixed-price contract places responsibility on the contractor for the performance of the service at a price that may be firm or may be subject to contractually specified adjustments. The fixed-price contract is appropriate for use when the extent and type of work necessary to meet requirements can be reasonably specified and the cost can be reasonably estimated.

Fixed-price contracts are preferred and should be used whenever possible. However, when risks are unknown or not readily measurable, use of fixed price contracts may result in inflated prices, inadequate competition, and/or poor performance.

CHAPTER 14: Contracts

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12 Miss. Admin. Code Pt. 9, R. 14.2.1.1 Rule 14.2.1.1

Firm Fixed-Price Contract A firm fixed-price contract provides a price that is not subject to adjustment. It should be used whenever prices which are fair and reasonable for the life of the contract can be established at the outset.

For example, an Agency agrees to pay $200.00 per hour [fixed price] for 10 hours per week for three years. Another example is where an Agency agrees to pay $10,000.00 per month [fixed price] for four years regardless of the amount of services provided each month.

12 Miss. Admin. Code Pt. 9, R. 14.2.1.2 Rule 14.2.1.2

Fixed-Price Contract with Price Adjustment A fixed-price contract with price adjustment provides for variation in the contract price under specific conditions defined in the contract. The Agency shall define the terms and conditions of any price adjustment in the solicitation document.

For example, an Agency agrees to pay $200.00 per hour [fixed price] for 10 hours per week. In the solicitation document and the initial contract, the parties agree that upon satisfactory annual performance evaluation, the hourly rate will increase by 5% [price adjustment]. Thus, assuming the performance evaluation was satisfactory each year, the hourly rate would be $210 in the second year of the contract, $220.50 in the third year, $231.53 in the fourth year, and $243.10 in the fifth year.

12 Miss. Admin. Code Pt. 9, R. 14.2.1.3 Rule 14.2.1.3

Definite Quantity Contracts A definite quantity contract is a fixed-price contract that provides for delivery of a specified quantity of services.

For example, an Agency agrees to pay $2,000.00 per month [fixed price] for a janitorial service to clean Agency bathrooms once per day every business day of the month. [definite quantity].

12 Miss. Admin. Code Pt. 9, R. 14.2.1.4 Rule 14.2.1.4

Indefinite Quantity Contracts An indefinite quantity contract is a contract for an indefinite amount of services to be furnished at specified times, or as ordered, that establishes fixed unit prices. Generally, an approximate quantity or the best information available as to quantity is stated in the solicitation.

For example, an Agency will pay $100.00 per hour for a human resources consultant on an as-needed basis. In one month, the Agency did not require any services, in the second month the Agency required 200 hours of services, and in the third month the Agency required 40 hours of services. The Agency paid $0.00, $20,000.00, and $4,000.00 for months one through three, respectively. The solicitation for this type of contract may have evaluated the historic average use of the human resources consultant to allow offerors to develop a price.

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12 Miss. Admin. Code Pt. 9, R. 14.2.2 Rule 14.2.2

Requirements Contracts A requirements contract is an indefinite quantity contract that obligates the procuring Agency to order its actual requirements from the Contractor on an as-needed basis during a specified period of time. This is sometimes referred to as a “stand-by” contract.

The example provided in Section 14.2.1.4 is a Requirements Contract.

12 Miss. Admin. Code Pt. 9, R. 14.2.3 Rule 14.2.3

Cost Reimbursement Contract A cost reimbursement contract is one in which the Agency directly reimburses the vendor for costs in addition to a fee for the personal and professional services provided. A cost reimbursement contract should be used only when such a contract is less costly to the Agency than any other type of contract or when it is impracticable to obtain the services required except under such a contract. Unless a contract specifically allows for cost reimbursement, the contract pricing shall be considered all-inclusive and does not include reimbursement for individual costs to the Contractor.

For example, in addition to the hourly rate agreed upon, the human resources consultant described in the example in Section 14.2.1.4 would also be reimbursed for expenses described in the contract such as mileage, travel , and presentation materials.

12 Miss. Admin. Code Pt. 9, R. 14.2.4 Rule 14.2.4

Cost-Plus-a-Percentage-of-Cost Contract A cost-plus-a-percentage-of-cost contract is one in which, prior to beginning the work, the parties agree that the fee will be a predetermined percentage of the total cost of the work, creating a scenario in which the contractor’s fee increases proportionally with increases in contract expenditures. The contractor’s incentive may, therefore, be to incur cost at the expense of the Agency. Agencies are urged to avoid the use of cost-plus-a-percentage-of- cost contracts.

For example, an Agency retains a janitorial service and agrees to pay the service provider its labor costs plus an additional 25%. This type of arrangement may incentivize the vendor to overstaff the janitorial services at the Agency in order to increase its income.

12 Miss. Admin. Code Pt. 9, R. 14.2.5 Rule 14.2.5

Use of Contract Types Not Herein Described Any type of contract which is in the Agency’s best interest may be used.

12 Miss. Admin. Code Pt. 9, R. 14.3 Rule 14.3

Multi-Term Contracts Multi-term contracts are those contracts which (1) have a period of performance lasting more than one year; (2) have a period of performance which spans two or more state fiscal years; and/or (3) have renewal clauses which, if exercised, would make the period of performance more than one year or make the period of performance span two or more state fiscal years. (The state fiscal year runs from July 1 to the following June 30.)

A multi-term contract is appropriate when it is in the Agency’s best interest to obtain uninterrupted services, where performance of such services involves high start-up costs, or where implementation of a new service contractor involves high transition costs to the incumbent vendor, the new vendor, or both.

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Any such contract shall contain the Availability of Funds clause found in Appendix E.

12 Miss. Admin. Code Pt. 9, R. 14.3.1 Rule 14.3.1

Maximum Period of Performance Unless otherwise provided by law, a contract for personal and professional services may be entered into for a maximum period of performance of five years. This limitation does not apply to contracts for contract workers.

The original period of performance and conditions for renewal, if any, shall be included in the solicitation. Funds shall be available for the first fiscal period at the time of contracting. Payment and performance obligations for succeeding fiscal periods shall be subject to the availability and appropriation of funds.

If an Agency believes it is in the Agency’s best interest for a specific contract to have a period of performance which is longer than the maximum period described above, the Agency may petition PPRB to approve a longer period of performance. It shall be in PPRB’s sole discretion to grant or deny the petition. Such approval shall occur prior to issuance of the solicitation and the period of performance approved by PPRB shall be included in the solicitation. Such a request shall be signed by the Agency Head and submitted to the Director of OPSCR pursuant to the deadlines established by PPRB for contract approval.

12 Miss. Admin. Code Pt. 9, R. 14.3.2 Rule 14.3.2

Circumstances in Which to Use a Multi-Term Contract Multi-term contracts should only be used when the Agency’s need for personal and professional services is reasonably firm and continuing, when use of a multi-term contract would encourage effective competition and promote economies in public procurement, and when use of a multi-term contract is in the Agency’s best interest.

Factors which an Agency may consider in deciding whether to use a multi-term contract include:

• whether the vendor would need to recover high startup costs; • whether continuity of performance would result in lower pricing or better quality; • whether continuity of performance would stabilize the contractor’s workforce; • the administrative burden of the procurement process may be reduced.

Any other relevant factors may also be considered. It is presumed that an Agency using a multi-term contract has made this determination by choosing to use a multi-term contract.

12 Miss. Admin. Code Pt. 9, R. 14.3.3 Rule 14.3.3

Solicitation for a Multi-Term Contract The solicitation for a multi-term contract shall state the term of the contract the Agency is soliciting and instruct potential offerors as to how the Agency intends for the offerors to submit pricing for the life of the contract. The Agency may require pricing which will remain firm and fixed throughout the life of the contract, but if the Agency will allow a price adjustment, the price adjustment allowed shall be adequately defined in the solicitation such that all pricing is known at the time of contracting. The Availability of

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Funds clause in Appendix E shall also be included in the solicitation. Award shall be made as stated in the solicitation and permitted under the source selection method utilized.

12 Miss. Admin. Code Pt. 9, R. 14.4 Rule 14.4

Multiple Source Contracting Contract arrangements in which the Agency establishes contracts with multiple providers of a single service may only be used when necessary to ensure adequate provision of the personal and professional services required. An Agency shall state its intent to award a contract to multiple bidders, offerors, or applicants in the solicitation document.

12 Miss. Admin. Code Pt. 9, R. 14.4.1 Rule 14.4.1

Limitations on Multiple Source Contracting Multiple source contracting shall not be made when a single source will meet the Agency’s needs without sacrifice of economy or service. Awards shall not be made for the purpose of dividing the business, avoiding the resolution of tie bids, or for making vendor selection available to allow for Agency preference without regard to utility or economy. Any such awards shall be limited to the least number of contractors necessary to meet the valid requirements of the Agency.

12 Miss. Admin. Code Pt. 9, R. 14.5 Rule 14.5

Contract Requirements All contracts for personal and professional services shall:

• be in writing, • include a description of the services and deliverables to be provided, • state the period of performance, • list the price for the services, including any price adjustment allowed, • include all clauses required for contracts in Appendix E, and • include any additional clauses the Agency deems appropriate.

The contract terms shall reflect the personal and professional services solicited, the length of performance stated in the solicitation, the price as submitted by the contracting vendor and/or as described in the solicitation, any price adjustment allowed by the solicitation, and any other modifications which are allowed by the solicitation.

12 Miss. Admin. Code Pt. 9, R. 14.5.1 Rule 14.5.1

Description of Services to be Provided The description of services to be performed should be result-oriented, not procedure- oriented, and shall include any information necessary to ensure the service will meet the Agency’s needs.

12 Miss. Admin. Code Pt. 9, R. 14.5.2 Rule 14.5.2

Monitoring Contract Performance The description of services to be performed, the list of specifications or deliverables, and any other applicable contract terms shall be used as evaluation criteria when monitoring contract performance.

12 Miss. Admin. Code Pt. 9, R. 14.5.3 Rule 14.5.3

Insurance, Bonds, and other Requirements Insurance, performance bonds, or other security may be required for service contracts to protect the interest of the Agency. Any such requirements shall be set forth in the solicitation. Insurance, performance bonds, or other security should not be used as a

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substitute for a determination of offeror responsibility. Agencies may not specify a specific company or insurance agency from which required insurance, bonds, or other security should be purchased. If the requirement for insurance, bond, or other requirement is included in the solicitation document, it cannot be waived during the life of the contract.

12 Miss. Admin. Code Pt. 9, R. 14.6 Rule 14.6

Contract Assignment A contractor may assign all rights and obligations under a contract to another entity only with the express, written consent of the Agency with whom it has contracted. The Agency shall determine if the assignment is in the Agency’s best interest prior to providing consent.

12 Miss. Admin. Code Pt. 9, R. 14.6.1 Rule 14.6.1

Novation Required to Document a Contract Assignment The assignment of the contract to a successor in interest shall be recognized in a Novation document. A Novation is appropriate to recognize an assignment of contract rights and obligations from a contractor to a different private sector entity, as well as from one state Agency to another.

On the Novation document, the original contractor shall be identified as the Transferor and the contractor to whom the rights and obligations will be assigned shall be identified as the Transferee. The Novation agreement shall explicitly state that the Transferor and the Transferee agree:

• the Transferee assumes all of the Transferor’s obligations; • the Transferor waives all rights under the contract as to the Agency and the state; and • either the Transferor guarantees performance of the contract by the Transferee, or the Transferee shall provide a performance bond which is satisfactory to the Agency.

12 Miss. Admin. Code Pt. 9, R. 14.6.2 Rule 14.6.2

OPSCR Staff Authority PPRB has delegated authority to approve contract assignments to OPSCR staff.

12 Miss. Admin. Code Pt. 9, R. 14.7 Rule 14.7

Contractor’s Change of Name When a contractor requests to change the name in which it holds a contract with any Agency, the Agency shall, upon receipt of a document indicating such change of name (for example, an amendment to the articles of incorporation), enter into a contract amendment to effect the change. The amendment shall specifically indicate that no other terms and conditions of the contract are changed because of the contractor’s change of name. The Contractor shall be solely responsible to update its vendor profile in MAGIC as a result of a Contractor’s change of name.

12 Miss. Admin. Code Pt. 9, R. 14.7.1 Rule 14.7.1

OPSCR Staff Authority PPRB has delegated authority to approve a name change to OPSCR staff.

12 Miss. Admin. Code Pt. 9, R. 14.8 Submission of Contracts for PPRB Approval

12 Miss. Admin. Code Pt. 9, R. 14.8.1 Rule 14.8.1

Submission Deadlines Contracts shall be submitted 30 days prior to the PPRB meeting at which you are seeking approval. In order for the contract to be considered for placement on the PPRB Agenda, the contract, the Agency Procurement File, all forms required by OPSCR, and all

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documents required to demonstrate the Agency acted in compliance with the rules and regulations herein shall be submitted prior to the submission deadline.

The submission deadlines are applicable for contracts requiring PPRB approval and contracts for which PPRB has delegated approval authority to OPSCR (staff approvals).

See Section 1.2.1 regarding OPSCR’s discretionary authority to retain the contract for an additional month where OPSCR does not intend to recommend PPRB approve the contract.

12 Miss. Admin. Code Pt. 9, R. 14.8.2 Rule 14.8.2

Renewals and Modifications Any renewals or modifications shall be submitted using the deadlines for the original contract described in Section 14.8.1. Such submission shall include the contract document which amends the contract, any forms required by OPSCR, and all documents necessary to prove compliance with the rules and regulations herein. In order for the contract renewal or modification to be approved, it shall have been contemplated by and in accordance with the solicitation.

Modifications shall not grant extra compensation, fee, or allowance to any contractor after service is rendered or contract is made, unless contemplated within the solicitation and original contract or unless the scope of services is increased.

See Exhibit 1 to this chapter for sample solicitation language where the Agency may need a price adjustment during the life of the contract.

Any modifications to a contract’s scope of work shall have been contemplated in the solicitation. An Agency cannot modify a contract to include services which were not competitively procured. Any price increases or decreases due to modifications in the scope of work shall reflect the competitive pricing contemplated at the time of initial contracting which corresponds to the scope change.

PPRB delegates to OPSCR the ability to approve contract renewals in which the period of contract performance and the compensation are modified to reflect renewal year(s) in a manner which is strictly in conformance with the solicitation and no other terms and conditions of the contract are changed.

Modifications cannot be made to expired contracts.

12 Miss. Admin. Code Pt. 9, R. 14.8.2.1 Rule 14.8.2.1

Modification in Accordance with a Change in Law Where laws or regulations governing the procuring Agency are amended during the life of the contract which affect the scope, quantity, or price of services provided, the contract may be amended to reflect those changes where the Agency can demonstrate the modification is narrowly tailored to meet the requirements of the amended law or regulation, the amended law does not fundamentally alter the scope of the services originally procured, and the pricing for the modification reflects the competitively procured price. Any Agency seeking an amendment under this paragraph shall submit a memorandum to OPSCR and the Agency Procurement

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File documenting compliance with this Section and signed by the Agency Head and the Agency’s legal counsel.

12 Miss. Admin. Code Pt. 9, R. 14.8.2.2 Rule 14.8.2.2

OPSCR Staff Authority PPRB has delegated authority to OPSCR to approve the following modifications:

• Previously approved contracts which contain scrivener’s errors or have other technical problems which do not change the originally approved terms and conditions; • Modifications which reduce the dollar amount of contracts only; • Modifications in which the dollar amount and services are unchanged, including contracts with unit pricing in which the volume of services is modified but the scope and price of services is unchanged; • Modifications extending the period of performance and increasing the contract funds strictly in accordance with the solicitation, as described Section 14.8.2; • Short-term extension(s) of period of performance only, as described in Section 14.12.2.2. • Modifications in which the contract is terminated in part or in full.

12 Miss. Admin. Code Pt. 9, R. 14.8.3 Rule 14.8.3

Regulatory Board Approval Any contract, modification, or renewal requiring approval by a regulatory board other than PPRB shall be submitted to and approved by the appropriate regulatory board prior to submission for approval by PPRB. Prior to final processing of the contract in MAGIC by OPSCR, the Agency shall submit either minutes demonstrating regulatory board approval or written communication from the chair of the regulatory board confirming the date the contract was approved by the regulatory board. The requirements of this Section also apply where approval is required by an entity other than a regulatory board.

12 Miss. Admin. Code Pt. 9, R. 14.8.4 Rule 14.8.4

SPAHRS and MAGIC Procedures Agencies shall enter the complete information required by SPAHRS and/or MAGIC which will transmit personal and professional service contracts to OPSCR for review and PPRB approval, where necessary. The Agency shall follow all procedures specified by DFA for entry of such information.

Agencies who encounter technical issues with or have any questions regarding SPAHRS or MAGIC should contact MMRS for additional information or assistance. As of the effective date of these rules and regulations, the easiest way to contact MMRS is to email mash@dfa.ms.gov. Additional information can be found on the DFA website.

12 Miss. Admin. Code Pt. 9, R. 14.9 Rule 14.9

Executed Contracts After approval of a contract by PPRB, the contract may be fully executed. The executed contract shall be identical to the proposed contract approved by PPRB. The contract shall be executed by the Agency Head, or by an Agency official to whom the Agency Head has delegated authority, in writing, to execute such contract on behalf of the Agency.

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Unless exempted from disclosure due to a court-issued protective order, a copy of the executed contract is required to be posted to the Transparency website. Mississippi Code Annotated §§ 27- 104-151, et seq. The contract, including any accompanying exhibits, attachments, and appendices, is subject to the Mississippi Public Records Act of 1983 and its exceptions. Mississippi Code Annotated §§ 25-61-1, et seq. and Mississippi Code Annotated § 79-23-1. The personal or professional services to be provided, the unit prices, the overall price to be paid, and the term of the contract shall not be deemed to be a trade secret or confidential commercial or financial information, and shall be available for examination, copying, or reproduction. Mississippi Code Annotated § 25-61-9(7).

12 Miss. Admin. Code Pt. 9, R. 14.10 Rule 14.10

Notice of Contract Award, Renewal, or Amendment For each new contract and every time a contract is modified, the Agency shall publish on the Agency website and the Transparency website an analysis describing why the personal or professional services contract was awarded, renewed, or amended. The published document shall include a summary of the award, which shall include but is not limited to, the nature, duration and amount of the contract, the name of the contractor, and a statement that the contract is on file at the Agency and available for public inspection. Executive Order 1362, Governor Phil Bryant: Promoting Transparency in Public Contracting, July 31, 2015.

12 Miss. Admin. Code Pt. 9, R. 14.11 Contract Auditing and Monitoring

12 Miss. Admin. Code Pt. 9, R. 14.11.1 Agency Responsibility

12 Miss. Admin. Code Pt. 9, R. 14.11.1.1 Rule 14.11.1.1

Continuous Internal Audit Required Any Agency procuring services pursuant to these rules and regulations shall maintain continuous internal audit of personal and professional service contracts affecting the Agency’s revenue and expenditures, as required under Mississippi Code Annotated §§ 7-7-3(6)(d) and 27-104-7(f). Each Agency shall maintain an internal system of pre-auditing claims, demands, and accounts against the Agency to adequately ensure that only valid claims, demands, and accounts will be paid.

12 Miss. Admin. Code Pt. 9, R. 14.11.1.2 Rule 14.11.1.2

Monitoring Contract Performance The Agency Head shall ensure that contracts are monitored at least monthly to confirm acceptable performance, timely fulfillment of deliverables, and compliance with terms of the agreement. The Agency Head shall designate Agency official(s) to review and approve contract deliverables; ensure compliance with contractual terms; coordinate the flow of information between the parties; respond to requests of the contractor; monitor disbursements against the contract budget; monitor actual progress against work schedules; and complete any other task needed for successful contract management.

12 Miss. Admin. Code Pt. 9, R. 14.11.2 Rule 14.11.2

Audits Requested by PPRB Audits requested by PPRB shall be performed by OSA. PPRB may request an audit to ensure an Agency has used competitive procedures to contract for personal and professional services or to ensure satisfactory performance of any contract for personal or professional services, as allowed by Mississippi Code Annotated § 27-104-7(2)(m).

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12 Miss. Admin. Code Pt. 9, R. 14.11.3 Rule 14.11.3

Contractor’s Books and Records The procuring Agency and/or OSA shall be entitled to audit the books and records of a contractor or any subcontractor which are related to the contract or subcontract. Unless a shorter time is authorized in writing, the contractor shall maintain such books and records for a period of three years from the date of final payment.

12 Miss. Admin. Code Pt. 9, R. 14.12 Rule 14.12

Expired or Expiring Contracts Where an Agency intended to renew a contract under the terms and conditions therein, and a good faith administrative mistake results in the contract having expired and/or being due to expire prior to PPRB approval of a renewal term, the Agency has the following options:

12 Miss. Admin. Code Pt. 9, R. 14.12.1 Rule 14.12.1

Expired Contracts Once a contract has expired, the contract cannot be retroactively modified or renewed. Stringer, 1999 WL 529131 (Miss. A.G. June 25, 1999). However, where the contract has expired, but had been legally procured for additional contract terms, the Agency may enter a new contract with the same vendor under the same terms and conditions – including price – which would have applied had the renewal year(s) been exercised. Any new contract entered into under this Section shall be limited to the amount of time remaining in the procurement which resulted in the expired contract.

For example, if an Agency procured a service to be provided for three years with two optional one-year renewals, but the Agency mistakenly failed to renew the contract prior to the first renewal year being exercised, the Agency may enter into a new contract with the same vendor for one year with one optional one-year renewal under the same terms and conditions (including, but not limited to, price) as the original contract.

Under no circumstances may an Agency use this Section to contract with a different vendor than the vendor whose contract inadvertently expired or to contract for services which were not included in the expired contract.

The period of performance for any new contract entered into under this Section shall not be extended beyond the date the expired contract would have terminated by its own terms had all renewal periods been exercised.

12 Miss. Admin. Code Pt. 9, R. 14.12.2 Rule 14.12.2

Expiring Contracts Where an Agency has a contract that has not yet expired, but which will expire prior to the next regular meeting of PPRB, the Agency has the following two options:

12 Miss. Admin. Code Pt. 9, R. 14.12.2.1 Rule 14.12.2.1

Retroactive PPRB Approval Execute a renewal under the same terms and conditions which would have been applicable had the renewal been timely executed and approved by PPRB. The Agency shall petition PPRB for retroactive approval of the contract renewal. If PPRB declines to grant retroactive approval of the renewal, the contract renewal is deemed void and no payment shall be made thereon.

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12 Miss. Admin. Code Pt. 9, R. 14.12.2.2 Rule 14.12.2.2

Short Term Extension of Period of Performance Execute a contract modification which extends the period of performance and makes no other changes to the contract. The modification is limited to the amount of time necessary to allow the Agency to obtain PPRB approval of a full contract renewal. PPRB has delegated authority to OPSCR staff to approve these limited “bridge” contracts.

12 Miss. Admin. Code Pt. 9, R. 14.13 Rule 14.13

Contract Termination Where an Agency has determined it is in the Agency’s best interest to terminate a contract procured under these rules and regulations, PPRB delegates authority to OPSCR to process and approve any such termination. OPSCR shall confirm the period of performance and contract value in MAGIC, SPAHRS, or any subsequent statewide enterprise resource management system reflects the termination prior to processing the termination.

12 Miss. Admin. Code Pt. 9, R. 14.14 Rule 14.14

Remedies For any contracts which have been approved by PPRB and executed by the parties, the remedies available for subsequent disputes are those available in the contract or those generally available under the common law principles governing contracts in the State of Mississippi.

12 Miss. Admin. Code Pt. 9, R. 14.15 Rule 14.15

Contracting Following Default Where the successful vendor following a competitive procurement (“the original awardee”) ultimately defaults on the resulting contract, the Agency may contract with the vendor who would have been awarded the contract had the original awardee been disqualified during the competitive procurement process (“the second place vendor”).

12 Miss. Admin. Code Pt. 9, R. 14.15.1 Rule 14.15.1

Parameters of Default In this context, default requires that the original awardee either abandoned the contract or objectively failed to perform such that contract termination was in the Agency’s best interest. Where the Agency can demonstrate an objective failure by the original awardee to perform the contract requirements, it shall be in the sole discretion of the Agency to determine whether contract termination is in its own best interest.

The PPRB shall not approve contracts under this Section where the Agency has terminated a contract with the original awardee simply because the Agency preferred to contract with the second place vendor. It shall be the Agency’s burden to demonstrate to PPRB that the original awardee’s default was objectively caused by action or inaction on the part of the original awardee and not the preferences of the procuring Agency.

12 Miss. Admin. Code Pt. 9, R. 14.15.2 Rule 14.15.2

Terms and Conditions Other than as limited by Section 14.15.3, any contract entered into under Section 14.15 shall include the same terms and conditions – including price – which would have applied had the second place vendor been awarded the contract following the competitive procurement. Under no circumstances may an Agency contract under Section 14.15 for services outside of those included in the original procurement.

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12 Miss. Admin. Code Pt. 9, R. 14.15.3 Rule 14.15.3

Period of Performance The period of performance for any new contract entered into under Section 14.5 shall be limited to the amount of time remaining from the original procurement.

For example, if an Agency procured a service to be provided for three years (36 months) but the original awardee terminates the contract after 18 months, the Agency may enter into a new contract with the second place vendor for the 18 months remaining from the procurement under the pricing and all other terms and conditions the second place vendor agreed to in responding to the procurement.

When in the Agency’s best interest to contract with the second place vendor for a period of performance longer than the time which remains from the original procurement, the Agency may submit a written request for PPRB approval to do so. The request shall:

• Explain the circumstances leading to the request; • Explain why the amount of additional time requested is reasonable; • Explain the detriment to the Agency if limited to the time remaining from the original competitive procurement and the benefit to the Agency if not so limited; • Explain that the terms and conditions, including price, in the new contract reflect those which the second place vendor agreed to in response to the original procurement; and • Be signed by the Agency Head.

12 Miss. Admin. Code Pt. 9, R. 14.15.4 Rule 14.15.4

PPRB Approval PPRB approval is required for any contract entered into under Section 14.15 which would require PPRB approval if entered into under any other circumstances.

For example, a $60,000.00 contract entered into pursuant to Section 14.15 does not require PPRB approval because it does not meet the dollar threshold for Board approval.

The Agency may use the process described in Section 14.12.2.1 to contract with the second place vendor under this Section where circumstances are such that the Agency needs to enter a contract under Section 14.15 prior to receiving PPRB approval.

For example, if the original awardee is providing mission-critical services and terminates its contract without notice on the 15 th of the month, but PPRB is not scheduled to meet until the first Wednesday of the following month, the Agency may contract under Section 14.15 and request retroactive approval of that contract as described in Section 14.12.2.1.

12 Miss. Admin. Code Pt. 9, R. 14.15.5 Rule 14.15.5

Where Vendor Refuses to Contract If the second place vendor refuses to contract under Section 14.15, the Agency may attempt to contract with other vendors who responded to the original competitive procurement in the order they would have been awarded the contract (i.e., the Agency may go to the third place vendor if the second place vendor refuses, the Agency may go to the fourth place vendor if the third place vendor refuses, and so on) if the Agency – in its sole discretion – determines doing so is in its best interest. The Agency must maintain documentation of the higher ranked vendors’ refusal to contract in the Agency Procurement File.

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Exhibit 1: Sample Solicitation Language for Price Adjustments This language is not required for use in any solicitation. Where an Agency chooses to include a Price Adjustment clause, only one of the clauses below (or a single Price Adjustment clause crafted by the Agency) should be utilized.

Price Adjustment Due to Unanticipated Market Disruptions A price adjustment may be allowed in the event unanticipated market disruptions occur such that the [unit prices] bid by the Contractor in response to [the solicitation] are no longer viable for the provision of services required by [the Agency]. The Contractor shall provide a market analysis regarding the viability of the originally bid rates and rates the Contractor contends would be viable under the current market conditions. The Contractor shall also provide any other support for the request for a price adjustment required by [the Agency]. [The Agency] has the sole discretion to determine whether a price adjustment will be allowed, the amount of the price adjustment, and the duration of the price adjustment. Any price adjustment made under this provision shall be limited to only that which is required to accommodate the precipitating market disruption. Under no circumstances shall a price adjustment result in the adjusted [unit prices] exceeding 110% of the original [unit price]. (For example, an original [unit price] of $100.00 could be increased up to, but not to exceed, $110.00 under this clause.) No price adjustment will be allowed other than as described in this paragraph. When preparing [bids, proposals, qualifications] Offerors shall assume no such price adjustment will occur during the life of the contract. Any approval of a price adjustment shall be contained in a duly executed written amendment to this Contract.

Price Adjustment to Account for Inflation A price adjustment may be allowed which does not exceed the lesser of either 5% or the annual increase in the Consumer Price Index for all Urban Consumers (CPI-U) as published by the United States Bureau of Labor Statistics. Any such price adjustment will be effective only once per 12- month period, on the anniversary of the contract start date. If the CPI-U is a negative number, no adjustment in price shall be allowed. A negative CPI-U shall be counted against any subsequent increases in the CPI-U when calculating any price adjustment relative to later contract years. The Contractor shall provide any support for the request for a price adjustment required by [the Agency]. [The Agency] has the sole discretion to determine whether a price adjustment will be allowed. No price adjustment will be allowed other than as described in this paragraph. Any approval of a price adjustment shall be contained in a duly executed written amendment to this Contract.

Price Adjustment for Variation of Need in an Indefinite Quantity, Unit Price Contract This is an indefinite quantity contract. The volume of services specified in the [solicitation] is an estimate based on past history. No guarantee is made with regard to the volume of services the Agency will need under this contract. A volume-based price adjustment will be allowed when there is a fluctuation in the demand for services under this contract which exceeds 10%. Where that fluctuation represents an increase of more than 10% in the need for services, the [unit price] shall be decreased by 5%. Where that fluctuation represents a decrease of more than 10% in the need for services, the [unit price] shall be increased by 5%. In no event shall this price adjustment constitute a guarantee of minimum payment. Payment will only be made for services rendered on an as-needed basis by [the Agency]. No price adjustment will be allowed other than as described in this paragraph.

