Chapter 1. General Provisions Relative to Public Contracts

§ 31-1-1. Contracts for printing, binding, etc.

The responsibility for the making of contracts for printing, binding, engraving and lithographing is hereby vested in each state agency or office which requires such printing, binding, engraving and lithographing, including but not restricted to the Secretary of State, State Department of Education, State Tax Commission, Supreme Court, Department of Insurance, State Auditor, Public Service Commission, State Treasurer, State Fiscal Management Board, State Veterans Affairs Board, Attorney General, Department of Agriculture and Commerce, State Board of Pharmacy, State Board of Dental Examiners, State Law Library, State Board of Health, Mississippi Department of Corrections, State Educational Finance Commission, Department of Archives and History, Mississippi State Hospital and Board of Trustees of State Institutions of Higher Learning.

All contracts referred to herein shall be submitted to and approved by the State Fiscal Management Board prior to their execution, except that those contracts under the jurisdiction of the Legislature shall be submitted to and approved by the Legislative Budget Office.

All state agencies shall purchase all commodities required for their operation or for the proper fulfillment of their duties and functions in accordance with Chapter 7 of this title in order to coordinate and promote efficiency and economy in the purchase of such commodities for the state.

HISTORY: Codes, 1942, §§ 8961-01, 8961-04; Laws, 1968, ch. 506, §§ 1, 29; Laws, 1978, ch. 458, § 24; Laws, 1984, ch. 488, § 193; Laws, 1986, ch. 500, § 15; Laws, 1987, ch. 461, § 2, eff from and after passage (approved April 14, 1987).

Editor’s Notes —

Section 7-7-2 provides that the words “State Auditor of Public Accounts,” “State Auditor,” and “Auditor” appearing in the laws of this state in connection with the performance of Auditor’s functions shall mean the State Fiscal Officer.

Section 27-104-1 provides that the term “Fiscal Management Board” shall mean the “Department of Finance and Administration”.

Section 27-104-6 provides that whenever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration.”

Section 37-45-1 provides that the State Educational Finance Commission shall be abolished and functions and duties transferred to the State Board of Education. Section 37-45-3 further provides that all references in laws of the state to “State Educational Finance Commission” or “commission,” when referring to the Educational Finance Commission, shall be construed to mean the State Board of Education.

Section 27-3-4 provides that the terms “‘Mississippi State Tax Commission,’ ‘State Tax Commission,’ ‘Tax Commission’ and ‘commission’ appearing in the laws of this state in connection with the performance of the duties and functions by the Mississippi State Tax Commission, the State Tax Commission or Tax Commission shall mean the Department of Revenue.”

Cross References —

Joint legislative budget committee and legislative budget office, generally, see §§27-103-101 et seq.

Applicability of this section to acquisition of books, blanks, and stationery by the state board of medical licensure, see §73-25-39.

RESEARCH REFERENCES

ALR.

Construction and effect of “changed conditions” clause in public works or construction contract with state or its subdivision. 56 A.L.R.4th 1042.

§ 31-1-2. Repealed.

Repealed by Laws, 1987, ch. 461, § 3, eff from and after passage (approved April 14, 1987).

[En Laws, 1986, ch. 500, § 14]

Editor’s Notes —

Former Section 31-1-2 established a state printing shop and curtailed other printing operations in the Jackson metropolitan area.

§ 31-1-3. Duties vested in Secretary of State.

Any other duties and powers heretofore vested in the former office of board of public contracts and not specifically transferred to a specific state agency or office or specifically repealed are transferred to and vested in the Secretary of State.

HISTORY: Codes, 1942, § 8961-03; Laws, 1968, ch. 506, § 28, eff from and after passage (approved August 8, 1968).

§ 31-1-5. Kinds of paper to be used.

The paper for printing the acts of the Legislature, journals, all pamphlets, department reports, messages, and the like shall be of good quality of a standard book paper of not less than fifty (50) pounds to the ream, and for bills, blanks, circulars, and the like to be of good bond of not less than sixteen (16) pounds to the ream.

HISTORY: Codes, 1892, § 3296; 1906, § 3752; Hemingway’s 1917, § 6446; 1930, § 5953; 1942, § 8998; Laws, 1935, ch. 33.

§ 31-1-7. Kinds of type to be used.

The following kinds of type shall be used: The acts of the Legislature shall be set in eight- or ten-point type, solid or leaded, as the Secretary of State may direct; the journals of the Senate and the House shall be set in eight-point type, solid; the department reports, miscellaneous books, pamphlets, and Governor’s messages, and the like shall be set in ten-point, eight-point and/or six-point, or other sizes of type, within the discretion of the Secretary of State. The matters of spacing between paragraphs, and of style and type of marginal or headnotes shall be within the discretion of the Secretary of State.

HISTORY: Codes, 1892, § 3295; 1906, § 3751; Hemingway’s 1917, § 6445; 1930, § 5952; 1942, § 8997; Laws, 1935, ch. 33; Laws, 1968, ch. 506, § 10, eff from and after passage (approved August 8, 1968).

Cross References —

Kind of paper to be used in printing, see §31-1-5.

Kind of binding to be used in printing, see §31-1-9.

§ 31-1-9. Binding.

Two kinds of binding for books shall be used, to wit: full buckram, or stiff boards with buckram backs, unless otherwise specified and ordered by the Secretary of State.

A number of copies each of the acts and journals of the Legislature and department reports shall be bound in buckram, sufficient for the state and county libraries and colleges and for such other distribution as the law directs. The exact number of copies of each of the foregoing to be thus bound is left within the discretion of the Secretary of State.

All the remaining copies of the acts and journals shall be bound either in full buckram, or in stiff boards with buckram backs, as the Secretary of State may direct.

The messages of the Governor, reports of officers, boards and institutions, and all other pamphlets shall be in paper covers only, except as the Secretary of State, in his discretion, may direct.

HISTORY: Codes, 1892, §§ 3297, 3306-3308; 1906, §§ 3753, 3762-3764; Hemingway’s 1917, §§ 6447, 6455-6457; 1930, §§ 5954, 5962-5964; 1942, §§ 8999, 9005-9007; Laws, 1935, ch. 33; Laws, 1968, ch. 506, §§ 11, 16-18.

Cross References —

Paper to be used, see §31-1-5.

Type to be used in printing, see §31-1-7.

Size and style of publications, see §31-1-11.

§ 31-1-11. Contents of page.

The acts of the Legislature, the journals, department reports, pamphlets, and the like shall be set in type of the respective sizes as provided in Section 31-1-7 and in a style such as economy and good workmanship require, within the discretion and under the direction of the Secretary of State. The type size of the pages of the acts, journals and department reports shall be twenty-six (26) by forty-four (44) pica ems, with a trim size of six (6) by nine (9) inches. Pamphlets and books other than the acts, journals and reports shall be of the same or a more convenient size, within the discretion of the Secretary of State. Blank pages shall not be paid for, and in all cases where unnecessary spaces are left, the Secretary of State, in estimating the number of pages in a job, shall deduct a half page for every unnecessary space.

HISTORY: Codes, 1892, § 3298; 1906, § 3754; Hemingway’s 1917, § 6448; 1930, § 5955; 1942, § 9000; Laws, 1935, ch. 33; Laws, 1968, ch. 506, § 12, eff from and after passage (approved August 8, 1968).

Cross References —

Paper to be used, see §31-1-5.

Type to be used, see §31-1-7.

Binding, see §31-1-9.

§ 31-1-13. No extra charge for collating.

No charge shall be made for counting, folding, stitching, collating, drying, pressing, or other like thing, but all such matter shall be considered as embraced in the printing or binding, as the case may be. The printer or binder, in all instances, is to be understood as obligated to furnish free of cost all paper and material used in the performance of his contract, and to receive and deliver all matter at the capitol.

HISTORY: Codes, 1892, § 3301; 1906, § 3757; Hemingway’s 1917, § 6450; 1930, § 5957; 1942, § 9001.

Cross References —

Paper to be used, see §31-1-5.

Type to be used, see §31-1-7.

Binding, see §31-1-9.

Size and style of publication, see §31-1-11.

OPINIONS OF THE ATTORNEY GENERAL

Golden Triangle Regional Medical Center need not comply with public bid requirements in order to contract for collection of delinquent accounts, since this is personal service contract. 1992 Miss. Op. Att'y Gen. 37.

§ 31-1-15. Number to be printed.

The acts of the Legislature shall be printed in two (2) volumes, one (1) volume containing the public or general acts of the Legislature and the other volume the local and private acts of the Legislature, but for use of state departments the two (2) volumes can be combined. The number of general or public acts of the Legislature, of the local and private acts of the Legislature, of the journals of the Senate and the House of Representatives, of the Governor’s message, and of the reports of officers, boards, and institutions to be printed, severally and respectively, shall be left within the discretion of the Secretary of State; and the Secretary of State may sell at a price, approximately the cost of publication, such copies of the laws and journals as may not be needed in the distribution, now or hereinafter required, and for the use of the Legislature and officers of the state.

The Secretary of State is authorized to dispose of all copies of the laws and journals after having kept same and failed to sell same as is provided by law at the expiration of a period of three (3) years from the date of publication. However, the Secretary of State shall keep a minimum of five (5) copies of each such publication on file in his office.

HISTORY: Codes, 1892, § 3302; 1906, § 3758; Hemingway’s 1917, § 6451; 1930, § 5958; 1942, § 9002; Laws, 1924, ch. 350; Laws, 1935, ch. 33; Laws, 1952, ch. 334; Laws, 1968, ch. 506, § 13; Laws, 2012, ch. 390, § 3, eff from and after July 1, 2012.

Amendment Notes —

The 2012 amendment substituted “five (5) copies” for “twenty-five (25) copies” in the last sentence of the second paragraph.

Cross References —

Duties of secretary of state in regard to printing of acts and resolutions of legislature, see also §1-5-1.

§ 31-1-17. Printing schedule.

The Secretary of State shall furnish to the contractor for printing all of the acts of the Legislature within thirty (30) days after the adjournment thereof. The contractor, within ninety (90) days thereafter, shall print, with the index, and bind all copies of the acts as required by the Secretary of State and deliver same to the said secretary, who may extend the time of the contractor, if necessary.

Within six (6) months after the adjournment of the Legislature, the journals of the two (2) houses shall be printed with the indexes, bound, and delivered to the Secretary of State, unless the time be extended by said Secretary of State.

HISTORY: Codes, 1892, §§ 3303, 3304; 1906, §§ 3759, 3760; Hemingway’s 1917, §§ 6452, 6453; 1930, §§ 5959, 5960; 1942, §§ 9003, 9004; Laws, 1900, ch. 63; Laws, 1935, ch. 33; Laws, 1968, ch. 506, §§ 14, 15, eff from and after passage (approved August 8, 1968).

Cross References —

Furnishing copy for legislative journals, see §5-1-33.

§ 31-1-19. Labeling.

The acts of the Legislature shall be labeled “Laws of Mississippi” including the year of their passage, and the label shall indicate whether the laws are “general” or “local and private”; and if enacted at an extraordinary session, the label shall so indicate. The journals of the Legislature shall be labeled “House Journal-Mississippi,” and “Senate Journal-Mississippi,” respectively, and the year of the session shall be indicated thereon; and if for an extraordinary session, the label shall so indicate. The bound copies of the department reports shall be labeled “Department Reports, State of Mississippi,” and the label shall disclose the year covered by the reports.

The department reports consist of the Governor’s message and the annual reports of all offices, boards, commissions, agencies and institutions.

HISTORY: Codes, 1892, §§ 3309, 3310; 1906, §§ 3765, 3766; Hemingway’s 1917, §§ 6458, 6459; 1930, §§ 5965, 5966; 1942, §§ 9008, 9009; Laws, 1935, ch. 33; Laws, 1966, ch. 547, § 2, eff from and after passage (approved May 27, 1966).

§ 31-1-21. Contractor’s accounts.

All contractors shall specify each job of work charged for and attach to the account the receipt of the proper officer for the work. The accounts must be accompanied with one copy of each job, of the paper containing the matter charged for, and must state the number of ems or inches and all particulars.

HISTORY: Codes, 1892, § 3313; 1906, § 3767; Hemingway’s 1917, § 6460; 1930, § 5967; 1942, § 9010; Laws, 1912, ch. 205; Laws, 1935, ch. 33.

Cross References —

Payment of bills for county printing, see §19-13-117.

§ 31-1-23. Department to read proof.

The department for which the work is done shall examine the proof sheets of all work executed under the provisions of this chapter, and see that they are correctly printed and that all such work is executed in a suitable manner and in accordance with the requirements of law.

HISTORY: Codes, 1892, § 3314; 1906, § 3768; Hemingway’s 1917, § 6461; 1930, § 5968; 1942, § 9011; Laws, 1935, ch. 33; Laws, 1968, ch. 506, § 19, eff from and after passage (approved August 8, 1968).

Cross References —

Proofreading of printed legislative acts and resolves by secretary of state, see §1-5-1.

§ 31-1-25. Printing, binding, and stationery.

  1. The purchase of all printing, binding and stationery is hereby defined as a commodity purchase, subject to the provisions of Sections 31-7-1 through 31-7-19, Mississippi Code of 1972.
  2. In the event the provisions of this section conflict with the provisions of any laws or parts of laws, the provisions of this section shall control.

HISTORY: Codes, 1942, § 9013.5; Laws, 1954, Ex Sess, ch. 29, § 2; Laws, 1968, ch. 506, § 20; Laws, 1973, ch. 368, §§ 1, 2, eff from and after passage (approved March 23, 1973).

Editor’s Notes —

Section 31-7-19 referred to in (1) is repealed by Laws of 1993, ch. 556, § 6, effective from and after July 1, 1993.

§ 31-1-27. Certain appraisal records exempt from requirement of public access.

Appraisal information in the possession of a public body, as defined by paragraph (a) of Section 25-61-3, which concern the sale or purchase of real or personal property for public purposes prior to public announcement of the purchase or sale, where the release of such records would have a detrimental effect on such sale or purchase, shall be exempt from the provisions of the Mississippi Public Records Act of 1983.

HISTORY: Laws, 1983, ch. 424, § 15, eff from and after July 1, 1983.

Editor’s Notes —

“The Mississippi Public Records Act of 1983”, referred to in this section, is Laws of 1983, ch. 424, §§ 1-9, which appears as §§25-61-1 et seq.

Chapter 3. State Board of Public Contractors

§ 31-3-1. Definitions.

The following words, as used in this chapter, shall have the meanings specified below:

“Board”: The State Board of Contractors created under this chapter.

“Contractor”: Any person contracting or undertaking as prime contractor, subcontractor or sub-subcontractor of any tier to do any erection, building, construction, reconstruction, demolition, repair, maintenance or related work on any public or private project; however, “contractor” shall not include any owner of a dwelling or other structure to be constructed, altered, repaired or improved and not for sale, lease, public use or assembly, or any person duly permitted by the Mississippi State Oil and Gas Board, pursuant to Section 53-3-11, Mississippi Code of 1972, to conduct operations within the state, and acting pursuant to said permit. It is further provided that nothing herein shall apply to:

Any contract or undertaking on a public or private project by a prime contractor, subcontractor or sub-subcontractor of any tier involving erection, building, construction, reconstruction, repair, maintenance or related work where such contract, subcontract or undertaking is less than Fifty Thousand Dollars ($50,000.00);

Highway construction, highway bridges, overpasses and any other project incidental to the construction of highways which are designated as federal aid projects and in which federal funds are involved;

A residential project to be occupied by fifty (50) or fewer families and not more than three (3) stories in height;

A residential subdivision where the contractor is developing either single-family or multifamily lots;

A new commercial construction project not exceeding seventy-five hundred (7500) square feet and not more than two (2) stories in height undertaken by an individual or entity licensed under the provisions of Section 73-59-1 et seq.;

Erection of a microwave tower built for the purpose of telecommunication transmissions;

Any contract or undertaking on a public project by a prime contractor, subcontractor or sub-subcontractor of any tier involving the construction, reconstruction, repair or maintenance of fire protection systems where such contract, subcontract or undertaking is less than Five Thousand Dollars ($5,000.00);

Any contract or undertaking on a private project by a prime contractor, subcontractor or sub-subcontractor of any tier involving the construction, reconstruction, repair or maintenance of fire protection systems where such contract, subcontract or undertaking is less than Ten Thousand Dollars ($10,000.00);

Any contract or undertaking on a private or public project by a prime contractor, subcontractor or sub-subcontractor of any tier involving the construction, reconstruction, repair or maintenance of technically specialized installations if performed by a Mississippi contractor who has been in the business of installing fire protection sprinkler systems on or before July 1, 2000; or

Any contractor undertaking to build, construct, reconstruct, repair, demolish, perform maintenance on, or other related work, whether on the surface or subsurface, on oil or gas wells, pipelines, processing plants, or treatment facilities or other structures of facilities. Nothing herein shall be construed to limit the application or effect of Section 31-5-41.

“Certificate of responsibility”: A certificate numbered and held by a contractor issued by the board under the provisions of this chapter after payment of the special privilege license tax therefor levied under this chapter.

“Person”: Any person, firm, corporation, joint venture or partnership, association or other type of business entity.

“Private project”: Any project for erection, building, construction, reconstruction, repair, maintenance or related work which is not funded in whole or in part with public funds.

“Public agency”: Any board, commission, council or agency of the State of Mississippi or any district, county or municipality thereof, including school, hospital, airport and all other types of governing agencies created by or operating under the laws of this state.

“Public funds”: Monies of public agencies, whether obtained from taxation, donation or otherwise; or monies being expended by public agencies for the purposes for which such public agencies exist.

“Public project”: Any project for erection, building, construction, reconstruction, repair, maintenance or related work which is funded in whole or in part with public funds.

HISTORY: Codes, 1942, § 8968-01; Laws, 1958, ch. 473, § 1; Laws, 1960, ch. 393, § 1; reenacted, Laws, 1980, ch. 498, § 1; reenacted without change, Laws, 1985, ch. 505, § 7; reenacted and amended, Laws, 1988, ch. 527, § 1; Laws, 1992, ch. 505, § 1; Laws, 2000, ch. 475, § 1; Laws, 2004, ch. 358, § 1; Laws, 2008, ch. 478, § 1; Laws, 2010, ch. 383, § 1; Laws, 2015, ch. 410, § 1, eff from and after July 1, 2015.

Amendment Notes —

The 2004 amendment added “undertaken by an individual or entity licensed under the provisions of Section 73-59-1 et seq.” at the end of (f).

The 2008 amendment, in the definition of “Contractor,” added “or any person duly . . . acting pursuant to said permit” at the end of the next-to-last sentence of the first paragraph, added (k), and made minor stylistic changes.

The 2010 amendment substituted “less than Fifty Thousand Dollars ($50,000.00)” for “less than One Hundred Thousand Dollars ($100,000.00)” in (b).

The 2015 amendment, in the definition of “Contractor,” inserted “demolition” in the introductory paragraph, deleted former (b) which read “Any contract or undertaking on a private project by a prime contractor, subcontractor or sub-subcontractor of any tier involving erection, building, construction, reconstruction, repair, maintenance or related work where such contract, subcontract or undertaking is less than Fifty-Thousand Dollars ($50,000.00),” and redesignated the remaining subdivisions accordingly.

Cross References —

Requirement of certificate of responsibility, see §31-3-15.

Levy of special privilege license tax, see §31-3-17.

Requirement that contractors for road work to be done for county board of supervisors be qualified under the provisions of this chapter, see §65-9-31.

OPINIONS OF THE ATTORNEY GENERAL

Since the term “public funds” defined in this section is extremely broad and includes all state and other governmental type funding, there could be instances where such commercial construction projects would be publicly funded and thus would fall within the exclusion. 1996 Miss. Op. Att'y Gen. 727.

The term “commercial construction project” as used by the Legislature is intended to describe projects that when completed will be used for commerce or trade (used to make income for the businesses located or using the project) and not residential homes or buildings for governmental type activities. 1996 Miss. Op. Att'y Gen. 727.

The removal of damaged limbs from trees located on public property is not work which falls within the definition of a “public project” as defined in this section; thus, a licensed tree surgeon performing such work is not to be considered a “contractor” under this section and no certificate of responsibility pursuant to §31-3-15 is required prior to bidding on a public contract for these services. 1999 Miss. Op. Att'y Gen. 185.

A school district is clearly a “public agency” and is thereby excluded from the definition of “person;” thus, since school districts are excluded from the definition of “person,” school districts are also excluded from the definition of “contractor.” 1999 Miss. Op. Att'y Gen. 226.

Maintenance of a beach, consisting of picking up garbage, running sand sweepers to sift rubbish from the sand, and occasionally setting out plants, is analogous to janitorial work in a building and does not require a certificate of responsibility as contemplated in Sections 31-3-1 et seq. 2001 Miss. Op. Att'y Gen. 663.

A cabin at a publicly owned facility is not a residential project as contemplated in subsection (d). 2001 Miss. Op. Att'y Gen. 672.

The Port Authority does not have to require a certificate of responsibility for demolition contractors to bid on public projects; however, in its discretion, it may require contractors to have a certificate of responsibility prior to bidding on such projects. 2002 Miss. Op. Att'y Gen. 207.

When the term “contractor” is used in this chapter, it includes those individuals working on public projects for fire protection systems of $ 5,000.00 or more, and on private projects for the sum of $ 10,000.00 or more; thus, those individuals would be required to obtain a certificate of responsibility. 2002 Miss. Op. Att'y Gen. 581.

Prior opinion (A.G.Op., Hunter, May 3, 2002), stating that a certificate of responsibility is not required for a demolition contractor, affirmed. 2002 Miss. Op. Att'y Gen. 662.

The requirement of Section 31-3-1 that a contractor have a valid certificate of responsibility is separate and distinct from the requirement imposed by Section 73-13-45 mandating engineering or architectural services on public construction projects. 2003 Miss. Op. Att'y Gen. 768.

A bidder merely offering to sell the materials for an automatic meter reading system, together with providing technical support via the telephone, email, etc., would not fall within the definition of a contractor under this section and would not be required to have a certificate of responsibility. 2005 Miss. Op. Att'y Gen. 12.

Where there are multiple contracts for one project, the entire project cost as to the contractor in question should be used in determining whether that contractor is required to hold a certificate of responsibility. 2006 Miss. Op. Att'y Gen. 472.

Section 31-3-1 does not require a certificate of responsibility be obtained by an owner performing work on a commercial building where the work is less than $100,000. 2006 Miss. Op. Att'y Gen. 472.

Counties and municipalities may require local licensing of contractors, regardless of whether those contractors hold state licenses or certificates of responsibility. 2006 Miss. Op. Att'y Gen. 472.

An owner of a commercial building may obtain a local building permit, assuming he meets the requirements for same, and serve as general contractor or perform the work himself on a private project that is under $100,000. 2006 Miss. Op. Att'y Gen. 472.

JUDICIAL DECISIONS

1. In general.

Subcontract was void because a subcontractor was required to have a current certificate of responsibility since the purpose of the subcontract was to clean sewer pipes to prepare for a slip-lining project, and it was a necessary part of the reconstruction, repair, maintenance, or repair work on a public project. The subcontractor could not prevail on a breach of contract case because the payment obligation under such a contract was void. Ace Pipe Cleaning, Inc. v. Hemphill Constr. Co., 134 So.3d 799, 2014 Miss. App. LEXIS 39 (Miss. Ct. App. 2014).

As the pipe cleaning a subcontractor performed was a necessary part of the reconstruction, repair, maintenance, or related work on a public project, it was required to have a certificate of responsibility; as it did not, its subcontract with a general contractor was void and could not support claims of breach of contract or quantuum meruit. Ace Pipe Cleaning, Inc. v. Hemphill Constr. Co., 2013 Miss. App. LEXIS 276 (Miss. Ct. App. May 21, 2013).

§ 31-3-2. Declaration of purpose.

The purpose of this chapter, is to protect the health, safety and general welfare of all persons dealing with those who are engaged in the vocation of contracting and to afford such persons an effective and practical protection against incompetent, inexperienced, unlawful and fraudulent acts of contractors.

HISTORY: Laws, 1985, ch. 505, § 6; reenacted, Laws, 1988, ch. 527, § 2, eff from and after July 1, 1988.

§ 31-3-3. Composition of board; removal; filling of vacancies.

There is hereby created the State Board of Contractors of the State of Mississippi, which shall consist of ten (10) members who shall be appointed by the Governor. All appointments to the board shall be made with the advice and consent of the Senate. Two (2) road contractors; two (2) building contractors; two (2) residential builders as defined in Section 73-59-1; one (1) plumbing or heating and air-conditioning contractor; one (1) electrical contractor; and one (1) water and sewer contractor shall compose the board. The Governor shall appoint one (1) additional member who shall be a roofing contractor and whose term of office shall be five (5) years. Each member shall be an actual resident of the State of Mississippi and must have been actually engaged in the contracting business for a period of not less than ten (10) years before appointment. The initial terms of the two (2) residential builders shall be for two (2) and four (4) years, respectively.

Upon the expiration of the term of office of any member of the board, the Governor shall appoint a new member for a term of five (5) years, such new appointments being made so as to maintain on the board two (2) building contractors; two (2) road contractors; two (2) residential builders; one (1) plumbing or heating and air-conditioning contractor; one (1) electrical contractor; and one (1) water and sewer contractor; and one (1) roofing contractor. The Governor shall fill any vacancy by appointment, such appointee to serve the balance of the term of the original appointee. The Governor may remove any member of the board for misconduct, incompetency or willful neglect of duty.

In the event the Governor fails to appoint a member of the board within twelve (12) months of the occurrence of the vacancy, such vacancy shall be filled by majority vote of the board, subject to advice and consent of the Senate and the requirements of this section.

HISTORY: Codes, 1942, § 8968-02; Laws, 1958, ch. 473, § 2; Laws, 1960, ch. 393, § 2; Laws, 1978, ch. 524, § 1; Laws, 1980, ch. 498, § 2; Laws, 1985, ch. 505, § 8; reenacted, Laws, 1988, ch. 527, § 3; Laws, 1992, ch. 382, § 1; Laws, 1993, ch. 534, § 11; reenacted, Laws, 1995, ch. 431, § 11; reenacted without change, Laws, 2000, ch. 345, § 11; reenacted without change, Laws, 2005, ch. 375, § 11; reenacted without change, Laws, 2009, ch. 556, § 11; reenacted without change, Laws, 2011, ch. 433, § 11; reenacted and amended, Laws, 2015, ch. 410, § 2, eff from and after July 1, 2015.

Editor’s Notes —

Laws of 1992, ch. 382, was vetoed by the Governor on April 20, 1992, and the veto was overridden by the Senate and House of Representatives on April 22, 1992.

Laws of 1995, ch. 431, § 14, as amended by Laws of 2000, ch. 345, § 14, as amended by Laws of 2005, ch. 375, § 13, as amended by Laws of 2009, ch. 556, § 13, and as amended by Laws of 2011, ch. 433, § 13, provided for the repeal of this section effective July 1, 2015. The language providing for the repeal of this section was subsequently deleted by Laws of 2015, ch. 410, § 22, effective July 1, 2015.

Amendment Notes —

The 2005 amendment reenacted the section without change.

The 2009 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2015 amendment deleted “after July 1, 1980” following “All appointments to the board” in the second sentence, deleted “From and after July 1, 1992” from the beginning of the fourth sentence, and deleted “beginning July 1, 1993” from the end of the last sentence in the first paragraph.

Cross References —

Role of State Board of Contractors in respect to regulation of residential builders and remodelers, see §73-59-1.

§ 31-3-5. Organization and administration.

The board shall be assigned suitable office space at the seat of government and shall elect one (1) of its members as chairman and one (1) as vice chairman; and each shall perform the usual duties of such offices. The board may adopt a seal. Six (6) members of the board shall constitute a quorum, and a majority vote of those present and voting at any meeting shall be necessary for the transaction of any business coming before the board. Members must be present to cast votes on any and all business. The executive director shall serve as secretary of the board. The board is authorized to employ such personnel as shall be necessary in the performance of its duties including sufficient administrative and clerical staff to process and review applications for certificates of responsibility, to prepare and administer tests therefor, to investigate applications for certificates of responsibility and to inspect work performed by contractors as may be necessary to enforce and carry out the purpose of this chapter.

HISTORY: Codes, 1942, § 8968-03; Laws, 1958, ch. 473, § 3; Laws, 1980, ch. 498, § 3; Laws, 1985, ch. 505, § 9; reenacted, Laws, 1988, ch. 527, § 4; Laws, 1992, ch. 382, § 2; Laws, 1993, ch. 534, § 12; reenacted without change, Laws, 2000, ch. 345, § 12; reenacted without change, Laws, 2005, ch. 375, § 12; reenacted and amended, Laws, 2009, ch. 556, § 12; reenacted without change, Laws, 2011, ch. 433, § 12; reenacted without change, Laws, 2015, ch. 410, § 3, eff from and after July 1, 2015.

Editor’s Notes —

Laws of 1992, ch. 382, was vetoed by the Governor on April 20, 1992, and the veto was overridden by the Senate and House of Representatives on April 22, 1992.

Laws of 1995, ch. 431, § 14, as amended by Laws of 2000, ch. 345, § 14, as amended by Laws of 2005, ch. 375, § 13, as amended by Laws of 2009, ch. 556, § 13, and as amended by Laws of 2011, ch. 433, § 13, provided for the repeal of this section effective July 1, 2015. The language providing for the repeal of this section was subsequently deleted by Laws of 2015, ch. 410, § 22, effective July 1, 2015.

Amendment Notes —

The 2005 amendment reenacted the section without change.

The 2009 amendment reenacted and amended the section by substituting “executive director” for “executive secretary” in the fifth sentence.

The 2011 amendment reenacted the section without change.

The 2015 amendment reenacted the section without change.

§ 31-3-7. Meetings.

The board shall have four (4) regular meetings in each year, one (1) on the second Wednesday in January, one (1) on the second Wednesday in April, one (1) on the second Wednesday in July, and one (1) on the second Wednesday in October, at its offices at the seat of government or through the means of teleconference or video conferencing in accordance with Section 25-41-5. If the regular meeting day falls on a legal holiday, the board shall meet on the next day. The board may hold such special meetings as it finds necessary. However, before any special meeting is held, a notice stating the time, place and primary purpose of such meeting shall be sent by certified or registered mail from the chairman or vice chairman of the board to the other members of the board at least five (5) days before such meeting. Certificates of responsibility shall be issued at any time during the course of a calendar year as prescribed by the rules and regulations of the board. All meetings shall be held in the State of Mississippi. At any regular or special meeting the board may recess from time to time to reconvene on a day and time fixed by an order of the board entered upon its minutes.

The holder of a valid certificate of responsibility shall disclose to the owner or other person with whom the holder is contracting at the signing of a contract or the initial agreement to perform work whether the holder carries general liability insurance. The disclosure shall be written, the structure and composition of which shall be determined by the State Board of Contractors, and shall be placed immediately before the space reserved in the contract for the signature of the purchaser. The disclosure shall be boldfaced and conspicuous type which is larger than the type of the remaining text of the contract.

HISTORY: Codes, 1942, § 8968-04; Laws, 1958, ch. 473, § 4; Laws, 1960, ch. 393, § 3; Laws, 1980, ch. 498, § 4; reenacted, Laws, 1988, ch. 527, § 5; Laws, 1991, ch. 363 § 1; Laws, 2010, ch. 525, § 1; brought forward without change, Laws, 2015, ch. 410, § 4, eff from and after July 1, 2015.

Editor’s note. —

This section was brought forward without change by Laws of 2015, Chapter 410, § 4, effective from and after July 1, 2015. Since the language of the section as it appears in the main volume is unaffected by the bringing forward of the section, it is not reprinted in this supplement.

Amendment Notes —

The 2010 amendment added “or through the means of teleconference or video conferencing in accordance with Section 25-41-5” in the first sentence; and substituted “shall be issued at any time during the course of a calendar year as prescribed by the rules and regulations of the board” for “shall be considered, issued or rejected at regular meetings” in the fifth sentence.

The 2015 amendment brought the section forward without change.

Cross References —

Certificates of responsibility, see §31-3-15.

§ 31-3-9. Compensation of members.

The members of the board shall be entitled to receive a per diem as provided in Section 25-3-69, Mississippi Code of 1972, when actually engaged in the business of the board, together with their actual and necessary traveling and subsistence expenses incurred on behalf of board business, upon itemized statements of same as provided by general law in the case of other state employees. Such statements shall be paid only after the same have been approved by order on the minutes of the board.

HISTORY: Codes, 1942, § 8968-05; Laws, 1958, ch. 473, § 5; Laws, 1980, ch. 498, § 5; reenacted and amended, Laws, 1988, ch. 527, § 6, eff from and after July 1, 1988.

§ 31-3-11. Executive director.

The board shall elect and fix the salary of an executive director, and the board may terminate the employment of such executive director at any time the board deems the same advisable. The board shall require the executive director to file bond in such amount as the board may deem necessary, and shall specify the duties of such employee. The premium on any such bond shall be paid from the funds provided by this chapter.

HISTORY: Codes, 1942, § 8968-06; Laws, 1958, ch. 473, § 6; Laws, 1980, ch. 498, § 6; Reenacted without change, Laws, 1988, ch. 527, § 7; Laws, 2015, ch. 410, § 5, eff from and after July 1, 2015.

Amendment Notes —

The 2015 amendment substituted “director” for “secretary” throughout the section.

§ 31-3-13. Powers and duties.

The board shall have the following powers and responsibilities:

To receive applications for certificates of responsibility, to investigate and examine applicants for same by holding hearings and securing information, to conduct examinations, and to issue certificates of responsibility to such contractors as the board finds to be responsible.

All original certificates and renewals shall expire one (1) year from the date of issuance. Application for renewal of certificates of responsibility, together with the payment of a special privilege license tax as provided under this chapter, shall serve to extend the current certificate until the board either renews the certificate or denies the application.

No certificate of responsibility or any renewal thereof shall be issued until the applicant furnishes to the board his Mississippi state sales tax number or Mississippi state use tax number and his state income tax identification numbers.

Additional fees may be required as provided in Section 31-3-14.

The board shall conduct an objective, standardized examination of an applicant for a certificate to ascertain the ability of the applicant to make practical application of his knowledge of the profession or business of construction in the category or categories for which he has applied for a certificate of responsibility. The board may administer an oral examination to applicants who are unable to take the written examination. The cost of the test and the cost of administering the test shall be paid for by applicants for certificates of responsibility at the time applications are filed. The board shall investigate thoroughly the past record of all applicants, which will include an effort toward ascertaining the qualifications of applicants in reading plans and specifications, estimating costs, construction ethics, and other similar matters. The board shall take all applicants under consideration after having examined him or them and go thoroughly into the records and examinations, prior to granting any certificate of responsibility. If the applicant is an individual, examination may be taken by his personal appearance for examination or by the appearance for examination of one or more of his responsible managing employees; and if a copartnership or corporation or any other combination or organization, by the examination of one or more of the responsible managing officers or members of the executive staff of the applicant’s firm, according to its own designation, and such person shall be known as the qualifying party. A qualifying party may serve no more than three (3) separate entities as the qualifying party without first appearing before the board and being granted special permission.

To conduct thorough investigations of all applicants seeking renewal of their licenses and of all complaints filed with the board concerning the performance of a contractor on a public or private project.

To obtain information concerning the responsibility of any applicant for a certificate of responsibility or a holder of a certificate of responsibility under this chapter. Such information may be obtained by investigation, by hearings, or by any other reasonable and lawful means. The board shall keep such information appropriately filed and shall disseminate same to any interested person. The board shall have the power of subpoena.

To maintain a list of contractors to whom certificates of responsibility are issued, refused, revoked or suspended, which list shall be available to any interested person. Such list shall indicate the kind or kinds of works or projects for which a certificate of responsibility was issued, refused, revoked or suspended.

To issue a citation to anyone performing work without having a valid certificate of responsibility as required by this chapter.

To revoke by order entered on its minutes a certificate of responsibility upon a finding by the board that a particular contractor or qualifying party is not responsible, and to suspend such certificate of responsibility in particular cases pending investigation, upon cause to be stated in the board’s order of suspension. No such revocation or suspension shall be ordered without a hearing conducted upon not less than ten (10) days’ notice to such certificate holder by certified or registered mail, wherein the holder of the certificate of responsibility shall be given an opportunity to present all lawful evidence which he may offer.

To adopt rules and regulations setting forth the requirements for certificates of responsibility, the revocation or suspension thereof, and all other matters concerning same; rules and regulations governing the conduct of the business of the board and its employees; and such other rules and regulations as the board finds necessary for the proper administration of this chapter, including those for the conduct of its hearings on the revocation or suspension of certificates of responsibility. Such rules and regulations shall not conflict with the provisions of this chapter.

The board shall have the power and responsibility to classify the kind or kinds of works or projects that a contractor is qualified and entitled to perform under the certificate of responsibility issued to him. Such classification shall be specified in the certificate of responsibility.

The powers of the State Board of Contractors shall not extend to fixing a maximum limit in the bid amount of any contractor, or the bonding capacity, or a maximum amount of work which a contractor may have under contract at any time, except as stated in paragraph (a) of this section; and the Board of Contractors shall not have jurisdiction or the power or authority to determine the maximum bond a contractor may be capable of obtaining. The board, in determining the qualifications of any applicant for an original certificate of responsibility or any renewal thereof, shall, among other things, take into consideration the following: (i) experience and ability, (ii) character, (iii) the manner of performance of previous contracts, (iv) financial condition, (v) equipment, (vi) personnel, (vii) work completed, (viii) work on hand, (ix) ability to perform satisfactorily work under contract at the time of an application for a certificate of responsibility or a renewal thereof, (x) default in complying with provisions of this law, or any other law of the state, and (xi) the results of objective, standardized examinations. A record shall be made and preserved by the board of each examination of an applicant and the findings of the board thereon, and a certified copy of the record and findings shall be furnished to any applicant desiring to appeal from any order or decision of the board.

The board shall enter upon its minutes an order or decision upon each application filed with it, and it may state in such order or decision the reason or reasons for its order or decision.

Upon failure of the board to enter an order or decision upon its minutes as to any application within one hundred eighty (180) days from the date of filing such application, the applicant shall have the right of appeal as otherwise provided by this chapter.

The holder of a valid certificate of responsibility shall disclose to the owner or other person with whom the holder is contracting at the signing of a contract or the initial agreement to perform work whether the holder carries general liability insurance. The disclosure shall be written, the structure and composition of which shall be determined by the State Board of Contractors, and shall be placed immediately before the space reserved in the contract for the signature of the purchaser. The disclosure shall be boldfaced and conspicuous type which is larger than the type of the remaining text of the contract.

HISTORY: Codes, 1942, § 8968-07; Laws, 1958, ch. 473, § 7; Laws, 1960, ch. 393, § 4; Laws, 1980, ch. 498, § 7; Laws, 1985, ch. 505, § 10; Laws, 1986, ch. 378; reenacted and amended, Laws, 1988, ch. 527, § 8; Laws, 1998, ch. 415, § 4; Laws, 2010, ch. 364, § 1; Laws, 2010, ch. 525, § 2; Laws, 2015, ch. 410, § 6, eff from and after July 1, 2015.

Joint Legislative Committee Note —

Section 1 of ch. 364, Laws of 2010, effective July 1, 2010 (approved March 15, 2010), amended this section. Section 2 of ch. 525, Laws of 2010, effective July 1, 2010 (approved April 14, 2010), also amended this section. As set out above, this section reflects the language of Section 2 of ch. 525, Laws of 2010, which contains language that specifically provides that it supersedes §31-3-13 as amended by Laws of 2010, ch. 364.

Amendment Notes —

The first 2010 amendment (ch. 364) added the last paragraph.

The second 2010 amendment (ch. 525), in the first paragraph following (a)(iii), deleted the former second sentence, which read: “No certificate or any renewal thereof shall be issued until the application has been on file with the board for at least thirty (30) days”; and in the fourth paragraph following (a)(iii), added the second sentence.

The 2015 amendment rewrote (a) to remove the board’s schedule for review of certificates of responsibility and deleted the fees for the extension of certificates; added (e) and redesignated the remaining subdivisions accordingly; in (f), inserted “or qualifying party”; in (i), redesignated clauses (1)-(11) as (i) through (xi) in the second paragraph, and deleted the third paragraph regarding automatic issuance of certificate for holders of valid certificates issued by the Board of Public Contractors prior to January 1, 1986.

Cross References —

Additional fees to be paid at the time of application or renewal of certificates, see §31-3-14.

Certificates of responsibility, see §31-3-15.

OPINIONS OF THE ATTORNEY GENERAL

The Port Authority does not have to require a certificate of responsibility for demolition contractors to bid on public projects; however, in its discretion, it may require contractors to have a certificate of responsibility prior to bidding on such projects. 2002 Miss. Op. Att'y Gen. 207.

RESEARCH REFERENCES

ALR.

Municipal liability for negligent performance of building inspector’s duties. 24 A.L.R.5th 200.

Am. Jur.

5 Am. Jur. Pl & Pr Forms (Rev), Building and Construction Contracts, Form 52.1 (complaint to enjoin suspension or revocation of license based on judgment arising from contractor’s services discharged in bankruptcy).

JUDICIAL DECISIONS

1. In general.

The Board of Contractors has the authority to determine what types of work require a contractor to obtain a certificate of responsibility. Clancy's Lawn Care & Landscaping v. Mississippi State Bd. of Contrs., 707 So. 2d 1080, 1997 Miss. LEXIS 708 (Miss. 1997).

§ 31-3-14. Certificate of responsibility application and renewal fees; Construction Education Fund; creation; distribution of monies; restrictions; reports.

  1. In addition to the fees required for application and renewal for certification and registration of all contractors in Section 31-3-13, all holders of a certificate of responsibility shall pay a fee equal to Two Hundred Dollars ($200.00) at the time of application or renewal of certificates of responsibility. Any residential builder licensed under the provisions of Section 73-59-1 et seq. shall be exempt from the fee imposed under this section. The revenue derived from such additional fees shall be deposited into a fund to be known as the “Construction Education Fund,” a special fund created in the State Treasury, and distributed by the State Board of Contractors created in Section 31-3-3, to the Mississippi Construction Education Foundation, public high schools and community colleges that participate in the Mississippi Construction Education Foundation’s “school-to-work” program, state universities that have construction technology programs, the Mississippi Housing Institute and certain construction educational trusts approved by the State Board of Contractors in the manner hereinafter provided to offer courses for construction education and construction craft training to meet the needs of the construction industry of the State of Mississippi.
  2. The State Board of Contractors shall, on an annual basis, solicit from the Mississippi state institutions of higher learning, all the public community and junior colleges, the Mississippi Construction Education Foundation, public high schools that participate in the Mississippi Construction Education Foundation’s “school-to-work” program and certain construction educational trusts, applications for the use of such funds in construction education and craft training programs in a manner prescribed by the board. The board may appoint a technical advisory committee to advise the board on the most needed areas of construction education and craft training, continuing education or research relating to the construction education and craft training in the state, based on significant changes in the construction industry’s practices, economic development or on problems costing public or private contractors substantial waste. The board shall ensure that the monies distributed from this fund are properly spent to promote construction education and craft training in programs in the state which are approved by the board. At least seventy-five percent (75%) of the monies distributed by the board, pursuant to this section, must be used for construction craft training with the exception of the Mississippi Housing Institute.
  3. Each university, junior college, community college, the Mississippi Construction Education Foundation, public high school that participates in the foundation’s “school-to-work” program and construction educational trust receiving funds pursuant to this section for construction education or construction craft training programs shall utilize such funds only for construction education and craft training curricula and program development, faculty development, equipment, student scholarships, student assistantships, and for continuing education programs related to construction education and craft training. Such funds shall not be commingled with the normal operating funds of the educational institution, regardless of the source of such funds.
  4. The State Board of Contractors shall ensure the distribution of reports and the availability of construction education programs established pursuant to this section to all segments of the construction industry that are subject to the fee provided under this section. The board shall cause a report to be made to the Legislature in October of each year, summarizing the allocation of funds by institution or program and summarizing the new projects funded and the status of previously funded projects.
  5. All monies deposited into the Construction Education Fund shall be used exclusively for construction education and craft training, and any unspent funds at the end of the fiscal year shall not revert to the General Fund of the State Treasury but shall be available for construction education and craft training in subsequent fiscal years.
  6. All monies deposited into the Construction Education Fund collected from residential builders licensed under the provisions of Section 73-59-1 et seq. shall be used exclusively for licensed home builders’ education and professional development and any unspent funds at the end of the fiscal year shall not revert to the General Fund of the State Treasury but shall be available for construction education and craft training in subsequent fiscal years.
  7. All expenditures from the Construction Education Fund shall be by requisition to the State Auditor, signed by the executive director of the board and countersigned by the chairman or vice chairman of the board, and the State Treasurer shall issue his warrants thereon.

HISTORY: Laws, 1998, ch. 415, § 1; Laws, 2000, ch. 507, § 1; Laws, 2001, ch. 372, § 1; Laws, 2004, ch. 368, § 1; Laws, 2015, ch. 410, § 7, eff from and after July 1, 2015.

Editor’s Notes —

Section 7-7-2 provides that the words “State Auditor of Public Accounts,” “State Auditor” and “Auditor” appearing in the laws of this state in connection with the performance of Auditor’s functions shall mean the State Fiscal Officer.

Section 27-104-6 provides that wherever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration.”

Amendment Notes —

The 2004 amendment inserted “the Mississippi Housing Institute” in the third sentence of (1); added “with the exception of the Mississippi Housing Institute” at the end of (2); inserted (6); and redesignated former (6) as present (7).

The 2015 amendment substituted “Two Hundred Dollars ($200.00)” for “One Hundred Dollars ($100.00)” in the first sentence of (1); substituted “executive director” for “executive secretary” in (7).

Cross References —

Special privilege license tax on each contractor who applies for certificate of responsibility under this chapter, see §31-3-17.

§ 31-3-15. Certificates of responsibility required for bid.

No contract for public or private projects shall be issued or awarded to any contractor who did not have a current certificate of responsibility issued by said board at the time of the submission of the bid, or a similar certificate issued by a similar board of another state which recognizes certificates issued by said board. Any contract issued or awarded in violation of this section shall be null and void.

HISTORY: Codes, 1942, § 8968-08; Laws, 1958, ch. 473, § 8; Laws, 1960, ch. 393, § 5; Laws, 1980, ch. 498, § 8; Laws, 1985, ch. 505, § 11; reenacted, Laws, 1988, ch. 527, § 9, eff from and after July 1, 1988.

Cross References —

Bidding and awards, see §31-3-21.

OPINIONS OF THE ATTORNEY GENERAL

Since statute requires that any contractor must have certificate of responsibility issued by State Board of Public Contractors before being awarded contract for public or private projects, either all contractors making up joint venture or joint venture itself must hold certificates of responsibility prior to submitting bid or being awarded contract. 1990 Miss. Op. Att'y Gen. 641.

Certificates of responsibility are not required on public project bids of less than $50,000. 1992 Miss. Op. Att'y Gen. 682.

The removal of damaged limbs from trees located on public property is not work which falls within the definition of a “public project” as defined in §31-3-1; thus, a licensed tree surgeon performing such work is not to be considered a “contractor” under §31-3-1 and no certificate of responsibility pursuant to this section is required prior to bidding on a public contract for these services. 1999 Miss. Op. Att'y Gen. 185.

School districts are not subject to the requirements placed upon contractors by this section and are not required to obtain and maintain a certificate of responsibility thereunder. 1999 Miss. Op. Att'y Gen. 226.

The Port Authority does not have to require a certificate of responsibility for demolition contractors to bid on public projects; however, in its discretion, it may require contractors to have a certificate of responsibility prior to bidding on such projects. 2002 Miss. Op. Att'y Gen. 207.

It is apparent from the language found in §73-59-19 that the legislature intended licensed residential builders or remodelers be exempt from the requirement of this section provided that the commercial project did not exceed 7500 square feet. 2003 Miss. Op. Att'y Gen. 241.

JUDICIAL DECISIONS

1. In general.

2. Quantum meruit.

1. In general.

Company was not estopped from denying the existence of a contract because the contract between the company and a subcontractor had been declared void under the statute; thus, quasi-estoppel did not apply because the company did not have the right to accept or reject the transaction since the subcontract was void and unlawful. Ground Control, LLC v. Capsco Indus., 214 So.3d 232, 2017 Miss. LEXIS 93 (Miss. 2017).

Subcontract was void because a subcontractor was required to have a current certificate of responsibility since the purpose of the subcontract was to clean sewer pipes to prepare for a slip-lining project, and it was a necessary part of the reconstruction, repair, maintenance, or repair work on a public project. The subcontractor could not prevail on a breach of contract case because the payment obligation under such a contract was void. Ace Pipe Cleaning, Inc. v. Hemphill Constr. Co., 134 So.3d 799, 2014 Miss. App. LEXIS 39 (Miss. Ct. App. 2014).

Although appellant’s construction contract with appellee was void due to appellant’s failure to obtain a certificate of responsibility, as appellee knew appellant lacked the certificate but solicited it to enter into the illegal contract, appellant was not barred from recovery under theories of unjust enrichment or quantum meruit. Ground Control, LLC v. Capsco Indus., 120 So.3d 365, 2013 Miss. LEXIS 327 (Miss. 2013).

In a case in which a wastewater services company challenged a utility authority’s award of a contract to another company for the operation and management of the authority’s wastewater facility, the wastewater services company argued unsuccessfully that the contract was void because the company that was awarded the contract did not have a certificate of responsibility, as required by Miss. Code Ann. §§31-3-15 and31-3-21(1). There was no authority to support the conclusion that successful company was required to have a certificate of responsibility to operate and manage a wastewater facility and interceptor system; it was evident from the Request for Proposals and the proposals submitted that the operation and management of the facility was the major component of the project, not its maintenance. Wastewater Plant Serv. Co. v. Harrison County Util. Auth., 28 So.3d 686, 2010 Miss. App. LEXIS 97 (Miss. Ct. App. 2010).

Under Miss. Code Ann. §31-3-15, the contractor did not have the appropriate certificate for the work it contracted to perform, and therefore, the contract between the contractor and daycare center was null and void, and any contractual obligations the bank owed the subcontractors were also void. United Plumbing & Heating Co. v. AmSouth Bank, 30 So.3d 343, 2009 Miss. App. LEXIS 443 (Miss. Ct. App. 2009).

While employees of the contractor both claimed to have held a Florida specialty license for signs, no proof of licensing in Mississippi was forthcoming, and the record provided no insight into whether the Florida specialty license was accompanied by a certificate of responsibility or whether such a certificate, if present, would be recognized in Mississippi under Miss. Code Ann. §31-3-15; therefore, additional genuine issues of material fact existed regarding the validity of the contractor’s contracts with the subcontractors. Aladdin Constr. Co. v. John Hancock Life Ins. Co., 914 So. 2d 169, 2005 Miss. LEXIS 717 (Miss. 2005).

Local commission argued that it in good faith believed that the contractor which was awarded the contract possessed the requisite certificate to complete the project. The contractor submitted certificate numbers on its bid envelope but because the record did not contain adequate information on the contractor certificates submitted to the commission on the project in question, the appellate court would not consider whether or not the contractor was qualified to perform project work. W & W Contrs., Inc. v. Tunica County Airport Comm'n, 881 So. 2d 358, 2004 Miss. App. LEXIS 858 (Miss. Ct. App. 2004).

Where the Board of Contractors, within its statutory authority, has determined that a classification of work does not require a certificate of responsibility, then the section does not prevent a contract being issued to a bidder on a public or private contract involving work in which a certificate of responsibility is not necessary. Clancy's Lawn Care & Landscaping v. Mississippi State Bd. of Contrs., 707 So. 2d 1080, 1997 Miss. LEXIS 708 (Miss. 1997).

Federal court would not abstain from determining validity of arbitration agreement embodied in contract issued to defendant Florida contractor who had failed to obtain certificate of responsibility required by Mississippi statute, since arbitration was mandatory and no extraordinary conflicts between federal and state interests which might necessitate abstention were foreseen. Timberton Golf, L.P. v. McCumber Constr., Inc., 788 F. Supp. 919, 1992 U.S. Dist. LEXIS 5291 (S.D. Miss. 1992).

Failure of Florida corporation to obtain certificate of responsibility in Mississippi under Mississippi law did not render invalid arbitration agreement embodied in contract to develop golf course, even though Mississippi statute provided that contract awarded without certificate of responsibility is null and void. Timberton Golf, L.P. v. McCumber Constr., Inc., 788 F. Supp. 919, 1992 U.S. Dist. LEXIS 5291 (S.D. Miss. 1992).

In action involving contract with Florida corporation for development of golf course, plaintiff failed to establish substantial likelihood of prevailing on merits in respect to argument that no arbitration agreement existed between contracting parties, thus preliminary injunction would not be granted against arbitration. Timberton Golf, L.P. v. McCumber Constr., Inc., 788 F. Supp. 919, 1992 U.S. Dist. LEXIS 5291 (S.D. Miss. 1992).

2. Quantum meruit.

Trial court properly limited the issue at trial to a subcontractor’s claim for quantum meruit damages because under the law of the case doctrine, it was bound to follow the mandate on remand that the subcontractor could pursue that non-barred claim; reference to “other penalties” did not open the door for the subcontractor to recover under other theories because it merely provided the trial court discretion to consider whether other statutory penalties applied. Ground Control, LLC v. Capsco Indus., 214 So.3d 232, 2017 Miss. LEXIS 93 (Miss. 2017).

Even though a subcontractor was unable to prevail in a breach of contract claim because the subcontractor did not have the required certificate of responsibility, the subcontractor was still able to recover under the theory of quantum meruit. Ace Pipe Cleaning, Inc. v. Hemphill Constr. Co., 134 So.3d 799, 2014 Miss. App. LEXIS 39 (Miss. Ct. App. 2014).

§ 31-3-17. Special privilege license tax; State Board of Contractors Fund.

There is hereby levied, in addition to any taxes otherwise provided for by law, a special privilege license tax of Two Hundred Dollars ($200.00) on each contractor who applies for a certificate of responsibility issued under this chapter; and such tax shall be paid to the executive director of the board upon making such application in this state. The board may levy an additional special privilege license tax not to exceed One Hundred Dollars ($100.00) for each additional classification for which a contractor applies and is found to be qualified. The executive director of the board shall promptly deposit all monies received under this chapter in the State Treasury. Except for the civil penalty provided in Section 31-3-21 which shall be deposited into the State General Fund and the fee provided in Section 31-3-14, all monies received under this chapter shall be kept in a special fund in the State Treasury known as the “State Board of Contractors Fund,” and shall be used only for the purposes of this chapter. Such monies shall not lapse at the end of each fiscal year, but all monies in such State Board of Contractors Fund in excess of the sum of fifty percent (50%) of the approved budget for the fiscal year shall be paid over into the General Fund of the State Treasury. All expenditures from the Board of Contractors Fund shall be by requisition to the State Auditor, signed by the executive director of the board and countersigned by the chairman or vice chairman of the board, and the State Treasurer shall issue warrants thereon.

HISTORY: Codes, 1942, § 8968-10; Laws, 1958, ch. 473, § 10; Laws, 1970, ch. 527, § 1; Laws, 1971, ch. 374, § 1; Laws, 1980, ch. 498, § 9; Laws, 1985, ch. 505, § 12; reenacted, Laws, 1988, ch. 527, § 10; Laws, 1992, ch. 505, § 3; Laws, 1998, ch. 415, § 2; Laws, 2004, ch. 358, § 2; Laws, 2015, ch. 410, § 8, eff from and after July 1, 2015.

Editor’s Notes —

Section 7-7-2 provides that the words “State Auditor of Public Accounts,” “State Auditor,” and “Auditor” appearing in the laws of this state in connection with the performance of Auditor’s functions shall mean the State Fiscal Officer.

Section 27-104-6 provides that whenever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration.”

There appears to be a conflict in the language of §§31-3-17 and31-3-21. Section31-3-17 provides that the civil penalty provided in §31-3-21 is to be deposited into the State General Fund, while § 31-3-21 provides that the civil penalty is to be deposited into the State Board of Contractors Fund.

Amendment Notes —

The 2004 amendment, in the first sentence, substituted “who applies for” for “to who” following “One Hundred Dollars ($100.00) on each contractor,” and substituted “upon making such application” for “before engaging in or continuing in such business” preceding “in this state”; and made a minor stylistic change.

The 2015 amendment substituted “Two Hundred Dollars ($200.00)” for “One Hundred Dollars ($100.00)” in the first sentence, “One Hundred Dollars ($100.00) for ”Fifty Dollars ($50.00)” in the second sentence, and “executive director” for “executive secretary” throughout.

Cross References —

Application fee for certificate of responsibility, see §31-3-13.

Deposit, into State Board of Contractors Fund, of fees collected pursuant to Chapter 59 of Title 73 in connection with licensing of residential builders and remodelers, see §73-59-3.

Deposit, into State Board of Contractors Fund, of monetary penalties collected for licensing violations committed by residential builders and remodelers, see §73-59-13.

OPINIONS OF THE ATTORNEY GENERAL

All monies in “State Board of Contractors Fund” in excess of sum of fifty percent of approved budget must be paid over into General Fund of State Treasury. 1993 Miss. Op. Att'y Gen. 507.

The cumulative effect of House Bills 895 and 1523 (2004), amending this section and repealing §31-3-19, respectively, is that from and after July 1, 2004, the State Board of Contractors will no longer be required to refund the $ 100.00 special privilege license tax collected pursuant to this section. The Board will still only be permitted to collect the $ 50.00 special privilege license tax for additional classifications if the contractor is found to be qualified in that classification. 2004 Miss. Op. Att'y Gen. 252.

RESEARCH REFERENCES

ALR.

Failure of building and construction artisan or contractor to procure business or occupational license as affecting enforceability of contract or right of recovery for work done-modern cases. 44 A.L.R.4th 271.

Am. Jur.

13 Am. Jur. 2d, Building and Construction Contracts §§ 2, 129, 130.

§ 31-3-19. Repealed.

Repealed by Laws, 2004, ch. 346, § 2.

[Codes, 1942, § 8968-09; Laws, 1958, ch. 473, § 9; Laws, 1960, ch. 393, § 6; Laws, 1980, ch. 498, § 10; reenacted, Laws, 1988, ch. 527, § 11, eff from and after July 1, 1988.]

Editor’s Notes —

Former Section 31-3-19 provided for the application and payment of a special privilege tax for contractors and refund if a certificate of responsibility is not granted.

§ 31-3-21. Bidding and awards.

  1. It shall be unlawful for any person who does not hold a certificate of responsibility issued under this chapter to submit a bid, enter into a contract, or otherwise engage in or continue in this state in the business of a contractor, as defined in this chapter. Any bid which is submitted without a certificate of responsibility number issued under this chapter and without that number appearing on the exterior of the bid envelope, as and if herein required, at the time designated for the opening of such bid, shall not be considered further, and the person or public agency soliciting bids shall not enter into a contract with a contractor submitting a bid in violation of this section. In addition, any person violating this section by knowingly and willfully submitting a bid for projects without holding a certificate of responsibility number issued under this chapter, as and if herein required, at the time of the submission or opening of such bid shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than One Thousand Dollars ($1,000.00), or by imprisonment for not more than six (6) months, or by both such fine and imprisonment.
  2. All bids submitted for public or private projects where the bid is in excess of Fifty Thousand Dollars ($50,000.00) shall contain on the outside or exterior of the envelope or container of such bid the contractor’s current certificate number, and no bid shall be opened or considered unless such contractor’s current certificate number appears on the outside or exterior of said envelope or container, or unless there appears a statement on the outside or exterior of such envelope or container to the effect that the bid enclosed therewith did not exceed Fifty Thousand Dollars ($50,000.00) with respect to public or private projects. Any person violating the provisions of this subsection shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than One Thousand Dollars ($1,000.00), or by imprisonment for not more than six (6) months, or by both such fine and imprisonment.
  3. In the letting of public contracts preference shall be given to resident contractors, and a nonresident bidder domiciled in a state having laws granting preference to local contractors shall be awarded Mississippi public contracts only on the same basis as the nonresident bidder’s state awards contracts to Mississippi contractors bidding under similar circumstances; and resident contractors actually domiciled in Mississippi, be they corporate, individuals, or partnerships, are to be granted preference over nonresidents in awarding of contracts in the same manner and to the same extent as provided by the laws of the state of domicile of the nonresident. When a nonresident contractor submits a bid for a public project, he shall attach thereto a copy of his resident state’s current preference law, if any, pertaining to such state’s treatment of nonresident contractors. Any bid submitted by a nonresident contractor which does not include the nonresident contractor’s current state law shall be rejected and not considered for award. As used in this section, the term “resident contractors” includes a nonresident person, firm or corporation that has been qualified to do business in this state and has maintained a permanent full-time office in the State of Mississippi for two (2) years prior to submission of the bid and the subsidiaries and affiliates of such a person, firm or corporation. Any public agency awarding a contract shall promptly report to the Department of Revenue the following information:
    1. The amount of the contract.
    2. The name and address of the contractor reviewing the contract.
    3. The name and location of the project.
  4. In addition to any other penalties provided in this chapter, and upon a finding of a violation of this chapter, the State Board of Contractors may, after notice and hearing, issue an order of abatement directing the contractor to cease all actions constituting violations of this chapter until such time as the contractor complies with Mississippi state law, and to pay to the board a civil penalty to be deposited into the State Board of Contractors’ Fund, created in Section 31-3-17, of not more than three percent (3%) of the total contract being performed by the contractor. In addition to, or in lieu of, such civil penalty, the board may issue a public or private reprimand. The funds collected from civil penalty payments shall be used by the State Board of Contractors for enforcement and education.

HISTORY: Codes, 1942, § 8968-11; Laws, 1958, ch. 473, § 11; Laws, 1960, ch. 393, § 7; Laws, 1968, ch. 511, § 1; Laws, 1980, ch. 498, § 11; Laws, 1985, ch. 505, § 13; reenacted and amended, Laws, 1988, ch. 527, § 12; Laws, 1992, ch. 505, § 2; Laws, 1999, ch. 363, § 1; Laws, 2010, ch. 383, § 2; Laws, 2015, ch. 410, § 9, eff from and after July 1, 2015.

Amendment Notes —

The 2010 amendment, in the first sentence in (2), deleted “with respect to public projects and in excess of One Hundred Thousand Dollars ($100,000.00) with respect to private projects” following “Fifty Thousand Dollars ($50,000)” and substituted “Fifty Thousand Dollars ($50.000.00) with respect to public or private projects” for “Fifty Thousand Dollars ($50,000.00) with respect to public projects or One Hundred Thousand Dollars ($100,000.00) with respect to private projects” at the end of the sentence; added the third sentence in (3); and added the second sentence in (4).

The 2015 amendment, in (1), deleted “or a similar certificate issued by another state recognizing such certificate issued by the State of Mississippi” following “issued under this chapter” in the first sentence; in (3), substituted “preference law, if any,” for “law” in the third sentence, substituted “submission of the bid“ for “January 1, 1986” in the next-to-last-sentence, and substituted “Department of Revenue” for “State Tax Commission” in the last sentence; substituted “issue a public or private reprimand“ for “require the performance of community service for a specified number of hours as determined by the board” in (4).

Cross References —

Contract issued or awarded to contractor who didn’t have current certificate at time of submission of bid null and void, see §31-3-15.

Civil penalties provided for in this section to be deposited into the State General Fund, see §31-3-17.

Preference for resident labor to be used on public works, see §31-5-17.

Preference to resident contractors, see also §31-7-47.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

OPINIONS OF THE ATTORNEY GENERAL

In a situation where requested bid bond was not included in sealed package as requested but was tendered prior to the time contractor’s bid was opened, the board of supervisors may legally waive the informality of the bid bond not being included in the sealed package and may proceed to consider the bid of that particular contractor. 1997 Miss. Op. Att'y Gen. 810.

The Port Authority does not have to require a certificate of responsibility for demolition contractors to bid on public projects; however, in its discretion, it may require contractors to have a certificate of responsibility prior to bidding on such projects. 2002 Miss. Op. Att'y Gen. 207.

A municipal airport authority was required to revoke its prior acceptance of a bid because the certificate of responsibility of the contractor expired when it ceased to exist and the attempted submission of a bid was void pursuant to this section. 2003 Miss. Op. Att'y Gen. 420.

Subsection (3) of this section concerns construction contracts and does require a nonresident bidder to attach a copy of its state’s current preference law to its bid for a relevant public project. 2003 Miss. Op. Att'y Gen. 618.

If a School District determines that a foreign corporation meets the definition of a resident contractor, then that corporation would not be required to attach a copy of its state’s current bid preference law to its bid. 2003 Miss. Op. Att'y Gen. 596.

Whether bids are equal or substantially equal is a discretionary determination that the public body itself must initially make and that should be explained in the minutes. If it is determined that bids are or are not equal or substantially equal, then the statutory preference provisions in favor of Mississippi bidders apply or do not apply, respectively. Winfield, Jan, 29, 2004 Miss. Op. Att'y Gen. 03-0501.

The notation on the outside of a bid envelope of the contractor’s “license” number is sufficient to meet the requirements of this section. 2004 Miss. Op. Att'y Gen. 451.

Where the two lowest nonresident bidders are both from the same state, the failure by one bidder to include his state’s preference statute would not result in his bid being disregarded. 2006 Miss. Op. Att'y Gen. 148.

RESEARCH REFERENCES

ALR.

Right of bidder for state or municipal contract to rescind bid on ground that bid was based upon his own mistake or that of his employee. 2 A.L.R.4th 991.

Validity of state statute or local ordinance requiring, or giving preference to, the employment of residents by contractors or subcontractors engaged in, or awarded contracts for, the construction of public works or improvements. 36 A.L.R.4th 941.

Waiver of competitive bidding requirements for state and local public building and construction contracts. 40 A.L.R.4th 968.

Public contracts: low bidder’s monetary relief against state or local agency for nonaward of contract. 65 A.L.R.4th 93.

Validity, construction, and effect of state and local laws requiring governmental units to give “purchase preference” to goods manufactured or services performed in state. 84 A.L.R.4th 419.

Am. Jur.

20 Am. Jur. Pl & Pr Forms (Rev), Public Works and Contracts, Forms 1 et seq. (competitive bidding and award of contract).

JUDICIAL DECISIONS

1. In general.

2. Illustrative cases.

1. In general.

In a case in which a wastewater services company challenged a utility authority’s award of a contract to another company for the operation and management of the authority’s wastewater facility, the wastewater services company argued unsuccessfully that the contract was void because the company that was awarded the contract did not have a certificate of responsibility, as required by Miss. Code Ann. §§31-3-15 and31-3-21(1). There was no authority to support the conclusion that successful company was required to have a certificate of responsibility to operate and manage a wastewater facility and interceptor system; it was evident from the Request for Proposals and the proposals submitted that the operation and management of the facility was the major component of the project, not its maintenance. Wastewater Plant Serv. Co. v. Harrison County Util. Auth., 28 So.3d 686, 2010 Miss. App. LEXIS 97 (Miss. Ct. App. 2010).

Local commission argued that it in good faith believed that the contractor which was awarded the contract possessed the requisite certificate to complete the project. The contractor submitted certificate numbers on its bid envelope but because the record did not contain adequate information on the contractor certificates submitted to the commission on the project in question, the appellate court would not consider whether or not the contractor was qualified to perform project work. W & W Contrs., Inc. v. Tunica County Airport Comm'n, 881 So. 2d 358, 2004 Miss. App. LEXIS 858 (Miss. Ct. App. 2004).

The statute clearly and unambiguously states that a bid may not be opened, considered or awarded to a contractor who fails to include the certificate of responsibility number on the exterior of the envelope except when a bid for a public project is not in excess of $50,000.00, or not in excess of $100,000.00 for a private project. City of Durant v. Laws Constr. Co., 721 So. 2d 598, 1998 Miss. LEXIS 391 (Miss. 1998).

Federal court would not abstain from determining validity of arbitration agreement embodied in contract issued to defendant Florida contractor who had failed to obtain certificate of responsibility required by Mississippi statute, since arbitration was mandatory and no extraordinary conflicts between federal and state interests which might necessitate abstention were foreseen. Timberton Golf, L.P. v. McCumber Constr., Inc., 788 F. Supp. 919, 1992 U.S. Dist. LEXIS 5291 (S.D. Miss. 1992).

Failure of Florida corporation to obtain certificate of responsibility in Mississippi under Mississippi law did not render invalid arbitration agreement embodied in contract to develop golf course, even though Mississippi statute provided that contract awarded without certificate of responsibility is null and void. Timberton Golf, L.P. v. McCumber Constr., Inc., 788 F. Supp. 919, 1992 U.S. Dist. LEXIS 5291 (S.D. Miss. 1992).

In action involving contract with Florida corporation for development of golf course, plaintiff failed to establish substantial likelihood of prevailing on merits in respect to argument that no arbitration agreement existed between contracting parties, thus preliminary injunction would not be granted against arbitration. Timberton Golf, L.P. v. McCumber Constr., Inc., 788 F. Supp. 919, 1992 U.S. Dist. LEXIS 5291 (S.D. Miss. 1992).