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CHAPTER 15: EXCLUSION OF VENDOR FROM FUTURE CONTRACT AWARDS

12 Miss. Admin. Code Pt. 9, R. 15.1 Rule 15.1

Exclusion by a Single Agency ........................................................................................ 129 15.2 Exclusion by PPRB ........................................................................................................ 129 15.2.1 Request for Exclusion............................................................................................ 129 15.2.1.1 Notice to Vendor........................................................................................ 129 15.2.2 Vendor’s Opportunity to Respond ......................................................................... 130 15.2.3 Hearing on Request to Exclude .............................................................................. 130 15.2.4 PPRB Decision on Request to Exclude .................................................................. 131 15.2.5 Exceptions to the Process for Requesting Exclusion .............................................. 131 15.3 Standard for Exclusion.................................................................................................. 131 15.4 Scope of Exclusion ......................................................................................................... 132

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A vendor’s failure to adequately perform the services required by a contract with an Agency, or other acts in violation of law, the rules and regulations herein, or the terms of its contract may result in the vendor being excluded from future contract awards. This is also referred to as “debarment.”

12 Miss. Admin. Code Pt. 9, R. 15.1 Rule 15.1

Exclusion by a Single Agency Where a vendor which has contracted with an Agency failed to satisfactorily perform the services required under the contract, the Agency shall have all remedies available to it under the contract. Should the vendor’s performance be such that the Agency determines it is in the Agency’s best interest to exclude the vendor from a future contract award, the Agency may use the minimum qualifications of its future procurement(s) to disqualify the vendor as non-responsible where:

• the Agency has written documentation of the vendor’s objective failure to adequately perform its contractual obligations, the Agency provided the vendor a reasonable amount of time – but no less than 30 calendar days – to correct such deficiency, and the Agency has documentation demonstrating that the vendor did not correct the deficiency; or

• the Agency has written documentation of the vendor’s objective failure to adequately perform its contractual obligations such that the Agency determined immediate contract termination was necessary to protect the interests of the Agency.

In either circumstance, the vendor shall have been notified, in writing, that the failure to cure and/or contract termination may result in exclusion from future contract awards pursuant to this chapter.

Any vendor which feels it has wrongly been excluded from a contract award due to the minimum qualifications set forth in a solicitation may request reconsideration of the terms of the solicitation.

12 Miss. Admin. Code Pt. 9, R. 15.2 Rule 15.2

Exclusion by PPRB An Agency may petition PPRB to exclude a specific vendor from future contract awards from any or all Agencies under the purview of PPRB.

12 Miss. Admin. Code Pt. 9, R. 15.2.1 Rule 15.2.1

Request for Exclusion To initiate such a request, the Agency shall submit to the Director of OPSCR a written request for exclusion which is signed by the Agency Head. The request for exclusion shall state the reasons for the request and identify all documentation supporting the request. The request shall also state why excluding the vendor from contract awards by some or all agencies under PPRB purview is in the best interest of those Agencies. PPRB will not consider any issues or documentation which are not identified in the request. No supplementation of the request will be allowed.

12 Miss. Admin. Code Pt. 9, R. 15.2.1.1 Rule 15.2.1.1

Notice to Vendor On or before the day the request for exclusion is submitted to the Director of OPSCR, the Agency shall provide the vendor or its registered agent a copy of the request via certified mail, return receipt requested, or via personal service. Should the Agency choose to provide notice by personal service, proof of such service is

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required via affidavit of the individual who served the request. Proof of service shall be provided to the Director of OPSCR when the request is submitted.

The request for exclusion shall inform the vendor that exclusion is being sought pursuant to Chapter 15 of the Public Procurement Review Board Office of Personal Service Contract Review Rules and Regulations and that the vendor has the right to be represented by counsel.

12 Miss. Admin. Code Pt. 9, R. 15.2.2 Rule 15.2.2

Vendor’s Opportunity to Respond If the vendor wishes to file a response to the request for exclusion, it shall be received by the Agency Head of the requesting Agency and the Director of OPSCR within 25 business days of the Agency’s submission of the request to the Director of OPSCR. Supplementation of the response is prohibited.

It shall be the sole responsibility of the vendor to ensure the Agency Head and Director of OPSCR timely receive the response. Failure to timely file a response results in waiver of the vendor’s opportunity to do so.

Because the only issues PPRB will consider in determining whether to exclude the vendor from future contract awards are those issues raised by the Agency, it is not necessary for the vendor to raise or address any issue not raised by the Agency.

12 Miss. Admin. Code Pt. 9, R. 15.2.3 Rule 15.2.3

Hearing on Request to Exclude A hearing on a request to exclude shall be conducted by a hearing officer, who shall make a written recommendation to the PPRB. The hearing shall be scheduled at the earliest opportunity the hearing officer is available and has had sufficient time to review the Agency’s request and the vendor’s response. A court reporter shall transcribe the hearing. As the hearing is administrative, the Mississippi Rules of Evidence are relaxed.

At least 30 business days prior to the hearing, the hearing officer shall issue an order stating the date, time, and location of the hearing. Within one business day of receiving the order, the Director of OPSCR shall publicly post the order on the DFA website and provide a copy of the order via email to all persons who have been reported to DFA as required by Section 1.2.4.

The email shall advise all persons reported to DFA under Section 1.2.4 of the opportunity to attend the hearing in objection to or in support of the request for exclusion. The email shall further instruct any persons who plan to object to or support the request for exclusion to notify the Director of OPSCR in writing at least 20 business days prior to the hearing. That notification shall state the basis for his or her objection to or support of the request for exclusion.

The hearing officer shall have the sole discretion to allow written submissions and/or oral arguments by such parties and shall provide the vendor notice of and an opportunity to respond to any such submissions. The hearing officer shall revise the scheduling order if

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necessary to provide a fair opportunity to the vendor to respond and to ensure the hearing officer has sufficient time to review all information relevant to the request for exclusion.

If the requesting Agency, the vendor, or any other party allowed to participate in oral arguments have questions about the hearing, those shall be submitted, in writing, to the Director of OPSCR at least 15 business days prior to the hearing. At least 10 business days prior to the hearing, the hearing officer shall issue an order providing the time allotted for oral arguments; any procedural limitations; responses to any timely received, reasonable, relevant questions; and any other matter the hearing officer deems appropriate or necessary for the efficient conduct of the hearing. The Director of OPSCR shall publicly post the order on the DFA website within one business day of receipt.

12 Miss. Admin. Code Pt. 9, R. 15.2.4 Rule 15.2.4

PPRB Decision on Request to Exclude Absent extraordinary circumstances, a recommendation shall be provided to PPRB for consideration within 60 days of the hearing date. The written recommendation shall recite the evidence relied upon and the reasons for the action taken.

If PPRB grants the request to exclude the vendor, the Chair of the PPRB shall sign an order so stating. Within one business day of receiving the order signed by the PPRB Chair, the Director of OPSCR shall send a copy of such order to all persons who have been reported to DFA as required by Section 1.2.4 and post the order on the DFA website.

Any vendors who are excluded by PPRB from future contract awards shall be listed publicly on the DFA website for the duration of their exclusion. No contracts shall be approved by PPRB which are in contradiction to the exclusion order.

12 Miss. Admin. Code Pt. 9, R. 15.2.5 Rule 15.2.5

Exceptions to the Process for Requesting Exclusion Any party seeking an exception to the procedural rules in Section 15.2 shall direct their request to the Director of OPSCR. The hearing officer shall have authority to unilaterally issue orders on any such request.

12 Miss. Admin. Code Pt. 9, R. 15.3 Rule 15.3

Standard for Exclusion Where the Agency or PPRB is considering whether a vendor should be excluded from future contract awards, the Agency or PPRB shall determine that – based on the totality of evidence presented – it is in the best interest of the Agency(ies) to exclude the vendor from future contract awards. The requesting Agency shall have the burden to demonstrate by clear and convincing evidence that the extraordinary remedy of exclusion – and the extent of any such exclusion – is in the best interest of the Agencies from which the vendor would be excluded. In making the determination, the Agency and/or PPRB shall consider the effect such exclusion would have on the competitiveness of any solicitations from which the vendor would be excluded.

It shall be considered per se in the best interest of the Agencies under PPRB’s purview to exclude any person or vendor which has been convicted – or whose principal(s) have been convicted – of a criminal offense demonstrating moral turpitude or a lack of business integrity or convicted of a criminal offense related to efforts to obtain or perform under a contract with any governmental entity.

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12 Miss. Admin. Code Pt. 9, R. 15.4 Rule 15.4

Scope of Exclusion The Agency and/or PPRB shall have the discretion to determine the parameters of the exclusion in both scope and time. PPRB shall specifically list in its order the Agencies from which the vendor has been excluded from future contract award(s). Should PPRB fail to state the Agencies from which the vendor is excluded, the vendor is excluded from all Agencies under PPRB’s purview for personal and professional service contracts.

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APPENDIX A: RELEVANT STATUTES

Mississippi Code Annotated §§

7-7-3(6)(d).................................................. Continuous Internal Audit Required 11-46-1 through 11-46-23 ................................ Mississippi Tort Claims Act 25-4-101 through 25-4-121 .............................. Ethics in Government / Conflict of Interest / Improper Use of Office 25-9-107 .................................................... Statewide Personnel System Definitions / State Service v. Non-State Service 25-9-120 .................................................... Abolishes PSCRB / Transfers Powers to PPRB / Defines “Contract Worker” 25-11-127 ................................................... Limitations on Reemployment of PERS Retirees as Contract Workers 25-43-1.101 through 25-43-3.114 ....................... Mississippi Administrative Procedures Law 25-53-151 ................................................... Development of the Procurement Portal 25-61-1 through 25-61-19 ................................ Mississippi Public Records Act of 1983 27-104-7 .................................................... Authority of PPRB 27-104-105.................................................. Approval Requirements for Legal Service Contracts 27-104-151 through 27-104-167 ........................ Mississippi Accountability and Transparency Act of 2008 31-7-47 ...................................................... Resident Contractor Preference 31-7-57 ...................................................... Personal Liability for Unlawful Expenditures 31-7-301 through 31-7-317 ............................... Timely Payment for Purchases by Public Bodies 31-7-401 through 31-7-423 .............................. Best Practices for Requests for Proposals and Requests for Qualifications 31-11-3(7) .................................................. Approval Requirements for Contracts with Architects and Engineers 71-11-1 and 71-11-3 ....................................... Mississippi Employment Protection Act 75-21-15 .................................................... Penalty for Fraud in Public Contracts 75-26-1 through 75-26-19 ................................ Mississippi Uniform Trade Secrets Act 79-4-15.01................................................... Foreign Corporations: Registration with Secretary of State 79-23-1 ...................................................... Public Records and Trade Secrets

** This list does not include statutes cited in the Introduction which are not applicable to the procurement of personal and professional services.**

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APPENDIX B: OPSCR STAFF AUTHORITY

Retain Contract for Additional Month if OPSCR will not Recommend PPRB Approval ............... Section 1.2.1 Require Any Documentation for Contract Submission ...................................................... Section 1.2.2 Grant or Deny Agency Request for Compliance Review and Establish Timeline ........................ Section 1.2.3 Approve Petition for Relief Where Agency Sets the Price .................................................. Section 6.3.2.2 Approve WIN Contract Workers; Total Value Less than $75,000.00 in a 12 Month Period ............ Section 7.7.2.1 Approve Contracts Consistent with Statewide PVLs ........................................................ Section 8.2.2 Approve Contracts Consistent with National Cooperatives Adopted as PVLs ........................... Section 8.3.2 Approve Court Ordered Sole Source Contracts Consistent with the Court Order ........................ Section 9.3.1 Approve Multiple Small Purchase Contracts with a Single Vendor........................................ Section 13.1.2 Approve Contract Assignments ................................................................................. Section 14.6.2 Approve Contractor Change of Name ......................................................................... Section 14.7.1 Approve Renewal Years and Spending Authority in Accordance with Original Procurement............ Sections 14.8.2 and 14.8.2.2 Approve Correction of Scrivener’s Errors or Technical Issues ............................................. Section 14.8.2.2 Approve Modification Reducing Dollar Amount of Contract Only........................................ Section 14.8.2.2 Approve Modifications in Which Dollar Amount and Scope of Services are Unchanged ............... Section 14.8.2.2 Approve Modification to Period of Performance Only as a “Bridge” Contract ........................... Sections 14.8.2.2 and 14.12.2.2 Approve Contract Termination (in whole or in part) ......................................................... Sections 14.8.2.2 and 14.13 Approve Exceptions to Required Clauses ..................................................................... Appendix E

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APPENDIX C: LEGISLATIVE REPORTS

Annual Report Regarding Contracts for Personal and Professional Services ......................................... Section 1.1.2 Minutes of PPRB Meetings ................................................................................................. Section 1.1.7.4 Proposed Revisions to PPRB OPSCR Rules and Regulations .......................................................... Section 1.3.7 Discovery of an Act of Bad Faith .......................................................................................... Section 1.4.1.1 Anti-Competitive Practices ................................................................................................. Section 1.4.5.2 Violation of Ethics in Government Laws ................................................................................. Section 1.4.6 Sole Source Contracts ....................................................................................................... Section 9.5 Emergency Contracts.......................................................................................................... Section 10.1.7 Suspected Use of Emergency or Exigent Circumstances in Circumvention of Procurement Requirements ... Section 10.3 Statutorily Exempt Contracts................................................................................................. Section 12.4 No Cost Contracts ............................................................................................................ Section 12.4 Suspected Claims of Statutory Exemptions or No Cost in Circumvention of Procurement Requirements ....... Section 12.5

** The report required by Section 1.1.2 is made to the Legislative Budget Office. All other reports are made to the AET Chairs. The reports required by Sections 1.1.7.4 and 1.3.7 are also made to the Appropriations Chairs.**

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APPENDIX D: THE AGENCY PROCUREMENT FILE

The following documents shall be included in the Agency Procurement File, as applicable. Any documents listed in italics are documents which may or may not be applicable to a specific procurement. Pursuant to Section 1.2.2, the Director of OPSCR may require any additional documentation be submitted to OPSCR which is needed to ensure compliance with these rules and regulations.

Agencies shall include all documentation relevant to the procurement in the Agency Procurement File, even if not specifically listed here or specifically required by these rules and regulations. (For example, if an Agency provides its evaluation committee a PowerPoint presentation explaining the evaluation process, the slide deck from that presentation shall be included in the Agency Procurement File.)

Neither documentation regarding the development of the solicitation specifications nor internal Agency communication during the procurement process are required to be included in the Agency Procurement File. However, Agencies are encouraged to include all substantive documentation as a matter of transparency. The absence of any documentation described in this paragraph shall not be the basis for deeming the Agency Procurement File incomplete.

REQUIRED FOR ALL PROCUREMENT FILES Purview Determination......................................................................................................... Communication with DFA and/or ITS regarding purview of the procurement

Section 0.1 PPRB Discretionary Authority ................................................................................................ Any requests for exceptions to regulatory or statutory requirements Section 1.1.8 Compliance Review .............................................................................................................. Documentation regarding any compliance review(s) previously conducted by OPSCR Section 1.2.3 Funding Source Conflict....................................................................................................... Written determination of conflict with funding source procurement rules and action taken Section 1.3.2 Competition, Fairness, and Transparency .................................................................................. Legitimate business reason(s) for decisions impacting competition, fairness, or transparency of procurement Section 1.4.2

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Preservation of Procurement ................................................................................................. A memorandum explaining any decisions made to preserve procurement Section 1.4.8 Authorized to do Business in the State...................................................................................... Contractor’s registration with the Mississippi Secretary of State, currently in good standing Section 1.4.9 Public Records Requests ........................................................................................................ All public records request(s) regarding the procurement and a memorandum of the current status of those requests Section 1.5 Request for Information ........................................................................................................ Content of RFI, proof of publication, all responses received, and the required written determination Chapter 4 Contract ........................................................................................................................... Full contract document submitted to OPSCR; trade secrets redacted in version posted to Agency website Chapter 14 Contract Modifications.......................................................................................................... Contract amendment document, any other documents requested by OPSCR Section 14.8.2.1 Regulatory Board Approval..................................................................................................... Board minutes or letter from board chair confirming approval Section 14.8.3 Agency Head Designee for Contract Execution............................................................................ Written delegation by the Agency Head of authority of a person other than the Agency Head to execute contracts Section 14.9 Exception to Required Clauses................................................................................................. Letter from Agency legal counsel regarding exception needed; documentation of approval by OPSCR Appendix E

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INVITATION FOR BIDS Invitation for Bids .............................................................................................................. Full solicitation document as issued by the Agency Section 5.1 Public Notice ..................................................................................................................... Proof of publication in the newspaper, procurement portal, website, and direct solicitation of 3 bidders; written determination if advertising less than 30 days prior to submission deadline (if applicable) Section 5.2 Request for Reconsideration of the Terms of the Solicitation ............................................................. Any requests received and all related correspondence; the Agency response; proof of distribution of the Agency response directly to bidders, on website, and on procurement portal; memorandum regarding reasonable time between response to request and submission deadline (if applicable) Section 5.2.4 Letters of Intent .................................................................................................................. A copy of all letters of intent received by the Agency Section 5.3.1 Pre-Bid Conference ............................................................................................................. Record of attendees, recording of the conference (if one is made), any documentation provided to conference attendees, amendments issued to the IFB Section 5.3.2 IFB Amendments (including Q&A) ........................................................................................... All amendments issued; proof of distribution directly to bidders, on website, and on procurement portal; memorandum regarding reasonable time for distribution (if applicable) Section 5.3.4 Receipt and Register of Bids .................................................................................................. Register of bids; proof of date and time all bids were received; bid opening record; written determination regarding consideration of late bids (if applicable) Section 5.4 All Bids Received ............................................................................................................... Full copies of all bids submitted to OPSCR; redacted copies of all bids posted on Agency website; documentation regarding any bid returned to the bidder and the reason(s) therefor. Sections 5.4 and 5.7

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Acknowledgement of Amendments .......................................................................................... Every bidder’s acknowledgement of every amendment (in writing) Section 5.5.5 Evaluation of Bids .............................................................................................................. Any documentation created regarding the responsive and responsible determination and evaluation of price Section 5.5 Bid Irregularities ............................................................................................................... Documentation regarding the modification, withdrawal, or confirmation of bids; any minor informalities waived by the Agency; resolution of low tie bids; or where only a single bid is received Sections 5.5.1 through 5.5.10 Notice of Intent to Award ..................................................................................................... Notice of Intent to Award and proof of distribution directly to bidders, on website, and on procurement portal, information regarding debriefings, requests for reconsideration, and the Agency Procurement File on the website

Section 5.6.1 Debriefings ......................................................................................................................... List of bidders requesting a debriefing and when each debriefing was conducted; any other documentation Section 5.6.2 Request for Reconsideration of the Intent to Award ....................................................................... Any requests received and all related correspondence; the Agency response; proof of distribution of the Agency response directly to bidders, on website, and on procurement portal Section 5.6.3 PPRB Approval (for Agency benefit only – not available when submitted to OPSCR) ............................... Correspondence with OPSCR, PPRB agenda, PPRB minutes with approval, Notice of Contract Award Section 5.6.4 Cancellation or Rejection of Individual Bids................................................................................ Notice of cancellation and proof of distribution; required written determination; correspondence regarding rejection of individual bids; information regarding disposition of bids Section 5.7

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REQUEST FOR PROPOSALS OR REQUEST FOR QUALIFICATIONS Petition for Relief............................................................................................................... Petition for relief as approved by PPRB, PPRB minutes showing approval Section 6.3 Request for Proposals or Request for Qualifications..................................................................... Full solicitation document as issued by the Agency Section 6.4 Public Notice ..................................................................................................................... Proof of publication in the newspaper, procurement portal, website, and direct solicitation of 3 offerors; written determination if advertising less than 30 days prior to submission deadline (if applicable) Section 6.5 Request for Reconsideration of the Terms of the Solicitation .............................................................. Any requests received and all related correspondence; the Agency response; proof of distribution of the Agency response directly to bidders, on website, and on procurement portal; memorandum regarding reasonable time between response to request and submission deadline (if applicable)

Section 6.5.4 Letters of Intent ................................................................................................................... A copy of all letters of intent received by the Agency Section 6.6.1 Pre-Submission Conference .................................................................................................... Record of attendees, transcript or audio/video recording of the conference, documents provided to conference attendees, amendments issued to the RFP/RFQ Section 6.6.2 RFP or RFQ Amendments (including Q&A) ................................................................................. All amendments issued; proof of distribution directly to offerors, on website, and on procurement portal; memorandum regarding reasonable time for distribution (if applicable) Section 6.6.4 Receipt of Proposals or Qualifications........................................................................................ Proof of date and time all proposals or qualifications were received; written determination regarding consideration of late proposals or qualifications (if applicable) Section 6.7

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Proposal or Qualification Acceptance ...................................................................................... Documentation regarding the modification, withdrawal, or confirmation of proposals or qualifications and/or any minor informalities waived by the Agency (if applicable) Section 6.7.3 All Proposals or Qualifications Received .................................................................................. Full copies of all proposals or qualifications submitted to OPSCR; redacted copies posted on Agency website Section 6.7 Acknowledgement of Amendments .......................................................................................... Every offeror’s acknowledgement of every amendment (in writing) Section 6.8.2.1 Conflict of Interest Certifications............................................................................................ The list of offerors, their principals, their parent organizations, and their subsidiary organizations which was provided to those executing conflict of interest certifications; all executed certifications with the Mississippi Ethics in Government laws attached Section 6.8.1 Evaluation of Proposals or Qualifications ................................................................................. Any documentation created by the procurement officials, the evaluation committee, or the advisors to the evaluation committee regarding the responsive and responsible determination and points allocated to the offerors; documentation of any discussions with offerors; post evaluation affidavits (if applicable) Sections 6.8.4 and 6.8.5 Best and Final Offers ........................................................................................................... Documentation regarding any requests for BAFOs; all responses received; recalculation of Price points; and memorandum regarding BAFO being requested more than once (if applicable) Section 6.8.4.6 Single Proposal or Qualification Received.................................................................................... Required written determination Section 6.8.4.8 Notice of Intent to Award and Evaluation Committee Report.......................................................... Notice of Intent to Award and Evaluation Committee Report, including all required documents; proof of distribution directly to offerors, on website, and on procurement portal; information regarding debriefings, reconsideration, and the Agency Procurement File on the website Section 6.9

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Debriefings ......................................................................................................................... List of offerors requesting a debriefing and when each debriefing was completed; any other documentation Section 6.9.2 Request for Reconsideration of the Intent to Award ....................................................................... Any requests received and all related correspondence; the Agency response; proof of distribution of the Agency response directly to bidders, on website, and on procurement portal Section 6.9.3 PPRB Approval (for Agency benefit only – not available when submitted to OPSCR) ............................... Correspondence with OPSCR, PPRB agenda, PPRB minutes with approval, Notice of Contract Award Sections 6.9.4 and 6.9.5 Cancellation or Rejection of Individual Proposals or Qualifications.................................................... Notice of cancellation and proof of distribution; required written determination; correspondence regarding rejection of individual proposals or qualifications; information regarding disposition of proposals or qualifications Section 6.10

REQUEST FOR APPLICATIONS AND CONTRACT WORKERS Written Determination of Need for Contract Worker ................................................................... Section 7.1.1 Contract Worker Contract Not Exceeding $75,000.00 .................................................................. Agency standard operating procedure for procurement; documentation demonstrating compliance with SOP Section 7.1.2 State Retiree Contract Worker ................................................................................................ Completed PERS Form 4B Section 7.1.5 Request for Applications ...................................................................................................... Full solicitation issued by Agency Section 7.2 Public Notice ..................................................................................................................... Proof of publication in the newspaper and/or third party recruiting website, procurement portal, website, and direct solicitation of 3 applicants or memorandum that it was not reasonably possible to do so Section 7.3

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RFA Amendments................................................................................................................. All amendments issued; proof of distribution directly to applicants, on website, and on procurement portal; memorandum regarding reasonable time for distribution (if applicable) Section 7.4 All Applications Received ..................................................................................................... Full copy of all applications received; memorandum regarding single application received (if applicable); memorandum regarding consideration of late applications (if applicable) Section 7.5 Acknowledgement of Amendments .......................................................................................... Every applicant’s acknowledgement of every amendment (in writing) Section 7.5.1 Evaluation of Applications .................................................................................................... All documents to determine the responsive and responsible determination, evaluation of application, interviews (if applicable), and identity of the evaluator(s) Section 7.6 Notice of Intent to Award....................................................................................................... Notice of Intent to Award; proof of distribution directly to applicants, on website, and on procurement portal Section 7.7.1 PPRB Approval (for Agency benefit only – not available when submitted to OPSCR) ............................... Correspondence with OPSCR, PPRB agenda, PPRB minutes with approval, Notice of Contract Award Section 7.7.2 Cancellation or Rejection of Individual Applications ........................................................................ Notice of cancellation and proof of distribution; required written determination; correspondence regarding rejection of individual applications; information regarding disposition of applications Section 7.8

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OPSCR PREAPPROVED VENDOR LIST Preapproved Vendor List ..................................................................................................... Section 8.2 Notice of Contract Award (after contracting) .............................................................................. Section 8.5

NATIONAL COOPERATIVE CONTRACT [Initial Requestor] Portfolio of Vendors Procured by Cooperative .................................................. Information from the portfolio sponsor regarding means of procurement, scope of services, and vendors awarded; contract documents required by the portfolio sponsor; solicitation response of intended contractor Section 8.3 [Subsequent Contract] Documents Specific to Intended Contractor .................................................. PPRB minutes approving the portfolio as a PVL; solicitation response of intended contractor; contract documentation required by portfolio sponsor Section 8.3.1 Determination of Economic Advantage to the Agency to use a National Cooperative .................. Section 8.3 Notice of Contract Award (after contracting) ............................................................................... Section 8.5

PIGGYBACKING CONTRACT [Underlying Contract PPRB Approved] PPRB Minutes.................................................................... Minutes of PPRB meeting at which underlying contract was approved Section 8.4 [Underlying Contract Not Approved by PPRB] Underlying Procurement File......................................... Entire Agency Procurement File for underlying contract (submit what is required for the procurement method) Section 8.4 Notice of Contract Award (after contracting) ................................................................................ Section 8.5

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SOLE SOURCE: SINGLE PROVIDER IN THE MARKETPLACE Agency Head Determination of Sole Source ................................................................................. Section 9.1 Public Notice ....................................................................................................................... A copy of all documents posted on the procurement portal and the Agency website Section 9.2.1 Objection to Sole Source Determination...................................................................................... The instructions for filing an objection, any objections received, the Agency determination on the objection, any documentation regarding determination by PPRB (if applicable) Sections 9.2.1.2 and 9.2.2 PPRB Approval (for Agency benefit only – not available when submitted to OPSCR) ................................. Correspondence with OPSCR, PPRB agenda, PPRB minutes with approval, Notice of Contract Award Section 8.5

SOLE SOURCE: COURT ORDERED Agency Head Determination of Sole Source................................................................................ Section 9.1 Court Order....................................................................................................................... Section 9.3 Notice of Contract Award (after contracting)................................................................................ Section 9.4

EMERGENCY CONTRACT Agency Head Determination .................................................................................................. Section 10.1.2 Notice of Contract Award (after contracting)................................................................................ Section 10.1.6

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EXIGENT CIRCUMSTANCES CONTRACT Agency Head Determination .................................................................................................. Section 10.2.2 PPRB Approval (for Agency benefit only – not available when submitted to OPSCR) ....................................... Correspondence with OPSCR, PPRB agenda, PPRB minutes with approval, Notice of Contract Award Sections 10.2.4 and 10.2.5

GOVERNMENT-TO-GOVERNMENT CONTRACT: ENTITY UNDER PPRB PURVIEW Notice of Contract Award (after contracting)................................................................................ Sections 11.1 and 11.3

GOVERNMENT-TO-GOVERNMENT CONTRACT: ENTITY NOT UNDER PPRB PURVIEW Agency Head Determination .................................................................................................. Documentation supporting the fair market value determination must be included Section 11.2.1 PPRB Approval (for Agency benefit only – not available when submitted to OPSCR) ....................................... Correspondence with OPSCR, PPRB agenda, PPRB minutes with approval, Notice of Contract Award Sections 11.2.2 and 11.3

STATUTORILY EXEMPT CONTRACT Written Determination of Agency Head and Legal Counsel ........................................................... Section 12.1 Notice of Contract Award (after contracting)................................................................................ Section 12.3

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NO COST CONTRACT Written Determination of Agency Legal Counsel and Chief Financial Officer ................................... Section 12.2 Notice of Contract Award (after contracting)................................................................................ Section 12.3

SMALL PURCHASE CONTRACT: NOT EXCEEDING $50,000.00 Agency Head and Chief Financial Officer Memo: Multiple Small Purchase Contracts with Same Vendor...... Section 13.1.2 Agency Standard Operating Procedure ................................................................................... Documentation demonstrating compliance with Agency standard operating procedure Section 13.2 Notice of Contract Award (after contracting)................................................................................ Section 13.4

SMALL PURCHASE CONTRACT: EXCEEDING $50,000.00, NOT EXCEEDING $75,000.00 Agency Head and Chief Financial Officer Memo: Multiple Small Purchase Contracts with Same Vendor..... Section 13.1.2 Solicitation of Quotes ........................................................................................................... Documentation that quotes were solicited; how and to whom those quotes were solicited Section 13.3.1 Quotes Received ................................................................................................................. A copy of all quotes received; documentation registering all quotes; written determination as to why three quotes were not obtained (if applicable); written determination if award not made to low price (if applicable) Sections 13.3.1 and 13.3.2 Notice of Contract Award (after contracting)................................................................................ Section 13.4

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APPENDIX E: CONTRACT and SOLICITATION CLAUSES

The following clauses are available for use in solicitations issued pursuant to these rules and regulations and any resulting contracts. Some clauses are applicable to a solicitation document, others are applicable to a contract, while still others are applicable to both. Agency legal counsel is encouraged to review this Appendix to ensure the clauses used in a solicitation or contract best meet the needs of the Agency.