Municipality’s minority business utilization “set-aside” plan which, by ordinance, requires non-minority-owned prime contractors awarded city construction contracts to subcontract at least 30 percent of dollar amount of contract to one or more minority business enterprises violates equal protection clause of Fourteenth Amendment because, inter alia, random inclusion of racial groups which may never have suffered from discrimination in city’s construction industry suggests city’s purpose as not to remedy past discrimination, and 30 percent set-aside is not narrowly tailored to remedy effects of any prior alleged discrimination. Richmond v. J. A. Croson Co., 488 U.S. 469, 109 S. Ct. 706, 102 L. Ed. 2d 854, 1989 U.S. LEXIS 579 (U.S. 1989).

2. Illustrative cases.

Trial court properly limited the issue at trial to a subcontractor’s claim for quantum meruit damages because under the law of the case doctrine, it was bound to follow the mandate on remand that the subcontractor could pursue that non-barred claim; reference to “other penalties” did not open the door for the subcontractor to recover under other theories because it merely provided the trial court discretion to consider whether other statutory penalties applied. Ground Control, LLC v. Capsco Indus., 214 So.3d 232, 2017 Miss. LEXIS 93 (Miss. 2017).

Though appellant’s competitor, a Mississippi company, had not been entitled to a statutory preference since Alabama treated nonresident contractors in the same manner that Mississippi treated nonresident contractors, because the competitor’s residence played only a minor part in the school board’s decison to award the contract to the competitor, the award was not disturbed on appeal. Rod Cooke Constr. Co. v. Lamar County Sch. Bd., 135 So.3d 902, 2013 Miss. App. LEXIS 641 (Miss. Ct. App. 2013), cert. denied, 136 So.3d 437, 2014 Miss. LEXIS 204 (Miss. 2014).

§ 31-3-23. Appeals.

Within ten (10) days after any order, judgment or action of the board, any person aggrieved thereby may appeal such order, judgment or action either to the chancery court of the county wherein the appellant resides or to the Chancery Court of the First Judicial District of Hinds County, Mississippi, upon giving bond with sufficient security in the amount of Two Hundred Fifty Dollars ($250.00), approved by the clerk of the chancery court and conditioned to pay any costs which may be adjudged against such person. In lieu of the bond, the appellant may post Two Hundred Fifty Dollars ($250.00) with the clerk of the chancery court and conditioned to pay any costs which may be adjudged against such person.

Notice of appeal shall be filed in the office of the clerk of the chancery court, who shall issue a writ of certiorari directed to the board commanding it within forty-five (45) days after service thereof to certify to such court its entire record in the matter in which the appeal has been taken. The appeal shall thereupon be heard in due course by the court, and the court shall review the record and shall affirm or reverse the judgment. If the judgment is reversed, the chancery court or chancellor shall render such order or judgment as the board ought to have rendered, and certify the same to the board; and costs shall be awarded as in other cases.

Appeals may be had to the Supreme Court of the State of Mississippi as provided by law from any final action of the chancery court. The board may employ counsel to defend such appeals, to be paid out of the funds in the State Board of Contractors Fund.

On appeal, any order, judgment or action of the board revoking a certificate of responsibility or residential license shall remain in full force unless the chancery court or Supreme Court reverses such order, judgment or action of the board.

The remedies provided under this chapter for any aggrieved person shall not be exclusive, but shall be cumulative of and supplemental to any other remedies which he may otherwise have in law or in equity, whether by injunction or otherwise.

HISTORY: Codes, 1942, § 8968-12; Laws, 1958, ch. 473, § 12; Laws, 1980, ch. 498, § 12; Laws, 1985, ch. 505, § 14; reenacted, Laws, 1988, ch. 527, § 13; Laws, 2015, ch. 410, § 10, eff from and after July 1, 2015.

Amendment Notes —

The 2015 amendment rewrote the section.

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. Pl & Pr Forms (Rev), Public Works and Contracts, Forms l et seq. (competitive bidding and award of contract).

§ 31-3-25. Repealed.

Repealed by Laws, 1988, ch. 527, § 14, eff from and after July 1, 1988.

[En Laws, 1979, ch. 301, § 30; 1985, ch. 505, § 15]

Editor’s Notes —

Former section 31-3-25 provided for the repeal of this chapter.

Chapter 5. Public Works Contracts

In General

§ 31-5-1. Repealed.

Repealed by Laws 1980, ch. 520, § 5, eff from and after April 1, 1981.

[Codes, Hemingway’s 1921 Supp, § 2447a; 1930, § 5971; 1942, § 9014; Laws, 1918, ch. 217]

Editor’s Notes —

Former §31-5-1 required a bond for payment of labor and contracts.

Laws of 1980, ch 520, § 5, which repealed this section, provided in part that the section will apply and continue in full force and effect as to all bonds and contracts entered into prior to the effective date of the repeal.

§ 31-5-3. Bond for payment of taxes, licenses, etc.

Any person, firm or corporation entering into a formal contract with this state, any county thereof, municipality therein, or any public board, department, commission, or political subdivision of this state, for the construction or maintenance of public buildings, works or projects or the doing of repairs to any public building, works or projects shall be required before commencing same to execute the usual bond with good and sufficient sureties, as required by law, with the additional obligation that such contractor shall promptly make payment of all taxes, licenses, assessments, contributions, damages, penalties, and interest thereon, when and as the same may lawfully be due this state, or any county, municipality, board, department, commission or political subdivision thereof, by reason of and directly connected with the performance of such contract or any part thereof.

In default of the prompt payment of all such taxes, licenses, assessments, contributions, damages, penalties and interest thereon as may be due by any such contractor, a direct proceeding on said bond may be brought in any court of competent jurisdiction by the proper officer or agency having lawful authority so to do to enforce such payment, the right to so proceed being cumulative and in addition to such other remedies as may be provided by law.

Nothing in this section shall be so construed as to repeal in any respect the provisions of any law having for its purpose the protection and enforcement of claims by persons furnishing labor or materials.

HISTORY: Codes, 1942, § 9014-01; Laws, 1944, ch. 145, §§ 1-3.

Cross References —

Provision that construction contracts entered into by a joint water management district shall conform to requirements of §§31-5-3 through31-5-57, see §51-8-51.

Work performed by contract with state or local agency in connection with relief under Disaster Assistance Act of 1993 as subject to provisions of this chapter, see §33-15-315.

Alternative bidding and contracting procedures under Mississippi Major Economic Impact Act, see §57-75-21.

Combinations to defraud in public contracts, see §§75-21-15 et seq.

Actions by surety company against defaulting principal, see §§87-5-5 et seq.

OPINIONS OF THE ATTORNEY GENERAL

With regard to school bonds, Miss. Code Section 31-5-3 lists type of bond that may be required of person entering into formal contract with school board. 1993 Miss. Op. Att'y Gen. 27.

With regard to school bonds, specifics of this requirement are enumerated at Miss. Code Section 31-5-51. 1993 Miss. Op. Att'y Gen. 27.

The Mississippi Transportation Commission is authorized to make and promulgate reasonable rules and regulations, to provide and adopt standard specifications, including specifications requiring a warranty or warranties of workmanship, materials or performance, including asphalt paving, as a condition of letting or awarding a road or bridge construction contract. 1999 Miss. Op. Att'y Gen. 759.

RESEARCH REFERENCES

ALR.

What constitutes “public work” within statute relating to contractor’s bond. 48 A.L.R.4th 1170.

Am. Jur.

17 Am. Jur. 2d, Contractors’ Bonds §§ 1 et seq.

Law Reviews.

Dunn, Construction Contract Claims and Litigation – Suits on Public Bonds and Suits on Private Bonds. 55 Miss. L. J. 431, September 1985.

JUDICIAL DECISIONS

1. In general.

The liability of the surety on a bond given in pursuance of this provision is not affected by Code 1942, § 253, relieving a surety where the creditor fails to sue the principal debtor when notified by the surety to do so. Standard Acci. Ins. Co. v. Standard Oil Co., 242 Miss. 11, 133 So. 2d 539, 1961 Miss. LEXIS 523 (Miss. 1961).

§§ 31-5-5 through 31-5-13. Repealed.

[Codes, Hemingway’s 1921 Supp. §§ 2447d to 2447f; 1930, §§ 5972-5976; 1942, §§ 9015-9019; Laws, 1918, ch. 217; 1962, ch. 333]

Repealed by Laws, 1980, ch. 520, § 5, eff from and after April 1, 1981.

Editor’s Notes —

Laws of 1980, ch 520, § 5, which repealed these sections, provided in part that these sections will apply and continue in full force and effect as to all bonds and contracts entered into prior to the effective date of the repeal.

Former §§31-5-5 through31-5-13 pertained to suits on a bond.

§ 31-5-15. Withdrawal by contractor of amounts retained on public contracts by furnishing different security.

Under any public contract heretofore or hereafter made or awarded by the State of Mississippi, or any agency or department of the State of Mississippi, or by any political subdivision thereof, the contractor may, with the written consent of his or its surety, from time to time, withdraw the whole or any portion of the amount retained from payments due the contractor pursuant to the terms of the contract by depositing with the State Treasurer of the State of Mississippi, or the treasurer or secretary of the political subdivision of the State of Mississippi holding funds belonging to the contractor, the following security, or any combination thereof in an amount equal to or in excess of the amount so withdrawn, said securities to be accepted at the time of deposit at market value but not in excess of par value, to wit:

  1. U. S. Treasury Bonds, U. S. Treasury Notes, U. S. Treasury Certificates of Indebtedness, or U. S. Treasury Bills, or
  2. Bonds or notes of the State of Mississippi, or
  3. Bonds of any political subdivision of the State of Mississippi, or
  4. Certificates of deposit issued by commercial banks located in the State of Mississippi, provided that such certificate is negotiable or is accompanied by a power of attorney executed by the owner of the certificate in favor of the Treasurer of the State of Mississippi or of the treasurer or the secretary of the political subdivision involved, or
  5. Certificates of deposit issued by savings and loan associations located in the State of Mississippi, the accounts of which are insured by the Federal Savings and Loan Insurance Corporation, or whose accounts are insured by a company approved by the State Board of Savings and Loan Associations, provided that such certificate is made payable with accrued interest on demand and is accompanied by a power of attorney executed by the owner of the certificate in favor of the Treasurer of the State of Mississippi or the treasurer or secretary of the political subdivision involved, and provided that any such certificate from any of the savings and loan associations referred to in this subparagraph shall not be for an amount in excess of the maximum dollar amount of coverage of the Federal Savings and Loan Insurance Corporation.

    The agency or department of the state shall notify the State Treasurer of the amount of deposit required and shall also notify the State Treasurer when to release the deposit. The political subdivision of the state shall notify its treasurer or secretary of the amount of deposit required and shall also notify him when to release the deposit.

    The State Treasurer, or the secretary or treasurer of the political subdivision holding said security, shall, from time to time, collect all interest or income on the security so deposited and shall, by and with the written consent of contractor’s surety, pay the same when and as collected to the contractor or contractors who deposited said obligations. If the deposit be in the form of coupon bonds, the coupons as they respectively become due shall be delivered to the contractor.

    If in the event of an overpayment to a contractor the contracting authority is unable to obtain reimbursement for such overpayments from the contractor, the chief administrative officer of the contracting authority shall notify the contractor, its surety and the State Treasurer or other holder of the security, of the nature of the overpayment and of the failure to obtain reimbursement. Upon such notification, the security holder shall retain the income on the deposited security until an amount equal to the overpayment is accumulated and paid to the contracting authority.

    In the event the contractor shall default in the performance of the contract or any portion thereof, the securities deposited by him in lieu of retainage and all interest and coupons and income accruing on said securities after said default may be sold by the state or any agency or department thereof, or any political subdivision, and the proceeds of said sale used as if such proceeds represented the retainage provided for under the contract.

HISTORY: Codes, 1942, § 9022.5; Laws, 1971, ch. 516, § 1, eff from and after July 1, 1971; Laws, 1992, ch. 364, § 1, eff from and after July 1, 1992.

Cross References —

Authorization to contract with industries with respect to solid or hazardous waste treatment projects, see §§17-17-105,17-17-121.

Alternative bidding and contracting procedures under Mississippi Major Economic Impact Act, see §57-75-21.

OPINIONS OF THE ATTORNEY GENERAL

In the instance of a public works contract to be paid with proceeds generated by a revenue bond issued by the City of Gulfport wherein the City enters into a third-party agreement whereby those bond proceeds are being held by a trustee bank, Section 31-5-15 still applies. 1996 Miss. Op. Att'y Gen. 753.

§ 31-5-17. Resident labor used on public works.

Every public officer, contractor, superintendent, or agent engaged in or in charge of the construction of any state or public building or public work of any kind for the State of Mississippi or for any board, city commission, governmental agency, or municipality of the State of Mississippi shall employ only workmen and laborers who have actually resided in Mississippi for two (2) years next preceding such employment.

HISTORY: Codes, 1942, § 9020; Laws, 1932, ch. 317; Laws, 1938, ch. 359.

Cross References —

Procedure if resident labor not available, see §31-5-19.

Penalty for violation of this section, see §31-5-21.

Use of state products in public works, see §31-5-23.

Bidding and contracting procedures under Mississippi Superconducting Super Collider Act, see §57-67-37.

Alternative bidding and contracting procedures under Mississippi Major Economic Impact Act, see §57-75-21.

OPINIONS OF THE ATTORNEY GENERAL

The issues of requiring resident labor and products to be used in construction contracts have already been addressed by the Legislature. By enacting these statutes, the state has preempted this field and precluded a county school board from establishing any different requirements for the use of local labor and materials. 1996 Miss. Op. Att'y Gen. 134.

RESEARCH REFERENCES

ALR.

Validity, construction, and effect of state and local laws requiring governmental units to give “purchase preference” to goods manufactured or services performed in state. 84 A.L.R.4th 419.

§ 31-5-19. Procedure if resident labor not available.

In the event workmen or laborers qualified under the provisions of Section 31-5-17 are not available, then the contractor, officer, superintendent, agent, or person in charge of such work shall notify in writing the mayor of the city in which said work is being done, the president of the board of supervisors of the county in which said work is being done, the Governor where said work is being done for the State of Mississippi, and the president, chairman, or executive officer of such board, city commission, or governmental agency for which said work is being done, of such fact. Unless the mayor, Governor, president, executive officer, or chairman aforesaid, as the case may be, shall forthwith supply such contractor, officer, superintendent, agent, or person in charge of said works with the satisfactory workmen or laborers needed, said contractor, officer, superintendent, agent, or person shall be authorized to employ workmen or laborers who are not qualified under the provisions of Section 31-5-17 to make up the deficiency. Nothing herein shall be construed to prevent the State of Mississippi, any county, municipality, board, or commission from placing or letting any contract for the erection or construction of any public building or public work in the open market, or soliciting bids from persons, firms, or corporations without the State of Mississippi. Any person, persons, firm, or corporation from without the State of Mississippi that may obtain such contracts for public buildings or public works shall comply with the provisions of Section 31-5-17 upon undertaking the said contract or work.

HISTORY: Codes, 1942, § 9021; Laws, 1932, ch. 317; Laws, 1938, ch. 359.

Cross References —

Awarding of contracts by the Mississippi Transportation Commission, see §65-1-85.

§ 31-5-21. Penalty.

Any contractor, officer, superintendent, agent, or person in charge of said work who shall violate any of the provisions of Section 31-5-17, shall be liable upon conviction before a court of competent jurisdiction to a fine of not more than One Hundred Dollars ($100.00) or to imprisonment of not more than sixty (60) days, or both at the discretion of the court; and every day’s employment of each workman or laborer in such violation shall constitute a separate offense.

However, where any workman or laborer furnishes such employer with a certificate by the sheriff, chancery clerk, or county registrar of the county of his domicile to the effect that such workman or laborer has actually resided in this state two (2) years next preceding such employment, such employer, acting in good faith, shall be relieved of any liability by reason of employing such person.

HISTORY: Codes, 1942, § 9022; Laws, 1932, ch. 317; Laws, 1938, ch. 359.

§ 31-5-23. State products used in public works.

In the construction of any building, highway, road, bridge, or other public work or improvement by the State of Mississippi or any of its political subdivisions or municipalities, only materials grown, produced, prepared, made and/or manufactured within the State of Mississippi should be used. Paint, varnish and lacquer shall be used which shall contain as vehicles tung oil and either ester gum or modified resin (with rosin as the principal base of constituents), and turpentine shall be used as solvent or thinner, all of which said products shall be produced in Mississippi. However, preference shall not be given to materials grown, produced, prepared, made and/or manufactured in the State of Mississippi when other materials of like quality produced without the State of Mississippi may be purchased or secured at less cost, or any other materials of better quality produced without the State of Mississippi can be secured at a reasonable cost.

The duty is hereby enjoined upon all public officers or bodies having the right to contract for the purchase of materials for any such public work to be paid for by the State of Mississippi or any of its political subdivisions or municipalities to faithfully observe the provisions of this section.

All contracts hereafter let to any person, firm or corporation for the construction or doing of any public work shall contain a provision enjoining a like duty upon the contractor with respect to the purchase of materials as would have rested upon the public officer or body letting the contract had he or it done the work and purchased the materials.

Nothing herein shall in any manner apply to any public work or improvement which will be paid for either in whole or in part by funds contributed either directly or indirectly by the United States.

This section is declaratory of public policy of the State of Mississippi.

The boards of supervisors of the State of Mississippi are hereby enjoined, in the letting of contracts in pursuance to Section 65-9-19, to use any and all low gravity oil from the various oil fields in this state in the construction, maintenance, and upkeep of the rural roads, and to faithfully observe the provisions hereof.

HISTORY: Codes, 1942, § 9023; Laws, 1932, ch. 330; Laws, 1950, ch. 392, § 1.

Cross References —

Resident labor used on public works, see §31-5-17.

Bidding and contracting procedures under Mississippi Superconducting Super Collider Act, see §57-67-37.

Alternative bidding and contracting procedures under Mississippi Major Economic Impact Act, see §57-75-21.

Award of contracts by highway department, see §65-1-85.

OPINIONS OF THE ATTORNEY GENERAL

The issues of requiring resident labor and products to be used in construction contracts have already been addressed by the Legislature. By enacting these statutes, the state has preempted this field and precluded a county school board from establishing any different requirements for the use of local labor and materials. 1996 Miss. Op. Att'y Gen. 134.

§ 31-5-25. Time for full and final payment to contractors; exemptions; monthly submission by contractors of proof of payments to subcontractors.

  1. All sums due contractors under all public construction contracts shall be paid as follows:
    1. Partial, progress or interim payments: All partial, progress or interim payments or monies owed contractors shall be paid when due and payable under the terms of the contract. If they are not paid within forty-five (45) calendar days from the day they were due and payable, then they shall bear interest from the due date until paid at the rate of one percent (1%) per month until fully paid.
    2. Final payments: The final payment of all monies owed contractors shall be due and payable:
      1. At the completion of the project or after the work has been substantially completed in accordance with the terms and provisions of the contract;
      2. When the owner beneficially uses or occupies the project except in the case where the project involves renovation or alteration to an existing facility in which the owner maintains beneficial use or occupancy during the course of the project;
      3. When the project is certified as having been completed by the architect or engineer authorized to make such certification; or
      4. When the project is certified as having been completed by the contracting authority representing the State of Mississippi or any of its political subdivisions, whichever event shall first occur.

      If the contractor is not paid in full within forty-five (45) calendar days from the first occurrence of one (1) of the above-mentioned events, then said final payment shall bear interest from the date of said first occurrence at the rate of one percent (1%) per month until fully paid.

      In no event shall said final payment due the contractor be made until the consent of the contractor’s surety has been obtained in writing and delivered to the proper contracting authority.

    3. [Repealed]
  2. Contractors shall submit monthly certification to the project engineer or architect indicating payments to subcontractors on prior payment request.

HISTORY: Codes, 1942, § 9022.7; Laws, 1972, ch. 534, § 1; Laws, 1985, ch. 505, § 1; Laws, 1994 Ex Sess, ch. 26, § 20; Laws, 2002, ch. 519, § 1; Laws, 2006, ch. 331, § 1, eff from and after July 1, 2006.

Editor’s Notes —

Former paragraph (1)(c), which provided that contracts for the construction of prison facilities let or approved by the State Prison Emergency Construction and Management Board when exercising its emergency powers to remove two thousand (2,000) inmates from county jails were exempt from the section, except where the contracts were for the construction of private correctional facilities and additional facilities at the South Mississippi Correctional Institution and the Central Mississippi Correctional Facility, was repealed by its own terms, effective July 1, 1996.

Amendment Notes —

The 2006 amendment substituted “forty-five (45) calendar days” for “sixty (60) calendar days” in the last sentence of (a) and the next-to-last paragraph of (b).

Cross References —

Provision that payments under public works contracts pursuant to this section and §31-5-27 are not affected by certain general provisions relative to timely payment of invoices by public bodies, see §31-7-315.

Alternative bidding and contracting procedures under Mississippi Major Economic Impact Act, see §57-75-21.

OPINIONS OF THE ATTORNEY GENERAL

Miss. Code Section 31-5-25 provides for interest on late payments on public construction contracts. 1993 Miss. Op. Att'y Gen. 15.

Fact that there may be potential claim against contractor does not affect timing for final payment to contractor following completion of project. 1994 Miss. Op. Att'y Gen. 1010.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Works and Contracts §§ 100 et seq., 112 et seq.

20 Am. Jur. Pl & Pr Forms (Rev), Public Works and Contracts, Forms 91 et seq.

4 Am. Jur. Legal Forms 2d, Building Contracts §§ 47:191 et seq. (compensation).

Law Reviews.

Dunn, Construction Contract Claims and Litigation – Suits on Public Bonds and Suits on Private Bonds. 55 Miss. L. J. 431, September 1985.

JUDICIAL DECISIONS

1. In general.

In a public contract dispute between a county and a corporation with which the county had contracted to reseal a road, the corporation was entitled to prejudgment interest under Miss. Code Ann. §31-5-25, because this section did not have an exception for disputed amounts, unlike Miss. Code Ann. §31-7-305. Southland Enters., Inc. v. Newton County, 940 So. 2d 937, 2006 Miss. App. LEXIS 101 (Miss. Ct. App.), cert. denied, 939 So. 2d 805, 2006 Miss. LEXIS 739 (Miss. 2006).

Based upon the delay in payment to the construction company by the county for a completed project, the trial court properly awarded the company interest, costs, and attorney’s fees as prescribed by Miss. Code Ann. §§31-5-25 and31-7-309; such an award was supported by the record on appeal as the record contained a contract which provided for interest in the event of late payment, clearly detailed the schedule for progress payments, and clearly prescribed the manner in which final payment was to take place; the county’s deposit with the court clearly showed that the funds were present to pay the remaining portion of the contract, but for reasons unknown, the county chose not to honor the final payment provision of the contract until a lawsuit had been filed to determine each party’s rights. Humphreys County v. Guy Jones, Jr. Constr. Co., 910 So. 2d 1129, 2005 Miss. App. LEXIS 202 (Miss. Ct. App. 2005).

The statute applied where it was undisputed and the record reflected that the contract at issue was a public construction contract, that the project engineer issued a “Certificate of Substantial Completion” on October 24, 1994, that the project was formally accepted on December 2, 1994, and that final payment was not made to the plaintiff within 60 days thereof; thus, October 24, 1994 was the appropriate date from which interest on the final payment would accrue. Omni Constr., Inc. v. City of Columbus, 1999 U.S. Dist. LEXIS 19761 (N.D. Miss. Nov. 17, 1999).

Section 31-5-25, as amended, was inapplicable to an action which arose before the statute became effective. City of Mound Bayou v. Roy Collins Constr. Co., 499 So. 2d 1354, 1986 Miss. LEXIS 2870 (Miss. 1986).

§ 31-5-27. Payment of interest on delinquent accounts.

When a contractor receives any payment under a public construction contract, the contractor shall, upon receipt of that payment, pay each subcontractor and material supplier in proportion to the percentage of work completed by each subcontractor and material supplier. If for any reason the contractor receives less than the full payment due under the public construction contract, the contractor shall be obligated to disburse on a pro rata basis those funds received, with the contractor, subcontractors and material suppliers each receiving a prorated portion based on the amount due on the payment. If the contractor without reasonable cause fails to make any payment to his subcontractors and material suppliers within fifteen (15) days after the receipt of payment under the public construction contract, the contractor shall pay to his subcontractors and material suppliers, in addition to the payment due them, a penalty in the amount of one-half of one percent (1/2 of 1%) per day of the delinquency, calculated from the expiration of the 15-day period until fully paid. The total penalty shall not exceed fifteen percent (15%) of the outstanding balance due.

HISTORY: Codes, 1942, § 9022.8; Laws, 1972, ch. 534, § 2; Laws, 1985, ch. 505, § 2, eff from and after January 1, 1986.

Cross References —

Provision that payments under public works contracts pursuant to this section and §31-5-25 are not affected by certain general provisions relative to timely payment of invoices by public bodies, see §31-7-315.

Alternative bidding and contracting procedures under Mississippi Major Economic Impact Act, see §57-75-21.

JUDICIAL DECISIONS

1. No penalty where contract was terminated.

2. Court may change 15-day limit.

3. Recovery of statutory damages.

1. No penalty where contract was terminated.

Miss. Code Ann. §31-5-27 contemplates payment by contractors to suppliers and subcontractors while work is ongoing; when a corporation breached a requirements contract, the contract was terminated and the property owners were no longer entitled to the benefits under the contract, Miss. Code Ann. §31-5-27 no longer applied to them, and the trial court erred in awarding a statutory penalty. G.B. "Boots" Smith Corp. v. Cobb, 860 So. 2d 774, 2003 Miss. LEXIS 578 (Miss. 2003).

2. Court may change 15-day limit.

Where a purchase order stated “TERMS: Net 30 Days from Invoice Date,” defendant prime contractor and plaintiff subcontractor had by contract altered the 15-day payment arrangement under Miss. Code Ann. §31-5-27 on a public construction project and thus, the subcontractor was not entitled to interest for payments made outside the 15 day limit of §31-5-27; the word “shall” in § 31-5-27 did not preclude parties from contracting away statutory rights. APAC-Mississippi, Inc. v. James Constr. Group, L.L.C., 370 F. Supp. 2d 528, 2005 U.S. Dist. LEXIS 8778 (S.D. Miss.), op. withdrawn, 386 F. Supp. 2d 725, 2005 U.S. Dist. LEXIS 20575 (S.D. Miss. 2005).

3. Recovery of statutory damages.

Although a subcontractor could not recover statutory damages under the Prompt Pay Act, Miss. Code Ann. §31-5-27, based upon a 15-day timetable, the subcontractor still had a claim against the contractors for breach of the 30-day timetable for damages in an amount to be determined. APAC-Mississippi, Inc. v. James Constr. Group, L.L.C., 370 F. Supp. 2d 528, 2005 U.S. Dist. LEXIS 8777 (S.D. Miss.), op. withdrawn, 386 F. Supp. 2d 725, 2005 U.S. Dist. LEXIS 20575 (S.D. Miss. 2005).

§ 31-5-29. Applicability of Sections 31-5-25, 31-5-27.

Sections 31-5-25 and 31-5-27, shall apply as to all public construction contracts entered into by all state agencies, commissions, boards and districts and by all municipalities, counties and other political subdivisions of the State of Mississippi.

HISTORY: Codes, 1942, § 9022.9; Laws, 1972, ch. 534, § 3, eff from and after July 1, 1972.

Cross References —

Alternative bidding and contracting procedures under Mississippi Major Economic Impact Act, see §57-75-21.

§ 31-5-31. Provider to subcontractor of equipment used in road construction contract shall notify general contractor of payments not timely made.

Any person, firm or corporation who leases, rents or sells to any subcontractor any equipment to be used in a road construction contract, wherein a performance and payment bond is required of the general contractor, shall notify the general contractor involved in such contract that credit is being extended by them to the subcontractor and stating the terms of the credit agreement. In the event the subcontractor does not meet his payment obligations as set forth in the credit agreement, the creditor shall notify the general contractor of the nonpayment within thirty (30) days after such payment is due. The creditor shall notify the general contractor upon receipt of any payment which had been reported as past due.

Failure of the creditor to comply with the nonpayment notice provision of this section shall void the terms of the general contractor’s performance and payment bond as to such creditor for such equipment leased, rented or sold.

HISTORY: Laws, 1976, ch. 378, eff from and after July 1, 1976.

Cross References —

Alternative bidding and contracting procedures under Mississippi Major Economic Impact Act, see §57-75-21.

RESEARCH REFERENCES

Law Reviews.

Dunn, Construction Contract Claims and Litigation – Suits on Public Bonds and Suits on Private Bonds. 55 Miss. L. J. 431, September 1985.

§ 31-5-33. Amount of retainage which may be withheld; exemptions.

  1. In any contract for the construction, repair, alteration or demolition of any building, structure or facility awarded by the State of Mississippi, or any agency, unit or department of the State of Mississippi, or by any political subdivision thereof, which contract provides for progress payments in installments based upon an estimated percentage of completion with a percentage of the contract proceeds to be retained by the state agency, unit or department, or by the political subdivision or contractor pending completion of the contract, such retainage shall be five percent (5%), and the amount retained by the prime contractor from each payment due the subcontractor shall not exceed the percentage withheld by the state, or any agency, unit or department of the state, or by any political subdivision thereof, from the prime contractor.

    On any contract as described herein, of which the total amount is Two Hundred Fifty Thousand Dollars ($250,000.00) or greater, or on any contract with a subcontractor, regardless of amount, five percent (5%) shall be retained until the work is at least fifty percent (50%) complete, on schedule and satisfactory in the architect’s and/or engineer’s opinion, at which time fifty percent (50%) of the retainage held to date shall be returned to the prime contractor for distribution to the appropriate subcontractors and suppliers. Provided, however, that future retainage shall be withheld at the rate of two and one-half percent (21/2%).

  2. The provisions of this section shall not apply to contracts let by the Mississippi Transportation Commission for the construction, improvement or maintenance of roads and bridges.

HISTORY: Laws, 1979, ch. 454, § 1; Laws, 1984, ch. 406, § 1; Laws, 2002, ch. 519, § 2, eff from and after July 1, 2002.

Editor’s Notes —

Laws of 1996, ch. 495, § 3, provides as follows:

“SECTION 3. Any agency or governing authority that has received a bid or bids for a public construction or renovation project on or after January 1, 1996, may exercise the authority granted under subparagraph (d)(ii) of Section 31-7-13, Mississippi Code of 1972.”

Cross References —

Alternative bidding and contracting procedures under Mississippi Major Economic Impact Act, see §57-75-21.

OPINIONS OF THE ATTORNEY GENERAL

The Mississippi Transportation Commission may, but is not required to, withhold retainage in contracts for the construction, improvement, or maintenance of roads and bridges. 1999 Miss. Op. Att'y Gen. 641.

The 2002 amendments to Section 31-5-33 do not apply retroactively to contracts already in existence prior to July 1, 2002. 2002 Miss. Op. Att'y Gen. 616.

The 2002 amendments to Section 31-5-33 do not apply retroactively to contracts already in existence prior to July 1, 2002. 2002 Miss. Op. Att'y Gen. 616.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Works and Contracts §§ 95-99.

20 Am. Jur. Pl & Pr Forms (Rev), Public Works & Contracts, Forms 91 et seq.

20 Am. Jur. Pl & Pr Forms (Rev), Public Works and Contracts, Form 37.1 (complaint, petition, or declaration – by contractor – to recover against municipal corporation for portion of payment which municipal corporation withheld on basis of contractor’s failure to complete contract by completion date).

15A Am. Jur. Legal Forms 2d, Public Works and Contracts § 216:117 (stipulation to make repairs, retention by municipality).

§ 31-5-35. Public employees prohibited from requiring bidder on public contract to obtain surety bonds from any particular company, agent, or broker.

No state, county, or municipal employee, and no person acting or purporting to act on behalf of such employee, or any state, county or municipal agency, shall, with respect to any public building or construction contract which is about to be or which has been competitively bid or negotiated, require the bidder to make application to or furnish financial data to, or to obtain or procure any of the surety bonds, or surety bond components of wrap-up insurance, that is specified in connection with such contract or specified by any law, from any particular insurance or surety company, agent or broker.

HISTORY: Laws, 2001, ch. 326, § 1, eff from and after July 1, 2001.

§ 31-5-37. Contractors submitting bids for public works projects utilizing specified funding required to submit employment plan with bid; contents of plan; review of individuals for vacant positions.

  1. All public works projects utilizing funds received by state or local governmental entities resulting from a federally declared disaster or a spill of national significance, including damages, penalties, fines or supplemental projects paid or financed by responsible parties pursuant to a court order, negotiated settlement, or other instrument, including under any law distributing such fines and penalties including the federal Resources and Ecosystems Sustainability, Tourist Opportunities and Revived Economy of the Gulf Coast Act of 2011 (R.E.S.T.O.R.E.), the Oil Pollution Act of 1990 or the Federal Water Pollution Control Act or similar legislation, shall be subject to the hiring policies established by this section.
  2. Contractors submitting bids for public works projects that involve an expenditure of Five Thousand Dollars ($5,000.00) or more and that are financed, in whole or in part, through the use of funds described in subsection (1) of this section shall submit with their bid a certification that they will comply with the provisions of this section if they are awarded a contract. The contractor shall submit to the agency or governing authority that solicited the bid and the Mississippi Department of Employment Security an employment plan within seven (7) days after the award of the contract which shall include the following:
    1. The types of jobs involved in the public works project;
    2. The skill level of the jobs involved in the project;
    3. Wage information on the jobs involved in the project;
    4. The number of vacant positions that the contractor and any subcontractor needs to fill;
    5. How the contractor and any subcontractor will recruit, low-wage and unemployed individuals for job vacancies;
    6. Such other information as may be required by the Mississippi Department of Employment Security; and
    7. Proof of registration with the Mississippi Department of Employment Security for taxation in accordance with the provisions of Title 71.
  3. From the date written notice of the contract award is received and until ten (10) business days after the receipt of the employment plan by the Mississippi Department of Employment Security, the contractor and any subcontractor shall not hire any personnel to fill vacant positions necessary for the public works project except residents of the State of Mississippi who are to be verified by the Mississippi Department of Employment Security and/or those qualified individuals who are submitted by the Mississippi Department of Employment Security. For purposes of this subsection, the contractor or subcontractor is authorized to employ Mississippi residents to begin work immediately, and such persons are to be verified by the Mississippi Department of Employment Security after employment by the contractor or subcontractor. During the ten-day period the Mississippi Department of Employment Security shall submit qualified individuals to the contractor to consider for the vacant positions. The contractor shall review the individuals submitted by the department before hiring individuals who are not submitted by the department. The contract award shall be vacated if the contractor fails to comply with the provisions of this subsection.

HISTORY: Laws, 2012, ch. 505, § 1; Laws, 2013, ch. 479, § 1, eff from and after passage (approved April 1, 2013).

Amendment Notes —

The 2013 amendment rewrote (2) which read “Contractors submitting bids for public works projects financed in whole or in part through the use of funds described in subsection (1) of this section shall submit with their bid an employment plan which shall include the following:”; inserted “and any subcontractor” in (2)(d) and (e); and rewrote the first sentence in (3) which read “When a contractor’s bid is accepted, the contractor shall enter into an agreement with the entity that accepted the bid that requires the contractor not to hire any personnel to fill vacant positions necessary for the public works project for a period of ten (10) days after the date of the agreement” and added the second and fifth sentences.

“Hold Harmless” Clauses

§ 31-5-41. “Hold harmless” clauses in construction contracts are void; exceptions.

With respect to all public or private contracts or agreements, for the construction, alteration, repair or maintenance of buildings, structures, highway bridges, viaducts, water, sewer or gas distribution systems, or other work dealing with construction, or for any moving, demolition or excavation connected therewith, every covenant, promise and/or agreement contained therein to indemnify or hold harmless another person from that person’s own negligence is void as against public policy and wholly unenforceable.

This section does not apply to construction bonds or insurance contracts or agreements.

HISTORY: Codes, 1942, § 278.9; Laws, 1972, ch. 400, § 1, eff from and after passage (approved April 27, 1972).

Cross References —

Alternative bidding and contracting procedures under Mississippi Major Economic Impact Act, see §57-75-21.

RESEARCH REFERENCES

ALR.

Validity and construction of “no damage” clause with respect to delay in building or construction contract. 74 A.L.R.3d 187.

Am. Jur.

41 Am. Jur. 2d, Indemnity § 11.

37 Am. Jur. Trials 115, Contractor’s Liability for Mishandling Toxic Substance.

Law Reviews.

Dunn, Construction Contract Claims and Litigation – Suits on Public Bonds and Suits on Private Bonds. 55 Miss. L. J. 431, September 1985.

JUDICIAL DECISIONS

1. In general.

1.5. Applicability.

2. Difference between additional insureds and indemnification.

1. In general.

Where a subcontract called for the application of Georgia law but defendant subcontractor argued for applying Mississippi’s anti-indemnity statute, Miss. Code Ann. §31-5-41, because the Georgia anti-indemnity law, O.C.G.A. §13-8-2(b), was in line with, and not contrary to, Mississippi’s policy prohibiting a contractor from being indemnified for his own negligence in a construction contract, and, the basis for choosing Georgia law was reasonable in that plaintiff general contractor was a Georgia corporation with its principal place of business in Georgia, the court would apply Georgia law in resolving the indemnity issue. PIC Group, Inc. v. LandCoast Insulation, Inc., 718 F. Supp. 2d 795, 2010 U.S. Dist. LEXIS 91612 (S.D. Miss. 2010).

Miss. Code Ann. §31-5-41, by its own language, excepts performance bonds, and that exception applies even if the performance bond incorporates the construction contract by reference. Fid. & Deposit Co. of Md. v. Ralph McKnight & Son Constr., 28 So.3d 1282, 2010 Miss. LEXIS 92 (Miss. 2010).

Miss. Code Ann. §31-5-41 voided the indemnity provision in the shipyard agreement to the extent that it provided for indemnification of the shipbuilder for the shipbuilder’s own negligence; in that no allocation of fault appeared in the record before the court, the lower court’s ruling which granted the shipbuilder indemnity was reversed and remanded. Transocean Enter. v. Ingalls Shipbuilding, Inc., 2009 Miss. LEXIS 448 (Miss. Sept. 24, 2009).

Contract between the contractor and employer, who was the insurer’s insured, fell outside of the reach of Miss. Code Ann. §31-5-41, where the contractor did not contract with the employer for the employer to perform construction work or other work dealing with construction; the employer performed no work at all pursuant to the contract, and merely provided contract welders to work at the direction of the contractor; accordingly, the contract was not invalidated by the statute and the trial court properly denied the insurer’s motion to intervene. Eagle Pac. Ins. Co. v. Quintanilla, 923 So. 2d 266, 2006 Miss. App. LEXIS 165 (Miss. Ct. App. 2006).

Trial court denied indemnity to lessee on the grounds that if there was an indemnity clause in the contract, an express provision in a construction contract to indemnify a party from its own negligence was not enforceable pursuant to Miss. Code Ann. 31-5-41; however, such denial was improper because the trial court held that the lessee’s negligent performance of its duties in supervising the project as architect made it ineligible for indemnity and the court had reversed the finding regarding an architect’s duties. Family Dollar Stores of Miss., Inc. v. Montgomery, 946 So. 2d 426, 2006 Miss. App. LEXIS 929 (Miss. Ct. App. 2006).

Where a construction contract between a contractor and a plant owner contained an indemnity clause, the indemnity clause was void under state law and the contractor’s insurer was not required to reimburse the plant owner and the plant owner’s insurer for personal injury settlements. Certain London Mkt. Ins. Cos. v. Pa. Nat'l Mut. Cas. Ins. Co., 269 F. Supp. 2d 722, 2003 U.S. Dist. LEXIS 16863 (N.D. Miss. 2003), aff'd, 106 Fed. Appx. 884, 2004 U.S. App. LEXIS 14450 (5th Cir. Miss. 2004).

In an action against a general contractor and a subcontractor arising from the death of an iron worker while constructing a casino on a barge on a navigable waterway, a contract provision which required indemnification of the general contractor by the subcontractor for its negligent actions was void as against public policy. Accu-Fab & Constr., Inc. v. Ladner by & Through Ladner, 970 So. 2d 1276, 2000 Miss. App. LEXIS 111 (Miss. Ct. App. 2000), aff'd, 778 So. 2d 766, 2001 Miss. LEXIS 38 (Miss. 2001).

A contract clause, which operated to limit a contractor’s (or subcontractor’s) rights based on delay, was valid as drafted and was not void as against Mississippi public policy; the clause was not a hold-harmless clause, but rather detailed an agreement between sophisticated parties for remedying delay caused by an owner and merely allowed contractors to limit their losses from delay by seeking an extension of time. PYCA Indus., Inc. v. Harrison County Waste Water Mgmt. Dist., 177 F.3d 351, 1999 U.S. App. LEXIS 10872 (5th Cir. Miss. 1999).

A contract clause, which operated to limit a contractor’s or subcontractor’s rights based on delay, was valid as drafted and was not void as against Mississippi public policy; the clause was not a hold-harmless clause, but rather detailed an agreement between sophisticated parties for remedying delay and merely allowed contractors to limit their losses from delay by seeking an extension of time. PYCA Indus., Inc. v. Harrison County Waste Water Mgmt. Dist., 177 F.3d 351, 1999 U.S. App. LEXIS 10872 (5th Cir. Miss. 1999).

An agreement, whereby a contractor agreed to indemnify the owner of the premises against all personal injury actions incident to its performance of a construction contract at the premises, was not unenforceable under this section, which blocks indemnity for one’s own negligence, since the owner had been absolved of fault in the underlying personal injury action and thus was not seeking to recover for its own negligence. American Cyanamid Co. v. Campbell Constr. Co., 864 F. Supp. 580, 1994 U.S. Dist. LEXIS 14652 (S.D. Miss. 1994).

This section did not apply to prevent the enforcement of an indemnification clause in a licensing agreement. Heritage Cablevision v. New Albany Elec. Power Sys., 646 So. 2d 1305, 1994 Miss. LEXIS 599 (Miss. 1994).

This section does not void paper company’s agreement to indemnify railroad where railroad did not undertake to construct or do anything for paper company regarding chip pit, and paper company was solely responsible for maintaining chip pit, where in 1979 supplemental agreement, paper company had undertaken to indemnify railroad for any loss caused by railroad’s “own negligence”. Illinois C. G. R. Co. v. International Paper Co., 824 F.2d 403, 1987 U.S. App. LEXIS 10953 (5th Cir. Miss. 1987).

Contract between operator of paper mill and railroad company providing that paper mill shall maintain chippit underneath one of railroad’s sidetracks and that paper mill would indemnify railroad from any liability for personal injury that railroad might incur was not contract for railroad to construct or do anything for paper mill regarding chippit and thus this section did not void paper mill’s agreement to indemnify railroad. Illinois C. G. R. Co. v. International Paper Co., 824 F.2d 403, 1987 U.S. App. LEXIS 10953 (5th Cir. Miss. 1987).

A license agreement between a cable television company which employed the injured claimant and a telephone company was not a “construction contract” within the meaning and prohibition of this section. Therefore, that section did not bar the telephone company from enforcing the indemnity provisions of its contract with the cable television company. Lorenzen v. South Cent. Bell Tel. Co., 546 F. Supp. 694, 1982 U.S. Dist. LEXIS 15636 (S.D. Miss. 1982), aff'd, 701 F.2d 408, 1983 U.S. App. LEXIS 29323 (5th Cir. Miss. 1983).

The indemnity provision of a contract providing that an independent contractor may possibly be required to indemnify the corporation it has contracted with for any liability of that corporation for damages or possible injuries arising out of an independent contractor’s negligence is enforceable under this section. Ramsey v. Georgia-Pacific Corp., 511 F. Supp. 393, 1981 U.S. Dist. LEXIS 9498 (S.D. Miss. 1981), aff'd, 671 F.2d 1376, 1982 U.S. App. LEXIS 21589 (5th Cir. Miss. 1982).

In a personal injury action brought by an insured employee against his employer, the trial court erred in dismissing the employer’s third-party complaint for indemnity against the independent contractor who had been engaged in installing a conveyer system at the time of the injury at issue, where the indemnity agreement between the parties, when read as a whole, could be read to indemnify the employer against losses incurred by it due to the contractor’s acts or negligence, a valid contract, and did not have to be read to protect only against liability because of the employer’s acts, a void contract. Ramsey v. Georgia-Pacific Corp., 597 F.2d 890, 1979 U.S. App. LEXIS 13709 (5th Cir. Miss. 1979).

A contractual provision indemnifying defendant tire company from liability arising out of performance of work on its premises by a painting company was ineffective, in light of this statute, to shield defendant from liability to a paint company employee who was burned in a fire while painting on defendant’s premises and who alleged that defendant had provided an unsafe work place; no exception from the statute was available for parties of equal bargaining strength, there was no provision for contribution to the settlement burden by the painting company, subsection (b) of the statute, exempting insurance contracts, was not applicable since the contract at issue was an insured indemnity contract, and neither implied indemnity nor quasi contractual indemnity was available. Crosby v. General Tire & Rubber Co., 543 F.2d 1128, 1976 U.S. App. LEXIS 5864 (5th Cir. Ala. 1976).

1.5. Applicability.

Dismissal of performance bond issuer’s lawsuit on the basis that Miss. Code Ann. §31-5-41 prohibited the issuer from seeking indemnity for its own negligence was error because the last sentence of the statute stated that its provisions did not apply to “construction bonds,” and a performance bond was a type of construction bond. Fid. & Deposit Co. of Md. v. Ralph McKnight & Son Constr., 28 So.3d 1282, 2010 Miss. LEXIS 92 (Miss. 2010).

2. Difference between additional insureds and indemnification.

Where plaintiff contractor was required to be, and was named as, an additional insured under defendant subcontractor’s policy, Miss. Code Ann. §31-5-41 did not apply to such agreements or to the coverage actually procured, but defendant insurer and the subcontractor had no indemnification duty because any agreement to indemnify the contractor for its own negligence was void and in the subcontractor’s employee’s underlying suit against the contractor alleged that the contractor’s negligence caused the employee’s injuries. Roy Anderson Corp. v. Transcon. Ins. Co., 358 F. Supp. 2d 553, 2005 U.S. Dist. LEXIS 3173 (S.D. Miss. 2005).

Bonds Securing Public Construction Contracts

§ 31-5-51. Performance and payment bonds; persons entitled to sue on payment bond; proof of general liability insurance required before entering into certain contracts with state or local governments.

  1. Any person entering into a formal contract with the state or any county, city or political subdivision thereof, or other public authority for the construction, alteration, or repair of any public building or public work, before entering into such contract, shall furnish to such public body, except as provided in subsection (5) of this section, bonds with good and sufficient surety as follows:
    1. A performance bond payable to, in favor of or for the protection of such public body, as owner, for the work to be done in an amount not less than the amount of the contract, conditioned for the full and faithful performance of the contract;
    2. A payment bond payable to such public body but conditioned for the prompt payment of all persons supplying labor or material used in the prosecution of the work under said contract, for the use of each such person, in an amount not less than the amount of the contract; and
    3. The bonds herein provided for may be made by any surety company which is authorized to do business in the State of Mississippi and listed on the United States Treasury Department’s list of acceptable sureties, or such bonds may be guaranteed by a personal surety as provided for herein. The personal surety shall deposit with the State Treasurer cash or certificates of deposit in an amount not less than the amount of the contract, and the State Treasurer shall hold same in trust and on deposit for the benefit of the public body that is a party to the contract providing for the construction, alteration or repair of the public building or for the public work.
  2. Every person who has furnished labor or material used in the prosecution of the work provided for in such contract, in respect of which a payment bond is furnished and who has not been paid in full therefor before the expiration of a period of ninety (90) days after the date on which the last of the labor was performed by him or the last of the materials was furnished by him and for which such claim is made, provided the same has been approved, where required, by the public authority or its architect or engineers, or such approval is being withheld as a result of unreasonable acts of the contractor, shall have the right to sue on such payment bond for the amount, or the balance thereof that is due and payable, but unpaid at the time of institution of such suit and to prosecute said action to final execution and judgment. Notwithstanding anything to the contrary contained herein, if the amount claimed in such action is subject to contractual provisions or conditions, between the parties involved in such action, the action shall be abated pending the performance of such provisions and the fulfillment of such conditions.
  3. Any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety (90) days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. Such notice shall be given in writing by the claimant to the contractor or surety at any place where the contractor or surety maintains an office or conducts business. Such notice may be personally delivered by the claimant to the contractor or surety, or it may be mailed by certified mail, return receipt requested, postage prepaid, to the contractor or surety. No such action may be maintained by any person not having a direct contractual relationship with the contractor-principal, unless the notice required by this section shall have been given.
  4. The only persons protected by such payment bond, subject to the notice provisions of this section are:
    1. Subcontractors and material suppliers of the contractor;
    2. Sub-subcontractors and material suppliers of those subcontractors named in subsection (4)(a) of this section; and
    3. Laborers who have performed work on the project site.
  5. Whenever a contract is less than Twenty-five Thousand Dollars ($25,000.00) the owners may elect to make a lump sum payment at the completion of the job. Lump sum payments will not be made until completion and acceptance by the governing agency. In such a case a performance bond or payment bond will not be required.
  6. Except as otherwise provided in subsection (1)(c) for a personal surety, no surety or surety company shall be allowed to guarantee or write bonds for the benefit of the public body that is a party to a contract providing for the construction, alteration or repair of a public building or for public work, unless that surety is listed on the United States Treasury Department’s list of acceptable sureties. If the surety is not listed on the United States Treasury Department’s list of acceptable sureties, the public body for which the public work is being performed shall be liable to the extent that the surety would be liable.
  7. Any person entering into a formal contract with the state which exceeds Five Thousand Dollars ($5,000.00), or with a county, city or other public authority which exceeds Twenty-five Thousand dollars ($25,000.00), for the construction, alteration, or repair of any public building or public work, before entering into such contract, shall furnish to the public body proof of general liability insurance coverage in an amount not less than One Million Dollars ($1,000,000.00) for bodily injury and property damage. Exempted from the provisions of this subsection are any persons who enter into a contract with the Mississippi Department of Rehabilitation Services for the construction, alteration or repair of the home of a disabled individual who has been determined eligible for services by the Mississippi Department of Rehabilitation Services.

HISTORY: Laws, 1980, ch. 520, § 1; Laws, 1982, ch. 352; Laws, 1994, ch. 626, § 6; Laws, 2000, ch. 409, § 1; Laws, 2001, ch. 416, § 1, eff from and after passage (approved Mar. 13, 2001.).

Cross References —

Performance and payment bonds required when using design-build or construction manager at risk methods of project delivery, see §31-5-52.

Time for bringing suit on bond, see §31-5-53.

Bonds for construction contracts let by urban flood and drainage control districts, see §51-35-319.

Alternative bidding and contracting procedures under Mississippi Major Economic Impact Act, see §57-75-21.

Notice in actions on liens, generally, see §85-7-145.

Assignment of right of action on debt to surety who pays it, see §87-5-3.

Actions of surety against defaulting principal, see §§87-5-5 et seq.

OPINIONS OF THE ATTORNEY GENERAL

The Mississippi Transportation Commission is authorized to make and promulgate reasonable rules and regulations, to provide and adopt standard specifications, including specifications requiring a warranty or warranties of workmanship, materials or performance, including asphalt paving, as a condition of letting or awarding a road or bridge construction contract. 1999 Miss. Op. Att'y Gen. 759.

Where bid specifications did not include a requirement for a bid bond, a county board of supervisors must consider the low bid even though no bid bond was submitted with the official bid. 2003 Miss. Op. Att'y Gen. 371.

Where performance bond, required by law, was not included in bid specifications by a school board, the board should treat the bids as if the cost of the statutorily required item, the performance bond, is included in the bid. The board thus has the authority to review the bids, consider the cost of the performance bond as already included in the bid submitted, and make a determination of lowest and best bid and reflect same as a finding on the board’s minutes. 2003 Miss. Op. Att'y Gen. 494.

Where a performance bond was not included in bid specifications by a school board, the board should treat the bids as if the cost of the bond was included. The board thus has the authority to review the bids, consider the cost of the performance bond as already included in the bid submitted, and make a determination of lowest and best bid and reflect same as a finding on the board’s minutes. 2003 Miss. Op. Att'y Gen. 494.

RESEARCH REFERENCES

ALR.

Labor or material furnished by subcontractor for public work or improvement as within coverage of bond of principal contractor. 92 A.L.R.2d 1250.

Sufficiency of designation of owner in notice, claim or statement of mechanic’s lien. 48 A.L.R.3d 153.

Effect of bankruptcy of principal contractor upon mechanic’s lien of a subcontractor, laborer, or materialman as against owner of property. 69 A.L.R.3d 1342.

Release or waiver of mechanic’s lien by general contractor as affecting rights of subcontractor or materialman. 75 A.L.R.3d 505.

What constitutes “public work” within statute relating to contractor’s bond. 48 A.L.R.4th 1170.

Am. Jur.

17 Am. Jur. 2d, Contractors’ Bonds §§ 25, 73 et seq.

7 Am. Jur. Pl & Pr Forms (Rev), Contractors’ Bonds, Forms 71 et seq. (public construction work and contracts; state law).

4 Am. Jur. Legal Forms 2d, Building Contracts §§ 47:51 et seq. (formation; contracts); §§ 47:71 et seq. (formation; optional provisions).

5A Am. Jur. Legal Forms 2d, Contractors’ Bonds §§ 67:41 et seq. (performance bonds and bonds securing payment of labor, materials, and other liens).

15 Am. Jur. Legal Forms 2d, Public Works and Contracts § 216:162 (other obligations of contract; bonds).

CJS.

72 Supp C.J.S., Public Contracts §§ 42, 43 et seq.

Law Reviews.

Yarbrough, Rights and Remedies Under Mississippi’s New Public Construction Bond Statute. 51 Miss. L. J. 351, December 1980.

Dunn, Construction Contract Claims and Litigation – Suits on Public Bonds and Suits on Private Bonds. 55 Miss. L. J. 431, September 1985.

JUDICIAL DECISIONS

1. In general.

2. Procedural matters.

3.-5. [Reserved for future use.]

6. Under former §31-5-1 — In general.

7. —Requirements of bond.

8. —Rights and liabilities under bond.

9. —Rights of surety; subrogation.

10. —Procedural matters.

11. Under former §31-5-5.

12. Under former §31-5-9.

1. In general.

Where the surety was arguing that its bond obligation was discharged under the chancery court judgment, the appellate court concluded that it had no effect on the bond liability; to permit the chancery court to sub silentio nullify the surety’s bond obligation would be contrary to the very purpose of Mississippi’s Little Miller Act, which was to provide protection to subcontractors in the absence of lien rights. JSI Communs. v. Travelers Cas. & Sur. Co. of Am., 807 F.3d 725, 2015 U.S. App. LEXIS 21080 (5th Cir. Miss. 2015).

Where only failure to comply with statute was failure to send notice by certified mail, and where there is no dispute but that actual notice was received by proper party, then recovery on bond should not be denied. Brothers in Christ, Inc. v. American Fidelity Fire Ins. Co., 692 F. Supp. 701, 1988 U.S. Dist. LEXIS 9550 (S.D. Miss. 1988).

Where only failure to comply with §31-5-51(3) is failure to send notice by certified mail, and where there is no dispute that actual notice was received by proper party, then recovery on bond should not be denied. Brothers in Christ, Inc. v. American Fidelity Fire Ins. Co., 692 F. Supp. 701, 1988 U.S. Dist. LEXIS 9550 (S.D. Miss. 1988).

Subcontractor’s materialman who did not comply fully with notice requirements of §31-5-51(3) is not entitled to payment from general contractor’s insurance company, notwithstanding materialman’s protestations of substantial compliance with statute. Brothers in Christ, Inc. v. American Fidelity Fire Ins. Co., 680 F. Supp. 815, 1987 U.S. Dist. LEXIS 13116 (S.D. Miss. 1987).

Substantial compliance with Miss. Code Annotated §31-5-51(3) is insufficient, as notice requirements under section are jurisdictional prerequisites to suit. Brothers in Christ, Inc. v. American Fidelity Fire Ins. Co., 680 F. Supp. 815, 1987 U.S. Dist. LEXIS 13116 (S.D. Miss. 1987).

2. Procedural matters.

Trial court erred in granting a principal and a surety summary judgment in a supplier’s action alleging bad faith for failing to remit its claim because the discrepancy among the affidavit of a subcontractor’s employee and daily logs created a genuine issue of material fact as to whether the employee had personal knowledge that material supplied to the subcontractor was incorporated into the project within the ninety days prior to the filing of the payment-bond claim. Mathes Elec. Supply Co. v. Can't Be Beat Fence Co., — So.3d —, 2018 Miss. App. LEXIS 424 (Miss. Ct. App. Sept. 4, 2018).

Although a surety asserted that the holder of a payment bond lacked standing to bring suit against its own surety under Miss. Code Ann. §31-5-51(2), Miss. Code Ann. §27-65-21, not §31-5-51, was the statute applicable to the question of whether the surety was responsible for the payment of unpaid sales tax, and the court determined that the holder had standing to assert its claims. Nash Plumbing, Inc. v. Ohio Cas. Ins. Co., 2008 Bankr. LEXIS 2008 (Bankr. N.D. Miss. June 11, 2008).

Under Miss. Code Ann. §31-5-51(3), to be sufficient, notice had to be given between the final work date and the expiration of the 90-day window; by failing to state an amount claimed, the corporation could not satisfy the statutory requirement that the written notice state with substantial accuracy the amount claimed, and the trial court did not err in granting summary judgment in favor of the construction company, bank, and subcontractor. Younge Mech., Inc. v. Max Foote Constr. Co., 869 So. 2d 1079, 2004 Miss. App. LEXIS 286 (Miss. Ct. App. 2004).

3.-5. [Reserved for future use.]

6. Under former § 31-5-1 — In general.

Notice requirements (former §§31-5-7,31-5-13) are jurisdictional prerequisites to suits between parallel or coprime contractors under public contracts when surety bond under former §31-5-1 is involved. Aetna Casualty & Surety Co. v. Doleac Electric Co., 471 So. 2d 325, 1985 Miss. LEXIS 1961 (Miss. 1985).

The surety on a public contractor’s bond, conditioned on the payment of all persons furnishing labor, material, equipment or supplies, is liable to the unpaid materialman of a subcontractor. Mississippi Road Supply Co. v. Western Casualty & Surety Co., 246 Miss. 510, 150 So. 2d 847, 1963 Miss. LEXIS 472 (Miss. 1963).

The liability of the surety on a bond given in pursuance of this provision is not affected by Code 1942, § 253, relieving a surety where the creditor fails to sue the principal debtor when notified by the surety to do so. Standard Acci. Ins. Co. v. Standard Oil Co., 242 Miss. 11, 133 So. 2d 539, 1961 Miss. LEXIS 523 (Miss. 1961).

Where cause was remanded in an attachment suit against a foreign construction company to recover on a performance bond, the remand would be modified so as to permit the intervenors without prejudice to proceed against the surety on the bond where at the time the case was originally remanded the rights to proceed against a surety had not matured. Walker Constr. Co. v. Construction Machinery Corp., 223 Miss. 145, 78 So. 2d 475, 1955 Miss. LEXIS 362 (Miss. 1955).

Where it was provided in a construction contract for a percentage retainage and for progress payments, the right of surety to subrogation in event that contractor failed to fulfill his contract began on the date of execution of bond, and any release of the retainage funds prior to such payments created liability to the surety because of the deprivation of his right of subrogation. State use of National Surety Corp. v. Malvaney, 221 Miss. 190, 72 So. 2d 424, 1954 Miss. LEXIS 528 (Miss. 1954).

The bond of the contractor under this section [Code 1942, § 9014] requires that all laborers and materialmen must be paid for the labor and materials that go into the construction of the public buildings, regardless of whether they are remote materialmen, or whether they have furnished the materials directly to the principal contractor. Western Cas. & Sur. Co. v. Stevens, 218 Miss. 627, 67 So. 2d 510, 1953 Miss. LEXIS 580 (Miss. 1953).

Surety on statutory bond executed by contractor under contract with county to repair bridge, guaranteeing that contractor would promptly, properly and efficiently perform the contract, was not liable to the owner of barges rented to the county to support the bridge and which the contractor was permitted to use, or to the owner’s insurer, for damages to the barges caused by negligence of the contractor’s employee for the reasons that the bond did not cover such liability and was not for the benefit of the barge owner, and that Code 1942, §§ 9014-9019, pertaining to statutory bonds in connection with contracts for public work and suits thereon, were not complied with. Continental Ins. Co. v. Harrison County, 153 F.2d 671, 1946 U.S. App. LEXIS 1963 (5th Cir. Miss. 1946).

City’s suit for purpose of securing order directing distribution of funds due contractor was not within law permitting laborers and materialmen to intervene. Mississippi Fire Ins. Co. v. Evans, 153 Miss. 635, 120 So. 738, 1929 Miss. LEXIS 20 (Miss. 1929).

While statute will be liberally construed it will not be extended beyond the clear meaning of its terms. Oliver Const. Co. v. Crawford, 142 Miss. 490, 107 So. 877, 1926 Miss. LEXIS 126 (Miss. 1926).

Statute does not impose liability upon county for negligence of officers in failing to require bond. Pidgeon Thomas Iron Co. v. Leflore County, 135 Miss. 155, 99 So. 677, 1924 Miss. LEXIS 25 (Miss. 1924).

Nor does such failure of board of supervisors render each member individually liable for claims for labor and materials. Pidgeon Thomas Iron Co. v. Leflore County, 135 Miss. 155, 99 So. 677, 1924 Miss. LEXIS 25 (Miss. 1924).

7. —Requirements of bond.

A bond obtained in conformity to this statute need not cover rental or equipment, although such coverage may be provided by the provisions of the particular bond. However, a bond written so as to cover “repairs on machinery, equipment, and tools . . . ” did not carry with it any obligation for a surety to pay equipment rentals. Carter Equipment Co. v. Travelers Indem. Co., 409 F. Supp. 1008, 1975 U.S. Dist. LEXIS 13467 (S.D. Miss.), aff'd, 520 F.2d 941 (5th Cir. Miss. 1975).

Requirement that contractor’s bond shall provide for prompt payment to laborers and materialmen is mandatory. Commercial Bank of Magee v. Evans, 145 Miss. 643, 112 So. 482, 1927 Miss. LEXIS 169 (Miss. 1927).

Obligors, obligees, and sureties are presumed to know of such statutory obligation of contractor’s bond. Commercial Bank of Magee v. Evans, 145 Miss. 643, 112 So. 482, 1927 Miss. LEXIS 169 (Miss. 1927).

Where bond does not so provide, such requirement will be read into it. Commercial Bank of Magee v. Evans, 145 Miss. 643, 112 So. 482, 1927 Miss. LEXIS 169 (Miss. 1927).

Bond conditioned that contractor will perform all matters covered by contract need not set out provisions of contract. Standard Oil Co. v. National Surety Co., 143 Miss. 841, 107 So. 559, 1926 Miss. LEXIS 327 (Miss. 1926).

8. —Rights and liabilities under bond.

A surety that issued a performance bond to a partnership was liable to unpaid suppliers of petroleum products and heavy equipment for use on the underlying construction project, even though such goods had not been supplied to the partnership per se, where they had been used or consumed in the performance of the partnership contract, within the terms of the bond, and were essential to the construction; as to a supplier of tires for the heavy equipment, which were not likely to have been substantially consumed in the project, the case would be remanded so that testimony could be taken concerning the tires’ useful life and the portions thereof that had been consumed on the partnership contract. Houston General Ins. Co. v. Maples, 375 So. 2d 1012, 1979 Miss. LEXIS 2451 (Miss. 1979).

The fact that the retail seller of steel supplies to a general contractor cut off certain of the steel to lengths required by the building specifications and joined other parts so as to prefabricate and rearrange the steel material into sizes, lengths, and forms required by the builder did not constitute him a subcontractor within the purview of this section [Code 1942, § 9014]. Frazier v. O'Neal Steel, Inc., 223 So. 2d 661, 1969 Miss. LEXIS 1288 (Miss. 1969).

In order to constitute a subcontractor under this section [Code 1942, § 9014], it is necessary that there be a contract to construct a part or all of the building contract undertaken by the contractor, and the mere fabrication of material furnished to the general contractor is not enough to constitute a materialman a subcontractor. Frazier v. O'Neal Steel, Inc., 223 So. 2d 661, 1969 Miss. LEXIS 1288 (Miss. 1969).

This section [Code 1942, § 9014] contemplates that if the construction contractor fails to make prompt payment as required by the law, the surety company is liable under its bond for interest due to the persons and firms furnishing materials to the contractor from the date when payment should have been made to them. Faulkner Concrete Pipe Co. v. United States Fidelity & Guaranty Co., 218 So. 2d 1, 1968 Miss. LEXIS 1263 (Miss. 1968).

A firm, required by its contract with the general contractor not only to furnish but also to fabricate and erect steel required for the construction of a school building, is a subcontractor and not merely a materialman, and consequently the company which furnished steel to such subcontractor was itself a materialman entitled under this section [Code 1942, § 9014] to recover from the general contractor and its surety the unpaid cost of materials furnished. O'Neal Steel Co. v. Leon C. Miles, Inc., 187 So. 2d 19, 1966 Miss. LEXIS 1337 (Miss. 1966).

A materialman and laborer of a subcontractor can recover against the prime contractor and the surety on his bond under the provisions of this section [Code 1942, § 9014]. O'Neal Steel Co. v. Leon C. Miles, Inc., 187 So. 2d 19, 1966 Miss. LEXIS 1337 (Miss. 1966).

Surety held liable for sum agreed to be paid subcontractor. H. F. Vann Nieuwenhuyze & Sons Constr. Co. v. Irby, 232 Miss. 474, 99 So. 2d 651, 1958 Miss. LEXIS 295 (Miss. 1958).

One employed by a subcontractor to dig ditches with his own machinery at a stated amount per lineal foot was protected by the payment and performance bond given by the principal contractor. H. F. Vann Nieuwenhuyze & Sons Constr. Co. v. Irby, 232 Miss. 474, 99 So. 2d 651, 1958 Miss. LEXIS 295 (Miss. 1958).

Clause of bond required of contractor in construction of highway for state highway department, providing, in addition to guarantying performance of the contract, for “all the expense and cost and attorney’s fees that may be incurred in the enforcement of the performance of said contract, or in the enforcement of the conditions and obligations of this bond,” inured to the benefit of laborers and materialmen. Day v. Royce Kershaw, Inc., 185 Miss. 207, 187 So. 221, 1939 Miss. LEXIS 130 (Miss. 1939).

Materialmen by suing principal road contractor instead of subcontractor could not bring themselves within statutes regarding contracts for public work, where their petitions showed that materials were furnished to subcontractor, and that bond sued on was subcontractor’s bond. United States Fidelity & Guaranty Co. v. Dedeaux, 168 Miss. 794, 152 So. 274, 1934 Miss. LEXIS 364 (Miss. 1934).

That board of education was without power to contract for building would not relieve contractor or surety from liability to laborers and materialmen. Mississippi Fire Ins. Co. v. Evans, 153 Miss. 635, 120 So. 738, 1929 Miss. LEXIS 20 (Miss. 1929).

Surety on highway contractor’s bond held liable for attorney’s fees allowed subcontractor suing for balance due on contract. Stowell v. Clark, 152 Miss. 32, 118 So. 370, 1928 Miss. LEXIS 211 (Miss. 1928).

Surety held liable for sum agreed to be paid subcontractor in addition to contract price, as bonus. Stowell v. Clark, 152 Miss. 32, 118 So. 370, 1928 Miss. LEXIS 211 (Miss. 1928).

Subcontractor working on yardage basis held entitled to recover on proving amount of work done by force account. Stowell v. Clark, 152 Miss. 32, 118 So. 370, 1928 Miss. LEXIS 211 (Miss. 1928).

Subcontractor held entitled to interest at 6% on balance due under contract from date of completion. Stowell v. Clark, 152 Miss. 32, 118 So. 370, 1928 Miss. LEXIS 211 (Miss. 1928).

Bond under contract for installing high school heating and ventilating system held to protect materialmen. Union Indem. Co. v. Acme Blow Pipe & Sheet Metal Works, 150 Miss. 332, 117 So. 251, 1928 Miss. LEXIS 171 (Miss. 1928).

Contractor’s bond covers only material and labor consumable in work, and not that necessary for contractor to have to perform work. McElrath & Rogers v. W. G. Kimmons & Sons, 146 Miss. 775, 112 So. 164, 1927 Miss. LEXIS 242 (Miss. 1927).

Where items are not properly separated court will reverse case for proper proof and separation. McElrath & Rogers v. W. G. Kimmons & Sons, 146 Miss. 775, 112 So. 164, 1927 Miss. LEXIS 242 (Miss. 1927).

Bond does not cover repairs on equipment, nor machinery coming under head of equipment. McElrath & Rogers v. W. G. Kimmons & Sons, 146 Miss. 775, 112 So. 164, 1927 Miss. LEXIS 242 (Miss. 1927).

Furniture and household effects for maintaining camp to board laborers are not covered by bond. McElrath & Rogers v. W. G. Kimmons & Sons, 146 Miss. 775, 112 So. 164, 1927 Miss. LEXIS 242 (Miss. 1927).