Any clauses which are not required may be modified as the Agency deems appropriate for their particular solicitation or contract. PPRB delegates to OPSCR staff the authority to grant exceptions to the required clauses on a case-by-case basis. A request for an exception shall be submitted in writing, explaining the reasons the Agency is requesting the exception and the considerations the Agency made to determine it is in the Agency’s best interest that the exception be granted. The written request shall be signed by Agency legal counsel.

Any information in [brackets] shall be edited by the Agency as appropriate for the specific solicitation or contract. Required clauses are identified with an “X” on the right side of the page. Clauses which are not identified as required are optional for use at the Agency’s sole discretion. The required clauses shall be included in contracts and solicitations as indicated below:

• IC: Contracts with Independent Contractors • CW: Contracts with Contract Workers • S: Solicitations (IFB, RFP, RFQ) REQUIRED IC CW S

ACKNOWLEDGMENT OF AMENDMENTS [Bidders, Offerors, Applicants] shall acknowledge receipt of any amendment to the [IFB, RFP, RFQ, RFA] in writing. The acknowledgement shall be submitted [Agency shall specify the manner of submitting acknowledgements of amendments]. Each [bidder, offeror, applicant] shall submit a written acknowledgement of every amendment to the [Agency] on or before the submission deadline. X APPLICABLE LAW The contract shall be governed by and construed in accordance with the laws of the State of Mississippi, excluding its conflicts of laws provisions, and any litigation with respect thereto shall be brought in the courts of Mississippi. X X X

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APPROVAL It is understood that if this contract requires approval by the Public Procurement Review Board (“PPRB”) and/or the Department of Finance and Administration Office of Personal Service Contract Review (“OPSCR”), and this contract is not approved by PPRB and/or OPSCR, it is void and no payment shall be made hereunder. X X X ATTORNEYS’ FEES AND EXPENSES In the event Contractor defaults on any obligations under this Agreement, Contractor shall pay to [Agency] all costs and expenses, without limitation, incurred by [Agency] in enforcing this Agreement or reasonably related to enforcing this Agreement. This includes but is not limited to investigative fees, court costs, and attorneys’ fees. Under no circumstances shall [Agency] be obligated to pay attorneys’ fees or legal costs to Contractor.

AUTHORITY OF SIGNATORY Contractor acknowledges that the individual executing the contract on behalf of the [Agency] is doing so in his or her official capacity only. To the extent any provision contained in the contract exceeds the signatory’s authority, Contractor agrees that it will not look to that individual in his or her personal capacity or otherwise seek to hold him or her individually liable for exceeding such authority.

AUTHORITY TO CONTRACT Contractor warrants: (1) that it is a validly organized business with valid authority to enter into this agreement; (2) that it is qualified to do business and in good standing in the State of Mississippi; (3) that entry into and performance under this agreement is not restricted or prohibited by any loan, security, financing, contractual, or other agreement of any kind; and, (4) notwithstanding any other provision of this agreement to the contrary, that there are no existing legal proceedings or prospective legal proceedings, either voluntary or otherwise, which may adversely affect its ability to perform its obligations under this agreement.

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AVAILABILITY OF FUNDS It is expressly understood and agreed that the obligation of [Agency] to proceed under this agreement is conditioned upon the appropriation of funds by the Mississippi State Legislature and the receipt the appropriated funds. If the funds anticipated for the continuing time fulfillment of the agreement are, at any time, not forthcoming or insufficient, regardless of the source of funding, [Agency] shall have the right upon 10 business days written notice to Contractor, to terminate this agreement without damage, penalty, cost or expense to the [Agency] of any kind whatsoever. The effective date of termination shall be as specified in the notice of termination. X X X BID ACCEPTANCE PERIOD [clause is for receipt of physical bids, modify to receive electronic bids] The original and [number] copies of the bid form, [number] copies total, shall be signed and submitted in a sealed envelope or package to [place for receipt of bids] no later than [the time and date specified for receipt of bids]. Timely submission of the bid form is the responsibility of the bidder. The envelope or package shall be marked with the bid opening date and time, and the RFx number of the IFB. The time and date of receipt shall be indicated on the envelope or package when received by the [Agency]. Each page of the bid form and all attachments shall be identified with the name of the bidder. Failure to submit a bid on the bid form provided may be considered just cause for rejection of the bid. Modifications or additions to any portion of the bid document may be cause for rejection of the bid. The [Agency] reserves the right to decide, on a case-by-case basis, whether to reject a bid with modifications or additions as non-responsive. As a precondition to bid acceptance, the [Agency] may request the bidder to withdraw or modify those portions of the bid deemed non-responsive that do not affect quality, quantity, price, or delivery of the service. (Non-responsive portions of the bid that do not affect service quality, quantity, price or delivery may be, for example, clauses that specify the state in which litigation is to be brought or that provide for high interest charges for late payment.)

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CERTIFICATION OF INDEPENDENT PRICE DETERMINATION By submitting a [bid, proposal, qualification], the [bidder, offeror] certifies that the prices submitted in response to the solicitation have been arrived at independently and without any consultation, communication, or agreement with any other [bidder, offeror] or competitor for the purpose of restricting competition. X COMPLIANCE WITH EQUAL OPPORTUNITY IN EMPLOYMENT POLICY Contractor understands that the [Agency] is an equal opportunity employer and therefore, maintains a policy which prohibits unlawful discrimination based on race, color, creed, sex, age, national origin, physical handicap, disability, genetic information, or any other consideration made unlawful by federal, state, or local laws. All such discrimination is unlawful, and Contractor agrees during the term of the agreement that Contractor will strictly adhere to this policy in its employment practices and provision of services. X X X COMPLIANCE WITH LAWS Contractor shall comply with, and all activities under this agreement shall be subject to, all applicable federal, state, and local laws and regulations, as now existing and as may be amended or modified. X X X CONFIDENTIALITY [Agency] is a public agency of the State of Mississippi and is subject to the Mississippi Public Records Act of 1983. Mississippi Code Annotated §§ 25-61-1, et seq. If a public records request is made for any information provided to [Agency] by Contractor, [Agency] shall follow the provisions of Mississippi Code Annotated §§ 25-61-9 and 79-23-1 before disclosing such information – unless Contractor has previously indicated the information is not a trade secret or confidential commercial and financial information. The [Agency] shall not be liable to the Contractor for disclosure of information required by court order or required by law.

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CONTRACT ASSIGNMENT AND SUBCONTRACTING Contractor acknowledges that it was selected by [Agency] to perform the services required hereunder based, in part, upon Contractor’s special skills and expertise. Contractor shall not assign, subcontract, or otherwise transfer this agreement, in whole or in part, without the prior written consent of [Agency], which may, in its sole discretion, approve or deny without reason. Any attempted assignment or transfer of Contractor’s obligations hereunder without consent of the [Agency] shall be null and void. Approval of a subcontract by the [Agency] shall not be deemed to be approval of the incurrence of any additional obligation of the [Agency]. Subcontracts shall be subject to the terms and conditions of this agreement and to any conditions of approval that [Agency] may deem necessary. Subject to the foregoing, this agreement shall be binding upon the respective successors and assigns of the parties.

CONTRACT RIGHTS Contract rights do not vest in any party until a contract is legally executed. The [Agency] is under no obligation to award a contract following issuance of this solicitation. X CONTRACTOR PERSONNEL The [Agency] shall, throughout the life of the contract, have the right of reasonable rejection and approval of staff or subcontractors assigned to the work by Contractor. If the [Agency] reasonably rejects staff or subcontractors, Contractor shall provide replacement staff or subcontractors satisfactory to the [Agency] in a timely manner and at no additional cost to the [Agency]. The day-to-day supervision and control of Contractor’s employees and subcontractors is the sole responsibility of Contractor.

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COPYRIGHTS Contractor agrees that the rights and title to any copyrightable material first produced under this agreement belongs to [Agency]. Contractor hereby grants to [Agency] a royalty-free, nonexclusive, irrevocable license to reproduce, translate, publish, use and dispose of, and to authorize others to do so, all copyrighted or copyrightable work which is incorporated in the material furnished under the agreement regardless of whether it was first produced under this agreement. This grant is provided that such license shall be only to the extent Contractor now has, or prior to the completion of full final settlements of agreement may acquire, the right to grant such license without becoming liable to pay compensation to others.

DISCLOSURE OF CONFIDENTIAL INFORMATION REQUIRED BY LAW In the event that either party to this Agreement receives notice that a third-party has served upon it a subpoena or other validly issued administrative or judicial process ordering divulgence of the other party’s data or other information, the party subject to the subpoena or other legal process shall promptly inform the other party at the earliest reasonable opportunity, unless prohibited by law from doing so. Thereafter, the party subject to the legal process shall respond to the extent mandated by law. This section shall survive the termination or completion of this agreement. The parties agree that this section is subject to and superseded by Mississippi Code Annotated §§ 25-61-1, et seq.

E-PAYMENT Contractor agrees to accept all payments in United States currency via the State of Mississippi’s electronic payment and remittance vehicle. The Agency agrees to make payment in accordance with Mississippi “Timely Payments for Purchases by Public Bodies” laws, which generally provide for payment of undisputed amounts by the Agency within 45 calendar days of receipt of invoice. Mississippi Code Annotated § 31-7-301, et seq. X X

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E-VERIFICATION If applicable, Contractor represents and warrants that it will ensure its compliance with the Mississippi Employment Protection Act and will register and participate in the status verification system for all newly hired employees. Mississippi Code Annotated §§ 71-11-1 and 71-11-3. Contractor agrees to provide a copy of each verification upon request of the [Agency] subject to approval by any agencies of the United States Government. Contractor further represents and warrants that any person assigned to perform services hereafter meets the employment eligibility requirements of all immigration laws. The breach of this clause may subject Contractor to the following: (1) termination of this contract and exclusion pursuant to Chapter 15 of the Public Procurement Review Board Office of Personal Service Contract Review Rules and Regulations; (2) the loss of any license, permit, certification or other document granted to Contractor by an agency, department, or governmental entity for the right to do business in Mississippi; or (3) both. In the event of such termination, Contractor would also be liable for any additional costs incurred by the Agency due to Contract cancellation or loss of license or permit to do business in the state. X X ENTIRE AGREEMENT This agreement, including all contract documents, represents the entire and integrated agreement between the parties hereto and supersedes all prior negotiations, representations or agreements, irrespective of whether written or oral. This agreement may be altered, amended, or modified only by a written document executed by the [Agency] and Contractor. Contractor acknowledges that it has thoroughly read all contract documents and has had the opportunity to receive competent advice and counsel necessary for it to form a full and complete understanding of all rights and obligations herein. Accordingly, this agreement shall not be construed or interpreted in favor of or against the [Agency] or Contractor on the basis of draftsmanship or preparation hereof.

EXCEPTIONS TO SOLICITATION (cannot be used in IFBs) Offerors taking exception to any part of the solicitation shall clearly indicate such exceptions in its offer. Failure to indicate any exception will be interpreted as the offeror’s intent to comply fully with the requirements as written. Conditional or qualified offers, unless specifically allowed, shall be subject to rejection in whole or in part.

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EXCLUSION OR DEBARMENT By submitting a [bid, proposal, qualification, application] in response to the [IFB, RFP, RFQ, RFA], the [bidder, offeror, applicant] certifies that it is not currently excluded or debarred from future contract awards by any political subdivision or agency of any state, federal, local, or county government. [Bidder, Offeror, Applicant] further certifies that it is not an agent of any such person or entity. [Bidder, Offeror, Applicant] certifies that it has not, in the five-year period preceding its offer, been convicted of or had a civil judgment rendered against it for commission of a fraud or criminal offense in connection with obtaining, attempting to obtain, or performance of a public contract; violation of antitrust laws; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property. [Bidder, Offeror, Applicant] certifies that it is not presently indicted or otherwise criminally or civilly charged with the commission of any of the acts listed herein. [Bidder, Offeror, Applicant] certifies that, within the past five years, it has not had a contract with a governmental entity terminated due to the [bidder, offeror, applicant]’s failure to perform, default, or any other action or inaction by the [bidder, offeror, applicant].

EXPENSES INCURRED IN THE PROCUREMENT PROCESS All parties participating in the procurement process with regard to this solicitation shall bear their own costs of participation, pursuant to Section 1.4.4 of the Public Procurement Review Board Office of Personal Service Contract Review Rules and Regulations. X FAILURE TO DELIVER In the event of failure of Contractor to deliver services in accordance with the contract terms and conditions, the [Agency], after due oral or written notice, may procure the services from other sources and hold Contractor responsible for any resulting additional purchase and administrative costs. This remedy shall be in addition to any other remedies that the [Agency] may have.

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FAILURE TO ENFORCE DOES NOT CONSTITUTE WAIVER Failure by the [Agency] at any time to enforce the provisions of the contract shall not be construed as a waiver of any such provisions. Such failure to enforce shall not affect the validity of the contract or any part thereof or the right of the [Agency] to enforce any provision at any time in accordance with its terms.

FORCE MAJEURE Each party shall be temporarily excused from performance for any period and to the extent that it is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond the reasonable control and without the fault or negligence of such party and/or its subcontractors. Such acts shall include without limitation acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, earthquakes, floods, or other natural disasters (“force majeure events”). When such a cause arises, Contractor shall notify the Agency in writing at its earliest reasonable opportunity of the cause of its inability to perform, how it affects its performance, and the anticipated duration of the inability to perform. All parties shall make reasonable efforts to minimize the impact of the force majeure event on contract performance. The [Agency] may exercise any rights it has under the contract which are available when neither party is in default.

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INDEMNIFICATION (for contracts with non-state Agencies or entities) To the fullest extent allowed by law, Contractor shall indemnify, defend, save and hold harmless, protect, and exonerate the [Agency] its commissioners, board members, officers, employees, agents, and representatives, and the State of Mississippi from and against all claims, demands, liabilities, suits, actions, damages, losses, and costs of every kind and nature whatsoever including, without limitation, court costs, investigative fees and expenses, and attorneys’ fees, arising out of or caused by Contractor and/or its partners, principals, agents, employees and/or subcontractors in the performance of or failure to perform this agreement. In the [Agency]’s sole discretion, upon approval of the Office of the Mississippi Attorney General and the [Agency], Contractor may be allowed to control the defense of any such claim, suit, etc. In the event Contractor defends said claim, suit, etc., Contractor shall use legal counsel acceptable to the Office of the Mississippi Attorney General and the [Agency]. Contractor shall be solely responsible for all costs and/or expenses associated with such defense, and the [Agency] shall be entitled to participate in said defense. Contractor shall not settle any claim, suit, etc. without the concurrence of the Office of the Mississippi Attorney General and the [Agency], which shall not be unreasonably withheld.

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INDEPENDENT CONTRACTOR STATUS Contractor shall, at all times, be regarded as and shall be legally considered an independent contractor and shall at no time act as an agent for the [Agency]. Nothing contained herein shall be deemed or construed by the [Agency], Contractor, or any third party as creating the relationship of principal and agent, master and servant, partners, joint ventures, employer and employee, or any similar such relationship between the [Agency] and Contractor. Neither the method of computation of fees or other charges, nor any other provision contained herein, nor any acts of the [Agency] or Contractor hereunder creates or shall be deemed to create a relationship other than the independent relationship of the [Agency] and Contractor. Contractor’s personnel shall not be deemed in any way, directly or indirectly, expressly or by implication, to be employees of the [Agency]. Neither Contractor nor its employees shall, under any circumstances, be considered servants, agents, or employees of the [Agency], and the [Agency] shall be at no time legally responsible for any negligence or other wrongdoing by Contractor, its servants, agents, or employees. The [Agency] shall not withhold from the contract payments to Contractor any federal or state unemployment taxes, federal or state income taxes, Social Security tax, or any other amounts for benefits to Contractor. Further, the [Agency] shall not provide to Contractor any insurance coverage or other benefits, including Workers’ Compensation, normally provided by the [Agency] for its employees.

INFORMATION DESIGNATED BY AGENCY AS CONFIDENTIAL Any liability resulting from the wrongful disclosure of confidential information on the part of Contractor, or its subcontractor(s) shall rest with Contractor. Disclosure of any confidential information by Contractor or its subcontractor(s) without the express written approval of the [Agency] may result in the immediate termination of this agreement.

INFORMATION DESIGNATED BY CONTRACTOR AS CONFIDENTIAL Any disclosure of those materials, documents, data, and other information which Contractor has designated in writing as proprietary and confidential shall be subject to the provisions of Mississippi Code Annotated §§ 25- 61-9 and 79-23-1. The services to be provided, the unit prices and overall price to be paid, and the term of the contract shall not be deemed a trade secret or confidential commercial or financial information.

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INFRINGEMENT INDEMNIFICATION Contractor warrants that the materials and deliverables provided to the [Agency] under this agreement, and their use by the [Agency], will not infringe or constitute an infringement of any copyright, patent, trademark, or other proprietary right. Should any such items become the subject of an infringement claim or suit, Contractor shall defend the infringement action and/or obtain for the [Agency] the right to continue using such items without additional cost to the Agency. Should Contractor fail to obtain for the [Agency] the right to use such items, Contractor shall suitably modify them to make them non-infringing or substitute equivalent software or other items at Contractor’s expense. In the event the above remedial measures cannot possibly be accomplished, and only in that event, Contractor may require the [Agency] to discontinue using such items, in which case Contractor will refund to the [Agency] the fees previously paid by the [Agency] for the items the customer may no longer use, and shall compensate the [Agency] for the lost value of the infringing part to the phase in which it was used, up to and including the contract price for said phase. Said refund shall be paid within 10 business days of notice to the [Agency] to discontinue said use. Scope of Indemnification: Provided that the [Agency] promptly notifies Contractor in writing of any alleged infringement claim of which it has knowledge, Contractor shall defend, indemnify, and hold harmless the [Agency] against any such claims, including but not limited to any expenses, costs, damages and attorney fees that a court finally awards for infringement based on the programs and deliverables provided under this agreement. In the [Agency]’s sole discretion, upon approval of the Office of the Mississippi Attorney General and the [Agency], Contractor may be allowed to control the defense of any such claim, suit, etc. In the event Contractor defends said claim, suit, etc., Contractor shall use legal counsel acceptable to the Office of the Mississippi Attorney General and the [Agency]. Contractor shall be solely responsible for all costs and/or expenses associated with such defense, and the [Agency] shall be entitled to participate in said defense. Contractor shall not settle any claim, suit, etc. without the concurrence of the Office of the Mississippi Attorney General and the [Agency], which shall not be unreasonably withheld.

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INSURANCE [Before using this clause, the Agency should determine what insurance is needed from the vendor based on the scope of work, risk to the Agency, and other liabilities, and then amend this clause to reflect the desired coverage.] Contractor represents that it will maintain workers’ compensation insurance in compliance with Mississippi law which shall inure to the benefit of all Contractor’s personnel provided hereunder, comprehensive general liability or professional liability insurance with minimum limits of [$Amount] per occurrence, and fidelity bond insurance with minimum limits of [$Amount]. All general liability, professional liability, and fidelity bond insurance will provide coverage to the [Agency] as an additional insured. The [Agency] reserves the right to request from carriers, certificates of insurance regarding the required coverage. Insurance carriers shall be licensed or hold a Certificate of Authority from the Mississippi Department of Insurance.

LIQUIDATED DAMAGES [Describe the event(s) which would trigger the liquidated damages clause and the method by which liquidated damages will be calculated. Any liquidated damages terms shall have been specifically agreed upon by the parties at the time of contracting and included in the contract.]

MINOR INFORMALITIES AND IRREGULARITIES The [Agency] has the right to waive minor defects or variations of a [bid, proposal, qualification, application] from the exact requirements of the specifications that do not affect the price, quality, quantity, delivery, or performance of the services being procured and if doing so does not create an unfair advantage for any [bidder, offeror, applicant]. If insufficient information is submitted by a [bidder, offeror, applicant] for the [Agency] to properly evaluate the offer, the [Agency] has the right to require such additional information as it may deem necessary after the submission deadline, provided that the information requested does not change the price, quality, quantity, delivery, or performance time of the services being procured and such a request does not create an unfair advantage for any [bidder, offeror, applicant]. (Information requested may include, for example, a copy of business or professional licenses, or a work schedule.) X

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MODIFICATION OR RENEGOTIATION REQUIRED BY CHANGE IN LAW The parties agree to renegotiate the agreement in good faith if federal and/or state revisions to any applicable laws or regulations make changes in this agreement necessary. This agreement may be modified only by written agreement signed by the parties hereto and approval by the Public Procurement Review Board, if required.

NO LIMITATION OF LIABILITY Nothing in this agreement shall be interpreted as excluding or limiting any liability of the Contractor for harm arising out of the Contractor’s or its subcontractors’ performance under this agreement. X X NON-CONFORMING TERMS AND CONDITIONS A [bid, proposal, qualification, application] which includes terms and conditions which do not conform to the terms and conditions in the [IFB, RFP, RFQ, RFA] is subject to rejection as non-responsive. The [Agency] reserves the right to permit the offeror to withdraw nonconforming terms and conditions prior to a determination of non-responsiveness.

NON-SOLICITATION OF EMPLOYEES Each party to this agreement agrees not to employ or to solicit for employment, directly or indirectly, any persons in the full-time or part-time employment of the other party until at least one year after this agreement terminates unless mutually agreed to in writing by the [Agency] and Contractor. Any such employment or solicitation for employment shall be in compliance with the Mississippi Ethics in Government laws, codified at Mississippi Code Annotated §§ 25-4-101 through 25-4-121.

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NOTICES All notices required or permitted to be given under this agreement shall be in writing and personally delivered or sent by certified United States mail, postage prepaid, return receipt requested, to the party to whom the notice should be given at the address set forth below. Notice shall be deemed given when actually received or when refused. The parties agree to promptly notify each other in writing of any change of address. For Contractor: [Name & Title] For [Agency]: [Name & Title] [Contact Information] [Contact Information]

[OFFEROR’S, CONTRACTOR’S] REPRESENTATION REGARDING CONTINGENT FEES By [responding to the solicitation, executing the contract] the [offeror, contractor] represents that it has not retained any person or agency on a percentage, commission, or other contingent arrangement to secure this contract. If the [offeror, contractor] cannot make such a representation, a full and complete explanation shall be submitted in writing [with the offeror’s response, to the Agency prior to contract execution]. X X ORAL STATEMENTS No oral statement of any person shall modify or otherwise affect the terms, conditions, or specifications stated in this contract. All modifications to the contract shall be made in writing by the [Agency], agreed to by Contractor ̧ and approved by the Public Procurement Review Board, if required.

OWNERSHIP OF DOCUMENTS AND WORK PAPERS [Agency] shall own all documents, files, reports, work papers and working documentation, electronic or otherwise, created in connection with the project which is the subject of this agreement, except for Contractor’s internal administrative and quality assurance files and internal project correspondence. Contractor shall deliver such documents and work papers to [Agency] upon termination or completion of the agreement. The foregoing notwithstanding, Contractor shall be entitled to retain a set of such work papers for its files and shall obtain written permission from [Agency] to use such workpapers, subject to any copyright protections.

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PAYMODE Payments by [Agency] using the state’s accounting system shall be made and remittance information provided electronically as directed by the state and deposited into the bank account of Contractor’s choice. The [Agency] may, at its sole discretion, require Contractor to electronically submit invoices and supporting documentation at any time during the term of this Agreement. Contractor understands and agrees that the Agency is exempt from the payment of Mississippi taxes. All payments shall be in United States currency. X X PRE-[BID, SUBMISSION] CONFERENCE (mandatory attendance) A pre-[bid, submission] conference will be held at [time] on [date] at [location]. Any party interested in responding to the solicitation is required to attend. The purpose of the pre-[bid, submission] conference is to allow potential [bidders, offerors] an opportunity to present questions to staff and obtain clarification of the requirements of the solicitation document. Because the [Agency] considers the conference to be critical to understanding the solicitation requirements, attendance is mandatory in order to qualify as a [bidder, offeror].

PRE-[BID, SUBMISSION] CONFERENCE (optional attendance) An optional pre-[bid, submission] conference will be held at [time] on [date] at [location]. Any party interested in responding to the solicitation is urged to attend. The purpose of the pre-[bid, submission] conference is to allow potential offerors an opportunity to present questions to staff and obtain clarification of the requirements of the solicitation document.

PRICE ADJUSTMENT [Any adjustments in price during the life of a contract is limited to the price adjustment methodology stated in the solicitation, or if the contract was not formally solicited, is limited to the methodology included in the contract at the time the contract was originally executed. Describe the method in which any price adjustment will be calculated, the triggering event which makes the price adjustment clause applicable, any limits on the price adjustment available, and any other requirements applicable for the price adjustment clause to be enacted. Any available price adjustment shall have been specifically agreed upon by the parties at the time of contracting and included in the contract. For examples, see Exhibit 1 to Chapter 14.]

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PRICE CERTIFICATION Any [bidder, offeror] submitting a response to this [IFB, RFP, RFQ] agrees and certifies that it will honor its pricing and all terms and conditions herein for the duration of the contract term described in this solicitation. By submitting a response hereto, [bidder, offeror] agrees to accept a contract pursuant to the requirements of Section 14.15 of the Public Procurement Review Board Office of Personal Service Contract Review Rules and Regulations if so requested by the procuring Agency.

PRIORITY The contract consists of this agreement, the [IFB, RFP, RFQ] [RFx No. 1234567890], attached hereto as Attachment A, and the Contractor’s [bid, proposal, qualification] submitted in response, attached hereto as Attachment B. Any ambiguities, conflicts, or questions of interpretation of this contract shall be resolved first by reference to this agreement and, if still unresolved, by reference to Attachment A and, if still unresolved, by reference to Attachment B. Omission of any term or obligation from this agreement shall not be deemed an omission from this contract if such term or obligation is provided for elsewhere in this contract. [The Agency has discretion as to which documents to attach to the contract and what priority those documents should be assigned.]

PROCUREMENT REGULATIONS This [solicitation, contract] shall be governed by the applicable provisions of the Public Procurement Review Board Office of Personal Service Contract Review Rules and Regulations, a copy of which is available on the Mississippi Department of Finance and Administration’s website (www.dfa.ms.gov). Any [bidder, offeror] responding to a solicitation for personal and professional services and any contractor doing business with a state Agency is deemed to be on notice of all requirements therein. X X X

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PROFESSIONAL CERTIFICATIONS AND LICENSES [Before using this clause, the Agency should determine whether professional certificates and licenses are needed from the vendor to determine whether the vendor’s qualifications are acceptable to the Agency. The clause should be amended to reflect the desired certificates and licenses.] Contractor shall provide official copies of all valid licenses and certificates required for performance of the work. The official copies shall be delivered to the [Agency] no later than ten business days after Contractor receives the Notice of Intent to Award from the [Agency]. Current official copies of licenses and certificates shall be provided to the [Agency] within five business days of request at any time during the contract term. Licenses and certificates required for this contract include the following: a business license valid in [state]; a professional license or certificate in the field of [specialty area]; [any additional certificates or licensing].

PROPERTY RIGHTS (for the contract) Property rights do not inure to Contractor until such time as services have been provided under a legally executed contract. Contractor has no legitimate claim of entitlement to the provision of work hereunder and acknowledges that the [Agency] may terminate this contract at any time for its own convenience. X X PROPERTY RIGHTS (for the solicitation document) Property rights do not inure to any [Bidder, Offeror] until such time as services have been provided under a legally executed contract. No party responding to this [IFB, RFP, RFQ] has a legitimate claim of entitlement to be awarded a contract or to the provision of work thereunder. The [Agency] is under no obligation to award a contract and may terminate a legally executed contract at any time. X QUALITY CONTROL Contractor shall institute and maintain throughout the contract period a properly documented quality control program designed to ensure that the services are provided at all times and in all respects in accordance with the contract. The program shall include providing supervision and conducting frequent inspections of Contractor’s staff and ensuring that accurate records are maintained describing the disposition of all complaints. The records so created shall be open to inspection by the [Agency].

APPENDIX E: Contract and Solicitation Clauses

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RECORD RETENTION AND ACCESS TO RECORDS Contractor shall maintain such financial records and other records as may be prescribed by the [Agency] or by applicable federal and state laws, rules, and regulations. Provided Contractor is given reasonable advance written notice and such inspection is made during normal business hours of Contractor, the [Agency] or any duly authorized representatives shall have unimpeded, prompt access to any of Contractor’s books, documents, papers, and/or records which are relevant to this agreement. All records related to this agreement shall be retained by Contractor for three years after final payment is made under this agreement and all pending matters are closed; however, if any audit, litigation or other action arising out of or related in any way to this project is commenced before the end of the three year period, the records shall be retained for one year after all issues arising out of the action are finally resolved or until the end of the three year period, whichever is later. [On a case-by-case basis, Agencies should consider how any data privacy and/or record retention laws and regulations directly relevant to the Agency may impact the requirements of this clause.]

RECOVERY OF MONEY Whenever, under the contract, any sum of money shall be recoverable from or payable by Contractor to the [Agency], the same amount may be deducted from any sum due to Contractor under the contract or under any other contract between Contractor and the [Agency]. The rights of the [Agency] are in addition and without prejudice to any other right the [Agency] may have to claim the amount of any loss or damage suffered by the [Agency] on account of the acts or omissions of Contractor.