Bond does not cover clothes, cigarettes, tobacco, notions and cash furnished laborers by third parties. McElrath & Rogers v. W. G. Kimmons & Sons, 146 Miss. 775, 112 So. 164, 1927 Miss. LEXIS 242 (Miss. 1927).

However, bond covers necessary food and supplies to board laborers if commissary is not operated for profit. McElrath & Rogers v. W. G. Kimmons & Sons, 146 Miss. 775, 112 So. 164, 1927 Miss. LEXIS 242 (Miss. 1927).

Under this statute [Code 1942, § 9014] the surety on a highway contractor’s bond is liable for the price or value of animal foods sold to the contractor and used by him as food for animals doing grading work. Phillips v. Biddle, 18 F.2d 582, 1927 U.S. App. LEXIS 2027 (8th Cir. Kan. 1927).

Contractor’s bond protects materialmen, though after its execution one of partners of contracting firm becomes sole remaining member. Excello Feed Milling Co. v. United States Fidelity & Guaranty Co., 145 Miss. 599, 111 So. 94, 1926 Miss. LEXIS 41 (Miss. 1926).

Highway contractor’s plant and camp equipment is not material supplied for or used in the work, for which surety is liable. United States Fidelity & Guaranty Co. v. Yazoo County, 145 Miss. 378, 110 So. 780, 1926 Miss. LEXIS 36 (Miss. 1926).

Contractor’s bond does not cover money loaned to subcontractor. Oliver Const. Co. v. Crawford, 142 Miss. 490, 107 So. 877, 1926 Miss. LEXIS 126 (Miss. 1926).

On the other hand, surety on bond is not liable for groceries and merchandise furnished commissary operated for profit. Watkins v. United States Fidelity & Guaranty Co., 138 Miss. 388, 103 So. 224, 1925 Miss. LEXIS 65 (Miss. 1925).

Contractor cannot evade liability on bond by subletting work. Oliver Const. Co. v. Dancy, 137 Miss. 474, 102 So. 568, 1925 Miss. LEXIS 15 (Miss. 1925).

9. —Rights of surety; subrogation.

In an action against surety on a contractor’s bond executed by person contracting with political subdivision, rent and freight on a dragline and light plant used by the contractor in dredging and improving a ditch and canal are not to be construed as labor and materials furnished in the work of construction. Watts v. Western Casualty & Surety Co., 210 Miss. 211, 49 So. 2d 255, 1950 Miss. LEXIS 339 (Miss. 1950).

In determining rights of surety on bridge contractor’s bond, where contract contained no provision for progress payments, entire contract price should be treated as retainage. Davis Co. v. D' Lo Guaranty Bank, 162 Miss. 829, 138 So. 802, 1932 Miss. LEXIS 112 (Miss. 1932).

Rights and liabilities of parties to county bridge repair contract, including surety on contractor’s bond, held governed by statutes respecting public contracts. Davis Co. v. D' Lo Guaranty Bank, 162 Miss. 829, 138 So. 802, 1932 Miss. LEXIS 112 (Miss. 1932).

Surety on bridge contractor’s bond held entitled, as against subcontractor’s assignee, to have laborers and materialmen paid from money which county paid contractor. Davis Co. v. D' Lo Guaranty Bank, 162 Miss. 829, 138 So. 802, 1932 Miss. LEXIS 112 (Miss. 1932).

Entire contract price, under bridge contract with county containing no provision for partial or progress payments, held retainage to which contractor’s surety would become subrogated on payment of labor and material claims. Davis Co. v. D'Lo Guaranty Bank, 133 So. 219 (Miss. 1931), superseded, 162 Miss. 829, 138 So. 802, 1932 Miss. LEXIS 112 (Miss. 1932), but see Davis Co. v. D' Lo Guaranty Bank, 162 Miss. 829, 138 So. 802, 1932 Miss. LEXIS 112 (Miss. 1932).

Surety on contractor’s bond securing performance of bridge contract with county held entitled, as against subcontractor and latter’s assignee, to have labor and material claims paid out of retainage. Davis Co. v. D'Lo Guaranty Bank, 133 So. 219 (Miss. 1931), superseded, 162 Miss. 829, 138 So. 802, 1932 Miss. LEXIS 112 (Miss. 1932), but see Davis Co. v. D' Lo Guaranty Bank, 162 Miss. 829, 138 So. 802, 1932 Miss. LEXIS 112 (Miss. 1932).

Surety company after payment of claims held entitled to subrogation to funds retained by county until completion of contract, as against subsequent assignment. Canton Exchange Bank v. Yazoo County, 144 Miss. 579, 109 So. 1, 1926 Miss. LEXIS 337 (Miss. 1926).

10. —Procedural matters.

In an action by a prime contractor against the surety of another contractor, the trial court erred in sustaining the surety’s demurrur to the complaint where the complaint alleged that the second contractor had failed to coordinate its activities with the first contractor as required by their contracts with the State Building Commission and where the surety issued its performance-payment bond knowing that the second contractor had obligations to the other contractors, thus bringing the obligations of the first contractor within the terms of the bond; likewise, the court erred in sustaining the demurrer of the contractor to the surety’s counterclaim where the surety alleged that the contractor had breached its duties and obligations to the substituted prime contractor hired by the surety. Hanberry Corp. v. State Bldg. Com., 390 So. 2d 277, 1980 Miss. LEXIS 2087 (Miss. 1980).

In suit brought to August 1933 term of court, judgment for defendants on first day of term, on their special pleas in abatement and limitations filed on that day, held erroneously rendered, since plaintiff had right to demur to special pleas, take issue on them, or reply thereto, which he could not safely do until later day in term. Schilling v. United States Fidelity & Guaranty Co., 169 Miss. 275, 152 So. 887, 1934 Miss. LEXIS 47 (Miss. 1934).

Any ruling on question as to whether case was prematurely tried was not presented, in absence of objection in lower court. Mississippi Fire Ins. Co. v. Evans, 153 Miss. 635, 120 So. 738, 1929 Miss. LEXIS 20 (Miss. 1929).

11. Under former § 31-5-5.

A court in which a materialman’s action or the contractor’s bond is prematurely brought does not acquire jurisdiction upon the expiration of the six months’ period within which such actions may not be brought. Euclid-Mississippi v. Western Casualty & Surety Co., 249 Miss. 547, 163 So. 2d 676, 1964 Miss. LEXIS 416 (Miss. 1964).

A materialman’s action brought October 5 is within a six months’ period from April 5, and hence premature. Euclid-Mississippi v. Western Casualty & Surety Co., 249 Miss. 547, 163 So. 2d 676, 1964 Miss. LEXIS 416 (Miss. 1964).

Actions on contracts for public work are purely statutory. Euclid-Mississippi v. Western Casualty & Surety Co., 249 Miss. 547, 163 So. 2d 676, 1964 Miss. LEXIS 416 (Miss. 1964).

The liability of the surety on a bond given in pursuance of this provision is not affected by Code 1942, § 253, relieving a surety where the creditor fails to sue the principal debtor when notified by the surety to do so. Standard Acci. Ins. Co. v. Standard Oil Co., 242 Miss. 11, 133 So. 2d 539, 1961 Miss. LEXIS 523 (Miss. 1961).

Surety on statutory bond executed by contractor under contract with county to repair bridge, guaranteeing that contractor would promptly, properly and efficiently perform the contract, was not liable to the owner of barges rented to the county to support the bridge and which the contractor was permitted to use, or to the owner’s insurer, for damages to the barges caused by negligence of the contractor’s employee, for the reasons that the bond did not cover such liability and was not for the benefit of the barge owner, and that [Code 1942, § 9015] §§ 9014-9019, pertaining to statutory bonds in connection with contracts for public work and suits thereon, were not complied with. Continental Ins. Co. v. Harrison County, 153 F.2d 671, 1946 U.S. App. LEXIS 1963 (5th Cir. Miss. 1946).

In an action on a bond, which in addition to guarantying the performance of a contract with the state highway department, provided also for all of the expense and cost and attorney’s fees that might be incurred in the enforcement of the performance of the contract, or in the enforcement of the conditions and obligations of the bond, attorney’s fees incurred by materialmen in inducing the state highway department, which had neglected to publish notice of the completion of the contract, to publish such notice and in bringing suit on the bond, were recoverable; and defendant’s alleged tender of the principal and interest due under the contract prior to the expiration of the six months’ period was ineffective. Day v. Royce Kershaw, Inc., 185 Miss. 207, 187 So. 221, 1939 Miss. LEXIS 130 (Miss. 1939).

In view of the fact that no action could be brought on a bond guarantying the performance of a highway construction project for six months after the publication of a notice of by the principal obligee of the completion of the contract, attorney’s fees and costs incurred by materialmen in a premature suit to recover on the bond could not be recovered. Day v. Royce Kershaw, Inc., 185 Miss. 207, 187 So. 221, 1939 Miss. LEXIS 130 (Miss. 1939).

Under statute authorizing materialmen and laborers to bring suit on bond of contractor with State within one year after final settlement or abandonment of contract and publication of notice thereof, publication of final settlement or abandonment of contract held essential prerequisite of maintenance of suit as well as publication of notice of pendency of suit. United States Fidelity & Guaranty Co. v. Plumbing Wholesale Co., 175 Miss. 675, 166 So. 529, 1936 Miss. LEXIS 31 (Miss. 1936).

Materialman’s action on municipal paving contractor’s bond which was begun more than one year after final settlement of paving contract was not barred, where no publication of final settlement was made. Dixie Minerals Corp. v. Dixie Asphalt Paving Co., 172 Miss. 218, 159 So. 562, 1935 Miss. LEXIS 127 (Miss. 1935).

Where municipal paving contract was fully performed, and city commissioners entered order setting forth balance due contractor, approving estimate, and ordering payment, there was “final settlement” of contract within statute giving materialmen action on contractor’s bond, though payment had not been made. Dixie Minerals Corp. v. Dixie Asphalt Paving Co., 172 Miss. 218, 159 So. 562, 1935 Miss. LEXIS 127 (Miss. 1935).

Judgment for defendants on first day of term, on their special pleas in abatement and limitations filed on that day held erroneous, since plaintiff had right to demur to special pleas, take issue on them, or reply thereto, which he could not safely do until later day of term. Schilling v. United States Fidelity & Guaranty Co., 169 Miss. 275, 152 So. 887, 1934 Miss. LEXIS 47 (Miss. 1934).

12. Under former § 31-5-9.

Where notice of a final settlement with the prime contractor on a highway construction project was published by the state highway commission on November 3, 1966, and one supplier began an action on October 24, 1967 on the prime contractor’s bond, a welder filed a separate suit on November 2, 1967, and the surety elected by a special plea to have all of the claimants under the prime contractor’s performance bond joined as parties in the first action, the welder’s claim was properly transferred and designated as an intervention dated November 2, so that the action was not subject to the one year limitation statute. Dixie Contractors, Inc. v. Ballard, 249 So. 2d 653, 1971 Miss. LEXIS 1170 (Miss. 1971).

Assuming that the 1962 amendment of this section [Code 1942, § 9017] permits separate suits on a contractor’s bond, it is not applicable in a case in which the bond was given the contract was complete, and publication made, before its effective date. Euclid-Mississippi v. Western Casualty & Surety Co., 249 Miss. 547, 163 So. 2d 676, 1964 Miss. LEXIS 416 (Miss. 1964).

Surety on statutory bond executed by contractor under contract with county to repair bridge, guaranteeing that contractor would promptly, properly and efficiently perform the contract, was not liable to the owner of barges rented to the county to support the bridge and which the contractor was permitted to use, or to the owner’s insurer, for damages to the barges caused by negligence of the contractor’s employee, for the reasons that the bond did not cover such liability and was not for the benefit of the barge owner, and that Code 1942, §§ 9014-9019, pertaining to statutory bonds in connection with contracts for public work and suits thereon, were not complied with. Continental Ins. Co. v. Harrison County, 153 F.2d 671, 1946 U.S. App. LEXIS 1963 (5th Cir. Miss. 1946).

However, equity court had jurisdiction of suit by materialman against surety on bond of contractor with State where three separate contracts had been executed with same contractor and with same surety on all bonds, and materials furnished by materialman went indiscriminately into all of such contracts, so that materialman was unable to ascertain how much went into each contract and sought discovery of facts with reference thereto. United States Fidelity & Guaranty Co. v. Plumbing Wholesale Co., 175 Miss. 675, 166 So. 529, 1936 Miss. LEXIS 31 (Miss. 1936).

Street paving contractor held not necessary party in suit on his surety bond for amount due for cement. Marquette Cement Mfg. Co. v. Fidelity & Deposit Co., 173 Miss. 164, 158 So. 924, 1935 Miss. LEXIS 191 (Miss. 1935).

Bill in materialman’s suit against sureties on paving contractor’s bonds for performance of nine separate and distinct contracts, held demurrable as improperly joining several separate and distinct causes of action. Marquette Cement Mfg. Co. v. Fidelity & Deposit Co., 173 Miss. 164, 158 So. 924, 1935 Miss. LEXIS 191 (Miss. 1935).

Allegation in bill that materialman kept only one account of cement supplied contractor and some payments were credited generally on account, held not to show necessity for accounting which would authorize combining causes of action by complainant and others on each bond in one suit. Marquette Cement Mfg. Co. v. Fidelity & Deposit Co., 173 Miss. 164, 158 So. 924, 1935 Miss. LEXIS 191 (Miss. 1935).

Materialmen by suing principal road contractor instead of subcontractor could not bring themselves within statutes regarding contracts for public work, where their petitions showed that materials were furnished to subcontractor, and that bond sued on was subcontractor’s bond. United States Fidelity & Guaranty Co. v. Dedeaux, 168 Miss. 794, 152 So. 274, 1934 Miss. LEXIS 364 (Miss. 1934).

Materialmen not parties to suit by assignee of contractor to compel issuance of pay certificates held not bound by judgment therein. Commercial Bank of Magee v. Evans, 145 Miss. 643, 112 So. 482, 1927 Miss. LEXIS 169 (Miss. 1927).

§ 31-5-52. Performance and payment bonds required when using design-build or construction manager at risk methods of project delivery.

The use of either the design-build method of project delivery as provided in Section 31-7-13.1 or the construction manager at risk method of project delivery as provided in Section 31-7-13.2 must comply with the provisions of Section 31-5-51.

HISTORY: Laws, 2007, ch. 494, § 3, eff from and after July 1, 2007.

§ 31-5-53. Time for bringing suit on bond; venue.

When suit is instituted on a performance bond given in accordance with this chapter, it shall be commenced within one (1) year after the obligee shall have made final payment on the contract; provided, however, if the contract is abandoned by the general contractor as bond principal or is terminated by the bond obligee, suit shall be commenced within one (1) year after the earlier of the abandonment by the bond principal or termination by the bond obligee.

When suit is instituted on a payment bond given in accordance with this chapter, it shall be commenced within one (1) year after the day on which the last of the labor was performed or material was supplied by the person bringing the action and not later.

Any suit brought on a performance or payment bond given in accordance with this chapter shall be brought in the county in which the contract or some part thereof was performed or in the county in which service of process may be obtained upon either the principal or the surety on such bond.

HISTORY: Laws, 1980, ch. 520, § 2; Laws, 1994, ch. 626, § 4; Laws, 2004, ch. 452, § 1, eff from and after July 1, 2004.

Editor’s Notes —

This section takes effect on April 1, 1981, and applies only to contracts entered into from and after the effective date and bonds made pursuant to such contracts.

Amendment Notes —

The 2004 amendment rewrote the section.

Cross References —

Alternative bidding and contracting procedures under Mississippi Major Economic Impact Act, see §57-75-21.

OPINIONS OF THE ATTORNEY GENERAL

Fact that there may be potential claims for personal property damage against contractor has no bearing on whether construction contract was completed to satisfaction of public body and notice of completed contract should be published. 1994 Miss. Op. Att'y Gen. 1010.

If the Mississippi Department of Transportation makes a factual determination that the construction contract has been completed to its satisfaction, then publication of notice of final completion and payment on the project is required under Section 31-5-53. 1996 Miss. Op. Att'y Gen. 442.

RESEARCH REFERENCES

ALR.

Labor in examination, repair, or servicing of fixtures, machinery, or attachments in building as supporting a mechanic’s lien, or extending time for filing such a lien. 51 A.L.R.3d 1087.

Construction and application of venue provisions of Miller Act (40 USCS § 270b(b)). 140 A.L.R. Fed. 615.

Am. Jur.

17 Am. Jur. 2d, Contractors’ Bonds §§ 25, 73 et seq.

CJS.

72 Supp C.J.S., Public Contracts §§ 44 et seq.

Law Reviews.

Yarbrough, Rights and Remedies Under Mississippi’s New Public Construction Bond Statute. 51 Miss. L. J. 351, December 1980.

Dunn, Construction Contract Claims and Litigation – Suits on Public Bonds and Suits on Private Bonds. 55 Miss. L. J. 431, September 1985.

JUDICIAL DECISIONS

1. Construction and application.

2. Accrual of action.

3.-5. [Reserved for future use.]

6. Under former §31-5-7.

7. Under former §31-5-13.

1. Construction and application.

Statute of limitations contained in previous version of statute that guaranteed the right to file suit on payment bond within one year from date which Department of Transportation published notice of final settlement is substantive because the limitations period is “built-in” or a part of same enactment creating the right to sue on the bond; thus, the provisions could only be applied prospectively. Safeco Ins. Co. of Am. v. APAC-Mississippi, Inc., 982 F. Supp. 1225, 1997 U.S. Dist. LEXIS 17447 (S.D. Miss. 1997).

2. Accrual of action.

Bankruptcy court denied an insurance company’s motion for summary judgment on a Mississippi limited liability company’s (“LLC’s) claim that it was entitled to payment of $135,766 under a bond the company issued to a general contractor because the general contractor did not pay the LLC for work it performed before it declared Chapter 11 bankruptcy. Documents the company filed in support of its motion did not establish conclusively that the LLC’s claim for compensation was barred by Miss. Code Ann. §31-5-53(b) because the LLC performed its last work on a construction project more than a year before it filed its adversary proceeding, and a trial was required to resolve the issue of when the LLC performed its last work. Triangle Maint. Serv., LLC v. Liberty Mut. Ins. Co. (In re Triangle Maint. Serv., LLC), 2013 Bankr. LEXIS 1407 (Bankr. N.D. Miss. Apr. 3, 2013).

Where plaintiff alleged that its action on a surety bond was timely because it met the statute of limitations by one day, based on work performed on February 18, 2011, the action was time barred because there was nothing in the evidence which adequately suggested that the work done on the 18th was significant and crucial to the construction project as a whole or that the work done on that date was anything more than remedial and/or corrective. Triangle Maint. Serv., LLC v. Liberty Mut. Ins. Co. (In re Triangle Maint. Case No. 11-15142 Serv., LLC), 2013 Bankr. LEXIS 927 (Bankr. N.D. Miss. Mar. 12, 2013).

Dismissal of claim against insurance company was affirmed since the delivery company’s amended claim did not properly relate back to its amended counterclaim, pursuant to Miss. R. Civ. P. 15(c), and the insurance company was not estopped from shielding itself with the one-year statute of limitations, Miss. Code Ann. §31-5-53 (Rev. 2000). Southern Win-Dor, Inc. v. RLI Ins. Co., 925 So. 2d 884, 2005 Miss. App. LEXIS 773 (Miss. Ct. App. 2005), cert. denied, 927 So. 2d 750, 2006 Miss. LEXIS 185 (Miss. 2006).

Statute of limitations contained in previous version of statute that guaranteed the right to file suit on payment bond within one year from date which Department of Transportation published notice of final settlement is substantive because the limitations period is “built-in” or a part of same enactment creating the right to sue on the bond; thus, the provisions could only be applied prospectively. Safeco Ins. Co. of Am. v. APAC-Mississippi, Inc., 982 F. Supp. 1225, 1997 U.S. Dist. LEXIS 17447 (S.D. Miss. 1997).

3.-5. [Reserved for future use.]

6. Under former § 31-5-7.

Notice requirements (former §§31-5-7,31-5-13) are jurisdictional prerequisites to suits between parallel or coprime contractors under public contracts when surety bond under former §31-5-1 is involved. Aetna Casualty & Surety Co. v. Doleac Electric Co., 471 So. 2d 325, 1985 Miss. LEXIS 1961 (Miss. 1985).

Where notice of a final settlement with the prime contractor on a highway construction project was published by the state highway commission on November 3, 1966, and one supplier began an action on October 24, 1967 on the prime contractor’s bond, a welder filed a separate suit on November 2, 1967, and the surety elected by a special plea to have all of the claimants under the prime contractor’s performance bond joined as parties in the first action, the welder’s claim was properly transferred and designated as an intervention dated November 2, so that the action was not subject to the one year limitation statute. Dixie Contractors, Inc. v. Ballard, 249 So. 2d 653, 1971 Miss. LEXIS 1170 (Miss. 1971).

The one-year statute of limitations provided for in this section [Code 1942, § 9016] does not begin to run until there has been publication of notice of settlement or abandonment of the contract. Transamerica Ins. Co. v. Paine Supply Co., 194 So. 2d 490, 1967 Miss. LEXIS 1409 (Miss. 1967).

The publication of notice required by this section [Code 1942, § 9016] applies both where the obligee makes final settlement and where it has determined that the contract has been abandoned. Transamerica Ins. Co. v. Paine Supply Co., 194 So. 2d 490, 1967 Miss. LEXIS 1409 (Miss. 1967).

There is no difference in the meaning of this section [Code 1942, § 9016] and that of Code 1942, § 376. Transamerica Ins. Co. v. Paine Supply Co., 194 So. 2d 490, 1967 Miss. LEXIS 1409 (Miss. 1967).

Where cause was remanded in an attachment suit against a foreign construction company to recover on a performance bond, the remand would be modified so as to permit the intervenors without prejudice to proceed against the surety on the bond where at the time the case was originally remanded the rights to proceed against a surety had not matured. Walker Constr. Co. v. Construction Machinery Corp., 223 Miss. 145, 78 So. 2d 475, 1955 Miss. LEXIS 362 (Miss. 1955).

Surety on statutory bond executed by contractor under contract with county to repair bridge, guaranteeing that contractor would promptly, properly and efficiently perform the contract, was not liable to the owner of barges rented to the county to support the bridge and which the contractor was permitted to use, or to the owner’s insurer, for damages to the barges caused by negligence of the contractor’s employee, for the reasons that the bond did not cover such liability and was not for the benefit of the barge owner, and that Code 1942, §§ 9014-9019, pertaining to statutory bonds in connection with contracts for public work and suits thereon, were not complied with. Continental Ins. Co. v. Harrison County, 153 F.2d 671, 1946 U.S. App. LEXIS 1963 (5th Cir. Miss. 1946).

In view of the fact that no action could be brought on a bond guarantying the performance of a construction contract until six months after the publication of notice by the principal obligee of the completion of the contract, attorney’s fees and costs incurred by materialmen in a premature suit on such bond could not be recovered. Day v. Royce Kershaw, Inc., 185 Miss. 207, 187 So. 221, 1939 Miss. LEXIS 130 (Miss. 1939).

In an action on a bond, which in addition to guarantying the performance of a contract with the state highway department, provided also for all of the expense and cost and attorney’s fees that might be incurred in the enforcement of the performance of the contract, or in the enforcement of the conditions and obligations of the bond, attorney’s fees incurred by materialmen in inducing the state highway department, which had neglected to publish notice of the completion of the contract, to publish such notice and in bringing suit on the bond, were recoverable; and defendant’s alleged tender of the principal and interest due under the contract prior to the expiration of the six months’ period was ineffective. Day v. Royce Kershaw, Inc., 185 Miss. 207, 187 So. 221, 1939 Miss. LEXIS 130 (Miss. 1939).

Suit against highway contractor and his surety by subcontractors and persons who furnished materials, supplies, and labor in construction of highway held not to lie before notice of final settlement by State Highway Commission with contractor had been published. Royce Kershaw, Inc., v. State, 176 Miss. 757, 169 So. 690, 1936 Miss. LEXIS 139 (Miss. 1936).

Publication of final settlement, or abandonment of contract, held essential prerequisite of maintenance of suit by materialmen and laborers on contractor’s bond. United States Fidelity & Guaranty Co. v. Plumbing Wholesale Co., 175 Miss. 675, 166 So. 529, 1936 Miss. LEXIS 31 (Miss. 1936).

Under statute providing for one suit by laborers and materialmen on contractor’s bond after publication of notice of final settlement or abandonment of contract, judgment in suit by materialman held void and ineffective to bar subsequent materialmen’s suit, where petition stated that publication of settlement or abandonment had not been made as required by statute. United States Fidelity & Guaranty Co. v. Plumbing Wholesale Co., 175 Miss. 675, 166 So. 529, 1936 Miss. LEXIS 31 (Miss. 1936).

Where municipal paving contract was fully performed, and city commissioners entered order setting forth balance due contractor, approving estimate, and ordering payment, there was “final settlement” of contract within statute giving materialmen action on contractor’s bond, though payment had not been made. Dixie Minerals Corp. v. Dixie Asphalt Paving Co., 172 Miss. 218, 159 So. 562, 1935 Miss. LEXIS 127 (Miss. 1935).

Materialman’s action on municipal paving contractor’s bond which was begun more than one year after final settlement of paving contract was not barred, where no publication of final settlement was made. Dixie Minerals Corp. v. Dixie Asphalt Paving Co., 172 Miss. 218, 159 So. 562, 1935 Miss. LEXIS 127 (Miss. 1935).

Statute, providing that time for institution of laborer’s or materialman’s action on municipal public works contractor’s bond shall not begin to run until obligee makes final settlement or determines contractor’s abandonment of contract and publishes notice thereof, requires publication of final settlement before limitation begins to run. Marquette Cement Mfg. Co. v. Fidelity & Deposit Co., 173 Miss. 164, 158 So. 924, 1935 Miss. LEXIS 191 (Miss. 1935).

Proper practice in giving notice is for board of supervisors to enter order on minutes and for clerk either to sign notice published or certify that order is true and correct copy of minutes of board. Oliver Const. Co. v. Crawford, 142 Miss. 490, 107 So. 877, 1926 Miss. LEXIS 126 (Miss. 1926).

7. Under former § 31-5-13.

Notice requirements (former §§31-5-7,31-5-13) are jurisdictional prerequisites to suits between parallel or coprime contractors under public contracts when surety bond under former §31-5-1 is involved. Aetna Casualty & Surety Co. v. Doleac Electric Co., 471 So. 2d 325, 1985 Miss. LEXIS 1961 (Miss. 1985).

The publication requirement imposed by this section is jurisdictional in nature and cannot be waived by failure of the surety to plead or argue lack of jurisdiction in the lower court. Travelers Indem. Co. v. Munro Oil & Paint Co., 364 So. 2d 667, 1978 Miss. LEXIS 2229 (Miss. 1978).

Surety on statutory bond executed by contractor under contract with county to repair bridge, guaranteeing that contractor would promptly, properly and efficiently perform the contract, was not liable to the owner of barges rented to the county to support the bridge and which the contractor was permitted to use, or to the owner’s insurer, for damages to the barges caused by negligence of the contractor’s employee, for the reasons that the bond did not cover such liability and was not for the benefit of the barges’ owner, and that Code 1942, §§ 9014-9019, pertaining to statutory bonds in connection with contracts for public work and suits thereon, were not complied with. Continental Ins. Co. v. Harrison County, 153 F.2d 671, 1946 U.S. App. LEXIS 1963 (5th Cir. Miss. 1946).

Statutory notice held sufficient without summoning all parties in interest. Union Indem. Co. v. Acme Blow Pipe & Sheet Metal Works, 150 Miss. 332, 117 So. 251, 1928 Miss. LEXIS 171 (Miss. 1928).

Failure to make publication in county where work was done held fatal error, although failure not pleaded in abatement or called to attention of court. United States Fidelity & Guaranty Co. v. Mobley, 143 Miss. 512, 108 So. 501, 1926 Miss. LEXIS 287 (Miss. 1926).

§ 31-5-55. Persons entitled to copies of contract and bond.

Any person supplying labor or materials for the prosecution of the work shall, upon request to the obligee, be furnished with a certified copy of the contract and bonds.

HISTORY: Laws, 1980, ch. 520, § 3, eff from and after April 1, 1981.

Editor’s Notes —

This section takes effect on April 1, 1981, and applies only to contracts entered into from and after the effective date and bonds made pursuant to such contracts.

RESEARCH REFERENCES

Am. Jur.

17 Am. Jur. 2d, Contractors’ Bonds §§ 25, 73 et seq.

CJS.

72 Supp C.J.S., Public Contracts §§ 44 et seq.

Law Reviews.

Yarbrough, Rights and Remedies Under Mississippi’s New Public Construction Bond Statute. 51 Miss. L. J. 351, December 1980.

Dunn, Construction Contract Claims and Litigation – Suits on Public Bonds and Suits on Private Bonds. 55 Miss. L. J. 431, September 1985.

§ 31-5-57. Award of attorney’s fees.

Whenever any person supplying labor or material in the prosecution of the work brings an action on such payment bond and the trial judge finds that the defense raised to such action by the contractor or surety was not reasonable, or not in good faith, or merely for the purpose of delaying payment, then the trial judge may, in his discretion, award the claimant a reasonable amount to be determined by the trial judge as claimant’s attorney’s fees in bringing such successful action. Likewise, if the trial judge finds that such action was brought by claimant without just cause or in bad faith, the trial judge may, in his discretion, award the contractor or surety a reasonable amount to be determined by the trial judge as attorney’s fees for defending such action; provided, however, this section shall not affect the right of any person to recover attorney’s fees where provided by contract or bond.

HISTORY: Laws, 1980, ch. 520, § 4, eff from and after April 1, 1981.

Editor’s Notes —

This section takes effect on April 1, 1981, and applies only to contracts entered into from and after the effective date and bonds made pursuant to such contracts.

RESEARCH REFERENCES

ALR.

Surety’s liability for obligee’s attorney fees under provisions of performance bond of public contractor or subcontractor. 69 A.L.R.2d 1046.

Construction of attorneys’ fees provision in contractor’s bond. 8 A.L.R.3d 1438.

Am. Jur.

17 Am. Jur. 2d, Contractors’ Bonds §§ 131, 194.

CJS.

72 Supp C.J.S., Public Contracts § 62.

Law Reviews.

Yarbrough, Rights and Remedies Under Mississippi’s New Public Construction Bond Statute. 51 Miss. L. J. 351, December 1980.

Dunn, Construction Contract Claims and Litigation – Suits on Public Bonds and Suits on Private Bonds. 55 Miss. L. J. 431, September 1985.

JUDICIAL DECISIONS

1. In general.

2. Payment of attorneys’ fees awarded.

3. Attorneys’ fees not excessive.

1. In general.

An award of “reasonable attorney’s fees” under §31-5-57 requires proof. The court may not judicially note what is a reasonable fee and may not merely pull a figure out of thin air. Rather, the party entitled to recover a reasonable fee must furnish a evidentiary predicate therefore. Key Constructors, Inc. v. H & M Gas Co., 537 So. 2d 1318, 1989 Miss. LEXIS 8 (Miss. 1989).

Lawsuit cannot be characterized as one on payment bond, for which attorney fees and prejudgment interest might be awarded, when no obligation undertaken by virtue of bond is predicate for claim of liability and surety is not party to lawsuit, particularly where case has not been otherwise handled in accordance with §31-5-53. Stanton & Associates, Inc. v. Bryant Constr. Co., 464 So. 2d 499, 1985 Miss. LEXIS 1916 (Miss. 1985).

2. Payment of attorneys’ fees awarded.

Award of attorneys’ fees based upon a quantum meruit claim in favor of the subcontractor was proper because the contractor delayed paying the subcontractor the remaining balance on its contract for no apparent reason. The contractor knew that the subcontractor was entitled to the money, but withheld the money and continued to do so; further, the contractor solicited and secured the subcontractor’s efforts to persuade the agency to release the retainage, inducing the subcontractor to believe that it would get its money when in fact the contractor had already assigned the entire retainage to its bank. Tupelo Redevelopment Agency v. Gray Corp., 972 So. 2d 495, 2007 Miss. LEXIS 577 (Miss. 2007).

3. Attorneys’ fees not excessive.

Amount of attorneys’ fees awarded in favor of the subcontractor were not excessive because the facts surrounding and concerning that portion of the subcontractor’s motion for attorneys’ fees relating to setting the amount of attorney’s fees justified the assessment of the fees in an amount that the trial judge found to have been reasonable and fair and that satisfied the requirements of law. The trial judge presided over a two-week trial in which numerous witnesses testified and more than 100 exhibits were received into evidence. Tupelo Redevelopment Agency v. Gray Corp., 972 So. 2d 495, 2007 Miss. LEXIS 577 (Miss. 2007).

Chapter 7. Public Purchases

In General

§ 31-7-1. Definitions.

The following terms are defined for the purposes of this chapter to have the following meanings:

“Agency” means any state board, commission, committee, council, university, department or unit thereof created by the Constitution or statutes if such board, commission, committee, council, university, department, unit or the head thereof is authorized to appoint subordinate staff by the Constitution or statute, except a legislative or judicial board, commission, committee, council, department or unit thereof; except a charter school authorized by the Mississippi Charter School Authorizer Board; and except the Mississippi State Port Authority. An academic medical center or health sciences school as defined in Section 37-115-50 is not an “agency” for those purchases of commodities as defined in this section that are used for clinical purposes and (i) intended for use in the diagnosis of disease or other conditions or in the cure, mitigation, treatment or prevention of disease, and (ii) medical devices, biological, drugs and radiation emitting devices as defined by the United States Food and Drug Administration.

“Governing authority” means boards of supervisors, governing boards of all school districts, all boards of directors of public water supply districts, boards of directors of master public water supply districts, municipal public utility commissions, governing authorities of all municipalities, port authorities, Mississippi State Port Authority, commissioners and boards of trustees of any public hospitals, boards of trustees of public library systems, district attorneys, school attendance officers and any political subdivision of the state supported wholly or in part by public funds of the state or political subdivisions thereof, including commissions, boards and agencies created or operated under the authority of any county or municipality of this state. The term “governing authority” shall not include economic development authorities supported in part by private funds, or commissions appointed to hold title to and oversee the development and management of lands and buildings which are donated by private individuals to the public for the use and benefit of the community and which are supported in part by private funds. The term “governing authority” also shall not include the governing board of a charter school.

“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, including issue purchase orders, invitations for bid, requests for proposals, and receive and accept bids.

“Public funds” means and includes any appropriated funds, special funds, fees or any other emoluments received by an agency or governing authority.

“Commodities” means and includes the various commodities, goods, merchandise, furniture, equipment, automotive equipment of every kind, and other personal property purchased by the agencies of the state and governing authorities, but not commodities purchased for resale or raw materials converted into products for resale.

“Equipment” shall be construed to include: automobiles, trucks, tractors, office appliances and all other equipment of every kind and description.

“Furniture” shall be construed to include: desks, chairs, tables, seats, filing cabinets, bookcases and all other items of a similar nature as well as dormitory furniture, appliances, carpets and all other items of personal property generally referred to as home, office or school furniture.

“Emergency” means 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 of public health is necessary by reason of unforeseen emergency, or when the immediate 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; or in the case of a public airport, when the delay incident to publishing an advertisement for competitive bids would endanger public safety in a specific (not general) manner, result in or perpetuate a specific breach of airport security, or prevent the airport from providing specific air transportation services.

“Construction” means 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.

“Purchase” means buying, renting, leasing or otherwise acquiring.

“Certified purchasing office” means any purchasing office in which fifty percent (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.

“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.

“Certified Mississippi Procurement Manager” means a state agency purchasing official who holds a certification from the Mississippi Advanced Purchasing Certification Program as established by the Office of Purchasing, Travel and Fleet Management.

HISTORY: Codes, 1942, §§ 9024-01, 9024-10, 9024.5; Laws, 1958, ch. 480, §§ 1-4; Laws, 1962, ch. 497, §§ 1, 13; Laws, 1968, ch. 506, § 21; Laws, 1980, ch. 440, § 1; Laws, 1981, ch. 306, § 1; Laws, 1984, ch. 488, § 152; Laws, 1985, ch. 525, § 13; Laws, 1988, ch. 589, § 22; Laws, 1988 Ex Sess, ch. 14, § 63; Laws, 1990, ch. 585, § 1; Laws, 1993, ch. 556, § 1; Laws, 1996, ch. 404, § 2; Laws, 1999, ch. 335, § 1; Laws, 2000, ch. 593, § 2; Laws, 2003, ch. 539, § 3; Laws, 2004, ch. 390, § 1; Laws, 2012, ch. 485, § 2; Laws, 2013, ch. 362, § 1; Laws, 2013, ch. 497, § 35; Laws, 2016, ch. 330, § 1; Laws, 2017, ch. 367, § 1; Laws, 2017, ch. 398, § 4, eff from and after July 1, 2017.

Joint Legislative Committee Note —

Section 35 of ch. 497, Laws of 2013, effective from and after July 1, 2013 (approved April 17, 2013), amended this section. Section 1 of ch. 362, Laws of 2013, effective from and after July 1, 2013 (approved March 18, 2013), also amended this section. As set out above, this section reflects the language of Section 35 of ch. 497, Laws of 2013, pursuant to Section 1-3-79, which provides that whenever the same section of law is amended by different bills during the same legislative session, and the effective dates of the amendments are the same, the amendment with the latest approval date supersedes all other amendments to the same section approved on an earlier date.

Section 1 of Chapter 367, Laws of 2017, effective from and after passage (approved March 20, 2017), amended this section. Section 4 of Chapter 398, Laws of 2017, effective from and after July 1, 2017 (approved March 28, 2017), also amended this section. As set out above, this section reflects the language of Section 4 of Chapter 398, Laws of 2017, pursuant to Section 1-3-79, which provides that whenever the same section of law is amended by different bills during the same legislative session, the amendment with the latest effective date shall supersede all other amendments to the same section taking effect on an earlier date.

Editor’s Notes —

Laws of 2017, ch. 398, § 6, provides:

“SECTION 6. The provisions of this act are severable. If any part is declared invalid or unconstitutional, that declaration shall not affect the part which remains.”

Amendment Notes —

The 2003 amendment added (i), containing the definition for “Certified purchasing office.”

The 2004 amendment added “or agency” at the end of (c).

The 2012 amendment added “and except the Mississippi State Port Authority” at the end of (a); added “Mississippi State Port Authority” following “port authorities” in the first sentence of (b); and made minor stylistic changes throughout.

The first 2013 amendment (ch. 362) added the language following “nationally recognized purchasing certification” at the end of (i); added (j) and (k); and made a minor stylistic change.

The second 2013 amendment (ch. 497) inserted “except a charter school authorized by the Mississippi Charter School Authorizer Board” in (a); added the last sentence in (b); added language beginning “and in which, in the case” to the end of (i); and added (j) and (k); and made a minor stylistic change.

The 2016 amendment added “including issue purchase orders, invitations for bid, requests for proposals, and receive and accept bids” at the end of (c).

The first 2017 amendment (ch. 367), effective March 20, 2017, added (d) through (k), which had been deleted in error during the 2016 Regular Session.

The second 2017 amendment (ch. 398), added the last sentence of (a); and added (d) through (k).

Cross References —

Affect of any member of a board, commission, council or authority changing domicile after appointment, see §7-13-9.

Application of the definition of governing authority, defined in this section, to the duties and responsibilities of a county administrator, see §19-4-7.

Applicability of this chapter to contracts for construction or improvement of industrial sites within economic development districts, see §19-5-99.

Acquisition of equipment for or contracts for reproduction of records pertaining to public utilities, see §21-27-95.

Authority of commission of budget and accounting over purchase of automobiles for state officers and employees, see §25-1-77.

Applicability of public purchases law to central data processing authority [Mississippi Department of Information Technology Services], see §25-53-25.

Acquisition, operation and maintenance of telecommunications systems, see §§25-53-101 st seq.

Joint legislative budget committee and legislative budget office, generally, see §§27-103-101 et seq.

Public procurement review board, see §27-104-7.

Lease-purchase program for state agency equipment, see §31-7-10.

Authority of state agencies to contract for energy efficiency services, see §31-7-73.

Acquisition of public buildings, facilities, and equipment through rental contracts, see §§31-8-1 et seq.

Mississippi Charter School Authorizer Board, generally, see §§37-28-1 et seq.

Purchases and contracts by boards of trustees of school districts and county boards of education, see §37-39-1.

Purchases for state penitentiary, see §47-5-79.

Definition of “commodities” as used in the Mississippi Minority Business Enterprise Act, see §57-69-3.

Bonds on contracts by or on behalf of the Mississippi Transportation Commission, see §65-1-85.

OPINIONS OF THE ATTORNEY GENERAL

Public purchasing laws do not generally apply to private corporations. 1991 Miss. Op. Att'y Gen. 337.

Under state law, the general rule is that public purchasing contracts may be awarded only on the basis of lowest and best bid. 1991 Miss. Op. Att'y Gen. 792.

Only where provisions for local preference are expressly made by legislative action can a city award preference to a local bidder. 1991 Miss. Op. Att'y Gen. 792.

There is no authority within the provisions of the public purchases law, codified in this chapter, for a county to pay a “restocking fee” for items ordered and delivered but returned due to no fault on the part of the vendor. Whether the vendor accepts the return of such items would be at the discretion of the vendor. 1995 Miss. Op. Att'y Gen. 92.

The controlling statute a school board must follow to sell sand, gravel, fill dirt, or clay from 16th section school trust land is Section 29-3-99 and not this chapter. Section 29-3-99 is a specific statute which details the competitive bid requirements on sixteenth section lands for the sale of sands, gravel, fill dirt or clay. This chapter is of a more general nature which deal with public purchasing requirements. 1995 Miss. Op. Att'y Gen. 769.

If proposed contractual changes are within the scope of the construction contract, then the procedure authorized by Section 31-7-13(g) could be utilized. However, if the contract is a separate one for the purchase of commodities as defined by subsection (e) of this section, then the change order procedure could not be used. 1996 Miss. Op. Att'y Gen. 569.

Since the Corinth-Alcorn County Emergency Management Agency was created under the authority of Alcorn County and the City of Corinth and receives public funds from those political subdivisions, the agency must follow and comply with the public purchasing laws set out in this chapter, which includes following the state bidding procedures for procurement of equipment and property. 1996 Miss. Op. Att'y Gen. 548.

An economic development district, not being an economic development authority, is subject to the purchase laws of the State of Mississippi; trustees of a development district control funds collected for support of the district and may upon a majority vote approve properly submitted bills for payment; funds must be placed in the county depository at which the development district may have its own separate account; and there is no authority for a development district to provide meals for its appointed trustees at their meetings. 1998 Miss. Op. Att'y Gen. 816.

A non-profit Mississippi corporation organized and existing for the purpose of providing public ambulance service is not a political subdivision for purposes of this chapter and is exempt therefrom. 1998 Miss. Op. Att'y Gen. 183.

Economic development districts created pursuant to §19-5-99 are subject to the public purchasing laws codified at this chapter. 1999 Miss. Op. Att'y Gen. 124.

This section and §31-7-13 do not control in the purchase of personal property as part of the acquisition of an existing physical therapy and rehabilitation center. 1999 Miss. Op. Att'y Gen. 215.

The term “governing authority” generally refers to any board that governs a political subdivision or instrumentality of the state; this includes boards of supervisors, district school boards, boards of aldermen or city councils, and other governing boards of commissions, districts and agencies. 2000 Miss. Op. Att'y Gen. 185.

A contract with a city under which a company would provide the manpower, equipment, and expertise necessary to efficiently recover from a hurricane or other disaster was subject to requirements for advertising and taking bids since only contracts that are made during the time of an emergency are exempt from state laws governing construction, solid waste contracts and purchasing. 2000 Miss. Op. Att'y Gen. 579.

The public purchase laws are not applicable to the maintenance of a beach, consisting of picking up garbage, running sand sweepers to sift rubbish from the sand, and occasionally setting out plants. 2001 Miss. Op. Att'y Gen. 663.

Motor vehicles and equipment purchased at public auction by those entities which come under the public purchasing laws must be offered by a state agency or governing authority of the state of Mississippi. 2002 Miss. Op. Att'y Gen. 169.

The Port Authority does not have to require a certificate of responsibility for demolition contractors to bid on public projects; however, in its discretion, it may require contractors to have a certificate of responsibility prior to bidding on such projects. 2002 Miss. Op. Att'y Gen. 207.

The Mississippi Technology Alliance, Inc., a private, not for profit corporation, is not subject to the procurement requirements regarding the letting of a construction contract as provided by the public purchasing statutes. 2003 Miss. Op. Att'y Gen. 34.

If a county board of supervisors accepted a bid on the provision of limestone with no obligation to make a minimum purchase during the stated term, then it can purchase essentially the same commodity from another vendor at a lower price, as long as such purchase is made in accordance with procedures found in Section 31-7-1 et seq. 2005 Miss. Op. Att'y Gen. 112.

The Mississippi Bond Refunding Act provides separate authority for a school district to issue refunding bonds to refinance its Mississippi Adequate Education Program Act bonds. 2005 Miss. Op. Att'y Gen. 530.

A public entity may not enter into a construction management at-risk contract. 2006 Miss. Op. Att'y Gen. 165.

JUDICIAL DECISIONS

1. In general.

Administration of public purchasing, administration of state employee’s group insurance program, and authority to approve rules adopted by the State Auditor for establishing a merit system for his employees, are administrative functions within the prerogative of the executive department, and thus, named legislators could not constitutionally perform any of those functions because they properly belonged to the executive department; moreover, the statutes vesting those powers in members of the legislature are unconstitutional. Alexander v. State, 441 So. 2d 1329, 1983 Miss. LEXIS 3007 (Miss. 1983).

§ 31-7-3. Administration of provisions of chapter; purposes.

The Department of Finance and Administration shall administer the provisions of this chapter.

The purposes or aims of the Department of Finance and Administration in carrying out said provisions shall be to coordinate and promote efficiency and economy in the purchase of commodities by the agencies of the state.

HISTORY: Codes, 1942, §§ 9024-02, 9024-03; Laws, 1962, ch. 497, §§ 2, 3; Laws, 1980, ch. 440, § 2; Laws, 1984, ch. 488, § 153; Laws, 1985, ch. 525, § 14; Laws, 2000, ch. 593, § 3, eff from and after passage (approved May 20, 2000.).

Cross References —

Affect of any member of a board, commission, council or authority changing domicile after appointment, see §7-13-9.

Acquisition, operation and maintenance of telecommunications systems, see §§25-53-101 et seq.

Work performed by contract with state or local agency in connection with relief under Disaster Assistance Act of 1993 as subject to provisions of this chapter, see §33-15-315.

OPINIONS OF THE ATTORNEY GENERAL

Based on Sections 31-27-3, 31-27-5, 31-27-11, 31-27-13, 31-27-17 and the intent and policy of the Refinancing Act as announced by the Legislature, the certificates evidencing the debt of the District on the building constructed under the Lease-Purchase Act are bonds within the meaning of the statute and may be refunded by the issuance of general obligation refunding bonds. 1996 Miss. Op. Att'y Gen. 707.

§ 31-7-5. Administrative rules and regulations.

The Department of Finance and Administration shall prescribe rules and regulations governing the manner in which the authority and duties granted to it by law may be carried out. It shall employ suitable and competent personnel, necessary to carry out its purposes. The Department of Finance and Administration may establish an Office of Purchasing, Travel and Fleet Management and employ a competent person as Director of the Office of Purchasing, Travel and Fleet Management who shall be nonstate service and paid a salary as determined by the Executive Director of the Department of Finance and Administration with the approval of the State Personnel Board.

HISTORY: Codes, 1942, § 9024-04; Laws, 1962, ch. 497, § 4; Laws, 2000, ch. 593, § 4; Laws, 2006, ch. 537, § 6; Laws, 2007, ch. 319, § 1, eff from and after July 1, 2007.

Amendment Notes —

The 2006 amendment rewrote the last sentence of the section.

The 2007 amendment substituted “shall be nonstate service and paid a salary” for “shall be a member of the state service in a job classification and salary” in the last sentence.

Cross References —

Nonstate service defined, see §25-9-107.

OPINIONS OF THE ATTORNEY GENERAL

Based on Sections 31-27-3, 31-27-5, 31-27-11, 31-27-13, 31-27-17 and the intent and policy of the Refinancing Act as announced by the Legislature, the certificates evidencing the debt of the District on the building constructed under the Lease-Purchase Act are bonds within the meaning of the statute and may be refunded by the issuance of general obligation refunding bonds. 1996 Miss. Op. Att'y Gen. 707.

JUDICIAL DECISIONS

1. In general.

The authority to supervise the procurement activities of all state agencies, departments and institutions is vested in the State Commission of Budget and Accounting. Board of Trustees v. Peoples Bank of Mississippi, N.A., 538 So. 2d 361, 1989 Miss. LEXIS 13 (Miss. 1989).

§ 31-7-7. Duties and powers.

Through its director and other supervisory personnel and, upon its request, through the agencies of the state, the Office of General Services shall supervise the performance of the following duties imposed upon it by this chapter:

A study of the purchases of commodities by the agencies of the state; the compilation, exchange and coordination of information concerning same; and the distribution of such information to the agencies and governing authorities requesting same.

The planning and coordination of purchases in volume for the agencies in order to take advantage of and secure the economies possible by volume purchasing; the arrangement of agreements between agencies and between governing authorities whereby one may make a purchase or purchases for the other or whereby an agency may make a purchase for a governing authority; the arrangement of agreements whereby purchases of commodities can be made between an agency and another agency or governing authority at a fair price, less depreciated value; the negotiations and execution of purchasing agreements and contracts through and under which the Office of General Services may require state agencies to purchase; and the obtaining or establishment of methods for obtaining of competitive bid prices upon which any agency of the state may purchase at the price approved by the Office of General Services.

The arrangement of provisions in purchase contracts of the state, or any agency, providing that the same price for which a commodity is available to an agency, may also, during the period of time provided therein, be available to any governing authority.

HISTORY: Codes, 1942, § 9024-05; Laws, 1962, ch. 497, § 5; Laws, 1980, ch. 440, § 3; Laws, 1983, ch. 330, § 1; Laws, 1984, ch. 488, § 154; Laws, 1985, ch. 525, § 15, eff from and after July 1, 1985.

Editor’s Notes —

Section 7-1-451 provides that wherever the term “Office of General Services” appears in any law the same shall mean the Department of Finance and Administration.

Cross References —

Purchasing regulations, see §31-7-9.

Restrictions on governmental purchases of foreign beef, see §§31-7-61 through31-7-65.

Alternative bidding and contracting procedures under Mississippi Major Economic Impact Act, see §57-75-21.

OPINIONS OF THE ATTORNEY GENERAL

There is no authority for agency to make donations of property or funds to local districts; rather, transaction must be at fair price, less depreciation as mandated by subsection (b) of this section. 1993 Miss. Op. Att'y Gen. 415.

The Department of Finance and Administration may adopt as its own approved purchase agreements the cooperative agreements that have been developed by other states and local governments. 2006 Miss. Op. Att'y Gen. 159.

§ 31-7-9. Purchasing regulations.

    1. The Office of Purchasing, Travel and Fleet Management shall adopt purchasing regulations governing the purchase by any agency of any commodity or commodities and establishing standards and specifications for a commodity or commodities and the maximum fair prices of a commodity or commodities, subject to the approval of the Public Procurement Review Board. It shall have the power to amend, add to or eliminate purchasing regulations. The adoption of, amendment, addition to or elimination of purchasing regulations shall be based upon a determination by the Office of Purchasing, Travel and Fleet Management with the approval of the Public Procurement Review Board, that such action is reasonable and practicable and advantageous to promote efficiency and economy in the purchase of commodities by the agencies of the state. Upon the adoption of any purchasing regulation, or an amendment, addition or elimination therein, copies of same shall be furnished to the State Auditor and to all agencies affected thereby. Thereafter, and except as otherwise may be provided in subsection (2) of this section, no agency of the state shall purchase any commodities covered by existing purchasing regulations unless such commodities be in conformity with the standards and specifications set forth in the purchasing regulations and unless the price thereof does not exceed the maximum fair price established by such purchasing regulations. The Office of Purchasing, Travel and Fleet Management shall furnish to any county or municipality or other local public agency of the state requesting same, copies of purchasing regulations adopted by the Office of Purchasing, Travel and Fleet Management and any amendments, changes or eliminations of same that may be made from time to time.
    2. The Office of Purchasing, Travel and Fleet Management may adopt purchasing regulations governing the use of credit cards, procurement cards and purchasing club membership cards to be used by state agencies, governing authorities of counties and municipalities, school districts and the Chickasawhay Natural Gas District. Use of the cards shall be in strict compliance with the regulations promulgated by the office. Any amounts due on the cards shall incur interest charges as set forth in Section 31-7-305 and shall not be considered debt.
    3. Pursuant to the provision of Section 37-61-33(3), the Office of Purchasing, Travel and Fleet Management of the Department of Finance and Administration is authorized to issue procurement cards to all public school district classroom teachers and other necessary direct support personnel at the beginning of the school year for the purchase of instructional supplies using Educational Enhancement Funds. The cards will be issued in equal amounts per teacher determined by the total number of qualifying personnel and the then current state appropriation for classroom instructional supplies under the Education Enhancement Fund. All purchases shall be in accordance with state law and teachers are responsible for verification of capital asset requirements when pooling monies to purchase equipment. The cards will expire on a pre-determined date at the end of each school year. All unexpended amounts will be carried forward, to be combined with the following year’s instructional supply fund allocation, and reallocated for the following year. The Department of Finance and Administration is authorized to loan any start-up funds at the beginning of the school year to fund this procurement system for instructional supplies with loan repayment being made from sales tax receipts earmarked for the Education Enhancement Fund.
    4. In a sale of goods or services, the seller shall not impose a surcharge on a buyer who uses a state-issued credit card, procurement card, travel card, or fuel card. The Department of Finance and Administration shall have exclusive jurisdiction to enforce and adopt rules relating to this paragraph. Any rules adopted under this paragraph shall be consistent with federal laws and regulations governing credit card transactions described by this paragraph. This paragraph does not create a cause of action against an individual for a violation of this paragraph.
  1. The Office of Purchasing, Travel and Fleet Management shall adopt, subject to the approval of the Public Procurement Review Board, purchasing regulations governing the purchase of unmarked vehicles to be used by the Bureau of Narcotics and Department of Public Safety in official investigations pursuant to Section 25-1-87. Such regulations shall ensure that purchases of such vehicles shall be at a fair price and shall take into consideration the peculiar needs of the Bureau of Narcotics and Department of Public Safety in undercover operations.
  2. The Office of Purchasing, Travel and Fleet Management shall adopt, subject to the approval of the Public Procurement Review Board, regulations governing the certification process for certified purchasing offices, including the Mississippi Purchasing Certification Program, which shall be required of all purchasing agents at state agencies. Such regulations shall require entities desiring to be classified as certified purchasing offices to submit applications and applicable documents on an annual basis, and in the case of a state agency purchasing office, to have one hundred percent (100%) participation and completion by purchasing agents in the Mississippi Purchasing Certification Program, at which time the Office of Purchasing, Travel and Fleet Management may provide the governing entity with a certification valid for one (1) year from the date of issuance. The Office of Purchasing, Travel and Fleet Management shall set a fee in an amount that recovers its costs to administer the Mississippi Purchasing Certification Program, which shall be assessed to the participating state agencies.

HISTORY: Codes, 1942, § 9024-06; Laws, 1962, ch. 497, § 6; Laws, 1984, ch. 488, § 155; Laws, 1985, ch. 525, § 16; Laws, 1988 Ex Sess, ch. 14, § 71; Laws, 1989, ch. 394, § 1; Laws, 2000, ch. 593, § 5; Laws, 2002, ch. 316, § 1; Laws, 2003, ch. 539, § 4; Laws, 2004, ch. 562, § 2; Laws, 2006, ch. 537, § 7; Laws, 2012, ch. 543, § 4; Laws, 2013, ch. 362, § 2; Laws, 2013, ch. 394, § 1; Laws, 2016, ch. 330, § 2, eff from and after July 1, 2016.

Joint Legislative Committee Note —

Section 2 of ch. 362, Laws of 2013, effective from and after July 1, 2013 (approved March 18, 2013), amended this section. Section 1 of ch. 394, Laws of 2013, effective from and after July 1, 2013 (approved March 20, 2013), also amended this section. As set out above, this section reflects the language of both amendments, pursuant to Section 1-1-109, which gives the Joint Legislative Committee on Compilation, Revision and Publication of Legislation authority to integrate amendments so that all versions of the same code section enacted within the same legislative session may become effective. The Joint Committee ratified the integration of these amendments as consistent with the legislative intent at the August 1, 2013, meeting of the Committee.

Editor’s Notes —

Section 7-1-451 provides that wherever the term “Office of General Services” appears in any law the same shall mean the Department of Finance and Administration.

Section 7-7-2 provides that the words “State Auditor of Public Accounts,” “State Auditor” and “Auditor” appearing in the laws of this state in connection with the performance of Auditor’s functions shall mean the State Fiscal Officer.

Section 27-104-6 provides that wherever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration.”

Amendment Notes —

The 2003 amendment added (3).

The 2004 amendment added “and the Chickasawhay Natural Gas District” at the end of the first sentence in (1)(b).

The 2006 amendment inserted “and Fleet Management” following “Office of Purchasing Travel” throughout the section; and made minor stylistic changes.

The 2012 amendment inserted “school districts” in the first sentence of (1)(b); and added (1)(c).

The first 2013 amendment (ch. 362), in (3), inserted “including the Mississippi Purchasing Certification Program, which shall be required of all purchasing officials at state agencies” in the first sentence, inserted language beginning “and in the case of a state agency purchasing office” and ending “Mississippi Purchasing Certification Program” in the second sentence and added the last sentence.

The second 2013 amendment (ch. 394) added (1)(d); and made a minor stylistic change.

The 2016 amendment substituted “purchasing agents” for “purchasing officials” in the first and second sentences of (3).

Cross References —

Creation of the public procurement review board, see §27-104-7.

Purchases of unmarked vehicles made in accordance with purchasing regulations adopted by the Department of Finance and Administration pursuant to this section excepted from the provisions of §31-7-12, see §31-7-12.

Purchases of unmarked vehicles, when made in accordance with purchasing regulations pursuant to this section exempt from bidding requirements, see §31-7-13.

Purchases by hospitals or regional mental health centers participating in group purchasing programs of supplies; commodities and equipment through such programs are exempt from the provisions of this section and §§31-7-10,31-7-11,31-7-12 and31-7-13, see §31-7-38.

Lease-purchase program for state agency equipment, see §37-7-10.

Bidding and contracting procedures under Mississippi Superconducting Super Collider Act, see §57-67-37.

Bonds on contracts by or on behalf of the Mississippi Transportation Commission, see §65-1-85.

OPINIONS OF THE ATTORNEY GENERAL

The Medical Center would not be exempt from the provisions of this section and §31-7-11 when participating in a group purchase program, since Section31-7-38 does not so provide. 1996 Miss. Op. Att'y Gen. 692.

Section31-7-38 does not exempt hospital group purchase programs from the provisions and requirements of this section and §31-7-11. These sections enumerate the duties and responsibilities of the Department of Finance and Administration with regard to purchases by state agencies, including University Medical Center. 1996 Miss. Op. Att'y Gen. 755.

A city is authorized to expend public funds to pay a fee to obtain a Sam’s Club card as long as the city strictly complies with the regulations promulgated by the Office of Purchasing and Travel. 2005 Miss. Op. Att'y Gen. 22.

§ 31-7-10. Lease-purchase program for state agency equipment; participation by local governments; Master Lease-Purchase Program Fund; funding of agency expenses; deposit of monies into State General Fund.

  1. For the purposes of this section, the term “equipment” shall mean equipment, furniture, and if applicable, associated software and other applicable direct costs associated with the acquisition. In addition to its other powers and duties, the Department of Finance and Administration shall have the authority to develop a master lease-purchase program and, pursuant to that program, shall have the authority to execute on behalf of the state master lease-purchase agreements for equipment to be used by an agency, as provided in this section. Each agency electing to acquire equipment by a lease-purchase agreement shall participate in the Department of Finance and Administration’s master lease-purchase program, unless the Department of Finance and Administration makes a determination that such equipment cannot be obtained under the program or unless the equipment can be obtained elsewhere at an overall cost lower than that for which the equipment can be obtained under the program. Such lease-purchase agreements may include the refinancing or consolidation, or both, of any state agency lease-purchase agreements entered into after June 30, 1990.
  2. All funds designated by agencies for procurement of equipment and financing thereof under the master lease-purchase program shall be paid into a special fund created in the State Treasury known as the “Master Lease-Purchase Program Fund,” which shall be used by the Department of Finance and Administration for payment to the lessors for equipment acquired under master lease-purchase agreements.
  3. Upon final approval of an appropriation bill, each agency shall submit to the Public Procurement Review Board a schedule of proposed equipment acquisitions for the master lease-purchase program. Upon approval of an equipment schedule by the Public Procurement Review Board with the advice of the Department of Information Technology Services, the Office of Purchasing, Travel and Fleet Management, and the Division of Energy and Transportation of the Mississippi Development Authority as it pertains to energy efficient climate control systems, the Public Procurement Review Board shall forward a copy of the equipment schedule to the Department of Finance and Administration.
  4. The level of lease-purchase debt recommended by the Department of Finance and Administration shall be subject to approval by the State Bond Commission. After such approval, the Department of Finance and Administration shall be authorized to advertise and solicit written competitive proposals for a lessor, who will purchase the equipment pursuant to bid awards made by the using agency under a given category and then transfer the equipment to the Department of Finance and Administration as lessee, pursuant to a master lease-purchase agreement.

    The Department of Finance and Administration shall select the successful proposer for the financing of equipment under the master lease-purchase program with the approval of the State Bond Commission.

  5. Each master lease-purchase agreement, and any subsequent amendments, shall include such terms and conditions as the State Bond Commission shall determine to be appropriate and in the public interest, and may include any covenants deemed necessary or desirable to protect the interests of the lessor, including, but not limited to, provisions setting forth the interest rate (or method for computing interest rates) for financing pursuant to such agreement, covenants concerning application of payments and funds held in the Master Lease-Purchase Program Fund, covenants to maintain casualty insurance with respect to equipment subject to the master lease-purchase agreement (and all state agencies are specifically authorized to purchase any insurance required by a master lease-purchase agreement) and covenants precluding or limiting the right of the lessee or user to acquire equipment within a specified time (not to exceed five (5) years) after cancellation on the basis of a failure to appropriate funds for payment of amounts due under a lease-purchase agreement covering comparable equipment. The State Bond Commission shall transmit copies of each such master lease-purchase agreement and each such amendment to the Joint Legislative Budget Committee. To the extent provided in any master lease-purchase agreement, title to equipment leased pursuant thereto shall be deemed to be vested in the state or the user of the equipment (as specified in such master lease-purchase agreement), subject to default under or termination of such master lease-purchase agreement.

    A master lease-purchase agreement may provide for payment by the lessor to the lessee of the purchase price of the equipment to be acquired pursuant thereto prior to the date on which payment is due to the vendor for such equipment and that the lease payments by the lessee shall commence as though the equipment had been provided on the date of payment. If the lessee, or lessee’s escrow agent, has sufficient funds for payment of equipment purchases prior to payment due date to vendor of equipment, such funds shall be held or utilized on an as-needed basis for payment of equipment purchases either by the State Treasurer (in which event the master lease-purchase agreement may include provisions concerning the holding of such funds, the creation of a security interest for the benefit of the lessor in such funds until disbursed and other appropriate provisions approved by the Bond Commission) or by a corporate trustee selected by the Department of Finance and Administration (in which event the Department of Finance and Administration shall have the authority to enter into an agreement with such a corporate trustee containing terms and conditions approved by the Bond Commission). Earnings on any amount paid by the lessor prior to the acquisition of the equipment may be used to make lease payments under the master lease-purchase agreement or applied to pay costs and expenses incurred in connection with such lease-purchase agreement. In such event, the equipment-use agreements with the user agency may provide for lease payments to commence upon the date of payment by the lessor and may also provide for a credit against such payments to the extent that investment receipts from investment of the purchase price are to be used to make lease-purchase payments.

  6. The annual rate of interest paid under any lease-purchase agreement authorized under this section shall not exceed the maximum interest rate to maturity on general obligation indebtedness permitted under Section 75-17-101.
  7. The Department of Finance and Administration shall furnish the equipment to the various agencies, also known as the user, pursuant to an equipment-use agreement developed by the Department of Finance and Administration. Such agreements shall require that all monthly payments due from such agency be paid, transferred or allocated into the Master Lease-Purchase Program Fund pursuant to a schedule established by the Department of Finance and Administration. In the event such sums are not paid by the defined payment period, the Executive Director of the Department of Finance and Administration shall issue a requisition for a warrant to draw such amount as may be due from any funds appropriated for the use of the agency which has failed to make the payment as agreed.
  8. All master lease-purchase agreements executed under the authority of this section shall contain the following annual allocation dependency clause or an annual allocation dependency clause which is substantially equivalent thereto: “The continuation of each equipment schedule to this agreement is contingent in whole or in part upon the appropriation of funds by the Legislature to make the lease-purchase payments required under such equipment schedule. If the Legislature fails to appropriate sufficient funds to provide for the continuation of the lease-purchase payments under any such equipment schedule, then the obligations of the lessee and of the agency to make such lease-purchase payments and the corresponding provisions of any such equipment schedule to this agreement shall terminate on the last day of the fiscal year for which appropriations were made.”
  9. The maximum lease term for any equipment acquired under the master lease-purchase program shall not exceed the useful life of such equipment as determined according to the upper limit of the asset depreciation range (ADR) guidelines for the Class Life Asset Depreciation Range System established by the Internal Revenue Service pursuant to the United States Internal Revenue Code and Regulations thereunder as in effect on December 31, 1980, or comparable depreciation guidelines with respect to any equipment not covered by ADR guidelines. The Department of Finance and Administration shall be deemed to have met the requirements of this subsection if the term of a master lease-purchase agreement does not exceed the weighted average useful life of all equipment covered by such agreement and the schedules thereto as determined by the Department of Finance and Administration. For purposes of this subsection, the “term of a master lease-purchase agreement” shall be the weighted average maturity of all principal payments to be made under such master lease-purchase agreement and all schedules thereto.
  10. Interest paid on any master lease-purchase agreement under this section shall be exempt from State of Mississippi income taxation. All equipment, and the purchase thereof by any lessor, acquired under the master lease-purchase program and all lease-purchase payments with respect thereto shall be exempt from all Mississippi sales, use and ad valorem taxes.
  11. The Governor, in his annual executive budget to the Legislature, shall recommend appropriations sufficient to provide funds to pay all amounts due and payable during the applicable fiscal year under master lease-purchase agreements entered into pursuant to this section.
  12. Any master lease-purchase agreement reciting in substance that such agreement has been entered into pursuant to this section shall be conclusively deemed to have been entered into in accordance with all of the provisions and conditions set forth in this section. Any defect or irregularity arising with respect to procedures applicable to the acquisition of any equipment shall not invalidate or otherwise limit the obligation of the Department of Finance and Administration, or the state or any agency of the state, under any master lease-purchase agreement or any equipment-use agreement.
  13. There shall be maintained by the Department of Finance and Administration, with respect to each master lease-purchase agreement, an itemized statement of the cash price, interest rates, interest costs, commissions, debt service schedules and all other costs and expenses paid by the state incident to the lease-purchase of equipment under such agreement.
  14. Lease-purchase agreements entered into by the Board of Trustees of State Institutions of Higher Learning pursuant to the authority of Section 37-101-413 or by any other agency which has specific statutory authority other than pursuant to Section 31-7-13(e) to acquire equipment by lease-purchase shall not be made pursuant to the master lease-purchase program under this section, unless the Board of Trustees of State Institutions of Higher Learning or such other agency elects to participate as to part or all of its lease-purchase acquisitions in the master lease-purchase program pursuant to this section.
  15. The Department of Finance and Administration may develop a master lease-purchase program for school districts and, pursuant to that program, may execute on behalf of the school districts master lease-purchase agreements for equipment to be used by the school districts. The form and structure of this program shall be substantially the same as set forth in this section for the master lease-purchase program for state agencies. If sums due from a school district under the master lease-purchase program are not paid by the expiration of the defined payment period, the Executive Director of the Department of Finance and Administration may withhold such amount that is due from the school district’s minimum education or adequate education program fund allotments.
  16. The Department of Finance and Administration may develop a master lease-purchase program for community and junior college districts and, pursuant to that program, may execute on behalf of the community and junior college districts master lease-purchase agreements for equipment to be used by the community and junior college districts. The form and structure of this program must be substantially the same as set forth in this section for the master lease-purchase program for state agencies. If sums due from a community or junior college district under the master lease-purchase program are not paid by the expiration of the defined payment period, the Executive Director of the Department of Finance and Administration may withhold an amount equal to the amount due under the program from any funds allocated for that community or junior college district in the state appropriations for the use and support of the community and junior colleges.
  17. From and after July 1, 2016, the expenses of this agency shall be defrayed by appropriation from the State General Fund and all user charges and fees authorized under this section shall be deposited into the State General Fund as authorized by law.
  18. From and after July 1, 2016, no state agency shall charge another state agency a fee, assessment, rent or other charge for services or resources received by authority of this section.