APPENDIX E: Contract and Solicitation Clauses

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RELEASE OF [BID, PROPOSAL, QUALIFICATION] AS PUBLIC RECORD [Bidders, Offerors] shall acknowledge which of the following statements is applicable regarding release of its [bid, proposal, qualification] as a public record. A [bidder, offeror] may be deemed non-responsive if the [bidder, offeror] does not acknowledge either statement, acknowledges both statements, or fails to comply with the requirements of the statement acknowledged. Choose one: ____ Along with a complete copy of its [bid, proposal, qualification], [bidder, offeror] has submitted a second copy of the [bid, proposal, qualification] in which all information [bidder, offeror] deems to be confidential commercial and financial information and/or trade secrets is redacted in black. [Bidder, Offeror] acknowledges that it may be subject to exclusion pursuant to Chapter 15 of the PPRB OPSCR Rules and Regulations if the [Agency] or the Public Procurement Review Board determine redactions were made in bad faith in order to prohibit public access to portions of the [bid, proposal, qualification] which are not subject to Mississippi Code Annotated §§ 25-61-9, 75-26-1 through 75-26-19, and/or 79-23-1. [Bidder, Offeror] acknowledges and agrees that [Agency] may release the redacted copy of the [bid, proposal, qualification] at any time as a public record without further notice to [bidder, offeror]. A [bidder, offeror] who selects this option but fails to submit a redacted copy of its [bid, proposal, qualification] may be deemed non-responsive. ____ [Bidder, Offeror] hereby certifies that the complete unredacted copy of its [bid, proposal, qualification] may be released as a public record by the [Agency] at any time without notice to [bidder, offeror]. The [proposal, qualification] contains no information [bidder, offeror] deems to be confidential commercial and financial information and/or trade secrets in accordance with Mississippi Code Annotated §§ 25-61- 9, 75-26-1 through 75-26-19, and/or 79-23-1. [Bidder, Offeror] explicitly waives any right to receive notice of a request to inspect, examine, copy, or reproduce its bid as provided in Mississippi Code Annotated § 25-61-9(1)(a). A [bidder, offeror] who selects this option but submits a redacted copy of its [bid, proposal, qualification] may be deemed non-responsive.

APPENDIX E: Contract and Solicitation Clauses

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RENEWAL OF CONTRACT The contract may be renewed at the discretion of the [Agency] for a period of [number] successive one-year periods under the same prices, terms, and conditions as in the original contract. The total number of renewal years permitted shall not exceed [number].

REPRESENTATION REGARDING GRATUITIES [Offeror, Contractor] represents that it has not, is not, and will not offer, give, or agree to give any employee or former employee of [Agency] a gratuity or offer of employment in connection with any approval, disapproval, recommendation, development, or any other action or decision related to the solicitation and resulting contract. [Offeror, Contractor] further represents that no employee or former employee of [Agency] has or is soliciting, demanding, accepting, or agreeing to accept a gratuity or offer of employment for the reasons previously stated; any such action by an employee or former employee in the future, if any, will be rejected by [offeror, contractor]. [Offeror, Contractor] further represents that it is in compliance with the Mississippi Ethics in Government laws, codified at Mississippi Code Annotated §§ 25-4-101 through 25-4-121, and has not solicited any employee or former employee to act in violation of said law. X X X REQUIRED PUBLIC RECORDS AND TRANSPARENCY Upon execution of a contract, the provisions of the contract which contain the personal or professional services provided, the unit prices, the overall price to be paid, and the term of the contract shall not be deemed to be a trade secret or confidential commercial or financial information pursuant to Mississippi Code Annotated § 25- 61-9(7). The contract shall be posted publicly on www.transparency.ms.gov and shall be available for at the Agency for examination, inspection, or reproduction by the public. The [bidder, offeror, applicant, contractor] acknowledges and agrees that the [Agency] and this contract are subject to the Mississippi Public Records Act of 1983 codified at Mississippi Code Annotated §§ 25-61-1, et seq. and its exceptions, Mississippi Code Annotated § 79-23-1, and the Mississippi Accountability and Transparency Act of 2008, codified at Mississippi Code Annotated §§ 27-104-151, et seq. X X X

APPENDIX E: Contract and Solicitation Clauses

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REQUIREMENTS CONTRACT During the period of the contract, Contractor shall provide all services described in the contract. Contractor understands and agrees that this is a requirements contract and that the [Agency] shall have no obligation to Contractor if no services are required. Any quantities that are included in the scope of work reflect the current expectations of the [Agency] for the period of the contract. The amount is only an estimate and Contractor understands and agrees that the [Agency] is under no obligation to Contractor to utilize any amount of the services as a result of having provided this estimate or of having any typical or measurable requirement in the past. Contractor further understands and agrees that the [Agency] may require services in an amount less than or in excess of the estimated annual contract amount and that the quantity actually used, whether in excess of the estimate or less than the estimate, shall not give rise to any claim for compensation other than the total of the unit prices in the contract for the quantity actually used.

RIGHT TO AUDIT Contractor shall maintain such financial records and other records as may be prescribed by the [Agency] or by applicable federal and state laws and regulations. Contractor shall retain these records for a period of three years after final payment, or until they are audited by the [Agency], whichever event occurs first. These records shall be made available during the term of the contract and the subsequent three-year period for examination, transcription, and audit by the [Agency], the Mississippi State Auditor’s Office, and/or other entity of the state.

RIGHT TO INSPECT FACILITY The [Agency] may, at reasonable times, inspect the place of business of a Contractor or any subcontractor which is related to the performance of any contract awarded by the [Agency].

SEVERABILITY If any part of this agreement is declared to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision of the agreement that can be given effect without the invalid or unenforceable provision, and to this end the provisions hereof are severable. In such event, the parties shall amend the agreement as necessary to reflect the original intent of the parties and to bring any invalid or unenforceable provisions in compliance with applicable law.

APPENDIX E: Contract and Solicitation Clauses

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STATE PROPERTY Contractor will be responsible for the proper custody and care of any state-owned property furnished for Contractor’s use in connection with the performance of this agreement. Contractor will reimburse the state for any loss or damage, normal wear and tear excepted.

STOP WORK ORDER The [Agency] may, by written order to Contractor at any time, require Contractor to stop all or any part of the work called for by this contract. This order shall be for a period of time specified by the [Agency]. Upon receipt of such an order, Contractor shall forthwith comply with its terms and take all reasonable steps to minimize any further cost to the [Agency]. Upon expiration of the stop work order, Contractor shall resume providing the services which were subject to the stop work order, unless the [Agency] has terminated that part of the agreement or terminated the agreement in its entirety. The [Agency] is not liable for payment for services which were not rendered due to the stop work order. X X X SURETY REQUIRED A performance bond in the amount of 100 percent of the total contract price shall be required of the successful offeror to ensure satisfactory completion of the work. The bond shall be a corporate surety bond issued by a surety company authorized to do business in the State of Mississippi. In no event shall the requirement for the performance bond be waived.

APPENDIX E: Contract and Solicitation Clauses

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TERMINATION Termination for Convenience. The [Agency] may, when the interests of the Agency so require, terminate this contract in whole or in part, for the convenience of the Agency. The [Agency] shall give written notice of the termination to Contractor specifying the part of the contract terminated and when termination becomes effective. Contractor shall incur no further obligations in connection with the terminated work and on the date set in the notice of termination Contractor will stop work to the extent specified. Contractor shall complete the work not terminated by the notice of termination and may incur obligations as are necessary to do so. Termination for Default. If the [Agency] gives the Contractor a notice that the personal or professional services are being provided in a manner that is deficient, the Contractor shall have 30 days to cure the deficiency. If the Contractor fails to cure the deficiency, the [Agency] may terminate the contract for default and the Contractor will be liable for the additional cost to the [Agency] to procure the personal and professional services from another source. Termination under this paragraph could result in Contractor being excluded from future contract awards pursuant to Chapter 15 of the Public Procurement Review Board Office of Personal Service Contract Review Rules and Regulations. Any termination wrongly labelled termination for default shall be deemed a termination for convenience. X X X THIRD PARTY ACTION NOTIFICATION Contractor shall give the customer prompt notice in writing of any action or suit filed, and prompt notice of any claim made against Contractor by any entity that may result in litigation related in any way to this agreement.

VARIATION IN QUANTITY (for definite quantity contracts) The quantity of services specified in this contract may be increased to the extent agreeable by both parties. However, the unit prices shall remain unchanged, other than as allowed by a price adjustment which would have otherwise been applicable.

Part 10 Part 10: Office of State Property Insurance, State of Mississippi Floodplain Manual

12 Miss. Admin. Code Pt. 10, R. 100.1 State Law

The Legislature of the State of Mississippi in the regular session of 1984 amended Section 29, Subsection 13, Parts 1, 3, and 5, Mississippi Code of 1972. This Section requires the Department of Finance & Administration (DFA), to (1) purchase flood insurance for state-owned buildings and/or contents as required by federal law; (2) adopt floodplain management criteria applicable to all new construction or substantial improvement of state-owned buildings and other state-owned development located in floodplain areas; (3) compile an inventory of all state-owned buildings and land in floodplain areas; and (4) enforce the floodplain management criteria and procedure.

12 Miss. Admin. Code Pt. 10, R. 100.2 Federal Regulations

The Code of Federal Regulations (CFR) is the codification of the general and permanent rules published in the Federal Register by the departments and agencies of the Federal Government. Regulations pertaining to the Federal Emergency Management Agency (FEMA) National Flood Insurance Program (NFIP) are found in CFR Section 44, Emergency Management and Assistance, Part 9, Floodplain Management and Protection of Wetlands.

This regulation sets forth the policy, procedure and responsibilities to implement and enforce Executive Order 11988, Floodplain Management, and Executive Order 11990, Protection of Wetlands.

(a) FEMA shall take no action unless and until the requirements of this regulation are complied with.

(b) It is the policy of the Agency to provide leadership in floodplain management and the protection of wetlands. Further, the Agency shall integrate the goals of the Orders to the greatest possible degree into its procedures for implementing NEPA. The Agency shall take action to: (1) Avoid long- and short-term adverse impacts associated with the occupancy and modification of floodplains and the destruction and modification of wetlands; (2) Avoid direct and indirect support of floodplain development and new construction in wetlands wherever there is a practicable alternative; (3) Reduce the risk of flood loss; (4) Promote the use of nonstructural flood protection methods to reduce the risk of flood loss; (5) Minimize the impact of floods on human health, safety and welfare; (6) Minimize the destruction, loss or degradation of wetlands; (7) Restore and preserve the natural and beneficial values served by floodplains;

(8) Preserve and enhance the natural values of wetlands; (9) Involve the public throughout the floodplain management and wetlands protection decision-making process; (10) Adhere to the objectives of the Unified National Program for Floodplain Management; and (11) Improve and coordinate the Agency's plans, programs, functions and resources so that the Nation may attain the widest range of beneficial uses of the environment without degradation or risk to health and safety.

The authority for these regulations is (a) Executive Order 11988, May 24, 1977, which replaced Executive Order 11296, August 10, 1966, (b) Executive Order 11990, May 24, 1977, (c) Reorganization Plan No. 3 of 1978 (43 FR 41943); and (d) Executive Order 12127, April 1, 1979 (44 FR 1936). E.O. 11988 was issued in furtherance of the National Flood Insurance Act of 1968, as amended (Pub. L. 90–488); the Flood Disaster Protection Act of 1973, as amended (Pub. L. 93–234); and the National Environmental Policy Act of 1969 (NEPA) (Pub. L. 91–190). Section 2(d) of Executive Order 11988 requires issuance of new or amended regulations and procedures to satisfy its substantive and procedural provisions. E.O. 11990 was issued in furtherance of NEPA, and at section 6 required issuance of new or amended regulations and procedures to satisfy its substantive and procedural provisions.

12 Miss. Admin. Code Pt. 10, R. 100.3 Findings of Fact

1. The floodplains of the State of Mississippi are subject to periodic inundation which results in loss of life, property, health and safety hazards, disruption of commerce and governmental services, and extraordinary public expenditures for flood protection and relief, and all which adversely affect the public health, safety and general welfare.

2. These flood losses are caused by the cumulative effect of obstructions in floodplains causing increases in flood heights and velocities, and by the occupancy in floodplains by uses vulnerable to floods or hazardous to other properties which are inadequately elevated, flood proofed, or otherwise protected from flood damages.

12 Miss. Admin. Code Pt. 10, R. 100.4 Statement of Purpose

It is the purpose of these regulations to promote the public health, safety and general welfare, and to minimize public and private losses due to flood conditions in specific areas by provisions designed to:

1. Restrict or prohibit uses which are dangerous to health, safety and property due to water or erosion or in flood heights or velocities;

2. Require that uses vulnerable to floods, including facilities which serve such uses, to be protected against flood damage at the time of initial construction;

3. Control the alteration of natural floodplains, stream channels, and natural floodplains, stream channels, and natural protective barriers, which are involved in accommodation of flood waters.

4. Control filling, grading, degrading and other developments which may increase erosion or flood damage;

5. Prevent or regulate the construction of flood barriers which will unnaturally divert flood waters or which may increase flood hazards to the other lands.

12 Miss. Admin. Code Pt. 10, R. 100.5 Objectives

The objectives of these regulations are:

1. To protect human life and health;

2. To minimize expenditure of public money for costly flood control projects;

3. To minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public;

4. To minimize damage to state buildings, structures and land by providing for the sound use and development of flood prone areas in such manner as to minimize flood blight areas;

5. To minimize prolonged business interruptions.

12 Miss. Admin. Code Pt. 10, R. 100.6 Definitions

Unless specifically defined below, words or phrases used in these regulations shall be interpreted so as to give them the meaning they have in common usage and to give these regulations the most reasonable application.

“Addition” (to an existing building). Any walled and roofed expansion to the perimeter of a building in which the addition is connected by a common loadbearing addition which is connected by a fire wall or connected by independent perimeter loadbearing walls in new construction.

“Adverse Effects.” An increase in the base flood elevation which had harmful effects on properties.

“Appeal.” A request for a review of State Property Floodplain Manager’s interpretation of any provision of these regulations, or a request for a variance.

“Appurtenant Structure.” A structure which is on the same parcel of property as the principal structure to be insured and the use of which is incidental to the use of the principal structure.

“Area of Shallow Flooding.” A designated AO or VO zone on a Flood Insurance Rate Map (FIRM) with base flood depths from one to three feet where a clearly defined channel does not exist, where the path of flooding is unpredictable and indeterminate, and where velocity flow may vary.

“Area of Special Flood Hazard “. The land in the flood plain subject to a one percent or greater chance of flooding in any given year.

“Base Flood “. The flood having a one percent chance of being equal to or exceeded in any given year (100- year frequency flood).

“Basement.” Any area of the building having its floors subgrade (below ground level) on all sides.

“Breakaway Wall.” A wall that is not part of the structural support of the building and is intended through its design and construction to collapse under specific lateral loading forces without causing damage to the elevated portion of the building or the supporting foundation system.

“Building.” A walled and roofed building, as well as manufactured home, that is principally above ground, including a gas or liquid storage tank.

“Building, Insurable.” A walled and roofed building other than a gas or liquid storage tank that is principally above ground and affixed to a permanent site, as well as a manufactured home on foundation.

“Coastal High Hazard Area.” The area subject to high velocity waters, including but not limited to hurricane wave wash. The area is normally designated on a Federal Emergency Management Agency’s Flood Insurance Rate Map (FIRM) as Zone V1 through V30, VE or V.

“Critical Development.” 1. Class I Critical Facilities are those facilities that must remain accessible during the 0.2% flood event because they are the base of operations for emergency responders, are particularly difficult to evacuate during a flood event, or facilities that provide services essential to the life, health, and safety of the community. Class

1 critical facilities include police and fire stations, emergency medical centers, communication centers, hospitals, jails, nursing homes, and other residential uses for persons with limited mobility and/or dependency on life-sustaining medical equipment. 2. Critical Facilities are structures that store public records; museums and libraries; schools; and other buildings that store rare and/or valuable items and information that sustain the history and public records of a community. These structures are not expected to remain accessible or functioning during a flood event, though in many instances their functions must resume as soon as possible after a flood event. Critical Facilities also include public infrastructure such as water distribution and wastewater treatment facilities, which are expected to remain functioning during a flood event although they may be temporarily inaccessible or accessible only by watercraft during a flood event.

“Development.” Any man-made change to state-owned improved or unimproved real estate, including but not limited to structures, buildings, mining, dredging, filling, grading, paving, excavation, or drilling operations, or permanent storage of materials.

“Elevated Building.” A non-basement building built to have the lowest floor elevated above the ground level by means of fill, solid foundation perimeter wall, piling, columns (post and piers), shear walls, or breakaway walls.

“Encroachment.” Any significant obstruction within a floodway which would result in any increase in the water surface elevation of the base flood.

“Fill.” Material, typically loose or compacted, which fills a space, especially in building or engineering work.

“Flood or Flooding.” (1) A general and temporary condition of partial or complete inundation of normally dry land areas from: (a) The overflow of inland or tidal waters; (b) The unusual and rapid accumulation of runoff of surface waters from any source.

(2) The collapse or substance of land along the shore of a lake or other body of water as a result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels or suddenly caused by an unusually high water level in a natural body of water, accompanied by a severe storm or by an unanticipated force of nature, such as a flash flood or an abnormal tidal surge, or by some similarly unusual event which results in flooding as defined in (a) above.

“Flood Hazard Boundary Map (FHBM).” An official map of a municipality or county, issued by the Federal Emergency Management Agency where the boundaries of the areas of special flood hazards have been designated as Zone A.

“Flood Insurance Rate Map (FIRM).” An official map of a municipality or county on which the Federal Emergency Management Agency has delineated both the areas of special flood hazards and the risk premium zones applicable to the municipality or county.

“Flood Insurance Study.” A Flood Insurance Study (FIS) is a compilation and presentation of flood risk data for specific watercourses, lakes, and coastal flood hazard areas within a community. When a flood study is completed for the NFIP, the information and maps are assembled into an FIS. The FIS report contains detailed flood elevation data in flood profiles and data tables.

“Floodplain.” Any large area susceptible to being inundated by the base flood (100- year frequency flood) as shown on maps prepared by the Federal Emergency Management Agency.

“Flood-Proofing.” Any combination of structural and non-structural additions, changes, or adjustments to buildings or structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures, or buildings and their contents.

“Floodway.” The channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot.

“Floor.” The top surface of an enclosed area in a building (including basement), i.e., top of the slab in concrete slab construction or top wood flooring in wood frame construction. The term does not include the floor of a garage used solely for parking vehicles.

“Functionally Dependent Facility.” A facility which cannot be used for its intended purpose unless it is located or carried out in close proximity to water, such as a docking or port facility necessary for the loading and unloading of cargo or passengers, shipbuilding, ship repair, or seafood processing facilities. The term does not include long-term storage, manufacture, sales, or service facilities.

“Future Conditions Flood Hazard Area.” Also known as area of future conditions flood hazard, the land area that would be inundated by flood based on future conditions hydrology. Any areas outside the flood hazard area identified by FEMA

and designated as Future Conditions Flood Hazard Area on FEMA’s Flood Insurance Rate Map shall also be considered special flood hazard areas.

“Highest Adjacent Grade.” The highest natural elevation of the ground surface, prior to construction, next to the proposed walls of a structure.

“Lowest Floor.” The lowest floor of the lowest enclosed area (including basement). An unfinished flood resistant enclosure, usable solely for parking of vehicles, buildings access or storage in an area other in an area other than a basement area is not considered a building’s lowest floor, provided that such enclosure is not built so as to render the structure in violation of the applicable non-elevation design requirements of these regulations.

“Mangrove Stand.” An assemblage of mangrove trees which is mostly low trees noted for a copious development of in development of interlacing more of the following species: black mangrove (Avicenna Nitida); red mangrove (Rhizosphere mangle); white mangrove (Languncularia racemose); and buttonwood (Conocarpus Erecta).

“Manufactured Home.” A building or structure transportable in one or more sections, which is built on permanent chassis and designed to be used with or without a permanent foundation when connected to the required utilities. Also includes recreational vehicles or travel trailers, placed on a site for greater than 180 consecutive days.

“Mean High Tide.” The average height of the sea for all stages of high tide.

“Mean Sea Level.” The average height of the sea for all stages of the tide. For purposes of these regulations, the term is synonymous with National Geodetic Vertical Datum (NGVD). It is used as a reference for establishing varying elevations within the floodplain.

“National Geodetic Vertical Datum (NGVD).” A vertical control, as corrected in 1929, used as a reference for establishing varying elevations within the floodplain.

“New Construction”. Buildings or structures for which the “start of construction” commenced on or after the effective date of these regulations.

“Openwork Structure”. Structures having physical characteristics of open or “flow- through” access, absent of walls, divisions or obstructions.

“Person.” Any individual or age group of individuals, corporations, partnership, association, or any other entity, including municipal, county and state government agencies.

“Principally Above Ground”. At least 51 percent of the actual cash value of the building, less land value, is above ground.

“Riverine”. Relating to, formed by, or resembling a river (including tributaries), streams, brooks, etc.

“Sand Dunes.” Naturally occurring accumulations of sand in ridges of mounds landward of the beach.

“Special Flood Hazard Area.” A Special Flood Hazard Area (SFHA) is an area identified by the Federal Emergency Management Agency (FEMA) as an area with a special flood or mudflow, and/or flood related erosion hazard, as shown on a flood hazard boundary map or flood insurance rate map.

“State.” The State of Mississippi.

“State Property Floodplain Manager.” The Office of State Property Insurance of the Mississippi Department of Finance & Administration, under the direction of the Executive Director.

“State Agency.” Any department, institution, commission, board, or other agency established by the Legislature of the State of Mississippi or by Executive Order of the Governor.

“State Owned.” Buildings, structures or real estate owned in fee-simple title by the State of Mississippi. It does not include buildings, structures, or real estate funded totally or in part by state loans or grants, and which are not state-owned. However, privately owned property on state-owned land shall meet all floodplain management measures.

“Structure.” A walled and roofed building that is principally above ground, a manufactured home, a gas or liquid storage tank, or other man-made facilities or infrastructures.

“Substantial Damage.” When any local or professional officials determine that a structure has been substantially damaged, meaning the cost to repair the structure is equal to or greater than 50 percent of its market value before flood damage.

“Substantial Improvement.” Any repairs, reconstruction, alteration, or improvements to a structure, the cost of which equals or exceeds fifty percent (50%) of the value of the structure either (1) before the improvement or repair is started or (2) if the structure has been damaged and is being restored, before the damage occurred. For the purpose of this definition “substantial improvement” is considered to occur when the first alteration affects the external dimension of the structure. The term does not, however, include either (1) any project for improvement of a structure to comply with existing state health, sanitary, or safety code specifications which are solely necessary to assure safe living conditions, or (2) any alteration of a structure listed on National Register of Historic Places or which are considered eligible for nomination of the National Register by the State Director of the Department of Archives and History or which are listed on the State Inventory of Historic Places. Substantial improvement also includes any addition which increases the original floor area of a building by 25% or more.

“Uninsurable Structures and Property.” Structures and property which are not eligible for flood insurance flood insurance coverage under the National Flood Insurance Program. Such property and structures include, but are not limited to, docks, piers, breakwaters, wharfs, seawalls, roads, bridges, fences, growing crops and plants, and gas or liquid storage tanks.

“Variance.” A grant of relief to a person or entity from the requirements of these regulations which permits construction in a manner otherwise prohibited by these regulations where specific enforcement would result in unnecessary hardship.

“Watercourse.” Any natural lake, river, creek, or other natural body of water or channel having definite banks and bed.

“Water Surface Elevation.” The projected heights in relation to mean sea level reached by floods of various magnitudes and frequencies in the floodplains of coastal or riverine areas.

12 Miss. Admin. Code Pt. 10, R. 100.7 Applicability

(1) These regulations shall apply to: All state-owned lands within the floodplains of the State of Mississippi.

(2) Every State of Mississippi property participates in the National Flood Insurance Program via the DFA Office of State Property Insurance (OSPI).

(3) The Mississippi State Port Authority provides their own NFIP flood insurance.

12 Miss. Admin. Code Pt. 10, R. 100.8 Basis for Establishing the Floodplains

All floodplains (to include base flood elevations and floodways) in the state shall be identified by the appropriate State Property Floodplain Manager from the following sources, documents and maps:

1. FEMA Flood Map Service Center (www.msc.fema.gov); 2. Flood Insurance Studies, Flood Insurance Rate Maps, and Flood Boundary and Floodway Maps as prepared by the Map Service Center of the Federal Emergency Management Agency.

12 Miss. Admin. Code Pt. 10, R. 100.9 Establishment of Development Permit

A development permit shall be required in conformance with the provisions of these regulations prior to the commencement of any development activities.

12 Miss. Admin. Code Pt. 10, R. 100.10 Compliance

No state-owned building, structure, land or real property located on the floodplains of the state shall hereafter be located, extended, converted or structurally altered by any person or state agency without full compliance with the terms of these regulations.

12 Miss. Admin. Code Pt. 10, R. 100.11 Abrogation and Greater Restrictions

These regulations are not intended to repeal, abrogate, or impair any existing state or federal easements, covenants, or deed restrictions. However, where these regulations and another state or federal regulation

conflict or overlay, whichever impose the more stringent restrictions shall prevail.

12 Miss. Admin. Code Pt. 10, R. 100.12 Interpretation

In the interpretation and application of these regulations, all provisions shall be: (1) considered as minimum requirements; and (2) liberally construed in favor of the state.

12 Miss. Admin. Code Pt. 10, R. 100.13 Warning and Disclaimer of Liability

The degree of flood protection required by these regulations is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by man-made or natural causes. These regulations do not imply that land outside the areas will be free from flooding or flood damages. These regulations shall not create liability on the part of the State of Mississippi or by an officer or employee thereof for any regulations or any administrative decision lawfully made thereunder.

12 Miss. Admin. Code Pt. 10, R. 100.14 Penalties for Violation

a. It shall be the responsibility of the State Property Floodplain Manager to notify in writing any state department or agency or division thereof, which is found to be in violation of any section of the State Floodplain Management Regulations, Criteria & Procedures within five days from discovery of such violation.

b. Upon receipt of such notification by any state department or agency or division thereof, action should be initiated by the same within forty- five (45) calendar days from receipt of said notice to remedy all violations of floodplain regulations which are cited in the notice.

c. Failure by any state department or agency or division thereof, to begin such action within the specified time and complete necessary action within a reasonable time period will result in a notification to the Mississippi Office of the State Auditor and a recommendation by the State Property Floodplain Manager to the Deputy Executive Director and/or Executive Director of the MS Department of Finance & Administration to the freezing of their state project funds, exclusive of payrolls which were directed for use by that department or agency division thereof, which is found to be in violation, until such action had been completed which eliminates the violation(s) and brings that

state department or agency or division thereof, into compliance with the floodplain regulations of the state.

d. Nothing herein contained shall prevent the MS Department of Finance & Administration from taking such other lawful action as is necessary to prevent or remedy any violation.

12 Miss. Admin. Code Pt. 10, R. 100.15 Amendment Procedure

a. Any amendment of these regulations shall be submitted to the Federal Emergency Management Agency and the State Property Floodplain Manager, MS Department of Finance & Administration.

12 Miss. Admin. Code Pt. 10, R. 100.16 Severability

If any section, clause, provision or portion of these regulations is adjudged unconstitutional or invalid by a court of competent jurisdiction, the remainder of these regulations shall remain in effect.

SECTION 200 ADMINISTRATION

12 Miss. Admin. Code Pt. 10, R. 200.1 Designation of State Property Floodplain Manager

The MS Department of Finance & Administration, by adoption of these regulations, appoints the Director of the DFA Office of State Property Insurance as State Floodplain Manager to administer and enforce these regulations as they apply to state-owned development, with the exception of state-owned roads and bridges. The Mississippi Department of Transportation is appointed to enforce and administer the provisions of these regulations as they apply to state-owned roads and bridges.

12 Miss. Admin. Code Pt. 10, R. 200.2 Duties and Responsibilities of State Property Floodplain Manager

Duties and responsibilities of the State Property Floodplain Manager shall include, but not be limited to:

(1) Review all development permits to assure that the permit requirements of these regulations have been satisfied; (2) Advise permittee that additional federal permits may be required, and if specific federal permit requirements are known, require that copies of such permits be provided and maintained on file with development permit; (3) Notify adjacent communities of State of Mississippi owned properties prior to any alteration or relocation of a watercourse and submit

evidence of such notification to the Federal Emergency Management Agency; (4) Assure that maintenance is provided within the altered or relocated portion of said watercourse so that the flood carry capacity is not diminished; (5) Verify and record the actual elevation (in relation to mean sea level) of the lowest floor (including basement) of all new substantially improved structures in accordance with Section 200; (6) Verify and record the actual elevation (in relation to sea level) to which the new or substantially improved structures have been flood-proofed, in accordance with Section 200; (7) In Coastal High Hazard Areas, certification shall be obtained from a registered (in Mississippi) professional engineer or architect that the structure is designed to be securely anchored to adequately anchored pilings or columns in order to withstand velocity waters and hurricane wave wash; (8) In Coastal High Hazard Areas, the State Property Floodplain Managers shall review plans for adequacy of breakaway walls in accordance with Section 300.2; (9) When flood-proofing is utilized for a particular structure, the State Property Floodplain Manager shall obtain certification from a registered (in Mississippi) professional engineer or architect, in accordance with Section 200; (10) Where interpretation is needed as to the exact location of boundaries of the areas of special flood hazard (for example, where there appears to be a conflict between a mapped boundary and actual field conditions) the State Property Floodplain Manager shall make the necessary interpretation. The person or agency contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation as provided in this article; (11) When base flood elevation data or floodway data have not been provided in accordance with Section 100, Paragraph 100.5, then the State Property Floodplain Manager shall obtain, review and reasonably utilize any base flood elevation and floodway data available from a federal state or other source, in order to administer the provisions of Section 300; (12) All records pertaining to the provisions of these regulations shall be maintained in the office of the State Property Floodplain Manager and shall be opened for public Inspection; (13) The State Property Floodplain Manager shall enforce the provisions of these regulations and may enter any building, structure, or premises to perform any duty imposed upon him by these regulations; (14) Upon notice from the State Property Floodplain Manager, work on any building or structure that is being done contrary to the provisions of this manner shall be immediately stopped. Such notice shall be in writing and shall be given to the agency and person doing the work, and

shall state the conditions under which work may be resumed. Where an emergency exists, no written notice shall be required to be given by the State Property Floodplain Manager. Failure to comply with this order will result in penalties imposed as stated in Section 100, Paragraph 100.14.

200.3. Permit Procedures.

(a) Each state agency or person that proposes to undertake a development or improvement activity to state-owned property or building, and that property or building is located in a known FEMA Special Flood Hazard Area zone A, AE, V or VE, must complete a Floodplain Management Permit Application. This permit application is provided by the DFA Office of State Property Insurance, and can be obtained from this department website. At the bottom of this Section 200.3 is the link for these application forms. These forms are completed with the initiation and early planning for a development activity and submitted to the State Floodplain Manager. If the proposed development to an existing structure is determined to be less than a Substantial Improvement, no additional forms or approval is required for the development project. STEP ONE documents are submitted to the State Floodplain Manager and the case is closed and filed.

(b) If the development is new and/or considered a substantial improvement, the Applicant/Agency continues the Floodplain Management Permit Application. This involves completion of the STEP TWO form, obtaining a Control Code, completion of all information on the form, and submission of all required attachments and items listed on form. Upon receipt of the initial STEP TWO forms, the State Floodplain Manager will process the application. If the STEP TWO form is approved, the State Floodplain Manager will provide a Floodplain Development Initial Approval Letter to the Applicant and the Agency Executive Director. Later in the development process when the final certification of elevation and final complete drawings and specifications are available, they are forwarded to the State Floodplain Manager. If the last requirements of the STEP TWO form are received and approved, the State Floodplain Manager will provide a Floodplain Development Final Approval Letter to the Applicant and the Agency Executive Director.

(c) If the STEP TWO form is not approved, the State Floodplain Manager will immediately contact the Applicant/Agency to discuss and address the items/issues surrounding the cause for disapproval,

and seek ways to bring the form into compliance. If no changes or alterations can be made for the development project, the State Floodplain Manager will provide a Floodplain Development Denial Letter to the Applicant and the Agency Executive Director.

Floodplain Permit Application Process

STEP TIMELINE REQUIREMENT Floodplain Management Permit Application – STEP ONE form Submit as soon as possible following initiation of project planning but in no case prior to advertisement of procurement.

STEP TWO form Due at least 15 calendar days prior to advertisement of procurement. Flood Development Initial Approval Letter Sent by State Floodplain Manager with approval for all initial STEP TWO form documents/attachments. Sent within 15 days of receipt of documents/attachments. Flood Development Final Approval Letter Sent by State Floodplain Manager with approval for all final STEP TWO form documents/attachments. Sent within 15 days of receipt of documents/attachments. Flood Development Denial Letter Prepared by State Floodplain Manager for all unapproved projects within 15 days of receipt of all STEP TWO form and documents

(d) Completion of the Floodplain Permit Application form(s) is required, including: 1. A complete description of the development; 2. Plans and specifications drawn to scale showing the nature; location dimensions, and elevations of the area in question; existing, on proposed structures, fill, storage of materials, drainage facilities, location and necessary for adequate review; 3. Elevation in relation to mean sea level of the existing or proposed lowest floor (including basement) of all structures; 4. Elevation in relation to mean sea level to which any non-residential structure will be flood-proofed; 5. Certificate from registered (in Mississippi) professional engineer or architect that non-residential flood-proofed structure will meet the flood-proofing criteria (FEMA Floodproof Certificate can be found on DFA Office of State Property Insurance website); 6. Description of the extent to which any watercourse will be altered or relocated as a result of proposed development; 7. A floor elevation or flood-proofing certification after the lowest floor is completed, or in instances where the structure is subject to the regulations applicable to Coastal High Hazard Areas, after placement of the horizontal structural members of the lowest floor. Upon placement of the lowest floor, or flood-proofing by whatever

construction means, or upon placement of the horizontal structural members of the lowest floor whichever is applicable; 8. A certification of the elevation of the lowest floor, flood-proofed elevation, or elevation of the lowest portion of horizontal structural members of the lowest floor, whichever is applicable, as built, in relation to mean sea level. Said certification shall be prepared by or under direct supervision of registered (in Mississippi) land surveyor or professional engineer and certified by the same. When flood-proofing is utilized for a particular building, said certification shall be prepared by or under the direct supervision of professional engineers or architect registered in Mississippi and certified by the same. Any work undertaken prior to submission of the certification shall be at the permit holder’s risk. The State Property Floodplain Manager shall review the floor elevation survey data submitted. Deficiencies detected by such review shall be corrected by the permit holder immediately and prior to further progressive work being permitted to proceed. Failure to submit the survey or failure to make said corrections required hereby shall be cause to issue a stop work order for the project; 9. An estimate of the cost to perform the proposed improvements or repairs. If the building has been damaged, the cost estimate must include all work required to repair the building to its pre‐damage condition. The cost estimate must include all labor and materials. If the work will be done by a contractor, the contractor’s overhead and profit must be included with breakdown by category details; 10. A market value appraisal of the building (structure only, not land) that is prepared by a Mississippi licensed professional appraiser according to standard practices of the profession.

If FEMA has not defined the SFHA within a community (State of Mississippi), the community shall require permits for all proposed construction or other development in the community including the placement of manufactured homes, so that it may determine whether such construction or other development is proposed within flood-prone areas. Permits are required to ensure that proposed development projects meet the requirements of the NFIP and the community’s floodplain management ordinance.

DFA, Office of State Property Insurance, State Floodplain Management website for Forms:

http://www.dfa.ms.gov/dfa-offices/state-property-insurance/forms/

12 Miss. Admin. Code Pt. 10, R. 200.4 Variance Procedures

(1) The Mississippi DFA Deputy Executive Directors shall serve as the appeal board and shall hear and decide appeals and requests for variances from the requirements of these regulations; (2) The MS Department of Finance & Administration shall hear and decide appeals when it is alleged there is an error in any requirements, decision or determination made by the State Property Floodplain Manager in the enforcement or administration of these regulations; (3) Any state agency or person aggrieved by the decision of MS Department of Finance & Administration may appeal such decision to the Chancery Court of Hinds County, Mississippi; (4) Variances may be issued for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Places or those which are considered eligible for nomination to the National Register by the Executive Director of MS Department of Archives & History or which are listed by the State Inventory of Historic Places without regard to the procedure set forth in the remainder of those section and provided the proposed reconstruction, rehabilitation, or restoration will not result in the structure losing its historical designation. See FEMA NFIP Bulletin on Historic Structures on the DFA Office of State Property Insurance website; (5) In passing upon such application, the MS Department of Finance & Administration (Appeal Board) shall consider all technical evaluations, all relevant factors, all standards specified in other sections of these regulations, and: (a) The danger that materials may be swept onto other lands to the injury of others; (b) The danger of life and property due to flooding or erosion damage; (c) The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the state; (d) The importance of the services provided by the proposed facility to the state; (e) The necessity to the facility of a waterfront location, in the case of a functionally dependent facility. (f) The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use;

(g) The compatibility of the proposed use with existing and anticipated development; (h) The relationship of the proposed use to the comprehensive plan and floodplain management program for that; (i) The safety of access to the property in times of flood for ordinary and emergency vehicles; (j) The expected heights, velocity, duration, rate of rise and sediment transport of flood waters and the effects of wave action, if applicable, expected at the site; and (k) The costs of providing governmental services during and after flood conditions including maintenance and repair of public utilities and structures such as sewer, gas electrical and water systems and streets and bridges.

(6) Upon consideration of the factors listed above, and the purposes of these regulations, the MS Department of Finance & Administration (Appeal Board) may attach such conditions to the granting of variances as it deems necessary to further the purposes of these regulations; (7) Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result;

(8) Conditions of Variances: (a) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief; and in the instance of a historical building, a determination that the variance is the minimum necessary so as to not destroy the historic character and design of the building; (b) Variances shall only be issued upon: (i) showing of a good and sufficient cause; (ii) a determination that failure to grant the variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisance, cause fraud on or victimizations of the public, or conflict with existing state laws; (c) Any applicant to whom a variance is granted shall be given a written notice specifying the difference between the base flood elevation and the elevation to which the structure is to be built

and stating that the cost of flood insurance will be commensurate with the increased risk resulting from reduced lowest floor elevation; (d) The State Property Floodplain Manager shall maintain the records of all appeal actions and report any variances to the Federal Emergency Management Agency and our Insurance Broker of Record.

SECTION 300. PROVISIONS FOR FLOOD HAZARD REDUCTION

12 Miss. Admin. Code Pt. 10, R. 300.1 Rule 300.1

General Standards. In all areas of special flood hazards, the following provisions are required: (1) All new construction and substantial improvements shall be anchored to prevent flotation, collapse or lateral movement of the structure; (2) All new construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage. (3) All new construction and substantial improvements shall be constructed by methods and practices that minimize flood damage; (4) All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of flood waters into the system; (5) New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of flood waters into the systems and discharges from the systems flood waters; (6) Onsite waste disposal systems shall be located and constructed to avoid impairment to them or contamination from them during flooding; (7) Any alteration, repair, construction, or improvements to a structure which is in compliance with the provisions of these regulations, shall meet the requirement standards for “new construction”; (8) Electrical, heating, ventilation, plumbing, air conditioning equipment, and other service facilities shall be designed and/or located so as to prevent water from entering or accumulation within the components during conditions of flooding.

300.2. Specific Standards.

In all areas of Special Flood Hazards where base flood elevation data has been provided, the following provisions are required:

(1) Residential Construction - New construction or substantial improvement of any residential structure shall have the lowest floor, including basement, elevated to one foot (1’), above the base flood elevation. A registered (in Mississippi) land surveyor shall certify that the standards of the subsection are satisfied. Should solid foundation perimeter walls be used to elevate a structure, openings sufficient to facilitate the impeded movements of flood waters shall be provided in accordance with standards Elevated Buildings, Section 300, Paragraph 300.2(3).

(2) Non-Residential Construction – New construction or substantial improvement of any commercial, industrial, or non- residential structure shall have the lowest floor, including basement, elevated no lower than one foot (1’) above the level of the base flood elevation. Structures located in all A zones may be flood-proofed in lieu of being elevated provided that all areas of the structure below the required elevation are water tight with walls substantially impermeable to the passage of water, and use structural components having the capability of resisting hydrostatic and hydrodynamic loads and the effect of buoyancy. A registered (in Mississippi) professional engineer or architect shall develop and /or review structural design, specifications, and plans for the construction and shall certify that design and method of construction are in accordance with accepted standards of practice.

(3) Elevated Building. New construction or substantial improvements of elevated buildings that include fully enclosed areas formed by foundation and other exterior walls below the base flood elevation shall be designed to preclude finished living space and designed to allow for the entry and exit of flood waters to the automatically equalize hydrostatic flood forces on exterior walls.

(a) Designs for complying with this requirement must either be certified by a professional engineer or architect, registered in Mississippi, or meet the following minimum criteria:

(i) Provide a minimum of two openings on separate walls having a total net area of not less than one

square inch for every square foot of enclosed area subject to flooding; (ii) The bottom of all openings shall be no higher than one foot above grade; and, (iii) Openings may be equipped with screens, louvers, valves or other coverings or devices provided they permit the automatic flow of floodwaters in both directions.

(b) Electrical, heating, ventilation, plumbing, air conditioning equipment, and other service facilities shall be designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding. (c) Access to the enclosed area shall be the minimum necessary to allow for parking of vehicles (garage door) or limited storage of maintenance equipment used in connection with the premises (standard exterior door) or entry to the living area (stairway or elevator); and the interior portion of such enclosed area shall not be partitioned or finished into separate rooms.

(4) Floodways – Located within areas of special flood hazard are areas designated as floodways. Since the floodway is an extremely hazardous area due to the velocity of flood waters which carry debris, potential projectiles and has erosion potential, all development with a floodway is permitted (except manufactured homes which are specifically prohibited) provided the development does not result in any increase in the water surface elevation of the base flood, the development is designed to withstand the velocity waters associated waters associated with the base flood waters, and the development would present no significant obstruction to the flow of the base flood waters, and would not create hazards to public health and safety. For purposes of meeting the requirements of “no increase in the water surface elevation of the base flood”, the following methods shall be acceptable in order of preference:

(a) Development shall be designed to cause no encroachment within the floodway, and certification by a professional engineer (registered in Mississippi) must be provided demonstrating that the encroachment shall not result in any increase in the water surface elevation of the base flood, based on the present conditions of the floodways; (b) Based on an engineering analysis and certification, the effect of the encroachment shall be fully offset by the

creation of equal floodway hydraulic capacity at that location; (c) In those areas where base flood elevations have been determined but a floodway has not been designated, an engineering analysis and certification shall be conducted to establish an appropriate floodway, or it must be demonstrated by an engineering analysis and certification that the proposed development will not increase the water surface elevation of the base flood more than one (1) foot at any point within the total floodplain; (d) In those areas where the proposed construction increases the base flood elevation by more than one (1) foot the adversely affected property owners in the floodplain shall be compensated by securing the affected land by flood easement or fee simple purchase; (e) In special flood hazard areas where base flood elevations have not been determined, proposed development should be designed so as to minimize any adverse effects to other properties; (f) Where an engineering analysis and certification are utilized, engineering methodology used in conducting an engineering analysis shall be approved by the Natural and Technological Hazards Division of the Federal Emergency Management Agency (FEMA). Any changes in floodways or base flood water surface elevations (previously established by the Federal Emergency Management Agency) , along with supporting engineering analysis, shall have been submitted to the Natural and Technological Hazards Divisions of FEMA for review and approval prior to any construction taking place.

(5) Manufactured Homes - All manufactured homes (mobile homes) shall be installed using methods and practices which minimize flood damage. The placement of manufactured homes (mobile homes) in V Zones is prohibited. For the purpose of this requirement, the following provisions shall apply:

(a) All manufactured homes to be placed or substantially improved within Zones A, AE, AH, and A99 shall be elevated on a permanent foundation such that the lowest floor of the manufactured home is one (1) foot above the base flood elevation and be securely anchored to an adequately anchored foundation;

(b) All manufactured homes shall be anchored to resist flotation, collapse, or lateral movement by providing over- the-top and frame ties to ground anchors as specified under the Mississippi Insurance Department’s “Rules and Regulations for the Mobile Home Division of State Fire Marshall’s Office For Factory Manufactured Movable Homes.” (See Article 6). Specific minimum requirements shall be that:

i. Over-the-top ties be provided at each of the four corners of the manufactured home with one additional tie per side at an intermediate location of the manufactured home of less than 50 feet or more; ii. Frame ties be provided at each corner of the manufactured home with four additional ties per side at intermediate points for the manufactured home less than 50 feet long and one additional tie for the manufactured home of 50 feet or longer; iii. Each tie down shall be designed to resist an allowable working load equal to or exceeding 3,150 pounds and shall be capable of withstanding a 50 percent overload without failure; iv. All components of the anchoring system be capable of carrying a force of 4,800 pounds; v. Any additions to the manufactured home be similarly anchored; vi. Where manufactured homes are elevated on compacted fill or on pilings, the lowest floor of the manufactured home will be no lower than one (1) foot above the base flood level; vii. In the instance of elevation on pilings: (1) piling foundations are placed in stable soil no more than 10 feet apart, and (2) reinforcement is provided for pilings more than six feet above ground level.

(6) Access (Ingress-Egress) – New development proposals will be designed, to the maximum extent practicable, so residential building sites, walkways, driveways, and roadways are located on land with a natural grade with elevation not less than the base flood elevation and wit dry land access.

(7) Compensatory Storage Required for Fill – Fill within the special flood hazard area shall result in no net loss of natural floodplain storage, or increase in water surface elevations during the base flood. The volume of the loss of floodwater storage due to filling in the special flood hazard area shall be

offset by providing an equal volume of flood storage by excavation or other compensatory measures at or adjacent to the development site.

(8) Critical Development - Critical facilities and developments are prohibited in the 1% flood hazard areas. Where critical developments are located adjacent to 1%-chance flood areas, the flood protection elevation shall be two feet above the 0.2% flood elevation and that elevation shall be used as the basis for the Access (Ingress-Egress) provisions.

(9) Fill - The following standards apply to all fill activities in special flood hazard areas: a. Fill sites, upon which structures will be constructed or placed, must be compacted to 95 percent of the maximum density obtainable with the Standard Proctor Test method or an acceptable equivalent method; b. Fill slopes shall not be steeper than one foot vertical to two feet horizontal; c. Adequate protection against erosion and scour is provided for fill slopes. When expected velocities during the occurrence of the base flood are greater than five feet per second armoring with stone or rock protection shall be provided. When expected velocities during the base flood are five feet per second or less protection shall be provided by covering them with vegetative cover; d. Fill shall be composed of clean granular or earthen material. e. In any area that has been removed from the floodplain via a Letter of Map Revision Based on Fill, any existing or new structure, addition, or substantial improvement must meet the required elevation freeboard requirements of the underlying flood hazard elevation.

(10) ASCE 24 Flood Resistant Design and Construction - The American Society of Civil Engineers (ASCE) 24-14 is a referenced standard in the 2015 International Building Code® (IBC) and the 2015 International Residential Code® (IRC). Building and structures within the scope of the IBC proposed to be constructed in flood hazard areas must be designed in accordance with ASCE 24-14. The IRC requires dwellings in floodways to be designed in accordance with ASCE 24-14 and includes an alternative that allows communities to require homes in any flood zone to be designed in accordance with ASCE 24-15. Highlights of ASCE 24-14 that complement the

NFIP minimum requirements include: Building Performance; Flood-Damage Resistant Materials; Utilities and Service Equipment and Siting Considerations.

(11) Future Conditions Flood Hazard Area - Require that all map revisions and watershed studies include analyses based on future conditions associated with anticipated watershed growth and land-use and land-cover changes. These future condition analyses shall be included on community floodplain maps and will serve as the basis for this regulation.

(12) Storage of Materials - Storage of material or equipment not otherwise prohibited shall be firmly anchored to prevent flotation.

(13) Setbacks – Setbacks in riverine floodplains: a. Proposed development adjacent to riverine floodplains shall be set back fifty feet (50’) from the floodway boundary or from the centerline of the stream if the floodway has not been delineated. Setbacks adjacent to blue-line tributaries: b. Proposed development adjacent to blue-line tributaries as shown on the United States Department of the Interior Geological Survey (hereafter referred to as “USGS”) quadrants shall be set back thirty feet (30’) from the center line of the stream. The setback shall be increased in areas with flood prone soils which are contiguous to blue line streams. Setbacks in coastal floodplains c. Proposed development adjacent to coastal floodplains, mapped as Coastal High Hazard Areas –Zones V, V1- 30 and VE, shall be set back one hundred feet (100’) from the mean low tide boundary. Proposed development in areas designated as coastal A Zones (areas between the 3’ breaking wave and the 1.5’, 1.0’ breaking wave), shall have the same development requirements as development in Coastal High Hazard Area, Zones V, V1-30 and VE. Setbacks in erosion areas d. Development in areas with annual erosion (advance) rates of (5, 10...) feet or more per year, based on a study by a Federal, State or local agency and adopted by the community, shall be set back one hundred feet (100’) from the mean low tide boundary in coastal areas and setback one hundred feet (100’) from the floodway

boundary or stream centerline if the floodway has not been defined.

(14) Stormwater Regulations – All development proposals which (involve disturbing more than 10,000 square feet of land – removed) disturb one acre of land or more shall include a storm water management plan which is designed to limit peak runoff from the site to predevelopment levels for the 1, 10, and 100 year rainfall event. These plans shall be designed to limit adverse impacts to downstream channels and floodplains.

(15) Elevation of All Additions – All new horizontal additions must have the lowest floor and all HVAC elevated to one foot above the base flood elevation. Non-residential additions may be dry flood proofed to one foot above the base flood elevation.

(16) Sinkholes - A sinkhole, the immediate sinkhole drainage area, a sinkhole cluster area, or portions of such items shall be shown on any development or preliminary subdivision plan for land where they exist. Sinkhole-related nonbuildable areas and restricted fill areas shall be shown on final subdivision plans and development plans. No buildings, parking areas, or other structures shall be permitted within the sinkhole related, non- buildable area. Development may occur in the immediate sinkhole drainage area if the developer provides alternative surface drainage away from the sinkhole, while keeping the water in the same surface drainage basin, and provided further that the water shall not go into another sinkhole drainage area off the petitioner's property, nor into another stream of known flooding problems. The immediate sinkhole drainage system area (or portion thereof ) which cannot be provided with an alternative drainage system can be deleted from the development area and can be used to meet the normal open space requirements.

300.3. Coastal High Hazard Areas (V Zones)

Locations within the areas of special flood hazard are areas designated as Coastal High Hazard Areas. These areas have special flood hazard associated with wave wash. The following provisions shall apply:

1. All new buildings or structures shall be located landward of the reach of the mean high tide, and shall be securely anchored on pilings or columns;

2. All new buildings or structures shall be elevated so that the bottom of the lowest supporting horizontal member (excluding pilings or columns) is located no lower than one (1) foot above the base flood elevation level, with all space below the lowest supporting member open so as not to impede the flow of water. Breakaway walls may be permitted and must be designed to wash away in the event of abnormal wave action; 3. All buildings or structures shall be securely anchored on pilings or columns; 4. All pilings and columns and the attached structures shall be anchored to resist flotation, collapse, and lateral movement due to the effect of wind water loads acting simultaneously on all buildings components. The anchoring and support systems shall be designed with wind and water loading values which equal or exceed the 100 year mean recurrence interval (one percent annual chance flood); 5. A professional engineer or architect (registered in Mississippi) shall certify that the design, specifications and plans for construction are in compliance with the provisions contained in Section 300, Paragraph 300.2 of these regulations; 6. There shall be no fill used as structural support. Non- compacted fill may be used around the perimeter of a building for landscaping / aesthetic purposes provided the fill will wash out from storm surge, (thereby rendering the building free of obstruction) prior to generating excessive loading forces, ramping effects or wave deflection; 7. The State Property Floodplain Manager shall approve design plans for landscaping/aesthetic fill only after the applicant has provided an analysis by an engineer, architect, and/or soil scientist (registered in Mississippi), which demonstrates that the following factors have been fully considered: i. Particle composition of fill material does not have a tendency for excessive natural compaction; ii. Volume and distribution of fill will not cause a wave deflection to adjacent properties; iii. Slope of fill will not cause wave rum-up or ramping; 8. There shall be no alteration of sand dunes or mangrove stands which would increase potential flood damage; 9. “Non-supporting breakaway walls, open lattice-work, or mesh screening shall be allowed below the base of flood elevation provided they are not part of the structural support of the building and are designed so as to breakaway, under abnormally high tides or wave action, without damage to the

structural integrity of the building on which they are to be used and provided the following design specifications are met: i. Design safe loading resistance of each wall shall not less than 10 nor more than 20 pounds per square foot: or ii. If more than 20 pounds per square foot, a registered (in Mississippi) professional engineer or architect shall certify that the design wall collapse would result from water load less than that which would occur during the base flood event and the elevated portion of the building and supporting foundation system shall not be subject to collapse, displacement, or other structural damage due to the effects of wind and water loads acting simultaneously on all building components during the base flood event; iii. If breakaway walls are utilized, such enclosed space shall not be designed to be used for human habitation, but shall be designed to be used for parking of vehicles, building access, or limited storage of maintenance equipment used in connection with premises; iv. Prior to construction, plans for any structures that will have breakaway walls, lattice work or decorative screening must be submitted to the State Property Floodplain Manager for approval; v. Any alteration, repair, reconstruction or improvement to a structure shall nit except with breakaway walls, lattice work it decorative screening as provided for decorative screening as provided for in Section 300. 10. The placement of manufactured homes (mobile homes) in V Zones is prohibited. 11. All new structures shall be located on the lot so as to minimize exposure to coastal hazards and shoreline erosion, and to accommodate primary frontal sand dunes. Structures should be located outside of the V-Zone, to the greatest extent possible. Building setback requirements should consider predicted future erosion rates, or historical erosion rates. 12. Retaining walls, landscaping, dune crossovers and other non-essential accessory structures shall be designed and located to minimize impacts to sand dunes. Primary frontal dunes shall not be altered unless a qualified engineer demonstrates and certifies that flood risk will not be

increased to the subject, or other, properties. Activities which reduce the volume of sand on the dunes or beach can generally be presumed to increase flood risk to landward locations. Adding sand volume to the dune or beach can generally be presumed to not increase flood risk.

300.4. Coastal High Hazard Areas (A Zones) In areas which have been identified as subject to limited wave action (between 1.5 and 3 feet) and designated as a Coastal A-Zone, new and substantially improved structures shall comply with all of the V-Zone provisions of this ordinance. Elevation requirements should refer to the bottom of the lowest horizontal structural member of the lowest floor.

300.5. Standards for Streams Without Established Base Flood Elevations and/or Floodways. (Unnumbered A Zones) Located within the areas of special flood hazard established in Section 300.2, where small no base flood data have been provided or where no floodways have been provided, the following provisions apply:

1. No encroachments, including fill material or structures shall be located within a distance of the stream bank equal to two (2) times the width of the stream at the top of bank or twenty feet each side from top of bank whichever is greater unless certification by a professional engineer (registered in Mississippi) is provided demonstrating that such encroachments shall not result in any increase in flood levels during the occurrence of the base flood discharge; 2. New construction or substantial improvements of structures shall be elevated or flood-proofed to elevations established in accordance with Section 300.2.

300.6. Standards for Areas of Shallow Flooding (AO Zones and Unnumbered A Zones). Located within the areas of special flood hazard established in Section 300.2, are areas designated as shallow flooding areas. These areas have special flood hazards associated with base flood depths of one to three feet (1-3’) where a clearly defined channel does not exist and where the path of flooding is unpredictable and indeterminate; therefore, the following provisions apply:

1. All new construction and substantial improvements of residential structures shall have the lowest floor, including basement, elevated to the depth number specified on the Flood Insurance Rate Map, in feet, above the highest adjacent grade. If no depth number is

specified, the lowest floor, including basement, shall be elevated at least two (2) feet above the highest adjacent grade; or 2. Together with attendant utility and sanitary facilities be completely flood-proofed to or above that level so that any space below that level is water tight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy.

300.7. Prohibited Uses

(1) Storage of material or equipment that, in time of flooding, could become buoyant and pose an obstruction to flow in identified floodway areas. (2) The placement of manufactured homes (mobile homes) in V Zones is prohibited. (3) New construction of any residential or nonresidential structures in floodway areas. (4) Storage or processing of hazardous, flammable, or explosive materials in special flood hazard areas. [Caution: while this policy defines the floodplain, floodway and BFE’s future conflicts may occur when the watershed is remapped or modified by a LOMC] (5) Critical development in special flood hazard areas. (6) The use of nonconforming structures shall not be changed from a non-residential structure to a residential structure or a mixed-use structure, or increase the residential use area of a mixed-use structure. (7) The use of any structure shall not be changed to a critical facility, where such a change in use will render the new critical facility in violation of Section 300.2.(8).

Part 11 LEGISLATIVE GRANT PROGRAMS

Chapter 1 MISSISSIPPI ASSOCIATION OF INDEPENDENT COLLEGES AND UNIVERSITIES (MAICU) INFRASTRUCTURE GRANT PROGRAM ACT OF

12 Miss. Admin. Code Pt. 11, R. 1.1 MAICU INFRASTRUCTURE GRANT Applications

Within the Mississippi Department of Finance and Administration, certain eligible independent colleges and universities may apply for reimbursable grants to make necessary investments in water, wastewater, stormwater, broadband and other eligible infrastructure projects to be funded by the Legislature utilizing the Coronavirus State Fiscal Recovery Funds made available under the American Rescue Plan Act (ARPA).

(a) To apply for funding under this Act, eligible applicants should visit the Mississippi Department of Finance and Administration website located at https://www.dfa.ms.gov/ and click on the MAICU icon located under Covid-19 Information and Resources. (b) All application procedures, deadlines and rules related to administration of the MAICU Grant Program are located within the referenced MAICU portal.

History

• Source: S.B. No. 2700, Mississippi Legislature 2022 Regular Session

Chapter 2 INDEPENDENT SCHOOLS INFRASTRUCTURE GRANT PROGRAM ACT OF 2022

12 Miss. Admin. Code Pt. 11, R. 2.1 INDEPENDENT SCHOOLS INFRASTRUCTURE GRANT Applications

Within the Mississippi Department of Finance and Administration, certain eligible independent schools may apply for reimbursable grants to make necessary investments in water, wastewater, stormwater, broadband and other eligible infrastructure projects to be funded by the Legislature utilizing the Coronavirus State Fiscal Recovery Funds made available under the federal American Rescue Plan Act (ARPA).

(a) To apply for funding under this Act, eligible applicants should visit the Mississippi Department of Finance and Administration website located at https://www.dfa.ms.gov/ and click on the INDEPENDENT SCHOOLS INFRASTRUCTURE icon located under Covid-19 Information and Resources. (b) All application procedures, deadlines and rules related to administration of the PROGRAM are located within the referenced INDEPENDENT SCHOOLS INFRASTRUCTURE portal.