HISTORY: Laws, 1990, ch. 545, § 1; Laws, 1990, 1st Ex Sess, ch. 51, § 1; Laws, 1991, ch. 424 § 1; Laws, 1992, ch. 571 § 2; Laws, 2000, ch. 566, § 1; Laws, 2000, ch. 593, § 6; Laws, 2002, ch. 409, § 1; Laws, 2006, ch. 537, § 8; Laws, 2016, ch. 459, § 16, eff from and after July 1, 2016.

Joint Legislative Committee Note —

Section 1 of ch. 566, Laws of 2000, effective from and after July 1, 2000, amended this section. Section 6 of ch. 593, Laws of 2000, effective from and after its passage (approved May 20, 2000), also amended this section. As set out above, this section reflects the language of both amendments pursuant to Section 1-1-109 which gives the Joint Legislative Committee on Compilation, Revision and Publication of Legislation authority to integrate amendments so that all versions of the same code section enacted within the same legislative session may become effective. The Joint Committee on Compilation, Revision and Publication of Legislation ratified the integration of these amendments as consistent with the Legislative intent at the June 29, 2000 meeting of the Committee.

Editor’s Notes —

Laws of 1990, 1st Extraordinary Session, ch. 51, § 3, effective June 30, 1990, provides as follows:

“SECTION 3. Any lease-purchase agreement by any agency entered into after April 4, 1990, and before the effective date of this act[June 30, 1990], which was approved in writing by the Department of Finance and Administration, shall be a valid and binding obligation of such agency, in accordance with the terms of such lease-purchase agreement, to the same extent as any lease-purchase agreement entered into pursuant to the provisions of Section 31-7-13(e) as amended by this act. Any lease-purchase agreement by any governing authority entered into after April 4, 1990, and before the effective date of this act [June 30, 1990], which is in compliance with Section 31-7-13(e), as amended by this act, shall be a valid and binding obligation of such governing authority, in accordance with the terms of such lease-purchase agreement, to the same extent as any lease-purchase agreement entered into pursuant to the provisions of Section 31-7-13(e) as amended by this act.”

Laws of 2016, ch. 459, § 1, codified as §27-104-201, provides:

“SECTION 1. This act shall be known and may be cited as the ‘Mississippi Budget Transparency and Simplification Act of 2016.’ ”

Amendment Notes —

The 2006 amendment inserted “and Fleet Management” following “the Office of Purchasing, Travel” in the last sentence of (3); and made a minor stylistic change.

The 2016 amendment added (17) and (18).

Cross References —

Prohibition against one state agency charging another state agency fees, etc., for services or resources received, see §27-104-203.

Defrayal of expenses of certain state agencies by appropriation of Legislature from General Fund, see §27-104-205.

Financing of all contracts for lease-purchase of equipment and furniture by agencies to be made pursuant to this section, see §31-7-13.

Under bidding provisions, requirement that state agencies finance all contracts for lease-purchase of equipment and furniture pursuant to master lease-purchase agreement, see §31-7-13.

Purchases by hospitals or regional mental health centers participating in group purchasing programs of supplies; commodities and equipment through such programs are exempt from provisions of this section and §§31-7-9,31-7-11,31-7-12 and31-7-13, see §31-7-38.

State Bond Commission generally, see §§31-17-1 et seq.

Junior college districts, generally, see §§37-29-31 et seq.

Amount of a bond by a successful bidder for a contract for the purchase of equipment by or on behalf of the Mississippi Transportation Commission, see §65-1-85.

Federal Aspects—

Class Life Asset Depreciation Range System, see note regarding former § 167(m) under 26 USCS § 167.

§ 31-7-11. Purchasing practices.

Each agency of the state shall furnish information relative to its purchase of commodities, and as to its method of purchasing such commodities, to the Department of Finance and Administration annually and at such other times as the Department of Finance and Administration may request.

The Department of Finance and Administration shall have supervision over the purchasing and purchasing practices of each state agency and may by regulation or order correct any practice that appears contrary to the provisions of this chapter or to the best interests of the state. If it shall appear that any agency is not practicing economy in its purchasing or is permitting favoritism or any improper purchasing practice, the Department of Finance and Administration shall require that the agency immediately cease such improper activity, with full and complete authority in the Department of Finance and Administration to carry into effect its directions in such regard.

All purchases, trade-ins, sales or transfer of personal property made by any officer, board, agency, department or branch of the state government except the Legislature shall be subject to the approval of the Department of Finance and Administration. Such transaction shall be made in accordance with rules and regulations of the Department of Finance and Administration relating to the purchase of state-owned motor vehicles and all other personal property. The title of such property shall remain in the name of the state.

HISTORY: Codes, 1942, §§ 9024-06, 9024-07; Laws, 1962, ch. 497, §§ 6, 7; Laws, 1970, ch. 353, § 2; Laws, 1980, ch. 440, § 4; Laws, 1984, ch. 488, § 156; Laws, 1985, ch. 525, § 17; Laws, 2000, ch. 593, § 7, eff from and after passage (approved May 20, 2000.).

Cross References —

Additional method for purchase of certain motor vehicles, see §31-7-18.

Purchases by hospitals or regional mental health centers participating in group purchasing programs of supplies; commodities and equipment through such programs are exempt from the provisions of this section and §§31-7-9,31-7-10,31-7-12 and31-7-13, see §31-7-38.

Penalties for violations of this chapter, see §31-7-55.

Duty of prison auditor with respect to bids, purchases and sales, see §47-5-35.

Bidding and contracting procedures under Mississippi Superconducting Super Collider Act, see §57-67-37.

Amount of a bond by a successful bidder for a contract for the purchase of equipment by or on behalf of the Mississippi Transportation Commission, see §65-1-85.

OPINIONS OF THE ATTORNEY GENERAL

The Medical Center would not be exempt from the provisions of Section 31-7-9 and this section when participating in a group purchase program, since Section 31-7-38 does not so provide. 1996 Miss. Op. Att'y Gen. 692.

Based on Sections 31-27-3, 31-27-5, 31-27-11, 31-27-13, 31-27-17 and the intent and policy of the Refinancing Act as announced by the Legislature, the certificates evidencing the debt of the District on the building constructed under the Lease-Purchase Act are bonds within the meaning of the statute and may be refunded by the issuance of general obligation refunding bonds. 1996 Miss. Op. Att'y Gen. 707.

Section 31-7-38 does not exempt hospital group purchase programs from the provisions and requirements of Section 31-7-9 and this section. These sections enumerate the duties and responsibilities of the Department of Finance and Administration with regard to purchases by state agencies, including University Medical Center. 1996 Miss. Op. Att'y Gen. 755.

Authority to pledge the same source of security would also include the authority to direct the Mississippi Department of Education to intercept and transmit pledged revenues to a trustee in a manner substantially the same as that provided in regard to the Mississippi Adequate Education Program Act bonds that are to be refunded. 2005 Miss. Op. Att'y Gen. 530.

The Mississippi Department of Education is authorized to take any action with regard to Mississippi Adequate Education Program Act (MAEP) refunding bonds that it was authorized to take with regard to the original issuance of MAEP bonds. Likewise, even though the statutory language was repealed after the issuance of MAEP bonds, the state’s obligation arising from Section 37-151-7(e) relating to the MAEP bonds would be applicable to MAEP refunding bonds as well, if that commitment is part and parcel of the original MAEP bond obligations. 2005 Miss. Op. Att'y Gen. 530.

§ 31-7-12. State contract price for purchase of commodities.

  1. Except in regard to purchases of unmarked vehicles made in accordance with purchasing regulations adopted by the Department of Finance and Administration pursuant to Section 31-7-9(2), all agencies shall purchase commodities at the state contract price from the approved source, unless approval is granted by the Department of Finance and Administration to solicit purchases outside the terms of the contracts. However, prices accepted by an agency shall be less than the prices set by the state contract. Prices accepted by an agency shall be obtained in compliance with paragraph (a), (b) or (c) of Section 31-7-13. It shall be the responsibility of the Department of Finance and Administration to ascertain that the resulting prices shall provide a cost effective alternative to the established state contract.
  2. Governing authorities may purchase commodities approved by the Department of Finance and Administration from the state contract vendor, or from any source offering the identical commodity, at a price not exceeding the state contract price established by the Department of Finance and Administration for such commodity, without obtaining or advertising for competitive bids. Governing authorities that do not exercise the option to purchase such commodities from the state contract vendor or from another source offering the identical commodity at a price not exceeding the state contract price established by the Department of Finance and Administration shall make such purchases pursuant to the provisions of Section 31-7-13 without regard to state contract prices established by the Department of Finance and Administration, unless such purchases are authorized to be made under subsection (5) of this section.
  3. Nothing in this section shall prohibit governing authorities from purchasing, pursuant to subsection (2) of this section, commodities approved by the Department of Finance and Administration at a price not exceeding the state contract price established by the Department of Finance and Administration.
  4. The Department of Finance and Administration shall ensure that the prices of all commodities on the state contract are the lowest and best prices available from any source offering that commodity at the same level of quality or service, utilizing the reasonable standards established therefor by the Department of Finance and Administration. If the Department of Finance and Administration does not list an approved price for the particular item involved, purchase shall be made according to statutory bidding and licensing requirements. To encourage prudent purchasing practices, the Department of Finance and Administration shall be authorized and empowered to exempt certain commodities from the requirement that the lowest and best price be approved by order placed on its minutes.
  5. Any school district may purchase commodities from vendors with which any levying authority of the school district, as defined in Section 37-57-1, has contracted through competitive bidding procedures pursuant to Section 31-7-13 for purchases of the same commodities. Purchases authorized by this subsection may be made by a school district without obtaining or advertising for competitive bids, and such purchases shall be made at the same prices and under the same conditions as purchases of the same commodities are to be made by the levying authority of the school district under the contract with the vendor.

HISTORY: Laws, 1980, ch. 440, § 5; Laws, 1983, ch. 330, § 2; Laws, 1984, ch. 488, § 157; Laws, 1985, ch. 525, § 18; Laws, 1986, ch. 489, § 13; Laws, 1988 Ex Sess, ch. 14, § 64; Laws, 1989, ch. 394, § 2; Laws, 1990, ch. 374, § 1; Laws, 1990, ch. 561, § 1; Laws, 1993, ch. 418, § 1; Laws, 1993, ch. 556, § 2; Laws, 1997, ch. 556, § 1; Laws, 2000, ch. 593, § 8, eff from and after passage (approved May 20, 2000.).

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected references appearing in the amendments made to this section by § 8 of ch. 593, Laws of 2000. The reference in subsection (2) to “subsection (6) of this section” was changed to “subsection (5) of this section.” The reference in subsection (3) to “subsections (1) and (2) of this section” was changed to “subsection (2) of this section.” The Joint Committee ratified these corrections at its June 29, 2000 meeting.

Cross References —

Joint legislative budget committee and legislative budget office, generally, see §§27-103-101 et seq.

Bidding procedures pertaining to public purchases, see §31-7-13.

Exemption from the provisions of this section of purchases by hospitals participating in group purchasing program, see §31-7-38.

Penalties for violating the provisions of this chapter, see §31-7-55.

Purchase by school districts participating in group purchasing programs for procuring services, commodities, supplies and equipment provided under School Lunch and Child Nutrition programs, as subject to public bid requirements prescribed by this section, see §37-11-7.

Procedure for exempting items and services from bid requirements in the prison agricultural enterprises program, see §47-5-357.

Amount of a bond by a successful bidder for a contract for the purchase of equipment by or on behalf of the Mississippi Transportation Commission, see §65-1-85.

OPINIONS OF THE ATTORNEY GENERAL

Purchase of used vehicle by county which advertised for bids for such vehicle is authorized, even though used vehicle will cost more than similar new vehicle, where vehicle is needed immediately, used vehicle is currently available, and new vehicle will not be available for several months. 1992 Miss. Op. Att'y Gen. 498.

There is no requirement that vendors holding state contracts on goods must sell to rural water associations at state contract prices. See this section. 1996 Miss. Op. Att'y Gen. 502.

Under the plain language of Section31-7-38, if the University of Mississippi Medical Center does organize or participate in a group purchase program with other hospitals, then its purchases of supplies, commodities and equipment made through such program would be exempt from the provisions of this section and §31-7-13. 1996 Miss. Op. Att'y Gen. 692.

A county board of supervisors, may authorize the use of Fuelman by the sheriff’s department through the state contract under the authority granted in Section 31-7-12(2), and may provide money in the sheriff’s budget to allow such purchases. 2006 Miss. Op. Att'y Gen. 8.

§ 31-7-13. Bid requirements and exceptions; public auctions.

All agencies and governing authorities shall purchase their commodities and printing; contract for garbage collection or disposal; contract for solid waste collection or disposal; contract for sewage collection or disposal; contract for public construction; and contract for rentals as herein provided.

Bidding procedure for purchases not over $5,000.00.Purchases which do not involve an expenditure of more than Five Thousand Dollars ($5,000.00), exclusive of freight or shipping charges, may be made without advertising or otherwise requesting competitive bids. However, nothing contained in this paragraph (a) shall be construed to prohibit any agency or governing authority from establishing procedures which require competitive bids on purchases of Five Thousand Dollars ($5,000.00) or less.

Bidding procedure for purchases over $5,000.00 but not over $50,000.00.Purchases which involve an expenditure of more than Five Thousand Dollars ($5,000.00) but not more than Fifty Thousand Dollars ($50,000.00), exclusive of freight and shipping charges, may be made from the lowest and best bidder without publishing or posting advertisement for bids, provided at least two (2) competitive written bids have been obtained. Any state agency or community/junior college purchasing commodities or procuring construction pursuant to this paragraph (b) may authorize its purchasing agent, or his designee, to accept the lowest competitive written bid under Fifty Thousand Dollars ($50,000.00). Any governing authority purchasing commodities pursuant to this paragraph (b) may authorize its purchasing agent, or his designee, with regard to governing authorities other than counties, or its purchase clerk, or his designee, with regard to counties, to accept the lowest and best competitive written bid. Such authorization shall be made in writing by the governing authority and shall be maintained on file in the primary office of the agency and recorded in the official minutes of the governing authority, as appropriate. The purchasing agent or the purchase clerk, or their designee, as the case may be, and not the governing authority, shall be liable for any penalties and/or damages as may be imposed by law for any act or omission of the purchasing agent or purchase clerk, or their designee, constituting a violation of law in accepting any bid without approval by the governing authority. The term “competitive written bid” shall mean a bid submitted on a bid form furnished by the buying agency or governing authority and signed by authorized personnel representing the vendor, or a bid submitted on a vendor’s letterhead or identifiable bid form and signed by authorized personnel representing the vendor. “Competitive” shall mean that the bids are developed based upon comparable identification of the needs and are developed independently and without knowledge of other bids or prospective bids. Any bid item for construction in excess of Five Thousand Dollars ($5,000.00) shall be broken down by components to provide detail of component description and pricing. These details shall be submitted with the written bids and become part of the bid evaluation criteria. Bids may be submitted by facsimile, electronic mail or other generally accepted method of information distribution. Bids submitted by electronic transmission shall not require the signature of the vendor’s representative unless required by agencies or governing authorities.

Bidding procedure for purchases over $50,000.00.

Publication requirement.

1. Purchases which involve an expenditure of more than Fifty Thousand Dollars ($50,000.00), exclusive of freight and shipping charges, may be made from the lowest and best bidder after advertising for competitive bids once each week for two (2) consecutive weeks in a regular newspaper published in the county or municipality in which such agency or governing authority is located. However, all American Recovery and Reinvestment Act projects in excess of Twenty-five Thousand Dollars ($25,000.00) shall be bid. All references to American Recovery and Reinvestment Act projects in this section shall not apply to programs identified in Division B of the American Recovery and Reinvestment Act.

2. Reverse auctions shall be the primary method for receiving bids during the bidding process. If a purchasing entity determines that a reverse auction is not in the best interest of the state, then that determination must be approved by the Public Procurement Review Board. The purchasing entity shall submit a detailed explanation of why a reverse auction would not be in the best interest of the state and present an alternative process to be approved by the Public Procurement Review Board. If the Public Procurement Review Board authorizes the purchasing entity to solicit bids with a method other than reverse auction, then the purchasing entity may designate the other methods by which the bids will be received, including, but not limited to, bids sealed in an envelope, bids received electronically in a secure system, or bids received by any other method that promotes open competition and has been approved by the Office of Purchasing and Travel. However, reverse auction shall not be used for any public contract for design or construction of public facilities, including buildings, roads and bridges. The Public Procurement Review Board must approve any contract entered into by alternative process. The provisions of this item 2 shall not apply to the individual state institutions of higher learning.

3. The date as published for the bid opening shall not be less than seven (7) working days after the last published notice; however, if the purchase involves a construction project in which the estimated cost is in excess of Fifty Thousand Dollars ($50,000.00), such bids shall not be opened in less than fifteen (15) working days after the last notice is published and the notice for the purchase of such construction shall be published once each week for two (2) consecutive weeks. However, all American Recovery and Reinvestment Act projects in excess of Twenty-five Thousand Dollars ($25,000.00) shall be bid. For any projects in excess of Twenty-five Thousand Dollars ($25,000.00) under the American Recovery and Reinvestment Act, publication shall be made one (1) time and the bid opening for construction projects shall not be less than ten (10) working days after the date of the published notice. The notice of intention to let contracts or purchase equipment shall state the time and place at which bids shall be received, list the contracts to be made or types of equipment or supplies to be purchased, and, if all plans and/or specifications are not published, refer to the plans and/or specifications on file. If there is no newspaper published in the county or municipality, then such notice shall be given by posting same at the courthouse, or for municipalities at the city hall, and at two (2) other public places in the county or municipality, and also by publication once each week for two (2) consecutive weeks in some newspaper having a general circulation in the county or municipality in the above-provided manner. On the same date that the notice is submitted to the newspaper for publication, the agency or governing authority involved shall mail written notice to, or provide electronic notification to the main office of the Mississippi Procurement Technical Assistance Program under the Mississippi Development Authority that contains the same information as that in the published notice. Submissions received by the Mississippi Procurement Technical Assistance Program for projects funded by the American Recovery and Reinvestment Act shall be displayed on a separate and unique Internet web page accessible to the public and maintained by the Mississippi Development Authority for the Mississippi Procurement Technical Assistance Program. Those American Recovery and Reinvestment Act related submissions shall be publicly posted within twenty-four (24) hours of receipt by the Mississippi Development Authority and the bid opening shall not occur until the submission has been posted for ten (10) consecutive days. The Department of Finance and Administration shall maintain information regarding contracts and other expenditures from the American Recovery and Reinvestment Act, on a unique Internet web page accessible to the public. The Department of Finance and Administration shall promulgate rules regarding format, content and deadlines, unless otherwise specified by law, of the posting of award notices, contract execution and subsequent amendments, links to the contract documents, expenditures against the awarded contracts and general expenditures of funds from the American Recovery and Reinvestment Act. Within one (1) working day of the contract award, the agency or governing authority shall post to the designated web page maintained by the Department of Finance and Administration, notice of the award, including the award recipient, the contract amount, and a brief summary of the contract in accordance with rules promulgated by the department. Within one (1) working day of the contract execution, the agency or governing authority shall post to the designated web page maintained by the Department of Finance and Administration a summary of the executed contract and make a copy of the appropriately redacted contract documents available for linking to the designated web page in accordance with the rules promulgated by the department. The information provided by the agency or governing authority shall be posted to the web page for the duration of the American Recovery and Reinvestment Act funding or until the project is completed, whichever is longer.

Bidding process amendment procedure. If all plans and/or specifications are published in the notification, then the plans and/or specifications may not be amended. If all plans and/or specifications are not published in the notification, then amendments to the plans/specifications, bid opening date, bid opening time and place may be made, provided that the agency or governing authority maintains a list of all prospective bidders who are known to have received a copy of the bid documents and all such prospective bidders are sent copies of all amendments. This notification of amendments may be made via mail, facsimile, electronic mail or other generally accepted method of information distribution. No addendum to bid specifications may be issued within two (2) working days of the time established for the receipt of bids unless such addendum also amends the bid opening to a date not less than five (5) working days after the date of the addendum.

Filing requirement. In all cases involving governing authorities, before the notice shall be published or posted, the plans or specifications for the construction or equipment being sought shall be filed with the clerk of the board of the governing authority. In addition to these requirements, a bid file shall be established which shall indicate those vendors to whom such solicitations and specifications were issued, and such file shall also contain such information as is pertinent to the bid.

Specification restrictions.

1. Specifications pertinent to such bidding shall be written so as not to exclude comparable equipment of domestic manufacture. However, if valid justification is presented, the Department of Finance and Administration or the board of a governing authority may approve a request for specific equipment necessary to perform a specific job. Further, such justification, when placed on the minutes of the board of a governing authority, may serve as authority for that governing authority to write specifications to require a specific item of equipment needed to perform a specific job. In addition to these requirements, from and after July 1, 1990, vendors of relocatable classrooms and the specifications for the purchase of such relocatable classrooms published by local school boards shall meet all pertinent regulations of the State Board of Education, including prior approval of such bid by the State Department of Education.

2. Specifications for construction projects may include an allowance for commodities, equipment, furniture, construction materials or systems in which prospective bidders are instructed to include in their bids specified amounts for such items so long as the allowance items are acquired by the vendor in a commercially reasonable manner and approved by the agency/governing authority. Such acquisitions shall not be made to circumvent the public purchasing laws.

Electronic bids. Agencies and governing authorities shall provide a secure electronic interactive system for the submittal of bids requiring competitive bidding that shall be an additional bidding option for those bidders who choose to submit their bids electronically. The Department of Finance and Administration shall provide, by regulation, the standards that agencies must follow when receiving electronic bids. Agencies and governing authorities shall make the appropriate provisions necessary to accept electronic bids from those bidders who choose to submit their bids electronically for all purchases requiring competitive bidding under this section. Any special condition or requirement for the electronic bid submission shall be specified in the advertisement for bids required by this section. Agencies or governing authorities that are currently without available high speed Internet access shall be exempt from the requirement of this subparagraph (v) until such time that high speed Internet access becomes available. Any county having a population of less than twenty thousand (20,000) shall be exempt from the provisions of this subparagraph (v). Any municipality having a population of less than ten thousand (10,000) shall be exempt from the provisions of this subparagraph (v). The provisions of this subparagraph (v) shall not require any bidder to submit bids electronically. When construction bids are submitted electronically, the requirement for including a certificate of responsibility, or a statement that the bid enclosed does not exceed Fifty Thousand Dollars ($50,000.00), on the exterior of the bid envelope as indicated in Section 31-3-21(1) and (2) shall be deemed in compliance with by including same as an attachment with the electronic bid submittal.

Lowest and best bid decision procedure.

Decision procedure. Purchases may be made from the lowest and best bidder. In determining the lowest and best bid, freight and shipping charges shall be included. Life-cycle costing, total cost bids, warranties, guaranteed buy-back provisions and other relevant provisions may be included in the best bid calculation. All best bid procedures for state agencies must be in compliance with regulations established by the Department of Finance and Administration. If any governing authority accepts a bid other than the lowest bid actually submitted, it shall place on its minutes detailed calculations and narrative summary showing that the accepted bid was determined to be the lowest and best bid, including the dollar amount of the accepted bid and the dollar amount of the lowest bid. No agency or governing authority shall accept a bid based on items not included in the specifications.

Decision procedure for Certified Purchasing Offices. In addition to the decision procedure set forth in subparagraph (i) of this paragraph (d), Certified Purchasing Offices may also use the following procedure: Purchases may be made from the bidder offering the best value. In determining the best value bid, freight and shipping charges shall be included. Life-cycle costing, total cost bids, warranties, guaranteed buy-back provisions, documented previous experience, training costs and other relevant provisions, including, but not limited to, a bidder having a local office and inventory located within the jurisdiction of the governing authority, may be included in the best value calculation. This provision shall authorize Certified Purchasing Offices to utilize a Request For Proposals (RFP) process when purchasing commodities. All best value procedures for state agencies must be in compliance with regulations established by the Department of Finance and Administration. No agency or governing authority shall accept a bid based on items or criteria not included in the specifications.

Decision procedure for Mississippi Landmarks.In addition to the decision procedure set forth in subparagraph (i) of this paragraph (d), where purchase involves renovation, restoration, or both, of the State Capitol Building or any other historical building designated for at least five (5) years as a Mississippi Landmark by the Board of Trustees of the Department of Archives and History under the authority of Sections 39-7-7 and 39-7-11, the agency or governing authority may use the following procedure: Purchases may be made from the lowest and best prequalified bidder. Prequalification of bidders shall be determined not less than fifteen (15) working days before the first published notice of bid opening. Prequalification criteria shall be limited to bidder’s knowledge and experience in historical restoration, preservation and renovation. In determining the lowest and best bid, freight and shipping charges shall be included. Life-cycle costing, total cost bids, warranties, guaranteed buy-back provisions and other relevant provisions may be included in the best bid calculation. All best bid and prequalification procedures for state agencies must be in compliance with regulations established by the Department of Finance and Administration. If any governing authority accepts a bid other than the lowest bid actually submitted, it shall place on its minutes detailed calculations and narrative summary showing that the accepted bid was determined to be the lowest and best bid, including the dollar amount of the accepted bid and the dollar amount of the lowest bid. No agency or governing authority shall accept a bid based on items not included in the specifications.

Construction project negotiations authority. If the lowest and best bid is not more than ten percent (10%) above the amount of funds allocated for a public construction or renovation project, then the agency or governing authority shall be permitted to negotiate with the lowest bidder in order to enter into a contract for an amount not to exceed the funds allocated.

Lease-purchase authorization. For the purposes of this section, the term “equipment” shall mean equipment, furniture and, if applicable, associated software and other applicable direct costs associated with the acquisition. Any lease-purchase of equipment which an agency is not required to lease-purchase under the master lease-purchase program pursuant to Section 31-7-10 and any lease-purchase of equipment which a governing authority elects to lease-purchase may be acquired by a lease-purchase agreement under this paragraph (e). Lease-purchase financing may also be obtained from the vendor or from a third-party source after having solicited and obtained at least two (2) written competitive bids, as defined in paragraph (b) of this section, for such financing without advertising for such bids. Solicitation for the bids for financing may occur before or after acceptance of bids for the purchase of such equipment or, where no such bids for purchase are required, at any time before the purchase thereof. No such lease-purchase agreement shall be for an annual rate of interest which is greater than the overall maximum interest rate to maturity on general obligation indebtedness permitted under Section 75-17-101, and the term of such lease-purchase agreement shall not exceed the useful life of equipment covered thereby as determined according to the upper limit of the asset depreciation range (ADR) guidelines for the Class Life Asset Depreciation Range System established by the Internal Revenue Service pursuant to the United States Internal Revenue Code and regulations thereunder as in effect on December 31, 1980, or comparable depreciation guidelines with respect to any equipment not covered by ADR guidelines. Any lease-purchase agreement entered into pursuant to this paragraph (e) may contain any of the terms and conditions which a master lease-purchase agreement may contain under the provisions of Section 31-7-10(5), and shall contain an annual allocation dependency clause substantially similar to that set forth in Section 31-7-10(8). Each agency or governing authority entering into a lease-purchase transaction pursuant to this paragraph (e) shall maintain with respect to each such lease-purchase transaction the same information as required to be maintained by the Department of Finance and Administration pursuant to Section 31-7-10(13). However, nothing contained in this section shall be construed to permit agencies to acquire items of equipment with a total acquisition cost in the aggregate of less than Ten Thousand Dollars ($10,000.00) by a single lease-purchase transaction. All equipment, and the purchase thereof by any lessor, acquired by lease-purchase under this paragraph and all lease-purchase payments with respect thereto shall be exempt from all Mississippi sales, use and ad valorem taxes. Interest paid on any lease-purchase agreement under this section shall be exempt from State of Mississippi income taxation.

Alternate bid authorization. When necessary to ensure ready availability of commodities for public works and the timely completion of public projects, no more than two (2) alternate bids may be accepted by a governing authority for commodities. No purchases may be made through use of such alternate bids procedure unless the lowest and best bidder cannot deliver the commodities contained in his bid. In that event, purchases of such commodities may be made from one (1) of the bidders whose bid was accepted as an alternate.

Construction contract change authorization. In the event a determination is made by an agency or governing authority after a construction contract is let that changes or modifications to the original contract are necessary or would better serve the purpose of the agency or the governing authority, such agency or governing authority may, in its discretion, order such changes pertaining to the construction that are necessary under the circumstances without the necessity of further public bids; provided that such change shall be made in a commercially reasonable manner and shall not be made to circumvent the public purchasing statutes. In addition to any other authorized person, the architect or engineer hired by an agency or governing authority with respect to any public construction contract shall have the authority, when granted by an agency or governing authority, to authorize changes or modifications to the original contract without the necessity of prior approval of the agency or governing authority when any such change or modification is less than one percent (1%) of the total contract amount. The agency or governing authority may limit the number, manner or frequency of such emergency changes or modifications.

Petroleum purchase alternative. In addition to other methods of purchasing authorized in this chapter, when any agency or governing authority shall have a need for gas, diesel fuel, oils and/or other petroleum products in excess of the amount set forth in paragraph (a) of this section, such agency or governing authority may purchase the commodity after having solicited and obtained at least two (2) competitive written bids, as defined in paragraph (b) of this section. If two (2) competitive written bids are not obtained, the entity shall comply with the procedures set forth in paragraph (c) of this section. In the event any agency or governing authority shall have advertised for bids for the purchase of gas, diesel fuel, oils and other petroleum products and coal and no acceptable bids can be obtained, such agency or governing authority is authorized and directed to enter into any negotiations necessary to secure the lowest and best contract available for the purchase of such commodities.

Road construction petroleum products price adjustment clause authorization. Any agency or governing authority authorized to enter into contracts for the construction, maintenance, surfacing or repair of highways, roads or streets, may include in its bid proposal and contract documents a price adjustment clause with relation to the cost to the contractor, including taxes, based upon an industry-wide cost index, of petroleum products including asphalt used in the performance or execution of the contract or in the production or manufacture of materials for use in such performance. Such industry-wide index shall be established and published monthly by the Mississippi Department of Transportation with a copy thereof to be mailed, upon request, to the clerks of the governing authority of each municipality and the clerks of each board of supervisors throughout the state. The price adjustment clause shall be based on the cost of such petroleum products only and shall not include any additional profit or overhead as part of the adjustment. The bid proposals or document contract shall contain the basis and methods of adjusting unit prices for the change in the cost of such petroleum products.

State agency emergency purchase procedure. If the governing board or the executive head, or his designees, of any agency of the state shall determine that an emergency exists in regard to the purchase of any commodities or repair contracts, so that the delay incident to giving opportunity for competitive bidding would be detrimental to the interests of the state, then the head of such agency, or his designees, shall file with the Department of Finance and Administration (i) a statement explaining the conditions and circumstances of the emergency, which shall include a detailed description of the events leading up to the situation and the negative impact to the entity if the purchase is made following the statutory requirements set forth in paragraph (a), (b) or (c) of this section, and (ii) a certified copy of the appropriate minutes of the board of such agency requesting the emergency purchase, if applicable. Upon receipt of the statement and applicable board certification, the State Fiscal Officer, or his designees, may, in writing, authorize the purchase or repair without having to comply with competitive bidding requirements.

If the governing board or the executive head, or his designees, of any agency determines that an emergency exists in regard to the purchase of any commodities or repair contracts, so that the delay incident to giving opportunity for competitive bidding would threaten the health or safety of any person, or the preservation or protection of property, then the provisions in this section for competitive bidding shall not apply, and any officer or agent of the agency having general or specific authority for making the purchase or repair contract shall approve the bill presented for payment, and he shall certify in writing from whom the purchase was made, or with whom the repair contract was made.

Total purchases made under this paragraph (j) shall only be for the purpose of meeting needs created by the emergency situation. Following the emergency purchase, documentation of the purchase, including a description of the commodity purchased, the purchase price thereof and the nature of the emergency shall be filed with the Department of Finance and Administration. Any contract awarded pursuant to this paragraph (j) shall not exceed a term of one (1) year.

Governing authority emergency purchase procedure. If the governing authority, or the governing authority acting through its designee, shall determine that an emergency exists in regard to the purchase of any commodities or repair contracts, so that the delay incident to giving opportunity for competitive bidding would be detrimental to the interest of the governing authority, then the provisions herein for competitive bidding shall not apply and any officer or agent of such governing authority having general or special authority therefor in making such purchase or repair shall approve the bill presented therefor, and he shall certify in writing thereon from whom such purchase was made, or with whom such a repair contract was made. At the board meeting next following the emergency purchase or repair contract, documentation of the purchase or repair contract, including a description of the commodity purchased, the price thereof and the nature of the emergency shall be presented to the board and shall be placed on the minutes of the board of such governing authority.

Hospital purchase, lease-purchase and lease authorization.

The commissioners or board of trustees of any public hospital may contract with such lowest and best bidder for the purchase or lease-purchase of any commodity under a contract of purchase or lease-purchase agreement whose obligatory payment terms do not exceed five (5) years.

In addition to the authority granted in subparagraph (i) of this paragraph (l), the commissioners or board of trustees is authorized to enter into contracts for the lease of equipment or services, or both, which it considers necessary for the proper care of patients if, in its opinion, it is not financially feasible to purchase the necessary equipment or services. Any such contract for the lease of equipment or services executed by the commissioners or board shall not exceed a maximum of five (5) years’ duration and shall include a cancellation clause based on unavailability of funds. If such cancellation clause is exercised, there shall be no further liability on the part of the lessee. Any such contract for the lease of equipment or services executed on behalf of the commissioners or board that complies with the provisions of this subparagraph (ii) shall be excepted from the bid requirements set forth in this section.

Exceptions from bidding requirements. Excepted from bid requirements are:

Purchasing agreements approved by department. Purchasing agreements, contracts and maximum price regulations executed or approved by the Department of Finance and Administration.

Outside equipment repairs. Repairs to equipment, when such repairs are made by repair facilities in the private sector; however, engines, transmissions, rear axles and/or other such components shall not be included in this exemption when replaced as a complete unit instead of being repaired and the need for such total component replacement is known before disassembly of the component; however, invoices identifying the equipment, specific repairs made, parts identified by number and name, supplies used in such repairs, and the number of hours of labor and costs therefor shall be required for the payment for such repairs.

In-house equipment repairs. Purchases of parts for repairs to equipment, when such repairs are made by personnel of the agency or governing authority; however, entire assemblies, such as engines or transmissions, shall not be included in this exemption when the entire assembly is being replaced instead of being repaired.