History

• Source: S.B. No. 2780, Mississippi Legislature 2022 Regular Session Date Adopted: May 31, 2022

Part 12 Office of Broadband Expansion and Accessibility of Mississippi (BEAM)

Chapter 1 General Information

12 Miss. Admin. Code Pt. 12, R. 1.1 Description of BEAM

BEAM is an Office within the Department of Finance and Administration established by the Mississippi Legislature in Section 3 of the Broadband and Accessibility of Mississippi (BEAM) Act (“BEAM Act”), 2022 Miss. Laws, Ch. 397 (H.B. No. 1029), (codified at Miss. Code Ann. §§ 77-19-1 et seq.).

(1) BEAM was established for the purpose of making determinations and awards from applications for projects to provide broadband services in the state using the Broadband Expansion and Accessibility of Mississippi (BEAM) Fund (“BEAM Fund”) created pursuant to Section 4(4) of the BEAM Act, Miss. Code Ann. § 77-19-7(4).

(2) BEAM is also tasked with coordinating all broadband expansion and accessibility efforts within the state to ensure an effective and efficient use of broadband grant funds and coordinating all information provided by broadband service providers to the state, including all broadband mapping efforts for the state. Any broadband service provider who fails or refuses to provide data and information requested and required by BEAM in furtherance of these tasks will be ineligible for grant funding.

History

• Source: Miss. Code Ann. § 25-43-2.104; Miss. Code Ann. §§ 77-19-1 et seq.

12 Miss. Admin. Code Pt. 12, R. 1.2 Access to General Information

General information regarding BEAM, including contact information, is available at the BEAM website: www.beam.ms.gov.

History

• Source: Miss. Code Ann. § 25-43-2-104; Miss. Code Ann. §§ 77-19-1 et seq.

12 Miss. Admin. Code Pt. 12, R. 1.3 Adoption of Rules

BEAM has authority under the BEAM Act to develop rules and procedures as necessary to implement broadband grant programs. Such rules will be adopted in accordance with the procedures required under the Mississippi Administrative Procedure Law, Miss. Code Ann. § 25-43-1.101 et seq.

History

• Source: Miss. Code Ann. §§ 77-19-1 et seq.

12 Miss. Admin. Code Pt. 12, R. 1.4 Definitions

In these rules (Title 12, Part 12), the following definitions apply, unless otherwise noted:

(l) “Applicant” means an eligible broadband service provider that has authorization to do business in this state and has demonstrated that it has the technical, financial and managerial resources and experience to provide broadband services in the state to retail end users.

(2) “Broadband service” means a mass-market retail service by wire, cable, fiber, or radio provided to customers in the State of Mississippi that provides the capability to transmit data to,

and receive data from, all or substantially all Internet endpoints, at speeds of at least one hundred (100) megabits per second downstream and twenty (20) megabits per second upstream, and including, but not limited to, any capabilities that are incidental to and enable the operation of communications service, but excluding dial-up Internet access service.

(3) “Office” means the Office of Broadband Expansion and Accessibility of Mississippi (BEAM) within the Department of Finance and Administration created in Section 3 of the BEAM Act, and is also referred to herein as “BEAM.”

(4) “Deployed” means, with respect to availability of broadband service at a location, when the person or entity has access regardless of whether a person or entity subscribes to the broadband service at the location.

(5) “Eligible broadband service provider” means any company, firm, corporation, limited liability company, partnership, or association (i) that has been providing broadband service to at least one hundred (100) residences and businesses in Mississippi for at least three (3) consecutive years; (ii) is an electric power association’s broadband affiliate operating pursuant to Miss. Code Ann. § 77-17-1 et seq.; or (iii) that has demonstrated financial, technical, and operational capability in building and operating a broadband network.

(6) “Eligible project” means a discrete and specific project located in an unserved or underserved area of the state seeking to provide broadband services to residences, businesses, and community institutions not currently available for service in accordance with the applicable federal guidelines.

(7) “Shapefile” means a digital storage format containing geospatial or location-based data and attribute information regarding the availability of broadband Internet access service, and that can be viewed, edited, and mapped in geographic information system software.

History

• Source: Miss. Code Ann. §§ 77-19-1 et seq.

12 Miss. Admin. Code Pt. 12, R. 1.5 Applicable Federal Law

In accordance with Miss. Code Ann. § 77-19-9(b), federal laws, rules, regulations, and guidance specific to any federal grant programs from which BEAM grants are awarded shall supersede in any instance where the BEAM Act or any BEAM Rule conflicts with said federal authorities.

History

• Source: Miss. Code Ann. § 77-19-1 et seq.

Chapter 2 BEAM Fund Grant Programs

12 Miss. Admin. Code Pt. 12, R. 2.1 BEAM Fund Capital Projects Fund (“CPF”) Grant Program

The United States Department of Treasury (“Treasury”) allocated to the State of Mississippi $162,609,351.00 from the Coronavirus Capital Projects Fund established by Section 604 of the Social Security Act, as added by Section 9901 of the American Rescue Plan Act (“ARPA”) of 2021, and has authorized BEAM to oversee the awarding of grants from these funds to eligible subrecipients for broadband projects.

History

• Source: Miss. Code Ann. §§ 77-19-1 et seq.

12 Miss. Admin. Code Pt. 12, R. 2.1.2 Categories of CPF Grants

The BEAM Fund CPF Grant Program will provide grants in different categories to provide opportunities for the variety of circumstances, subscribers, and providers in Mississippi. The categories existing as of the time of the adoption of this rule are:

(1) Broadband Infrastructure: This category will provide grants to fund large scale projects designed to serve sizable numbers of targeted addresses and will reimburse awardees for actual capital expenses up to a maximum project cost identified in the award. Costs must be a directly related upfront investment associated with installing or upgrading existing broadband facilities on the proposed project on a one-time, capital improvement basis. Funding from the American Rescue Plan Capital Projects Fund will provide the sole source of funding for the initial round of awards in this category. Matching funds of at least 20% are required and additional matching funds will have a positive impact on application scoring.

(2) Line Extension and Deployment: This category will provide grants for the extension of existing last-mile cable modem and fiber broadband networks, provided the extension can be constructed quickly. Internet service providers are eligible if they have an existing fiber to the premises or an existing cable network offering service of at least 100 Mbps download and 20 Mbps upload to mass-market users that can be extended to unserved premises. Funding from the American Rescue Plan Capital Projects Fund will provide the sole source of funding for the initial round of awards in this category. Matching funds of at least $500 per address passed by fiber or cable lines funded by the program are required.

(3) ARPA Broadband Communities: This category will promote private and public partnerships for projects where the applicant partners with a county, municipality, or an affiliated organization (economic development corporation, regional planning and development council, etc.) that dedicates funds through the American Rescue Plan Act (ARPA), or other funding, to a broadband development initiative. Before applying for such grants, the applicant must have in place a written agreement with the county, municipal government, or affiliated organization and provide appropriate documentation, including official board action of the county, municipality, or affiliated organization authorizing said agreement and reflecting the commitment of ARPA or other funding. Funding from the American Rescue Plan Capital Projects Fund will provide the sole source of funding for the initial round of awards in this category. Matching funds of at least 50% are required and additional matching funds will have a positive impact on application scoring.

(4) Digital Connectivity Technology: The digital connectivity category of the BEAM Fund CPF Grant Programs will provide funds for technology projects installed as part of public wi-fi infrastructure (e.g., access points, repeaters, routers). Before applying for such grants, applicants must have in place a written agreement with a county, municipality, or an affiliated organization (economic development corporation, regional planning and development council, etc.) seeking to provide public wi-fi service and must provide appropriate documentation, including official board action of the county, municipality, or affiliated organization authorizing said agreement. Applicants must also demonstrate affordability as a barrier to local broadband adoption and use. Funding from the American Rescue Plan Capital Projects Fund will provide the sole source of

funding for the initial round of awards in this category. A match of at least 10% of total project costs is required for all rounds of awards in this category, and additional matching funds will have a positive impact on application scoring.

History

• Source: Miss. Code Ann. §§ 77-19-1 et seq.

12 Miss. Admin. Code Pt. 12, R. 2.1.3 Common requirements of CPF broadband infrastructure categories

Categories 1, 2, and 3 of the BEAM Fund CPF Grant Program share the following requirements:

(1) Limited to projects in locations in which at least 80 percent of the residences, businesses, and community institutions are without access to broadband service as defined in Rule 1.4(2);

(2) Download speeds of 100 Mbps and upload speeds of at least 20 Mbps, with demonstrated scalability to 100 Mbps;

(3) Project costs limited to new construction and may be directly related to the upfront investment associated with installing and/or upgrading existing broadband facilities on a one- time capital improvement basis.

(4) Awards limited to $5 million per project unless substantial justification for a higher amount is presented to and approved by BEAM, with projects being reimbursed for actual capital expenses up to the maximum project cost identified in the award;

(5) Disbursements to be made from the BEAM Fund by the Department of Finance and Administration following provision by the grantee of verifiable information that moneys were expended consistent with the terms of the final determination awarded by BEAM and any requirements of applicable federal law;

(6) Projects which are selected may be reimbursed for actual capital expenses up to the maximum project cost identified in the award.

(7) Participation in the Affordable Connectivity Program or such other low-cost program as required by Treasury.

(8) Funding shall not be used for costs that are reimbursable by other federal funding streams but may be used for complementary funding;

(9) Projects that incidentally cover served addresses may be reimbursable if the expenditure is not solely to benefit a served address, but customer drops, installations, and equipment at incidentally served addresses are not eligible for reimbursement; and

(10) Compliance with all state and federal laws, rules, regulations, and guidance is required.

History

• Source: Miss. Code Ann. §§ 77-19-1 et seq.

12 Miss. Admin. Code Pt. 12, R. 2.1.4 Eligible entities for grants

Entities eligible for funding in these categories shall be those as defined in the Federal Guidance for the Coronavirus Capital Project Funds §1(A) or other applicable federal law that also meet the definition of an applicant as set forth in Miss. Code Ann. § 77-19-3(a) and in these rules.

History

• Source: Miss. Code Ann. §§ 77-19-1 et seq.

12 Miss. Admin. Code Pt. 12, R. 2.1.5 Eligible areas for grants

All areas in Mississippi without broadband service as defined in Rule 1.2(4) are eligible for funding under the BEAM Fund CPF Grant Programs in the categories provided in Rule 2.1.2(1)-(4). No final award will be made if the proposed project includes an area where broadband is currently deployed, or where construction of a network to deploy broadband service is underway by a provider other than the applicant, and the construction is scheduled to be completed within one year after the date of the application. Areas with no current access to internet service with at least 25 Mbps download and 3 Mbps upload (25/3) are considered critical need areas. Addresses with current or future access to service only by satellite providers or mobile wireless networks are also considered critical need areas. Eligible areas of critical need will be determined by census block based on FCC data as supplemented by current state data and posted on BEAM’s website in advance of the opening of the application window.

History

• Source: Miss. Code Ann. §§ 77-19-1 et seq.

12 Miss. Admin. Code Pt. 12, R. 2.2 BEAM Fund Broadband Equity, Access, and Deployment (“BEAD”) Grant Program

The BEAD program was authorized by the Infrastructure Investment and Jobs Act of 2021 (“IIJA”), Division F, Title 1, Section 60102, Public Law 117-58, 135 Stat. 429 (November 15, 2021) also known as the Bipartisan Infrastructure Law. The BEAD program has allocated $1,203,561,563.05 to Mississippi for the construction of broadband networks and other activities designed to close the digital divide in the state.

History

• Source: Miss. Code Ann. § 77-19-1 et seq.

12 Miss. Admin. Code Pt. 12, R. 2.2.1 Federal Agency

The BEAD program is administered by the National Telecommunications and Information Administration (NTIA), U.S. Department of Commerce. The NTIA has issued a Notice of Funding Opportunity (NOFO),

as amended by the BEAD Restructuring Policy Notice of June 6, 2025, and other guidance documents available on NTIA’s website, broadbandusa.ntia.gov. Applicants for BEAD grants should be familiar and are required to comply with all applicable provisions of such documents and all controlling federal laws, rules, regulations, and guidance regarding the BEAD Program.

History

• Source: Miss. Code Ann. § 77-19-1 et seq.

12 Miss. Admin. Code Pt. 12, R. 2.2.2 BEAD Grant Program Description

The BEAD Grant Program provides federal funding for broadband planning, deployment, mapping, equity, and adoption activities. The BEAD Program’s focus is on deploying broadband service to unserved locations—defined by the NTIA as those without any broadband service at all or with service offering speeds less than 25

Available at https://broadbandusa.ntia.doc.gov/sites/default/files/2022-05/BEAD%20NOFO.pdf.

Mbps downstream/3 Mbps upstream—and underserved locations defined by the NTIA as those without broadband service with speeds of 100 Mbps downstream/20 Mbps upstream. The BEAD Program also seeks to prioritize deployment to community anchor institutions as defined in the IIJA, 47 U.S.C. § 1702(a)(2)(E). Deployment to unserved and underserved areas and to community anchor institutions are considered “last-mile broadband deployment projects.” Assuming those needs are met and any BEAD funding remains, the BEAD Program allows grants to be awarded for “non-deployment uses,” subject to federal guidance and regulations.

History

• Source: Miss. Code Ann. § 77-19-1 et seq.

12 Miss. Admin. Code Pt. 12, R. 2.2.3 BEAD Grant Program Procedures

The procedures for applying for a grant under the BEAD program and the governing parameters of such grants will comply with the BEAD Restructuring Policy Notice of June 6, 2025, and applicants will be required to comply with those provisions.

History

• Source: Miss. Code Ann. § 77-19-1 et seq.

12 Miss. Admin. Code Pt. 12, R. 2.2.4 Coordination with Mississippi 811 to prevent buried utility damage

Broadband service providers receiving a BEAD Award (subgrantees) must agree to hold a preconstruction meeting with a representative from Mississippi 811, the subgrantee’s contractors and subcontractors, the relevant county administrators or their designees, and buried utility owners, operators, and locators, at least thirty (30) days prior to the commencement of excavation. The subgrantee shall coordinate with Mississippi 811 as to the date, time, location, and appropriate attendees for such meeting. The subgrantee shall present at the preconstruction meeting a proposed excavation plan and receive comments from the attendees regarding any recommended changes. Within ten (10) days following the preconstruction meeting, the subgrantee shall provide all attendees and BEAM with its written excavation plan, incorporating changes made to the excavation plan as a result of the preconstruction meeting, if any. The excavation plan shall include, at a minimum:

A. Prints/maps of the excavation route that includes which side of the road/street excavation will take place; B. The expected start and end dates for excavation routes within the project area; C. A list of the types of equipment that will be used for excavation in the project areas; D. A list of all contractors and subcontractors that will be working in the area and their contact information; E. A timeline of the project; F. Contact information for the subgrantee’s project manager or someone with authority to resolve unexpected issues.

The subgrantee shall periodically update such excavation plan, as necessary, and provide any updates to all meeting attendees and BEAM.

BEAM reserves the right to require additional meetings to be held if BEAM determines such to be necessary.

The requirements in this rule do not alter, amend. or abrogate any party’s legal obligation to comply with the Mississippi DIG Law, Miss. Code Ann. § 77-13-1, et seq.

A subgrantee’s failure to comply with the foregoing may result in loss/delay of grant funds.

History

• Source: Miss. Code Ann. § 77-19-1 et seq.

12 Miss. Admin. Code Pt. 12, R. 2.3 BEAM Fund Digital Skills and Accessibility (“DSA”) Capacity Grant Program

This grant program was terminated effective May 9, 2025, by the U.S. Department of Commerce, thus this rule is repealed.

Chapter 3 BEAM Fund Grant Programs – Application Process

12 Miss. Admin. Code Pt. 12, R. 3.1 Notification

BEAM will provide on its website: advance notice of the date any application window will be opened for acceptance of applications; the date that any application window will be closed; an application form for the grant in question; and the scoring criteria to be used by BEAM in reviewing the grant applications. A link on BEAM’s website will allow persons to submit an email address to which they wish to receive automatic email notifications from BEAM.

History

• Source: Miss. Code Ann. §§ 77-19-1 et seq.

12 Miss. Admin. Code Pt. 12, R. 3.2 Electronic submission of applications

Grant applications must be submitted electronically through BEAM’s online grant portal, the link of which will be on BEAM’s website at www.beam.ms.gov.

History

• Source: Miss. Code Ann. §§ 77-19-1 et seq.

12 Miss. Admin. Code Pt. 12, R. 3.3 Required information

Each applicant for grants funding broadband deployment will be required to provide the following information:

(1) The location of the project by use of a shapefile and, if required, address level location data;

(2) The type and amount of broadband infrastructure to be deployed for the project, including the amount the applicant intends to invest in the project from private funds;

(3) Evidence regarding the nature of the broadband service, if any, available in the community in which the project is to be located;

(4) The number of households, businesses, community anchor institutions, or other entities that will have access to broadband service as a result of the project, or whose Internet access service will be upgraded to broadband service as a result of the project;

(5) The significant community institutions that will benefit from the proposed project;

(6) Evidence of community support for the project with a narrative description of the impact that the investment will have on community and economic development efforts in the area;

(7) The total cost of the project and a detailed budget and schedule for the project (showing major milestones), including the submission of a business plan that provides for the use of funds provided under the BEAM Act, shows all other sources of funding for the project, and confirms that BEAM grant funds shall not be used to support the operational expenses of the network or to subsidize any other service provided by the applicant;

(8) The broadband service provider’s experience and financial capabilities to deploy, operate, and manage the proposed project and broadband service offerings, including any evidence of the applicant’s successful operations of broadband services to retail end users, as well as evidence that the broadband service provider can meet all applicable federal grant program requirements;

(9) The network technology standard to be used;

(10) Service tiers and costs where applicable, including any low cost options;

(11) Whether the applicant is willing to use Mississippi-based employees to the fullest extent possible if awarded grant funds; and

(12) Any additional information that BEAM may deem necessary for its consideration of the application and is requested by BEAM during the review process.

History

• Source: Miss. Code Ann. §§ 77-19-1 et seq.

Chapter 4 Application Review Process and Preliminary Determinations.

12 Miss. Admin. Code Pt. 12, R. 4.1 Scoring Rubric

Applications will be competitively scored using the rubric of requirements published on the BEAM website prior to the opening of the application window.

History

• Source: Miss. Code Ann. §§ 77-19-1 et seq.

12 Miss. Admin. Code Pt. 12, R. 4.2 Initial review of applications

After the closing of the application window, the Office will review all applications thoroughly and expeditiously. In conducting this review, the Office shall consider the following guidelines and factors for grants funding broadband deployment:

(1) Funds for the grant programs must only be used by applicants for projects that exclusively extend broadband service as defined herein into areas of the state without such service;

(2) Funds from federal broadband grant programs must be spent in accordance with federal laws, rules, regulations, and guidance, and federal laws, rules, regulations, and guidance shall supersede in any instance where the BEAM Act or a BEAM Rule conflicts;

(3) The applicant’s experience and financial wherewithal to deploy, operate, and manage the proposed project and broadband service offerings, including evidence of the applicant’s successful operations of broadband services to retail end users;

(4) The readiness to build, operate, and maintain the project;

(5) Projects that will deploy broadband service to critical need areas;

(6) The scalability of the proposed project network to support the deployment of higher broadband speeds over time;

(7) The likelihood that the area will not be served with broadband service without such state or federal funding;

(8) The applicant’s ability to demonstrate the community’s support for the project and a collaborated plan to leverage broadband services for community needs and economic development, such as rural development, education, tourism, new investment, or business attraction or retention;

(9) A preference for those applications seeking to deploy and provide broadband services to areas in which there is currently no fixed terrestrial internet access service available;

(10) Subject to subparagraph 9 above, no discrimination or preference to applications on the basis of the type of technology proposed by any applicant to be used to provide broadband services so long as the technology proposed meets the federal guidelines;

(11) The size and scope of the project area to be deployed; and

(12) The broadband service speed thresholds proposed in the application and the scalability of the broadband service network infrastructure proposed to be deployed to provide broadband service to households and businesses (with projects that do not meet the 100/100 Mbps symmetrical speed being subject to heightened review unless the applicant demonstrates excessive deployment costs per location or geographic barriers precluding such speeds).

History

• Source: Miss. Code Ann. §§ 77-19-1 et seq.

12 Miss. Admin. Code Pt. 12, R. 4.3 Requests for Additional Information or Clarification

The Office may seek additional information or clarification from an applicant during the initial review process if the Office determines such is necessary for an informed review of an application. An applicant’s refusal to provide such information will be a basis for denial of the application being considered.

History

• Source: Miss. Code Ann. §§ 77-19-1 et seq.

12 Miss. Admin. Code Pt. 12, R. 4.4 Preliminary Determinations

After its initial review is completed, for grants funding broadband deployment, BEAM will publish on its website: the identity of each application project receiving a preliminary determination; the proposed geographic broadband service area

for each application that receives a preliminary determination illustrated by a shapefile; and the proposed broadband service speeds for each application that receives a preliminary determination. No information exempt from disclosure under the BEAM Act shall be published.

History

• Source: Miss. Code Ann. §§ 77-19-1 et seq.

Chapter 5 Investigation of Comments and Objections; Final Determinations.

12 Miss. Admin. Code Pt. 12, R. 5.1 Comments or Objections

For a period of thirty (30) days following the publication on BEAM’s website of the preliminary determinations for grants funding broadband deployment, BEAM shall accept comments or objections concerning the preliminary determinations. Said comments or objections should be submitted BEAM via email addressed to comments@beam.ms.gov and must be received by BEAM within this thirty-day period.

History

• Source: Miss. Code Ann. §§ 77-19-1 et seq.

12 Miss. Admin. Code Pt. 12, R. 5.2 Investigation of Comments or Objections

The Office will investigate all comments and objections received, and the findings from those investigations will be considered in determining whether an applicant is eligible for a final determination and award for grants funding broadband deployment. A final determination and award shall not be made to an applicant if verifiable information is made available that shows the proposed project includes an area where broadband services currently are deployed, or where construction of a network to deploy broadband service is underway by a provider other than the applicant, and the construction is scheduled to be completed within one (1) year after the date of the application.

History

• Source: Miss. Code Ann. §§ 77-19-1 et seq.

12 Miss. Admin. Code Pt. 12, R. 5.3 Final Determinations

The Office will publish final determinations on its website as to applications to be awarded grant funds. No information exempt from disclosure under the BEAM Act will be included in the publication.

History

• Source: Miss. Code Ann. §§ 77-19-1 et seq.

Chapter 6 Compliance Monitoring.

12 Miss. Admin. Code Pt. 12, R. 6.1 Monitoring of compliance with grant requirements

Ongoing compliance with the requirements of any grant award will be monitored by the BEAM Office. Any such monitoring shall comply with state and federal law.

History

• Source: Miss. Code Ann. §§ 77-19-1 et seq.

Chapter 7 Protection of Confidential Information; Public Records Access.

12 Miss. Admin. Code Pt. 12, R. 7.1 Limitation on data required to be submitted by broadband service providers

In accordance with Section 4(2)(d) of the BEAM Act, a broadband service provider shall in no

instance be required to provide any data beyond that which it is required to provide to the Federal Communications Commission pursuant to 47 U.S.C. § 641 et seq.

History

• Source: Miss. Code Ann. §§ 77-19-1 et seq.

12 Miss. Admin. Code Pt. 12, R. 7.2 Protection of Confidential Information from Disclosure under BEAM Act

Information described below in subsections (1) and (2) that is received by the Office is confidential and not subject to disclosure except as provided by the BEAM Act or any applicable federal law.

(1) All information provided by a broadband service provider pursuant to the BEAM Act shall be presumed to be confidential, proprietary, and subject to exemption from disclosure under state and federal law and shall not be subject to disclosure except in the form of a map where information that could be used to determine provider-specific information about the network of the broadband service providers is not disclosed. Such provider-specific information shall not be released to any person without written permission of the submitting broadband service provider.

(2) Any trade secrets, financial information, or proprietary information submitted under the BEAM Act by any person or entity as part of an application or challenge are exempt from disclosure under the Mississippi Public Records Act, Section 25-61-1 et seq.

History

• Source: Miss. Code Ann. §§ 77-19-1 et seq.

12 Miss. Admin. Code Pt. 12, R. 7.3 Requests for access to public records

Records of the Office not protected from disclosure under the BEAM Act or other laws are available for inspection and copying pursuant to the procedures set forth in the Mississippi Administrative Code, Title 12 (Finance and Administration), Part 2 (Public Records Request Procedures), Chapter 1 (Rules for Accessing Public Documents), as adopted by the Mississippi Department of Finance and Administration.

History

• Source: Miss. Code Ann. §§ 77-19-1 et seq.; Miss. Code Ann. § 25-61-5.

Chapter 8 Declaratory Opinions

12 Miss. Admin. Code Pt. 12, R. 8.1 Requests for Declaratory Opinions

Any request for a declaratory opinion will be handled in accordance with the policies and procedures adopted by the Department of Finance and Administration as set forth in the Mississippi Administrative Code, Title 12 (Finance and Administration), Part 1 (Organizational Rules), Chapter 3 (Declaratory Opinions).

History

• Source: Miss. Code Ann. § 25-43-2.103

12 Miss. Admin. Code Pt. 12, R. 9.1 Effective date of Rules 1.1 through 9.1 of Title 12, Part 12

The rules set forth herein in Title 12 (Finance and Administration), Part 12 (Office of Broadband Expansion and Accessibility of Mississippi (BEAM)), Chapters 1 through 9, which confer only benefits to the public or some segments thereof in providing procedures for the granting of funds for the expansion of broadband services in the state, and which accordingly should be adopted and implemented as

expeditiously as possible, shall be effective immediately upon the filing with the Office of the Secretary of State of the final rules as adopted by the BEAM Office, in accordance with Miss. Code Ann. § 25-43-3.113(2)(b)(ii).

History

• Source: Miss. Code Ann. § 25-43-3.113.

Part 13 Bureau of Building and Grounds (BOB)

Chapter 1 Bureau of Building Rule 1.1 Purpose and Organization. The Bureau of Building, Grounds and Real Property Management is a division of the Mississippi Department of Finance and Administration [DFA]. The Bureau of Building [BOB] serves as the state building authority for all construction projects under its purview and has the power to acquire, hold and dispose of real and personal property for the State of Mississippi.

12 Miss. Admin. Code Pt. 13, R. 1.2 Related Laws and Regulations

A. The authorities and responsibilities of the BOB are primarily, but not exclusively, found in Title 31, Chapter 11 of the Mississippi Code and include, but are not limited to: Erecting, repairing, demolishing, and regulation of state buildings; purchasing and conveying lands; performing functions necessary for state-owned buildings to be compliant with the Americans with Disabilities Act of 1990, the Higher Education Facilities Act of 1963, and the floodplain management criteria set forth in the National Flood Insurance Program. B. Additionally, the BOB and Using Agencies [UA] self-administering public construction shall comply with other statutory and regulatory authorities where applicable including, but not limited to: antiquities laws [construction affecting potential landmarks], the Americans with Disabilities Act of 1990, Occupational Safety and Health Administration laws and regulations, fire codes and regulations, building codes and regulations, energy codes and regulations, zoning regulations, health codes and regulations, flood zone/wetlands regulations, asbestos codes and regulations, and other environmental codes or regulations.

History

• Source: MISS. CODE ANN. § 29-13-1; §§ 31-11-3, 31-11-25, 31-11-31, 31-11-33; § 39-7-22; § 43- 6-1; § 45-11-1; § 49-17-1 Rule 1.3 Public Documents. Public access to documents may be obtained in accordance with the Mississippi Public Records Act of 1983.
• Source: MISS. CODE ANN. § 25-61-1, et seq.

12 Miss. Admin. Code Pt. 13, R. 1.4 Definitions

A. Addendum: Supplementary information to bidding documents issued during the time of bidding that is included with the proposal and becomes part of the contract.

B. Alternate: An increase or decrease to the base bid for addition or deletion of project scope. C. Architect: A person who engages in the practice of architecture as set forth in MISS. CODE ANN. § 73-1-3. D. Award: Formal acceptance of a bid or proposal. E. Bid: A competitive offer or proposal submitted to the Owner to perform a construction project. F. Bid Security: A form of monetary guarantee, typically in the form of a bid bond or certified check, required by the Owner from a bidder to safeguard against withdrawal of the bid and to ensure the contract will be fulfilled and executed if awarded. G. BOB: Bureau of Building, Grounds and Real Property Management H. Change Order [CO]: Documentation of any amendment to the sum, time, scope or terms of a construction contract. I. Certificate of Responsibility [COR]: A numbered certificate issued to a Contractor by the Mississippi State Board of Contractors pursuant to MISS. CODE ANN. § 31-3-1. J. Completion Date: A calendar date established by the contract as the deadline for completion of the work. K. Construction: The process of building, altering improving, renovating or demolishing a public structure, public building, or other public real property pursuant to MISS. CODE ANN. § 31-7-1. Construction does not include routine operation, routine repair or regularly scheduled maintenance of existing public structures, public buildings or other public real property. L. Consultant: A sub-professional retained by the Professional to perform a designated portion of the Professional services under the contract. M. Contractor: Any person contracting or undertaking as prime Contractor, sub-contractor or sub-sub-contractor of any tier to do erection, building, construction, demolition, repair, maintenance or any related work on any public or private project as set forth in MISS. CODE ANN. § 31-7-1. N. Emergency: Those instances set forth in MISS. CODE ANN. § 31-7-1(f). O. Engineer: A person who engages in the practice of engineering as defined in MISS. CODE ANN. § 73-13-3. P. Job Order Contract [JOC]: A task order for construction executed by an agency pursuant to a term contract for indefinite-delivery/indefinite-quantity established by DFA based upon a nationally published and recognized cost index pursuant to MISS. CODE ANN. § 31-7-13(n). Q. Invitation for Bid [IFB]: Pursuant to MISS. CODE ANN. § 31-7-403, an IFB is the preferred method of procurement and includes all documents utilized for soliciting bids, whether attached or incorporated by reference. Award is made to the lowest responsive and responsible bidder.

R. Liquidated Damages: A predetermined assessment of damages due to delayed completion of a project or parts thereof. S. Notice to Proceed: Start date for a Contractor to begin construction on a project as established by the Owner following execution of the contract. T. Owner: The entity responsible for initiating, contracting and overseeing a project from start to finish. U. Project Manual: A comprehensive written document assembled and prepared for a construction project that contains bid documents, the agreement, bonds, certificates, and general conditions of the contract, including specifications and addenda. V. Professional: Architect or Engineer W. Professional Services Bulletin: Online procurement portal maintained by a governmental entity or by an organization. X. Public Works: Facilities and improvements financed by the government for the public good as set forth in MISS. CODE ANN. § 31-7-1, et seq. Y. Real Property: All land, structures, and firmly attached and integrated equipment. Z. Request for Proposal [RFP]: All documents utilized for soliciting proposals from potential vendors, whether attached or incorporated by reference. Awards are made to the offeror receiving the highest score based on weighted evaluation criteria outlined in the RFP and may include discussions with offerors. AA. Request for Prequalification of Contractors [RFPC]: All documents, whether attached or incorporated by reference, utilized for soliciting qualifications from potential construction Contractors. Awards are to be made to the offeror receiving the highest score based on weighted evaluation criteria outlined in the RFPC and may include discussions with offerors. BB. Request for Qualification [RFQ]: All documents, whether attached or incorporated by reference, utilized for soliciting qualifications from potential vendors. Awards are made to the offeror receiving the highest score based on weighted evaluation criteria outlined in the RFQ and may include discussions with offerors. CC. Responsive: Meets the requirements set forth in the solicitation. DD. Responsible: Meets the minimum qualifications in the solicitation. EE. Schedule of Values: A document that breaks down the total project costs into individual work items along with their corresponding costs or values. FF. Solicitation: A competitive request for proposals either through invitation and/or public notification. GG. Substantial Completion: The date certified by the Professional when construction is sufficiently complete, in accordance with the contract documents, so the Owner may occupy or otherwise utilize the work or designated portion thereof for the use for which it is intended. HH. Using Agency [UA]: Agency, Institution or Department of the State of Mississippi

II. Warranty: A written agreement guaranteeing the integrity of a facility or product for a period and the Contractor’s or manufacturer’s responsibility for repair or replacement of defective parts or workmanship.

History

• Source: MISS. CODE ANN. § 31-11-3

12 Miss. Admin. Code Pt. 13, R. 1.5 Public Procurement Review Board

A. The Public Procurement Review Board [PPRB] consists of three [3] individuals appointed by the Governor, two [2] individuals appointed by the Lieutenant Governor, and the Executive Director of DFA serving as an ex officio and non-voting member. The members of the PPRB elect a chair from amongst the membership and annually select a vice chair, who shall serve in the absence of the chair. Three [3] members shall be deemed a quorum, and no business shall be transacted without the presence of a quorum of the Board. Unless noticed otherwise, meetings are held monthly, and meeting minutes are available on DFA’s website. B. The PPRB is responsible for adopting regulations pursuant to the authority found in MISS. CODE ANN. § 27-104-7, including regulations governing approval of contracts let for the construction and maintenance of state buildings and other state facilities as well as related contracts for architectural and engineering services. The PPRB is responsible for adopting regulations governing any lease or rental agreement by any state agency or department, including any state agency financed entirely by federal funds, for space outside the buildings under the jurisdiction of the DFA. C. No member of the PPRB shall use his or her official authority or influence to coerce, by threat of discharge from employment, or otherwise, the purchase of commodities, the contracting for personal or Professional services, or the contracting for public construction. D. Unless otherwise delegated or exempted, all contracts for construction and maintenance of state buildings must be approved by the PPRB, including, but not limited to, construction contracts, furniture and equipment contracts, leases [for land and office space] for institutions, agencies and departments, grants, land acquisitions, legal actions and specialties. Such approval must be obtained prior to contract execution.

History

• Source: MISS. CODE ANN. § 27-104-7

12 Miss. Admin. Code Pt. 13, R. 1.6 Exemptions from PPRB Approval

A. Unless otherwise provided, the following Professional architectural or engineering service contracts are exempt from PPRB approval: contracts fully paid for by self-generated funds of any of the institutions of higher learning, contracts that are permitted to be self- administered at a state institution of higher learning, contracts fully funded from local funds or other nonstate sources or as directed by the Legislature at community colleges, contracts that are permitted to be self-administered at a community college, contracts of the State Military Department that are fully or partially funded from federal funds or other nonstate sources, or any project of the State Department of Transportation.

History

• Source: MISS. CODE ANN. § 31-11-3(7)

12 Miss. Admin. Code Pt. 13, R. 1.7 Delegated Approvals

A. The PPRB delegated approval of all Professional service contracts below $500,000 to the BOB Director. B. The PPRB delegated approval of construction contracts as follows: 1. A contract under $75,000 requires agency head approval. 2. A contract of $75,000 or more but less than $3,000,000 requires BOB Director approval. 3. A contract between $3,000,000 and $5,000,000 requires approval by the DFA Deputy Director having BOB oversight authority. 4. All construction contracts of $5,000,000 or above require approval by PPRB. C. The PPRB delegated approval of all change orders [CO] to the BOB Director except for the following instances: 1. COs of $2,000,000 and above; 2. COs causing the amount of the contract to exceed 25% of the original contract amount; 3. COs causing the amount of the contract to exceed an additional 25% increment of the original contract amount; or 4. COs causing the amount of the contract to reach or exceed $5,000,000. D. The PPRB delegated approval of sole source items included in contracts where required for integration into existing access control and fire alarm systems to the BOB Director.

History

• Source: MISS. CODE ANN. § 27-104-7; § 31-11-3

Chapter 2 Architectural and Engineering Services Rule 2.1 UAs may use the following types of contracts when procuring Professional services: A. Percentage of Construction Cost: The UA pays the Professional an amount limited to a percentage of the approved and projected budget. B. Stipulated Sum 1. The UA sets the total fee amount in the Professional solicitation. 2. For use when the scope of work is clearly identified or broken down into costs per specific tasks and/or milestones if partial/progress payments are anticipated. 3. Initial term plus any renewals may not exceed five [5] years. 4. The UA may include stipulated amounts for additional related work to be performed on an hourly basis. C. Hourly 1. The UA sets the pay rate and identifies that rate in the solicitation; or 2. The UA negotiates a rate with the most qualified Professional selected in competitive procurement. If a fair and reasonable rate cannot be negotiated with the Professional, the UA may negotiate with the next most qualified.

12 Miss. Admin. Code Pt. 13, R. 2.2 Solicitation Requirements

A. UAs must select Professional services in the following manner: 1. Where the amount of the anticipated construction contract will be less than five million dollars [$5,000,000.00], the UA shall issue an RFQ by soliciting letters of interest from at least three [3] eligible Professionals. The letter of solicitation must include the scope of work, the criteria by which selection will be made, and any other information the agency wishes to consider. If the UA is unable to obtain three [3] responsible and responsive letters of interest, the BOB Director may make a written determination that the UA has made reasonable efforts but has been unable to obtain three [3] responses, and that one [1] of the Professionals who did submit a letter of interest is qualified to act as the Professional on the project. 2. Where the amount of the anticipated construction contract will be five million dollars [$5,000,000.00] or above, or where fees are anticipated to exceed five hundred thousand dollars [$500,000.00], the UA must publicly announce an RFQ in one [1] or more of the following ways: a. On its website; or b. On the Mississippi Procurement Portal [www.ms.gov/dfa/contract_bid_search]; or c. By distributing a general information sheet to the current list of Professionals on file with the BOB. 3. The RFQ must describe the minimum requirements for a Professional to be considered, the criteria and scoring for selection such that responding Professionals can understand the relative importance of each, the project scope and all other requirements to be considered. 4. The RFQ must also: a. State whether a short-list of responders or the best and final responder will be chosen and the criteria for same. b. Require identification of key Consultants/sub-contractors.

c. Identify the form of contract to be used, including those terms and conditions which are not subject to negotiation. d. Identify the fee or how fees will be negotiated with the selected Professional. 5. Exceptions to the solicitation requirements: a. The process described herein need not be followed when the project is initiated to address emergency repairs or where the project is a continuation of a directly related previous appointment.

History

• Source: MISS. CODE ANN. § 31-11-3; § 27-104-7

12 Miss. Admin. Code Pt. 13, R. 2.3 Communications Fairness

If the UA provides pre-selection conferences, allows responders to ask questions or otherwise communicates with responders, it must share all responses, information and opportunities to communicate equally with each responder.

History

• Source: MISS. CODE ANN. § 27-104-7

12 Miss. Admin. Code Pt. 13, R. 2.4 Selection Process

The UA shall appoint a committee of three [3] or more to evaluate and identify the short-list or the best and final proposal. The evaluation must be based on qualifications. To be considered, the letter of interest must be both responsive and responsible. A. A responsive letter of interest meets the submission requirements stated in the RFQ and a responsible letter of interest is one in which the interested Professional meets the minimum qualifications stated in the RFQ. B. If a short-list is used, it should contain at least three [3] Professionals unless fewer than three [3] responsive and responsible letters of interest are received in response to the RFQ. 1. An RFQ for architectural services may not request price or fee information. Board of Architecture Rule 3.2.10 2. An RFQ for Engineering Services may only request price or fee information under certain circumstances. Board of Licensure for Professional Engineers, Rule 17.5(6)

History

• Source: MISS. CODE ANN. § 27-104-7

12 Miss. Admin. Code Pt. 13, R. 2.5 Licensure

UAs are required to employ architects and engineers licensed to provide Professional services in Mississippi.

History

• Source: MISS. CODE ANN. §§ 73-1-1, 73-13-1, 73-13-45; §§ 31-7-47, 31-5-17

12 Miss. Admin. Code Pt. 13, R. 2.6 Contract Pre-Approval

The DFA shall review and approve all Professional service contracts for compliance with purchasing regulations and ensure that contracts are procured through a qualifications-based selection process except where such appointment is for an emergency or continuation of a previous appointment for a directly related project. A. DFA shall also review for:

1. Use of the BOB Standard Pre-Approval Form; 2. Terms and conditions that are reasonable and in the best interest of the state including terms describing additional or extra services to be rendered, insurance requirements and Ownership of documents; and 3. Unless exempt from pre-approval by the BOB, any contracts for Professional services of $500,000.00 or more must be additionally approved by the PPRB.

History

• Source: MISS. CODE ANN. § 31-11-3(7)

12 Miss. Admin. Code Pt. 13, R. 2.7 Form of Contract

The UA must use the BOB contract form unless prior approval has been granted allowing the UA to use a form with substantially equivalent terms and conditions to the BOB form.

History

• Source: MISS. CODE ANN. § 31-11-3

12 Miss. Admin. Code Pt. 13, R. 2.8 Exemptions

A. Pre-approval is not required for: 1. Any Professional contract fully paid for by self-generated funds of any of the state institutions of higher learning; or 2. Any architectural or engineering contract that is self-administered at a state institution of higher learning as provided under MISS. CODE ANN. § 27-104-7(2)(b) or MISS. CODE ANN. § 37-101-15(m); or 3. Community college projects that are fully funded from local funds or other nonstate sources; or 4. Any architectural or engineering contract that is self-administered at a community college as provided pursuant to MISS. CODE ANN. § 31-11-3(7)(d); or 5. Any construction or design projects of the State Military Department that are fully or partially funded from federal funds or other nonstate sources; or 6. Any project of the State Department of Transportation. B. The BOB does not permit use of Professionals retained by the agency on construction procurements administered by the BOB. If the agency requests the BOB to take over its project in such cases, the Professional services shall be re-procured unless the agency procured the services according to internal BOB guidelines.

History

• Source: MISS. CODE ANN. § 31-11-3(7)

12 Miss. Admin. Code Pt. 13, R. 2.9 Sustainability

Contracts for architectural and engineering services shall require compliance with the sustainability policy adopted by the BOB. Sustainable design seeks to reduce negative impacts on the environment and optimize use of non-renewable resources. To optimize site potential, conserve water, minimize energy consumption, and promote the use of local and

environmentally preferable products, the following is required for state-funded buildings throughout the state: A. Site Development: 1. Development of inappropriate sites shall be avoided where possible. 2. Repair and renovations of existing facilities and/or expansion/redevelopment of currently developed sites shall be given preference to development of undeveloped sites. 3. Development of sites shall be executed with the goal of maximizing open and/or vegetative space and minimizing heat island. 4. Solar Reflectance Index for paving and roofing materials shall be a consideration for product selection. 5. Inclusion of trees in parking lot designs which will provide shade within five [5] years of occupancy shall be considered. B. Water Efficiency: 1. Specifications of indigenous and/or drought resistant plants shall be considered to reduce dependence on potable water irrigation systems. 2. High efficiency plumbing fixtures shall be specified where feasible. Waterless fixtures are not required or preferred. C. Energy Performance: 1. Each major facility project shall be designed and constructed to meet or exceed the baseline requirements of the American Society of Heating, Refrigerating and Air- Conditioning Engineers [ASHRAE] 90.1-2016 or any more stringent Code edition adopted by the DFA. Any major facility projects which do not have conditioned space as defined by ASHRAE 90.1 are exempt from this requirement. 2. A major facility project is defined as any new construction project larger than five thousand [5,000] gross square feet or any repair and renovation project which involves more than fifty percent [50%] of the replacement value of the facility where compliance is cost-effective and practical. Where compliance of an otherwise applicable repair and renovation project is not cost-effective or impractical, such determination, including written justification, shall be maintained in the procurement file. 3. All major facility projects shall be commissioned by a Commissioning Authority Professional independent of the primary architect/engineer and their Consultants for the project to ensure that all energy related systems are installed, calibrated and performed according to project requirements and the Contract. The Commissioning Authority Professional [individual and firm] shall be registered to practice engineering in the State of Mississippi and shall be certified by the Building Commissioning Association as a certified commissioning Professional and/or accredited by the University of Wisconsin-Madison as a commissioning process provider. The Commissioning Authority Professional shall be retained directly by the UA and shall be separate from the Professional responsible for the design of the project.

D. Product Selection: 1. Where materials, finishes, furnishing, and other products made in or incorporating materials produced in Mississippi meet project requirements, the Professional shall include such products in specifications. a. Where both Mississippi manufactured products and non-Mississippi manufactured products are identified as equals, product origin shall not constitute a bid preference. b. Where only one Mississippi product meets project requirements, this shall not justify single source exception from bidding requirements. c. A listing of Mississippi manufacturers is available from the Mississippi Development Authority. 2. Where materials, finishes, furnishings, and other products with recycled content are available, are cost-effective and meet project requirements, the architect or engineer shall consider specifying these products over comparable products without recycled content. a. Where both recycled content products and products without recycled content are identified as equals, recycled content shall not constitute a bid preference. b. Where only one manufacturer meets recycled content goal, this shall not justify a single source exception. 3. Where materials, finishes, furnishings, and other products with low volatile organic compound [VOC] emissions are available, are cost-effective and meet project requirements, the architect or engineer shall consider specifying these products over comparable products with higher volatile organic compound emissivity. a. Where both low VOC products and higher VOC products are identified as equals, VOC emissivity shall not constitute a bid preference. b. Where only one manufacturer meets low VOC goal, this shall not justify single source exception. 4. Where materials, finishes, furnishings, and other products containing rapidly renewable materials are available, are cost-effective and meet project requirements, the architect or engineer shall consider specifying these products over comparable products without rapidly renewable material content. a. Where both rapidly renewable content products and products without rapidly renewable content are identified as equals, rapidly renewable content shall not constitute a bid preference. b. Where only one manufacturer meets rapidly renewable content goal, this shall not justify single source.

History

• Source: MISS. CODE ANN. § 31-11-35

Chapter 3 Construction and Maintenance

12 Miss. Admin. Code Pt. 13, R. 3.1 Construction Solicitation Methods

The primary methods of construction delivery include construction quotes, design-bid-build, design-build, construction management at risk, emergency, sole source and term contracts.

History

• Source: MISS. CODE ANN. §§ 31-7-13, 31-7-13.1, 13-7-13.2

12 Miss. Admin. Code Pt. 13, R. 3.2 Certificate of Responsibility

A. All bids submitted for public or private projects where the bid exceeds $50,000, including quotes submitted under Rule 3.3, shall list the Contractor’s current COR number on the exterior of the envelope containing the bid/quote. If the bid/quote does not exceed $50,000, the exterior of the envelope shall reflect a statement that the enclosed bid/quote does not exceed $50,000. When a construction bid/quote is submitted electronically, compliance with exterior bid/quote envelope requirements is accomplished where inclusion of that same information is set forth in an electronic bid submittal attachment.

History

• Source: MISS. CODE ANN. §§ 31-3-1(a), 31-3-15, 31-3-21, 31-7-13(c)(v)

12 Miss. Admin. Code Pt. 13, R. 3.3 Construction Quote [IFB less than $75,000]

A. Any UA procuring construction under $75,000 may authorize its designee to accept the lowest and best competitive written bid without publishing or advertising, provided at least two [2] competitive written bids have been obtained by the UA. The term competitive written bid shall mean a sealed bid submitted within the designated timeframe on a bid form furnished by the UA or submitted on letterhead and signed by authorized personnel. Such bids shall be independently developed based upon comparable identification of the needs and without knowledge of other bids or prospective bids. Any bid item for construction exceeding $5,000 shall be broken down by components to provide detailed component description and pricing, including bonding and insurance. Such details shall be submitted with the written bid and will become part of the bid evaluation criteria. Construction quotes of less than $5,000 may be obtained without advertising or otherwise requesting competitive bids.

History

• Source: MISS. CODE ANN. § 31-7-13(a)-(b)

12 Miss. Admin. Code Pt. 13, R. 3.4 Design-Bid-Build A

Design-Bid-Build [$75,000 or more]. Design-bid-build is the traditional method of procurement used for construction contracts of $75,000 or more unless specifically approved or statutorily permitted otherwise. This method of procurement is characterized by Professional selection, a structured process of design producing a set of bidding documents, an open competitive bidding phase, and award of a contract to the responsive and responsible Contractor offering the lowest and best cost for the work.

B. For design-bid-build solicitations, the UA must publish concurrent newspaper and Mississippi Procurement Technical Assistance Program [MPTAP] portal postings in compliance with the requirements set forth in MISS. CODE ANN. § 31-7-13(c)(3). Solicitations must include instructions to bidders, submission requirements, date and time for submission, addenda procedures, disqualification parameters, requirements for responsiveness and responsibility, basis of award including how alternates are handled, bid security requirements, and the Owner’s right to reject all bids submitted. The UA must include the contract form to be used including all terms and conditions which shall not be subject to negotiation. C. Contractors may be disqualified for the following reasons: 1. Failure to comply with the bid requirements. 2. Bidder is in arrears on payments to sub-Contractors or material suppliers on existing contract with the UA, or in the case of the BOB, is in arrears on such payments on any existing contract with any agency, institution, university or college for which the BOB administers contracts. 3. Bidder is involved in an ongoing dispute related to the Bidder’s execution, workmanship, or timely performance of an existing contract with the UA, or in the case of the BOB is in such dispute on any existing contract with any agency, institution, university or college for which the BOB administers contracts. 4. Bidder is projected to be sixty [60] days or more beyond contract time on an existing contract with the UA or is projected to be sixty [60] days or more beyond contract time on any existing contract with any agency, institution, university or college for which the BOB administers contracts. 5. Bidder has defaulted or has been terminated for cause on a previous Contract with the UA, or in the case of the BOB, has defaulted or has been terminated on a previous contract with any agency, institution, university or college for which the BOB administers contracts. D. For all construction contracts exceeding $100,000 for any public work involving the practice of engineering or architecture, all specifications and estimates must be prepared and supervised by a registered Professional engineer or architect. E. Selection shall be made from the lowest and best bidder. If the UA accepts a bid other than the lowest bid submitted, the UA shall place on its minutes detailed calculations and a narrative summary showing that the accepted bid was the lowest and best bid, including the dollar amount of the accepted bid and the dollar amount of the lowest bid. No UA shall accept a bid based upon items not included in the specifications. F. Where 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 MISS. CODE ANN. § 39-7-7 and § 39-7-11, or for any other construction procurement with a minimum construction cost of $10,000,000 and where the UA has determined that prequalification

of bidders is in the best interest of the state, purchases may be made from the lowest and best prequalified bidder in compliance with MISS. CODE ANN. § 31-7-13(d)(iii). Agencies must select construction Contractors in the following manner: 1. The Request for Prequalification of Contractors shall be solicited as above. 2. The RFPC shall identify submission requirements, date and time for submission, the minimum number [in no case less than two] and maximum number of Contractors to be prequalified, the minimum requirements for a Contractor to be considered, the criteria and scoring for selection such that responding Contractors can understand the relative importance of each, the project scope and all other requirements to be considered. 3. Interviews are not required, but if it is the intent of the UA to conduct, the RFPC shall indicate and identify the anticipated time for such interviews to be held. 4. Prequalification criteria shall be limited to the Contractor’s and their proposed key sub- Contractors' knowledge and experience of projects of similar size and scope, past performance, project management teams and financial stability. 5. Once Contractors are prequalified for a procurement, they may obtain pricing from any sub-Contractor that was included in the submission of any prequalified Contractor. 6. Preselection must be completed not less than fifteen [15] working days before the prequalified Contractors are invited to submit bids. 7. Where bids from prequalified Contractors exceed the funds initially allocated to the project, documents may be revised and re-bid by the prequalified Contractors without further advertisement.

History

• Source: MISS. CODE ANN. §§ 31-7-13, 31-11-3; § 73-13-45(1)(a)-(b)

12 Miss. Admin. Code Pt. 13, R. 3.5 Design-Build

Design-build combines design and construction services into a single contract with one Contractor to satisfactorily perform both design using an independent Professional licensed in Mississippi and construction of the project for which the contract is awarded. This type of contract involves retention of Professional services by the Contractor when: A. The DFA has determined through a detailed explanation that use of the design-build method satisfies the public interest better than use of the traditional design bid-build method; or B. When the legislature has specifically required or authorized use of the design-build method in the legislation authorizing the project. C. When using the design-build method, a fixed firm price or guaranteed maximum price must be adopted. Prior to solicitation of proposals, the UA shall develop a scope of work statement in compliance with MISS. CODE ANN. § 31-7-13.1 that provides prospective offerors with sufficient information regarding the requirements of the UA. At minimum, the scope of work statement must include the following information: Location and nature of proposed site[s] that include preliminary geotechnical information from borings as well as survey drawings that show topography, adjacent buildings and utilities; any mandatory

requirements such as minimum number and types of spaces, any minimum or maximum building area[s] or height[s], applicable energy codes and/or efficiency targets, applicable zoning regulations and any aesthetic or character defining standards; any mandatory material and/or system performance requirements and/or specifications; and general budget parameters, schedule or delivery requirements, relevant criteria for evaluation of proposals, and any other information necessary to enable the design-builders to submit proposals that meet the needs of the UA. D. Publication of solicitations and bidding for a design-build project shall be made in accordance with the requirements set forth in MISS. CODE ANN. § 31-7-13.1 and the UA shall accept initial proposals only from entities able to provide an experienced and qualified design-build team that includes, at minimum, a Professional firm licensed and registered in Mississippi and a Contractor licensed and domiciled in Mississippi for the type of work required. E. The RFP must describe the minimum requirements to be considered, the criteria for selection, the scope of work and all other requirements, including but not limited to: (1) State whether a short-list of responders or the best and final responder will be chosen and the criteria for same; (2) Requires identification of key Consultants/sub-contractors; and (3) Identify the form of the contract to be used including those terms and conditions which are not subject to negotiation. If the UA provides pre-selection conferences or allows responders to ask questions or otherwise communicate with responders, the UA must share all such responses, information and opportunities equally with each responder. F. Proposals that include criteria other than cost only shall be evaluated by an evaluation committee of not less than three individuals as established by the UA. Selection criteria is limited to the following: (1) the bidder’s knowledge and experience in executing projects of similar size and complexity; (2) the experience and qualifications of the proposed office and construction management personnel; (3) the experience and qualifications of the sub-contractors proposed; (4) the experience and qualifications of the architect or engineer and Consultants; (5) the schedule control; and (6) cost factors. Cost as an evaluation factor shall be given the highest criteria weighting and at least thirty-five percent [35%] out of the one hundred percent [100%] total weight of all other evaluation factors. G. If the UA accepts a proposal other than the proposal submitted for lowest costs, the UA shall enter in its minutes a detailed calculation and narrative summary showing why the accepted proposal was determined to provide the best value and specific justification for the award. A UA may not award a stipulated fee to an offeror for preparation costs to submit a response to the request for proposals. H. All facilities designed and constructed through the design-build method shall comply with standards equal to or exceeding the minimum building code standards set forth in MISS. CODE ANN. § 31-11-33 and all Contractors and private entities must comply with all applicable laws, codes and other legal requirements pertaining to the project.

History

• Source: MISS. CODE ANN. §§ 31-5-52, 31-7-13.1, 31-11-3(9), 31-7-13(m)(xxxi)

12 Miss. Admin. Code Pt. 13, R. 3.6 Construction Management at Risk [CMAR]

A. CMAR Application for All Using Agencies 1. CMAR is a method of project delivery in which a construction manager [CM] guarantees a maximum price for the construction of a project. Each project for construction under a CMAR contract shall be a specific, single project with a minimum construction cost of Twenty-five Million Dollars [$25,000,000]. A specific, single project is a project constructed at a single location, at a common location or for a common purpose. 2. Before using this method of project delivery, the UA shall include a detailed explanation of why using the CMAR method satisfies the public need better than the traditional design-bid-build method based upon the following criteria: (1) use of the CMAR for the project provides a savings in time or cost over traditional methods; and (2) the size and type of the project is suitable for use of the CMAR method of project delivery. 3. Separate contracts for design services and construction services may be used. The contract for construction services may be entered into at the same time as the contract for design services is executed or later with design and construction of the project occurring in either sequential or concurrent phases. The UA may elect to procure a CM prior to substantial completion of the design documents. 4. When procuring design services or when procuring construction management services under a CMAR project delivery method, the UA shall follow the qualifications-based selection procedures and public notice requirements set forth in MISS. CODE ANN. § 31-7-13.2(10). 5. The UA must provide notice by publication in a Professional news bulletin or in the official state newspaper for a minimum of fourteen [14] days. For purposes of these Rules, an official state newspaper shall be considered a regularly published newspaper in the county or municipality where the UA is located. If the UA elects to publish via a Professional news bulletin, the UA must have established procedures in place identifying the bulletin where such advertisements will be made in advance of any such publications. If advertisement is made through use of a Professional services bulletin, such bulletin shall be mailed to each firm on the established notification list and advertisement shall be mailed to all prequalified firms. 6. Advertisements shall set forth the project, the services to be procured, and the time and place for interested firms to submit a letter of interest. The public notice may also require submission of a statement of qualifications with the letter of interest. 7. The UA may establish procedures to prequalify firms seeking to provide CMAR, architectural, engineering, and land surveying services or may use prequalification lists from other state agencies or governing authorities. Any firm desiring to be

considered for pre-qualification shall provide the UA a written notice of interest prior to the deadline stated in the advertisement along with any other documentation required. 8. The UA shall evaluate the firms who submitted letters of interest based on qualifications, ability of Professional personnel, past record and experience, performance data on file, willingness to meet time requirements, location, workload of the firm, and any other qualifications-based factors the UA determines, in writing, are applicable. 9. The UA shall establish an evaluation committee to select firms and such committee must include at least one [1] member of the public nominated by a statewide association of the profession affected but such public member shall not be employed or associated with any firm holding a contract with the UA nor may the public member’s firm be considered for a contract with that UA while serving as a public member of the committee. The committee shall select no less than three firms it determines to be qualified and rank them in order of qualifications to provide services regarding the specific project. The UA shall then contact the firm ranked most preferred to negotiate a contract at fair and reasonable compensation. At no time prior to selection of the three firms may the UA seek verbal or written estimates of costs or any measure of compensation. 10. The UA shall negotiate a contract with the highest qualified firm for a price the UA determines, in writing, is fair and reasonable. The UA shall consider the estimated value, scope, complexity, and Professional nature of the services to be rendered. If a fair and reasonable price cannot be negotiated with the most qualified firm, the UA should attempt to negotiate with the second most qualified firm. If those negotiations fail, the UA may negotiate with the third most qualified firm. If that fails, the UA shall reevaluate the services requested, including the estimated value, scope, complexity, and fee requirements. The UA shall then create a second list of not less than three qualified firms in order of qualification and shall begin negotiations with the most qualified firm on the second list. B. CMAR Application for All Using Agencies except IHL 1. For all UAs other than existing or future Mississippi Institutions of Higher Learning or its related entities, joint ventures, or subsidiaries governed by or in connection with the named institutions [hereafter collectively referenced as “IHL”], the CM selected by the UA shall solicit bids for construction pursuant to MISS. CODE ANN. § 31-7-13 and shall enter into contracts with the lowest and best bidders, as determined in consultation with the UA. Before soliciting for bids or entering into contracts, the CM, in consultation with the UA, may prequalify any Contractors or vendors seeking to submit a bid on the project based upon the qualifications set forth in § 31-7-13.2(11)(a). 2. Prequalification of Contractors or vendors shall occur when the CM, in conjunction with the UA, publishes the defined qualifications that shall be considered in the

prequalification process at least two [2] weeks in advance of any publication of Contractors or vendors seeking to submit a bid on the project. Publication shall be in a regular newspaper published in the county or municipality in which the UA is located. The UA shall also post the defined prequalification requirements on its website. 3. Failure by the bidder to provide information timely and in a complete manner in response to any prequalification process may result in disqualification of the bidder at the discretion of the UA and CM. 4. Except as otherwise provided in MISS. CODE ANN. § 25-61-9, confidential and proprietary information furnished by the CM or vendor shall not be disclosed outside of the UA without prior written consent of all parties. The CM, Contractor, or vendor shall identify and label all information considered confidential or proprietary at the time of submission to the UA or CM. C. CMAR Application for IHL 1. Where the CMAR method of project delivery is utilized by IHL, it shall instead utilize the requirements set forth in MISS. CODE ANN. § 31-7-13.2(13) and the CM, in conjunction with the IHL, shall be permitted to obtain proposals from Contractors or vendors deemed to be fair and reasonable based upon a written description of the scope of work with those proposals being based on the qualification and criteria set forth in MISS. CODE ANN. § 31-7-13.2(13)(b). The CM is not required to follow the bid process set forth in MISS. CODE ANN. § 31-7-13. The CM shall then be entitled to enter into contracts for construction with Contractors and vendors that the CM deems to be the preferred Contractor or vendor based upon the criteria set forth in MISS. CODE ANN. § 31-7-13.2(13)(b). 2. In such cases, the CM must publish the defined qualifications to be considered in the process for selection of Contractors and vendors at least four [4] weeks in advance of any award. Publication shall be in a regular newspaper published in the county or municipality in which the IHL is located. The IHL shall also post the defined prequalification requirements on its website. 3. Failure by a Contractor or vendor to provide information timely and in a complete manner in the selection process may result in disqualification of the Contractor or vendor at the discretion of the IHL and CM. 4. Except as otherwise provided in MISS. CODE ANN § 25-61-9, confidential and proprietary information furnished by the CM or vendor shall not be disclosed outside of the IHL without prior written consent of all parties. The CM, Contractor, or vendor shall identify and label all information considered confidential or proprietary at the time of submission to the IHL or CM. 5. The CM selected by the IHL shall not be required to submit a proposed guaranteed maximum price for the construction of a project, or for a phase or component of the project, until after the CM obtains the contemplated proposals from potential Contractors and/or vendors for that project, phase, or component, and the IHL has

issued a completed set of construction drawings and specifications for the project, phase or component. 6. A CM or its affiliates may self-perform construction work on a project so long as the CM or affiliate submits a proposal for a specific scope of work and all proposals are reviewed by the IHL, deemed to be fair and reasonable compared to other proposals for the same or similar scope of work, and an award to the CM or its affiliate is determined to be in the overall best interests of the project as a whole. In such situation, a CM or its affiliate(s) shall only be allowed to self-perform construction work on no more than fifteen percent [15%] of the project.

History

• Source: MISS. CODE ANN. §§ 31-5-52, 31-7-13.2

12 Miss. Admin. Code Pt. 13, R. 3.7 Emergency

In the event of an emergency as defined in MISS. CODE ANN. § 31-7-1, the UA may procure repairs and commodities as follows. A. Generally: If the governing board or executive head or the designee of any UA 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 be detrimental to the interests of the state, then the head of such UA or its designee shall file with the DFA: (i) a statement explaining the conditions and circumstances of the emergency, including a detailed description of the events leading up to the situation and the negative impact to the entity if the purchase is made pursuant to the statutory requirements for competitive procurements, and (ii) a certified copy of the appropriate minutes of the board of such agency requesting the emergency purchase, if applicable. Upon receipt, the DFA may, in writing, authorize the purchase or repair without the UA having to comply with competitive bidding requirements. B. Health, Safety and Preservation of Assets: If the governing board or the executive head, or its designee 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 statutes requiring competitive bidding shall not apply, and the proper officer or agent of the UA shall approve the bill presented for payment, and shall certify in writing from whom the purchase was made, or with whom the repair contract was made. C. Total purchases under this 3.7 may only be for the purpose of meeting the needs created by the emergency. D. The UA shall file with the DFA documentation of the purchase, including a description of the commodity or repairs purchased, the purchase price and the nature of the emergency. E. Any contract awarded pursuant to Rule 3.7 shall not exceed one [1] year.

History

• Source: MISS. CODE ANN. §§ 31-7-13(j) and 31-7-1

12 Miss. Admin. Code Pt. 13, R. 3.8 Sole Source

Sole source contracts involve noncompetitive items available from only one [1] source. For sole-source items, a certification of the conditions and circumstances requiring the purchase shall be filed by the UA with the BOB. Upon receipt of the certification, the BOB may authorize the purchase in writing, subject to approval by the PPRB at its next regular meeting thereafter. Sole source items should generally be removed from the general construction bid and procured separately. Sole source items required for integration into existing access control or fire alarm systems may be included in the general construction bid as noted in Rule 4.1(g)(3)(e) subject to approval of the BOB and do not require PPRB approval.

History

• Source: MISS. CODE ANN. § 31-7-13(m)(viii)

12 Miss. Admin. Code Pt. 13, R. 3.9 Term Contract [Job Order Contracting]

A. The Job Order Contracting [JOC] method of project delivery is an indefinite delivery/indefinite quantity term contract based upon a nationally published and recognized cost index as determined by the DFA for the construction, repair, renovation, demolition and improvement of buildings, facilities, and infrastructure. The term shall not be for more than sixty [60] months. A price adjustment clause based upon the same cost index may be included. B. For term contract solicitations, the UA must publish concurrent newspaper and Mississippi Procurement Technical Assistance Program [MPTAP] portal postings in compliance with the requirements set forth in MISS. CODE ANN. § 31-7-13(c)(i)(3). Solicitations must include instructions to bidders, submission requirements, date and time for submission, addenda procedures, disqualification parameters, requirements for responsiveness and responsibility, withdrawal of bids, and the Owner’s right to reject all bids submitted. The UA must identify the contract form to be used including all terms and conditions which shall not be subject to negotiation. Template documents provided by the DFA shall be utilized unless use of substantially equivalent documents is determined to be more practical and/or advantageous by the DFA. C. Award of a term contract shall be made to the lowest and best bidder meeting minimum defined performance qualifications. If award is made to more than one bidder to establish a pool of eligible Contractors, the highest awarded bid value shall be not more than fifteen percent [15%] of the lowest awarded value. If the UA accepts a bid other than the lowest bid submitted, the UA shall place on its minutes detailed calculations and a narrative summary showing that the accepted bid was the lowest and best bid, including the dollar amount of the accepted bid and the dollar amount of the lowest bid. No UA shall accept a bid based upon items not included in the specifications. D. At the discretion of the DFA, a UA may, without additional solicitation, request that work be awarded [Job Orders] under term contracts established by the DFA for this purpose. E. The UA will utilize a Job Order Professional from a list of approved Job Order Professionals under separate term contracts with the DFA. Where required by the

Sustainability Policy, a Commissioning Authority Professional will also be required. Utilization of the Job Order Program is subject to the following conditions: 1. The UA will utilize a Job Order Contractor from a list of approved Job Order Contractors under separate term contracts with the DFA for the region where the work will be performed. 2. The DFA, acting through the BOB, is considered the Owner and as such, all decisions, including resolution of any/all disputes, are subject to the approval of the DFA. 3. The UA will furnish all necessary funds to cover any/all costs incurred for the planning and construction of any Job Order awarded including any/all subsequently awarded Change Orders as well as Professional fees and expenses necessary for the administration of such Job Order. Should the UA delay in such transfer of funds so as to prevent prompt payment of incurred costs, the BOB may utilize any eligible UA funds in the possession of the BOB to pay such cost and/or terminate the work with any costs due to the Professional or Contractor to be the sole responsibility of the UA. 4. Each Job Order will be awarded by the BOB, subject to the concurrence of the UA, prior to issuance of a Notice to Proceed [NTP] by the BOB. 5. The work of each Job Order shall not be accepted as complete unless and until the BOB accepts such work as Substantially Complete. 6. The UA shall initiate a request for each Job Order through one of the approved Job Order Professionals or through the designated Project Manager at the BOB. Any costs incurred due to UA direction to a Job Order Professional prior to initiation by the BOB shall be the sole responsibility of the UA. Initiation by the UA shall be considered acceptance of the conditions noted herein.

History

• Source: MISS. CODE ANN. § 31-7-13(n)

Chapter 4 Construction Contract Provisions Rule 4.1 Mandatory Construction Contract Provisions. The UA shall utilize template contracts provided by the DFA unless the DFA reviews and specifically approves an alternative, substantially equivalent contract form. All contracts for construction shall include provisions addressing the following: A. Labor Requirements: 1. Employee Protection Act: The Contractor must be required to comply with applicable provisions of MISS. CODE ANN. § 71-11-1 and § 71-11-3 concerning employee verification including compliance with the E-verify program. 2. Resident Labor: The Contractor must be required to comply with MISS. CODE ANN. § 31-5-17 and § 31-5-19 concerning use of resident labor. 3. Labor on Projects Utilizing Specified Funding: Where a project is utilizing funds received by state or local governmental entities resulting from a federally declared disaster or a spill of national significance, including, but not limited to, R.E.S.T.O.R.E,

12 Miss. Admin. Code Pt. 13, R. 4.2 Allowances

Allowances for commodities, equipment, furniture, construction materials or systems may be included only when contract provisions require that such allowance items are acquired by the Contractor in a commercially reasonable manner and approved by the UA. Such acquisitions shall not be made to circumvent the public purchasing laws. Allowances cannot be included for the acquisition of sole source items.

History

• Source: MISS. CODE ANN. § 31-7-13(c)(iv)

12 Miss. Admin. Code Pt. 13, R. 4.3 Alternates

Additive or deductive bid scope alternates may be defined by the Professional as directed by the UA and included within Design-Bid-Build construction solicitations to ensure ability to award within available funds subject to the following: A. Alternates shall be listed in the order in which the UA intends to award them unless a different order is determined to be in the best interest of the UA and which produces a total within available funds. If alternates are not awarded in the order listed, the UA shall document how the order was determined and maintain such documentation in their procurement file. B. Where additive alternates are utilized, the cost estimate of the base bid should be not more than ninety percent [90%] of the amount allocated for construction. The cost estimate for base bid plus all alternates included should not significantly exceed the amount allocated for construction unless otherwise authorized by the BOB Director. C. Where deductive alternates are utilized, the cost estimate of the total of all alternates should be not less than ten percent [10%] of the amount allocated for construction. D. A combination of additive and deductive alternates is not permitted. E. No more than five [5] alternates are permitted unless otherwise authorized by the BOB Director. F. Award determination shall be made on the basis of the lowest total cost including all selected alternates. G. The Contractor must hold alternate prices for a period not to exceed one hundred and twenty [120] days after the initial contract is executed for any future amendment to contract when the UA has a reasonable expectation that additional funds could become available within that time period, subject to approval by the BOB Director. An award decision may not consider alternates not taken at time of initial award.

History

• Source: MISS. CODE ANN. § 31-7-13(f)

12 Miss. Admin. Code Pt. 13, R. 4.4 Job Signs

Contracts may include the provision and maintenance of temporary signage during construction to identify the project name, source[s] of funding, Owner, governing board, Contractor, and architect or engineer. Display of other promotional signage of Contractor, Sub- Contractors, Suppliers or Vendors is not permitted.

History

• Source: MISS. CODE ANN. § 31-11-33; § 27-104-7

12 Miss. Admin. Code Pt. 13, R. 4.5 Building Plaques

Contracts may include the provision of permanent building plaques at new buildings or to memorialize major renovations of existing buildings are permitted subject to the following:

A. Projects paid for wholly, or partially, with funds of the state or any political subdivision thereof, shall contain lettering reading “THIS BUILDING [or Facility or Structure] WAS PAID FOR BY THE TAXPAYERS OF _________________” [indicating the State of Mississippi and/or any other political subdivisions thereof which funded the construction] above the names of anyone else. No other lettering on such plaque may be larger. Such plaque shall also include the name of the Governor in office at the time of award of the construction contract. B. Plaques may include the UA, Contractor, Architect and/or Engineer, as well as names of the UA Director, Board or Commission Members, Contractor, Architect, or Engineer. C. Inclusion of corporate logos is not permitted.

History

• Source: MISS. CODE ANN. § 29-5-151

12 Miss. Admin. Code Pt. 13, R. 4.6 Liquidated Damages

Contracts may include a stipulated sum for which the Contractor and his Surety will be liable for each calendar day of delay until the work is substantially complete unless circumstances dictate otherwise in the discretion of the Owner. Such provision shall require parties to acknowledge that losses to the Owner caused by the delay of the Contractor are not readily ascertainable. The amount shall be determined by the Owner in consultation with the Professional and any Using Agency or end user as a reasonable estimate of the probable loss that will result from the delay and shall not constitute a penalty.

History

• Source: MISS. CODE ANN. § 27-104-7; §§ 31-11-3, 31-11-33

12 Miss. Admin. Code Pt. 13, R. 4.7 Off-Site Stored Materials

Contracts may include a provision allowing for the payment of construction materials stored at some location other than the project site subject to the following: A. An acceptable Lease Agreement between the Contractor and the Owner of the land, or building, where the materials are stored covering the specific area where the materials are located is provided. B. Consent of Surety, or other acceptable Bond, to cover where the materials are located is provided. C. All Perils Insurance coverage for the full value of the material stored off-site is provided. D. A Bill of Sale from the Manufacturer to the Contractor for the stored materials is provided. E. A complete list and inventory of materials manufactured, stored and delivered to the storage site and of materials removed from the storage site and delivered to the job site is provided. F. A review by the Owner and/or his representative of the materials stored off-site prior to release of payment is conducted. Where storage location is greater than 50 miles of the project site, the Contractor shall pay or reimburse reasonable travel cost of the Owner or his representative for such review.

G. Guarantee of no storage costs, additional handling or delivery fees, or subsequent cost to the Owner is provided.

History

• Source: MISS. CODE ANN. § 27-104-7; § 31-11-3

12 Miss. Admin. Code Pt. 13, R. 4.8 Testing

In contracts where independent quality control and/or quality assurance testing of the work is required, provisions should be included to clarify the roles of Contractor, Professional and Owner for each test required. Contractor may be required to furnish services of independent testing providers when recommended by the Professional; however, special inspections and structural testing required by the International Building Code to be retained by the Owner may not be contractually delegated to the Contractor.

History

• Source: MISS. CODE ANN. § 27-104-7; § 31-11-3

12 Miss. Admin. Code Pt. 13, R. 4.9 Prohibited Provisions

A. Price Escalation Clauses: Inclusion of provisions which allow for contract price adjustments based upon significant changes in underlying costs during the contract time is prohibited, except in Term Contracts [Job Order Contracts], where use of a nationally published industry-wide cost index has been determined by the DFA, consistent with MISS. CODE ANN. § 31-7-13(n), to be permitted for quarterly pricing updates. Contracts including Guaranteed Maximum Price [GMP] provisions may not include a price escalation clause but may include a Contractor Contingency which can be utilized by the Contractor to cover cost increases due to material tariffs, labor shortages, natural disasters, material scarcity, inflation, legislative changes or other causes, subject to the percentage or stipulated contingency limit in the Contract. B. Penalty and Bonus Clauses: Except where specifically authorized by statute, inclusion of clauses which assess penalties for delay are prohibited. Clauses for liquidated damages as provided for in Rule 4.6 are not considered penalties. C. Shared Savings Clauses: Except where specifically authorized by MISS. CODE ANN., or where legislation authorizing project specifically allows, inclusion of shared savings clauses in a Guaranteed Maximum Price Agreement which provide additional compensation to Contractor for completion of a project under budget from such savings is prohibited.

History

• Source: MISS. CODE ANN. § 31-11-3; § 27-104-7

12 Miss. Admin. Code Pt. 13, R. 4.10 Information Technology

Contracts may not include information technology items unless exempted by statute, or by regulation or specific exception of the Mississippi Department of Information Technology [MDITS]. Where the DFA, acting through the BOB, is exempted for projects administered by the BOB, inclusion of information technology items is subject to the following:

A. Submission of detailed vendor pricing for each information technology item shall be required. Such pricing shall include breakdown of material, installation, maintenance/service agreement, unit prices for additional items, licenses per user, renewals and the applicable validity periods. B. Submission of the terms and conditions of warranties, maintenance, service and license agreements shall be required. C. Specifications shall comply with all applicable telecommunication standards adopted by MDITS.

History

• Source: MISS. CODE ANN. § 25-53-5; § 31-11-3

Chapter 5 Modification and Termination Rule 5.1 Termination by the Owner for Cause. A. The Owner may terminate the contract if the Contractor: (1) Repeatedly refuses or fails to supply enough properly skilled workers or proper materials; (2) Fails to make payment to Sub-contractors or suppliers in accordance with the respective agreements between the Contractor and the Sub-contractors or suppliers; (3) Repeatedly disregards applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of a public authority; (4) Is guilty of substantial breach of a provision of the contract documents; or (5) Fails to achieve substantial completion of the project within the time limits established by the contract documents. B. When any of the reasons described in Rule 5.1(A) exist, and upon advice of the Professional that sufficient cause exists to justify such action, the Owner may, without prejudice to any other rights or remedies of the Owner and after giving the Contractor and the Contractor’s surety, if any, seven days’ notice, terminate employment of the Contractor and may, subject to any prior rights of the surety: (1) Exclude the Contractor from the site and take possession of all materials, equipment, tools, and construction equipment and machinery thereon owned by the Contractor; (2) Accept assignment of subcontracts; and (3) Finish the work by whatever reasonable method the Owner may deem expedient. Upon written request of the Contractor, the Owner shall furnish to the Contractor a detailed accounting of the costs incurred by the Owner in finishing the work. C. When the Owner terminates the contract for one of the reasons set forth in Rule 5.1(A), the Contractor shall not be entitled to receive further payment until the work is finished. D. If the unpaid balance of the contract sum exceeds costs of finishing the work, including compensation for the Professional’s services and expenses made necessary thereby, and other damages incurred by the Owner and not expressly waived, such excess shall be paid to the Contractor. If such costs and damages exceed the unpaid balance, the Contractor shall pay the difference to the Owner. The amount to be paid to the Contractor or Owner

12 Miss. Admin. Code Pt. 13, R. 5.2 Suspension by the Owner for Convenience A

The Owner may, without cause, order the Contractor in writing to suspend, delay or interrupt the work, in whole or in part for such period as the Owner may determine. B. The contract sum and contract time shall be adjusted for increase in the cost and time caused by suspension, delay or interruption under Rule 5.2(A). Adjustment of the contract sum shall include profit. No adjustment will be made to the extent that: (1) performance is, was, or would have been, so suspended, delayed or interrupted, by another cause for which the Contractor is responsible; or (2) that an equitable adjustment is made or denied under another provision of the Contract.

History

• Source: MISS. CODE ANN. § 27-104-7; § 31-11-3

12 Miss. Admin. Code Pt. 13, R. 5.3 Termination by the Owner for Convenience A

The Owner may, at any time, terminate the Contract for the Owner’s convenience and without cause. B. Upon receipt of notice from the Owner of such termination for the Owner’s convenience, the Contractor shall: (1) cease operations as directed by the Owner in the notice; (2) take actions necessary, or that the Owner may direct, for the protection and preservation of the Work; and (3) except for Work directed to be performed prior to the effective date of the termination stated in the notice, terminate all existing subcontracts and purchase orders and enter into no further subcontracts and purchase orders. C. In cases of such termination by the Owner for Convenience, the Owner shall pay the Contractor for work properly executed, including reasonable costs attributable to termination, if any, as set forth in the Agreement.

History

• Source: MISS. CODE ANN. § 27-104-7; § 31-11-3

Chapter 6 Regulatory and Legal Rule 6.1 Regulatory and Legal. A. All contracts are governed by Mississippi law and any potential contractual disputes are subject to the jurisdiction of Mississippi courts. Any contractual provisions contrary to the laws of Mississippi are null and void. State agencies only have such power to contract as is expressly provided or necessarily implied from statute.

12 Miss. Admin. Code Pt. 13, R. 6.2 Arbitration

A. Unless a specific statute provides otherwise, the Owner may not enter into a contract containing an arbitration clause as state law does not generally allow a state agency to arbitrate.

History

• Source: Miss. Const. of 1890

12 Miss. Admin. Code Pt. 13, R. 6.3 Mediation

A. An Owner may agree to non-binding mediation of potential contractual disputes.

History

• Source: MISS. CODE ANN. § 27-104-7; § 31-11-3

12 Miss. Admin. Code Pt. 13, R. 6.4 Exculpatory Clauses

State law does not generally permit a state agency to indemnify or hold harmless Contractors or third parties for potential liabilities or to waive liability of the Contractor or of third parties for damages. Unless a specific statute expressly provides otherwise, the Owner may not enter into a contract containing these types of clauses.

History

• Source: MISS. CONST. OF 1890, Miss. A.G. Op. to Stringer, 01/25/2006, 2006 WL 1900660, Opinion No. 2006-0610 Part 13 Chapter 7: Ethics Rule 7.1 Requirement of Good Faith. All parties are required to act in good faith at all times during the processes governed by these rules and regulations.
• Source: MISS. CODE ANN. § 27-104-7; § 31-11-3

12 Miss. Admin. Code Pt. 13, R. 7.2 Discovery of Bad Faith

A. Should any party discover an act of bad faith by any other party during procurement or during an ongoing contract with the state, such discovery shall be reported to the Agency Head of the procuring Agency, PPRB, OSA, and where appropriate, the Public Integrity Division [PID] of the Office of the Attorney General [AGO]. B. Any such report to the PPRB shall be made by reporting the matter to the Director of the DFA, who will provide the information to the PPRB.

History

• Source: MISS. CODE ANN. § 27-104-7; § 31-11-3

12 Miss. Admin. Code Pt. 13, R. 7.3 Reporting Anti-Competitive Practices

Anti-competitive practices shall be treated as an issue of bad faith as discussed in Section 7.2.

History

• Source: MISS. CODE ANN. § 75-21-15

Chapter 8 Debarment and Suspension

12 Miss. Admin. Code Pt. 13, R. 8.1 Suspension A

The BOB may, for cause, suspend a person or entity from consideration for the award of contracts by the Department of Finance and Administration. A suspension is effective upon issuance, shall be effective for a period of ninety [90] days, and shall remain in effect during the pendency of any appeal. Suspension may be imposed simultaneous to a debarment proceeding. B. The BOB shall provide written notice of the suspension by U.S. mail to the last known mailing address with delivery notification service and sent via electronic mail. The notice shall state the grounds for the suspension and shall advise that the BOB will not solicit or consider bids from the suspended person during the suspension period. The notice shall further advise that the person may request reconsideration of the suspension by submitting a written response within ten [10] days of receipt of the notice setting forth the basis for the suspension. The response may include supporting documentation. The BOB Director shall affirm or rescind the suspension within ten [10] days after timely receipt of the written response. C. Grounds for suspension include, but are not limited to, the following: 1. Commission of fraud or a criminal offense connected with obtaining, attempting to obtain, or performing a contract or subcontract. 2. Conviction under state or federal law for embezzlement, theft, forgery, bribery, falsification or destruction of records, receipt of stolen property, or any other offense demonstrating a lack of business integrity or honesty. 3. Conviction under state or federal antitrust laws arising from the submission of bids or proposals. 4. Termination for cause of one or more contracts with a governmental entity. 5. Violation of contract provisions, including, but not limited to: a. Failure, without good cause, to perform in accordance with contract specifications or within contract time limits; or b. A recent history of failure to perform or unsatisfactory performance under one or more contracts. 6. Suspension or debarment by another governmental entity for conduct described in this rule. 7. Violation of the ethical standards set forth in Chapter 7. D. A suspension decision is effective immediately upon issuance. The suspension shall apply to the contracting entity and to all officers, directors, principals, members and Owners of 5% or more of the suspended entity unless otherwise stated in the suspension notice. Once effective, the entity or person shall remain suspended until the suspension period expires.

History

• Source: MISS. CODE ANN. § 31-11-3

12 Miss. Admin. Code Pt. 13, R. 8.2 Debarment

A. The BOB Director may, for cause, debar a person or entity from consideration for the award of contracts by the Department of Finance and Administration. A debarment is effective upon issuance, shall be effective for a period of not less than two [2] years and shall not be for a period to exceed ten [10] years. Debarment shall remain in effect during the pendency of any appeal. Grounds for debarment include those listed in Rule 8.1 and debarment proceedings may be initiated simultaneously to suspension. B. The BOB shall provide written notice of the debarment by U.S. mail to the last known mailing address and via electronic mail. The notice shall state the grounds for debarment, the length of debarment, and shall advise that the BOB will not solicit or consider bids from the debarred person during the debarment period. The notice shall further advise that the person may request reconsideration of the debarment by submitting a written response within ten [10] days of receipt of the notice setting forth the basis for the debarment. The response may include any supporting documentation. C. If no hearing is requested in the response, the BOB Director shall affirm or rescind the debarment based on the written response and supporting materials provided. D. If a hearing is requested, the BOB Director shall appoint a hearing officer to conduct the hearing and recommend a decision. The hearing officer shall provide written notice of the time and place of the hearing at least ten [10] days prior to said hearing and his or her recommendation shall be based upon a preponderance of the evidence.

History

• Source: MISS. CODE ANN. § 31-11-3

12 Miss. Admin. Code Pt. 13, R. 8.3 Recommendation; Final Decision

A. Within thirty [30] days of the hearing, the hearing officer shall prepare a written recommendation and submit it to the BOB Director and Contractor or prospective Contractor. If debarment is ordered or affirmed, the decision shall state the reasons for the action, the length of debarment and the extent to which affiliates or principals are affected. The final decision shall also advise the debarred person of the right to appeal to a court of law.

History

• Source: MISS. CODE ANN. § 31-11-3

12 Miss. Admin. Code Pt. 13, R. 8.4 Effect of Debarment

A. A debarment decision is effective immediately upon issuance. The debarment shall apply to the contracting entity and to all officers, directors, principals, members and Owners of 5% or more of the debarred entity unless otherwise stated in the final decision. Once effective, the entity or person shall remain debarred until the debarment period expires.

History

• Source: MISS. CODE ANN. § 31-11-3

12 Miss. Admin. Code Pt. 13, R. 8.5 List of Debarred and Suspended Persons

A. The BOB shall maintain a current list of debarred and suspended persons or entities. The list shall be updated as necessary and shall be available to state agencies and the public upon request.

History

• Source: MISS. CODE ANN. § 31-11-3

Chapter 9 UA Responsibilities and Reporting Requirements Rule 9.1 Inventory of Building. A. All state agencies, departments and institutions are required to cooperate with the DFA in conducting of a detailed study of the building and other capital needs at each state institution and at each community college and junior college for inclusion in an annual report by the DFA to the Legislative Budget Office, the House Public Property Committee and the Senate Property Committee prior to September 1 st of each year. This study shall include, but shall not be limited to, the following matters: 1. An inventory of every state building and other capital facility which is the property of the State of Mississippi; 2. The location, date of construction or acquisition, the purpose for which used, outstanding indebtedness against such facility, if any, and cost of repairs for the preceding fiscal year; 3. An examination of the condition of the building or other facility, including current conditions and ratings of all roofs at each state agency, state institution of higher learning, community college and junior college; 4. An estimate of the cost of major renovations, if contemplated; and 5. A determination of the new building and other facility needs of each institution and such needs classified under immediate or long-range requirements.

12 Miss. Admin. Code Pt. 13, R. 9.2 Roof Inspection

A. All state agencies, departments and institutions are required to cooperate with the DFA in validating the condition of each roof of buildings not planned for demolition by one of the following methods not less than every three [3] years: 1. Visual inspection by institution or agency facilities’ staff; 2. Visual inspection by a licensed architect or engineer; or 3. Thermal imaging inspection.

History

• Source: MISS. CODE ANN. § 31-11-27(1)(b)

12 Miss. Admin. Code Pt. 13, R. 9.3 Study of Capital Needs

All state agencies, departments and institutions shall file a capital improvements projects request with such information and in such form and in such detail as the DFA may deem necessary and advisable for inclusion in an annual report by the DFA to the Legislative Budget Office, the House Public Property Committee and the Senate Property Committee prior to September 1 st of each year. The report prepared by the DFA shall describe the proposed capital improvements projects requested and include prioritized recommendations for the upcoming five-year period, consistent with the primary goal of preserving existing capital assets where possible and replacing existing capital assets where necessary.

History

• Source: MISS. CODE ANN. § 31-11-27(2)

12 Miss. Admin. Code Pt. 13, R. 9.4 Preplanning

Every capital improvements project for new facilities, costing Two Million Dollars [$2,000,000.00] or more shall be funded by the Legislature in two [2] phases with the first phase consisting of preplanning resulting in a budget projection for the subsequent phase. The two-phase funding requirement shall not apply to projects for a state-owned port, community or junior college project, or where the Legislature finds that an emergency or critical need must be met or a court order complied with requiring funding in a single phase. Every state agency that preplans such a project, including those funded with self-generated funds, shall submit a preplanned capital improvements project budget projection to the BOB for evaluation. The BOB shall assess the need for all preplanned projects submitted and shall compile a report on its findings.

History

• Source: MISS. CODE ANN. § 31-11-30

12 Miss. Admin. Code Pt. 13, R. 9.5 Renovation and Repair Expenditures

The state institutions of higher learning, the state community colleges and junior colleges, the Department of Mental Health, the Department of Corrections and the Department of Wildlife, Fisheries and Parks shall submit information on all renovation and repair expenditures for buildings under their operation and control, including duties, responsibilities and costs of any architect or engineer hired by any such institutions for inclusion in an annual report by the DFA to the Legislative Budget Office, the House Public Property Committee and the Senate Property Committee prior to September 1 st of each year. Expenditures shall not include those amounts expended for janitorial, landscaping or administrative support, but shall include expenditures from both state and nonstate sources. Expenditures shall not include amounts appropriated to and expended by the DFA on behalf of state agencies, department and institutions through the DFA-administered contracts, but shall include amounts transferred to the DFA for support of such contracts.

History

• Source: MISS. CODE ANN. § 31-11-3(8)