Raw gravel or dirt. Raw unprocessed deposits of gravel or fill dirt which are to be removed and transported by the purchaser.

Governmental equipment auctions. Motor vehicles or other equipment purchased from a federal agency or authority, another governing authority or state agency of the State of Mississippi, or any governing authority or state agency of another state at a public auction held for the purpose of disposing of such vehicles or other equipment. Any purchase by a governing authority under the exemption authorized by this subparagraph (v) shall require advance authorization spread upon the minutes of the governing authority to include the listing of the item or items authorized to be purchased and the maximum bid authorized to be paid for each item or items.

Intergovernmental sales and transfers. Purchases, sales, transfers or trades by governing authorities or state agencies when such purchases, sales, transfers or trades are made by a private treaty agreement or through means of negotiation, from any federal agency or authority, another governing authority or state agency of the State of Mississippi, or any state agency or governing authority of another state. Nothing in this section shall permit such purchases through public auction except as provided for in subparagraph (v) of this paragraph (m). It is the intent of this section to allow governmental entities to dispose of and/or purchase commodities from other governmental entities at a price that is agreed to by both parties. This shall allow for purchases and/or sales at prices which may be determined to be below the market value if the selling entity determines that the sale at below market value is in the best interest of the taxpayers of the state. Governing authorities shall place the terms of the agreement and any justification on the minutes, and state agencies shall obtain approval from the Department of Finance and Administration, prior to releasing or taking possession of the commodities.

Perishable supplies or food. Perishable supplies or food purchased for use in connection with hospitals, the school lunch programs, homemaking programs and for the feeding of county or municipal prisoners.

Single source items. Noncompetitive items available from one (1) source only. In connection with the purchase of noncompetitive items only available from one (1) source, a certification of the conditions and circumstances requiring the purchase shall be filed by the agency with the Department of Finance and Administration and by the governing authority with the board of the governing authority. Upon receipt of that certification the Department of Finance and Administration or the board of the governing authority, as the case may be, may, in writing, authorize the purchase, which authority shall be noted on the minutes of the body at the next regular meeting thereafter. In those situations, a governing authority is not required to obtain the approval of the Department of Finance and Administration. Following the purchase, the executive head of the state agency, or his designees, shall file with the Department of Finance and Administration, documentation of the purchase, including a description of the commodity purchased, the purchase price thereof and the source from whom it was purchased.

Waste disposal facility construction contracts. Construction of incinerators and other facilities for disposal of solid wastes in which products either generated therein, such as steam, or recovered therefrom, such as materials for recycling, are to be sold or otherwise disposed of; however, in constructing such facilities, a governing authority or agency shall publicly issue requests for proposals, advertised for in the same manner as provided herein for seeking bids for public construction projects, concerning the design, construction, ownership, operation and/or maintenance of such facilities, wherein such requests for proposals when issued shall contain terms and conditions relating to price, financial responsibility, technology, environmental compatibility, legal responsibilities and such other matters as are determined by the governing authority or agency to be appropriate for inclusion; and after responses to the request for proposals have been duly received, the governing authority or agency may select the most qualified proposal or proposals on the basis of price, technology and other relevant factors and from such proposals, but not limited to the terms thereof, negotiate and enter contracts with one or more of the persons or firms submitting proposals.

Hospital group purchase contracts. Supplies, commodities and equipment purchased by hospitals through group purchase programs pursuant to Section 31-7-38.

Information technology products. Purchases of information technology products made by governing authorities under the provisions of purchase schedules, or contracts executed or approved by the Mississippi Department of Information Technology Services and designated for use by governing authorities.

Energy efficiency services and equipment. Energy efficiency services and equipment acquired by school districts, community and junior colleges, institutions of higher learning and state agencies or other applicable governmental entities on a shared-savings, lease or lease-purchase basis pursuant to Section 31-7-14.

Municipal electrical utility system fuel. Purchases of coal and/or natural gas by municipally owned electric power generating systems that have the capacity to use both coal and natural gas for the generation of electric power.

Library books and other reference materials. Purchases by libraries or for libraries of books and periodicals; processed film, videocassette tapes, filmstrips and slides; recorded audiotapes, cassettes and diskettes; and any such items as would be used for teaching, research or other information distribution; however, equipment such as projectors, recorders, audio or video equipment, and monitor televisions are not exempt under this subparagraph.

Unmarked vehicles. Purchases of unmarked vehicles when such purchases are made in accordance with purchasing regulations adopted by the Department of Finance and Administration pursuant to Section 31-7-9(2).

Election ballots. Purchases of ballots printed pursuant to Section 23-15-351.

Multichannel interactive video systems. From and after July 1, 1990, contracts by Mississippi Authority for Educational Television with any private educational institution or private nonprofit organization whose purposes are educational in regard to the construction, purchase, lease or lease-purchase of facilities and equipment and the employment of personnel for providing multichannel interactive video systems (ITSF) in the school districts of this state.

Purchases of prison industry products by the Department of Corrections, regional correctional facilities or privately owned prisons. Purchases made by the Mississippi Department of Corrections, regional correctional facilities or privately owned prisons involving any item that is manufactured, processed, grown or produced from the state’s prison industries.

Undercover operations equipment. Purchases of surveillance equipment or any other high-tech equipment to be used by law enforcement agents in undercover operations, provided that any such purchase shall be in compliance with regulations established by the Department of Finance and Administration.

Junior college books for rent. Purchases by community or junior colleges of textbooks which are obtained for the purpose of renting such books to students as part of a book service system.

Certain school district purchases. Purchases of commodities made by school districts from vendors with which any levying authority of the school district, as defined in Section 37-57-1, has contracted through competitive bidding procedures for purchases of the same commodities.

Garbage, solid waste and sewage contracts. Contracts for garbage collection or disposal, contracts for solid waste collection or disposal and contracts for sewage collection or disposal.

Municipal water tank maintenance contracts. Professional maintenance program contracts for the repair or maintenance of municipal water tanks, which provide professional services needed to maintain municipal water storage tanks for a fixed annual fee for a duration of two (2) or more years.

Purchases of Mississippi Industries for the Blind products. Purchases made by state agencies or governing authorities involving any item that is manufactured, processed or produced by the Mississippi Industries for the Blind.

Purchases of state-adopted textbooks. Purchases of state-adopted textbooks by public school districts.

Certain purchases under the Mississippi Major Economic Impact Act. Contracts entered into pursuant to the provisions of Section 57-75-9(2), (3) and (4).

Used heavy or specialized machinery or equipment for installation of soil and water conservation practices purchased at auction. Used heavy or specialized machinery or equipment used for the installation and implementation of soil and water conservation practices or measures purchased subject to the restrictions provided in Sections 69-27-331 through 69-27-341. Any purchase by the State Soil and Water Conservation Commission under the exemption authorized by this subparagraph shall require advance authorization spread upon the minutes of the commission to include the listing of the item or items authorized to be purchased and the maximum bid authorized to be paid for each item or items.

Hospital lease of equipment or services. Leases by hospitals of equipment or services if the leases are in compliance with paragraph (l)(ii).

Purchases made pursuant to qualified cooperative purchasing agreements. Purchases made by certified purchasing offices of state agencies or governing authorities under cooperative purchasing agreements previously approved by the Office of Purchasing and Travel and established by or for any municipality, county, parish or state government or the federal government, provided that the notification to potential contractors includes a clause that sets forth the availability of the cooperative purchasing agreement to other governmental entities. Such purchases shall only be made if the use of the cooperative purchasing agreements is determined to be in the best interest of the governmental entity.

School yearbooks. Purchases of school yearbooks by state agencies or governing authorities; provided, however, that state agencies and governing authorities shall use for these purchases the RFP process as set forth in the Mississippi Procurement Manual adopted by the Office of Purchasing and Travel.

Design-build method and dual-phase design-build method of contracting. Contracts entered into under the provisions of Section 31-7-13.1, 37-101-44 or 65-1-85.

Toll roads and bridge construction projects. Contracts entered into under the provisions of Section 65-43-1 or 65-43-3.

Certain purchases under Section 57-1-221. Contracts entered into pursuant to the provisions of Section 57-1-221.

Certain transfers made pursuant to the provisions of Section 57-105-1(7). Transfers of public property or facilities under Section 57-105-1(7) and construction related to such public property or facilities.

Certain purchases or transfers entered into with local electrical power associations. Contracts or agreements entered into under the provisions of Section 55-3-33.

Certain purchases by an academic medical center or health sciences school. Purchases by an academic medical center or health sciences school, as defined in Section 37-115-50, of commodities that are used for clinical purposes and 1. intended for use in the diagnosis of disease or other conditions or in the cure, mitigation, treatment or prevention of disease, and 2. medical devices, biological, drugs and radiation-emitting devices as defined by the United States Food and Drug Administration.

Certain purchases made under the Alyce G. Clarke Mississippi Lottery Law. Contracts made by the Mississippi Lottery Corporation pursuant to the Alyce G. Clarke Mississippi Lottery Law.

Term contract authorization. All contracts for the purchase of:

All contracts for the purchase of commodities, equipment and public construction (including, but not limited to, repair and maintenance), may be let for periods of not more than sixty (60) months in advance, subject to applicable statutory provisions prohibiting the letting of contracts during specified periods near the end of terms of office. Term contracts for a period exceeding twenty-four (24) months shall also be subject to ratification or cancellation by governing authority boards taking office subsequent to the governing authority board entering the contract.

Bid proposals and contracts may include price adjustment clauses with relation to the cost to the contractor based upon a nationally published industry-wide or nationally published and recognized cost index. The cost index used in a price adjustment clause shall be determined by the Department of Finance and Administration for the state agencies and by the governing board for governing authorities. The bid proposal and contract documents utilizing a price adjustment clause shall contain the basis and method of adjusting unit prices for the change in the cost of such commodities, equipment and public construction.

Purchase law violation prohibition and vendor penalty. No contract or purchase as herein authorized shall be made for the purpose of circumventing the provisions of this section requiring competitive bids, nor shall it be lawful for any person or concern to submit individual invoices for amounts within those authorized for a contract or purchase where the actual value of the contract or commodity purchased exceeds the authorized amount and the invoices therefor are split so as to appear to be authorized as purchases for which competitive bids are not required. Submission of such invoices shall constitute a misdemeanor punishable by a fine of not less than Five Hundred Dollars ($500.00) nor more than One Thousand Dollars ($1,000.00), or by imprisonment for thirty (30) days in the county jail, or both such fine and imprisonment. In addition, the claim or claims submitted shall be forfeited.

Electrical utility petroleum-based equipment purchase procedure. When in response to a proper advertisement therefor, no bid firm as to price is submitted to an electric utility for power transformers, distribution transformers, power breakers, reclosers or other articles containing a petroleum product, the electric utility may accept the lowest and best bid therefor although the price is not firm.

Fuel management system bidding procedure. Any governing authority or agency of the state shall, before contracting for the services and products of a fuel management or fuel access system, enter into negotiations with not fewer than two (2) sellers of fuel management or fuel access systems for competitive written bids to provide the services and products for the systems. In the event that the governing authority or agency cannot locate two (2) sellers of such systems or cannot obtain bids from two (2) sellers of such systems, it shall show proof that it made a diligent, good-faith effort to locate and negotiate with two (2) sellers of such systems. Such proof shall include, but not be limited to, publications of a request for proposals and letters soliciting negotiations and bids. For purposes of this paragraph (q), a fuel management or fuel access system is an automated system of acquiring fuel for vehicles as well as management reports detailing fuel use by vehicles and drivers, and the term “competitive written bid” shall have the meaning as defined in paragraph (b) of this section. Governing authorities and agencies shall be exempt from this process when contracting for the services and products of fuel management or fuel access systems under the terms of a state contract established by the Office of Purchasing and Travel.

Solid waste contract proposal procedure. Before entering into any contract for garbage collection or disposal, contract for solid waste collection or disposal or contract for sewage collection or disposal, which involves an expenditure of more than Fifty Thousand Dollars ($50,000.00), a governing authority or agency shall issue publicly a request for proposals concerning the specifications for such services which shall be advertised for in the same manner as provided in this section for seeking bids for purchases which involve an expenditure of more than the amount provided in paragraph (c) of this section. Any request for proposals when issued shall contain terms and conditions relating to price, financial responsibility, technology, legal responsibilities and other relevant factors as are determined by the governing authority or agency to be appropriate for inclusion; all factors determined relevant by the governing authority or agency or required by this paragraph (r) shall be duly included in the advertisement to elicit proposals. After responses to the request for proposals have been duly received, the governing authority or agency shall select the most qualified proposal or proposals on the basis of price, technology and other relevant factors and from such proposals, but not limited to the terms thereof, negotiate and enter into contracts with one or more of the persons or firms submitting proposals. If the governing authority or agency deems none of the proposals to be qualified or otherwise acceptable, the request for proposals process may be reinitiated. Notwithstanding any other provisions of this paragraph, where a county with at least thirty-five thousand (35,000) nor more than forty thousand (40,000) population, according to the 1990 federal decennial census, owns or operates a solid waste landfill, the governing authorities of any other county or municipality may contract with the governing authorities of the county owning or operating the landfill, pursuant to a resolution duly adopted and spread upon the minutes of each governing authority involved, for garbage or solid waste collection or disposal services through contract negotiations.

Minority set-aside authorization. Notwithstanding any provision of this section to the contrary, any agency or governing authority, by order placed on its minutes, may, in its discretion, set aside not more than twenty percent (20%) of its anticipated annual expenditures for the purchase of commodities from minority businesses; however, all such set-aside purchases shall comply with all purchasing regulations promulgated by the Department of Finance and Administration and shall be subject to bid requirements under this section. Set-aside purchases for which competitive bids are required shall be made from the lowest and best minority business bidder. For the purposes of this paragraph, the term “minority business” means a business which is owned by a majority of persons who are United States citizens or permanent resident aliens (as defined by the Immigration and Naturalization Service) of the United States, and who are Asian, Black, Hispanic or Native American, according to the following definitions:

“Asian” means persons having origins in any of the original people of the Far East, Southeast Asia, the Indian subcontinent, or the Pacific Islands.

“Black” means persons having origins in any black racial group of Africa.

“Hispanic” means persons of Spanish or Portuguese culture with origins in Mexico, South or Central America, or the Caribbean Islands, regardless of race.

“Native American” means persons having origins in any of the original people of North America, including American Indians, Eskimos and Aleuts.

Construction punch list restriction. The architect, engineer or other representative designated by the agency or governing authority that is contracting for public construction or renovation may prepare and submit to the contractor only one (1) preliminary punch list of items that do not meet the contract requirements at the time of substantial completion and one (1) final list immediately before final completion and final payment.

Procurement of construction services by state institutions of higher learning. Contracts for privately financed construction of auxiliary facilities on the campus of a state institution of higher learning may be awarded by the Board of Trustees of State Institutions of Higher Learning to the lowest and best bidder, where sealed bids are solicited, or to the offeror whose proposal is determined to represent the best value to the citizens of the State of Mississippi, where requests for proposals are solicited.

Insurability of bidders for public construction or other public contracts. In any solicitation for bids to perform public construction or other public contracts to which this section applies including, but not limited to, contracts for repair and maintenance, for which the contract will require insurance coverage in an amount of not less than One Million Dollars ($1,000,000.00), bidders shall be permitted to either submit proof of current insurance coverage in the specified amount or demonstrate ability to obtain the required coverage amount of insurance if the contract is awarded to the bidder. Proof of insurance coverage shall be submitted within five (5) business days from bid acceptance.

Purchase authorization clarification. Nothing in this section shall be construed as authorizing any purchase not authorized by law.

HISTORY: Codes, 1942, § 9024-08; Laws, 1962, ch. 497, § 8; Laws, 1980, ch. 440, § 6; Laws, 1981, ch. 306, § 2; Laws, 1982, ch. 449, § 1; Laws, 1983, ch. 330, § 3, ch. 341; Laws, 1984, ch. 363; Laws, 1984, ch. 480, § 3; Laws, 1984, ch. 488, § 158; Laws, 1985, ch. 493, § 6; Laws, 1986, ch. 398; Laws, 1986, ch. 489, § 14; Laws, 1988, ch. 351; Laws, 1988, ch. 589, § 23; Laws, 1988 Ex Sess, ch. 14, § 65; Laws, 1989, ch. 349, § 1; Laws, 1989, ch. 394, § 3; Laws, 1990, ch. 534, § 27; Laws, 1990, ch. 545, § 2; Laws, 1990, ch. 561, § 2; Laws, 1990, 1st Ex Sess, ch. 51, § 2; Laws, 1991, ch. 337, § 1; Laws, 1991, ch. 523, § 1; Laws, 1992, ch. 571 § 3; Laws, 1993, ch. 418, § 2; Laws, 1993, ch. 617, § 12; Laws, 1993, ch. 556, § 3; Laws, 1994, ch. 471, § 2; Laws, 1994 Ex Sess, ch. 26, § 22; Laws, 1996, ch. 495, § 1; Laws, 1997, ch. 593, § 1; Laws, 1998, ch. 574, § 6; Laws, 1999, ch. 407, § 1; Laws, 1999, ch. 459, § 1; Laws, 2000, ch. 428, § 3; Laws, 2000, ch. 593, § 9; Laws, 2000, 3rd Ex Sess, ch. 1, § 13; Laws, 2001, ch. 333, § 2; Laws, 2002, ch. 563, § 1; Laws, 2003, ch. 539, § 5; Laws, 2004, ch. 394, § 1; Laws, 2004, ch. 577, § 2; Laws, 2004, 3rd Ex Sess, ch. 1, § 190; Laws, 2005, ch. 504, § 5; Laws, 2006, ch. 446, § 1; Laws, 2007, ch. 423, § 1; Laws, 2007, ch. 424, § 2; Laws, 2007, ch. 494, § 7; Laws, 2007, ch. 582, § 22; Laws, 2008, ch. 417, § 1; Laws, 2008, ch. 469, § 1; brought forward without change, Laws, 2008, ch. 544, § 4; Laws, 2009, ch. 538, § 1; Laws, 2010, ch. 301, § 7; Laws, 2010, ch. 533, § 26; Laws, 2011, ch. 485, § 2; Laws, 2012, ch. 446, § 2; Laws, 2013, ch. 390, § 1; Laws, 2013, ch. 466, § 3; Laws, 2013, ch. 519, § 1; Laws, 2015, ch. 488, § 1; Laws, 2017, ch. 398, § 5; Laws, 2017, ch. 400, § 16; Laws, 2017, ch. 411, § 1, eff from and after Jan. 1, 2018; Laws, 2018, 1st Ex Sess, ch. 2, § 51, eff from and after September 1, 2018.

Joint Legislative Committee Note —

Section 1 of ch. 407, Laws of 1999, effective from and after July 1, 1999 (approved March 17, 1999), amended this section. Section 1 of ch. 459, Laws of 1999, effective July 1, 1999 (approved April 1, 1999), also amended this section. As set out above, this section reflects the language of Section 1 of ch. 459, Laws of 1999, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, and the effective dates of the amendments are the same, the amendment with the latest approval date shall supersede all other amendments to the same section approved on an earlier date.

Section 3 of ch. 428, Laws of 2000, effective from and after July 1, 2000, amended this section. Section 9 of ch. 593, Laws of 2000, effective from and after its passage (approved May 20, 2000), also amended this section. As set out above, this section reflects the language of both amendments pursuant to Section 1-1-109 which gives the Joint Legislative Committee on Compilation, Revision and Publication of Legislation authority to integrate amendments so that all versions of the same code section enacted within the same legislative session may become effective. The Joint Committee on Compilation, Revision and Publication of Legislation ratified the integration of these amendments as consistent with the Legislative intent at the June 29, 2000, meeting of the Committee.

Section 1 of ch. 394, Laws of 2004, effective from and after July 1, 2004 (approved April 20, 2004), amended this section. Section 2 of ch. 577, Laws of 2004, effective from and after July 1, 2004 (approved May 27, 2004), also amended this section. As set out above, this section reflects the language of Section 2 of ch. 577, Laws of 2004, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, and the effective dates of the amendments are the same, the amendment with the latest approval date shall supersede all other amendments to the same section approved on an earlier date.

Section 1 of ch. 423, Laws of 2007, effective from and after passage (approved March 20, 2007), amended this section. Section 2 of ch. 424, Laws of 2007, effective July 1, 2007 (approved March 20, 2007), also amended this section. Section 7 of ch. 494, Laws of 2007, effective July 1, 2007 (approved March 27, 2007), amended this section. Section 22 of ch. 582, Laws of 2007, effective July 18, 2007, the date it was effectuated under Section 5 of the Voting Rights Act of 1965, also amended this section. As set out above, this section reflects the language of Section 22 of ch. 582, Laws of 2007, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, and the effective dates of the amendments are the same, the amendment with the latest approval date shall supersede all other amendments to the same section approved on an earlier date.

Section 1 of ch. 417, Laws of 2008, effective from and after July 1, 2008 (approved April 2, 2008), amended this section. Section 1 of ch. 469, Laws, 2008, effective July 1, 2008 (approved April 14, 2008), also amended this section. Section 4 of ch. 544, Laws, 2008, effective upon passage (approved May 9, 2008), brought this section forward without change. As set out above, this section reflects the language of all amendments pursuant to Section 1-1-109 which gives the Joint Legislative Committee on Compilation, Revision and Publication of Legislation authority to integrate amendments so that all versions of the same code section enacted within the same legislative session may become effective. The Joint Committee on Compilation, Revision and Publication of Legislation ratified the integration of these amendments as consistent with the legislative intent at the August 5, 2008, meeting of the Committee.

Section 7 of ch. 301, Laws of 2010, effective upon passage (approved January 12, 2010), amended this section. Section 26 of ch. 533, Laws of 2010, effective upon passage (approved April 16, 2010), also amended this section. As set out above, this section reflects the language of Section 26 of ch. 533, Laws of 2010, which contains language that specifically provides that it superseded §31-7-13 as amended by Laws of 2010, ch. 301.

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected an error in a statutory reference in (d). Paragraph (iv), as added by Section 2 of Chapter 485, Laws of 2011, was redesignated paragraph (iii), and former (iii) was redesignated (iv). The Joint Committee ratified the correction at its July 13, 2011, meeting.

Section 1 of ch. 390, Laws of 2013, effective from and after July 1, 2013 (approved March 20, 2013), Section 3 of ch. 466, Laws of 2013, effective from and after July 1, 2013 (approved March 26, 2013), and Section 1 of ch. 519, Laws of 2013, effective from and after July 1, 2013 (approved April 23, 2013), amended this section. As set out above, this section reflects the language of Section 1 of ch. 519, Laws of 2013, which contains language that specifically provides that it supersedes §31-7-13 as amended by ch. 390 and ch. 466, Laws of 2013.

Section 5 of Chapter 398, Laws of 2017, effective from and after July 1, 2017 (approved March 28, 2017), amended this section. Section 16 of Chapter 400, Laws of 2017, effective from and after January 1, 2018, (approved March 29, 2017), and Section 1 of Chapter 411, Laws of 2017, effective from and after January 1, 2018 (approved April 6, 2017), also amended this section. As set out above, this section reflects the language of Section 1 of Chapter 411, Laws of 2017, which contains language that specifically provides that it supersedes §31-7-13 as amended by Chapters 398 and 400, Laws of 2017.

Editor’s Notes —

Section 7-7-2 provides that the words “State Auditor of Public Accounts,” “State Auditor” and “Auditor” appearing in the laws of this state in connection with the performance of Auditor’s functions shall mean the State Fiscal Officer.

Section 27-104-6 provides that wherever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration.”

Laws of 1989, ch. 349, § 2, provides as follows:

“SECTION 2. Any contract for the purchase of commodities other than equipment for a period of not more than twenty-four (24) months in advance, which was made before the effective date of this act (March 12, 1989) and which would have been legal under paragraph (n) of Section 31-7-13 if such contract had been made after the effective date of this act (March 12, 1989), is ratified, confirmed and validated”.

Laws of 1990, ch. 561, § 3, provides as follows:

“SECTION 3. Any contract for the purchase of commodities or equipment for a period of not more than twenty-four (24) months in advance, which was made before the effective date of this act and which would have been legal under paragraph (n) of Section 31-7-13 as amended by this act if such contract had been made after the effective date of this act, is ratified, confirmed and validated.”

Laws of 1990, 1st Extraordinary Session, ch. 51, § 3, effective June 30, 1990, provides as follows:

“SECTION 3. Any lease-purchase agreement by any agency entered into after April 4, 1990, and before the effective date of Senate Bill No. 2991, 1991 Regular Session [ Laws, 1991, ch. 424], which was approved in writing by the Department of Finance and Administration, shall be a valid and binding obligation of such agency, in accordance with the terms of such lease-purchase agreement, to the same extent as any lease-purchase agreement entered into pursuant to the provisions of Section 31-7-13(e) as amended by Chapter 51, First Extraordinary Session of 1990. Any lease-purchase agreement by any governing authority entered into after April 4, 1990, and before the effective date of Senate Bill No. 2991, 1991 Regular Session [ Laws, 1991, ch. 424], which is in compliance with Section 31-7-13(e), as amended by Chapter 51, First Extraordinary Session of 1990, shall be a valid and binding obligation of such governing authority, in accordance with the terms of such lease-purchase agreement, to the same extent as any lease-purchase agreement entered into pursuant to the provisions of Section 31-7-13(e) as amended by Chapter 51, First Extraordinary Session of 1990.” [Amended, Laws, 1991, ch. 424, § 2, eff from and after passage (approved March 20, 1991).].

Laws of 1996, ch. 495, § 3, provides as follows:

“SECTION 3. Any agency or governing authority that has received a bid or bids for a public construction or renovation project on or after January 1, 1996, may exercise the authority granted under subparagraph (d)(ii) of Section 31-7-13, Mississippi Code of 1972.”

Former subparagraph (xxv) of paragraph (m) relating to State Prison Emergency Construction and Management Board contracts or purchases was repealed by its own terms from and after July 1, 1997.

Laws of 1998, ch. 574, § 2 provides as follows:

“SECTION 2. It is the intent of the Legislature that citizens of the State of Mississippi who have physical or mental disabilities shall be afforded the opportunity to compete and participate in employment on an equal basis with persons who are not disabled, if the disabled persons are qualified and able to perform the essential functions of the employment positions that are held or sought.”

On July 18, 2007, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the amendment of this section by Laws of 2007, ch. 582, § 22.

Laws of 2017, ch. 398, § 6, provides:

“SECTION 6. The provisions of this act are severable. If any part is declared invalid or unconstitutional, that declaration shall not affect the part which remains.”

Amendment Notes —

The 2003 amendment made minor stylistic changes in (a); added the sentence beginning “‘Competitive’ shall mean” in (b); added (c)(v); deleted “for reasons beyond his control” in the second sentence of (f); in (j), inserted “governing board or the” preceding “executive head” and “or his designee” thereafter, and rewrote the third sentence; made minor stylistic changes in (m)(ii) and (m)(ix); rewrote the first sentence in (m)(v); inserted “or governing authority” in the first sentence of (m)(vi); added (m)(xxix); and substituted “the amount provided in paragraph (c) of this section” for “Ten Thousand Dollars ($10,000.00)” in the first sentence of (r).

The first 2004 amendment, ch. 394, inserted (d)(ii) and redesignated former (d)(ii) as present (d)(iii); and made a minor stylistic change.

The second 2004 amendment, ch. 577, added (m)(xxx).

The 2004 amendment (3rd Ex Sess, ch. 1) made a minor stylistic change at the end of (j); substituted “paragraph” for “subparagraph” in (m)(xxviii); and added (m)(xxxi).

The 2005 amendment added (c)(iv)2.

The 2006 amendment, in (c)(i), designated the former first sentence as 1., deleted “sealed” following “advertising for competitive” in 1., added 2., and designated the former third and subsequent sentences as 3.

The first 2007 amendment (ch. 423) substituted “$5,000” for “$3,500,” “Five Thousand Dollars” for “Three Thousand Five Hundred Dollars,” “$25,000” for “$15,000,” and “Twenty-five Thousand Dollars” for “Fifteen Thousand Dollars” throughout (a) through (c); and inserted “under” in (m)(xxxi).

The second 2007 amendment (ch. 424) added (u) and redesignated former (u) as present (v).

The third 2007 amendment (ch. 494), in (m)(xxxi), substituted “and dual-phase design-build method” for “or the design-build bridging method”, inserted “under,” and substituted “Section 31-7-13.1, 37-101-44 or 65-1-85” for “Section 31-11-3(9)”; and added (u) and redesignated former (u) as present (v).

The fourth 2007 amendment (ch. 582) substituted “Mississippi Procurement Technical Assistance Program under the Mississippi Development Authority” for “Mississippi Contract Procurement Center” in (c)(i)(3); substituted present (m)(xxxi) for former (m)(xxxi), which read: “Design-build method or the design-build bridging method of contracting. Contracts entered into the provisions of Section 31-11-3(9)”; and added (m)(xxxii).

The first 2008 amendment (ch. 417), deleted the former last sentence of (j), which read: “On or before September 1 of each year, the State Auditor shall prepare and deliver to the Senate Fees, Salaries and Administration Committee, the House Fees and Salaries of Public Officers Committee and the Joint Legislative Budget Committee a report containing a list of all state agency emergency purchases and supporting documentation for each emergency purchase.”

The second 2008 amendment (ch. 469), extended the date of the repealer for (c)(i)(2) by substituting “July 1, 2011” for “July 1, 2008.”

The third 2008 amendment (ch. 544), brought the section forward without change.

The 2009 amendment, in (b), substituted “$50,000.00” for “$25,000.00” in the paragraph heading, substituted “Fifty Thousand Dollars ($50,000.00)” for “Twenty-five Thousand Dollars ($25,000.00)” in the first sentence, and added the second, eighth and ninth sentences; in (c), substituted “($50,000.00)” for “($25,000.00)” in the paragraph heading, in (i)1., substituted “Fifty Thousand Dollars ($50,000.00)” for “Twenty-five Thousand Dollars ($25,000.00)” in the first sentence and added the last sentence, substituted “item 2 of subparagraph (i)” for “part 2 of subparagraph (i)” in (i)2., and in (i)3., substituted “Fifty Thousand Dollars ($50,000.00)” for “Twenty-five Thousand Dollars ($25,000.00)” in the first sentence, and added the seven sentences; deleted “a” preceding “fuel management” in the last sentence of (q); added (v); and redesignated former (v) as present (w).

The first 2010 amendment (ch. 301) added “and (4)” to the end of (m)(xxvi); and inserted “into” preceding “contracts with one or more of the persons or firms submitting proposals” at the end of the second sentence of (r).

The second 2010 amendment (ch. 533) added the last sentence in (c)(i)1.; and added (m)(xxxiii).

The 2011 amendment, in (c)(i)2, added the last sentence and deleted the former last sentence, which had contained a repealer for (c)(i)2; and added (d)(iii) and redesignated former (d)(iii) as (d)(iv).

The 2012 amendment added (m)(xxxiv).

The first 2013 amendment (ch. 390) inserted “including, but not limited to, a bidder having a local office and inventory located within the jurisdiction of the governing authority” in the second sentence of (d)(ii).

The second 2013 amendment (ch. 466) added (m)(xxxv).

The third 2013 amendment (ch. 519) rewrote (m)(xviii), which read “Purchase of prison industry products. From and after January 1, 1991, purchases made by state agencies or governing authorities involving any item that is manufactured, processed, grown or produced from the state’s prison industries.”

The 2015 amendment, in (j), deleted “the provisions herein for competitive bidding shall not apply and the head of such agency shall be authorized to make the purchase or repair. Total purchases so made shall only be for the purpose of meeting needs created by the emergency situation. In the event such executive head is responsible to an agency board, at the meeting next 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 presented to the board and placed on the minutes of the board of such agency” preceding “the head of such agency, or his designees, shall”, and deleted “at the earliest possible date following such emergency purchase” thereafter, inserted “requesting the emergency purchase” near the end of the first sentence, added the last sentence, and added two more paragraphs; and added the last sentence of (m)(viii).

The first 2017 amendment (ch. 398), effective July 1, 2017, substituted “subparagraph (i) of this paragraph (d)” for “paragraph (d)(i)” in (d)(ii) and (iii); substituted “subparagraph (v) of this paragraph (m)” for “subparagraph (v) of this section” at the end of (m)(vi); and added (m)(xxxvi).

The second 2017 amendment (ch. 400), effective January 1, 2018, in (c)(i)2, added the first three sentences, added “If the Public Procurement Review Board …;method other than reverse auction, then” at the beginning of the fourth sentence, and therein, substituted “designate the other methods” for “designate the methods,” deleted “bids received via a reverse auction” following “received electronically in a secure system,” and added the last two sentences; added “Electronic bids” at the beginning of (c)(v); substituted “subparagraph (i) of this paragraph (d)” for “paragraph (d)(i)” near the beginning of (d)(ii) and (iii); added the last sentence of the last paragraph of (j); and substituted “subparagraph (v) of this paragraph (m)” for “subparagraph (v) of this section” at the end of the second sentence of (m)(vi).

The third 2017 amendment (ch. 411), effective January 1, 2018, in (c)(i)2, added the first three sentences, added “If the Public Procurement Review Board UNHANDLEDCHAR ;method other than reverse auction, then” at the beginning of the fourth sentence, and therein, substituted “designate the other methods” for “designate the methods,” deleted “bids received via a reverse auction” following “received electronically in a secure system,” and added the last two sentences; rewrote (c)(v), which read: “Agencies and governing authorities may establish secure procedures by which bids may be submitted via electronic means”; substituted “subparagraph (i) of this paragraph (d)” for “paragraph (d)(i)” near the beginning of (d)(ii) and (iii); added the last sentence of the last paragraph of (j); and in (m), substituted “subparagraph (v) of this paragraph (m)” for “subparagraph (v) of this section” at the end of the second paragraph of (vi), and added (xxxvi).

The 2018 1st Extraordinary Session amendment, effective September 1, 2018, added (m)(xxxvii).

Cross References —

Purchase of computer or information technology equipment by department of information technology services, see §§25-53-5 and25-53-21.

State contract price for public purchases, see §31-7-12.

Qualifications based selection procedures as outlined in §31-7-13.2(10) or competitive sealed procedures as outlined in this section to be used when procuring construction management services, see §31-7-13.2.

Public contracts for energy efficiency services, see §31-7-14.

Exemption from the provision of this section of purchases by hospitals participating in group purchasing program, see §31-7-38.

Penalties for violating the provisions of this chapter, see §31-7-55.

Procedure on bids, see §31-7-105.

Provision that an audit upon the close of the fiscal year of a county shall review the county’s compliance with certain requirements of this section, inter alia, see §31-7-115.

Prohibition of boards of supervisors from purchasing items or services for their county, except as provided in this section, see §31-7-119.

Purchase and use of relocatable classrooms, see §37-1-13.

Purchase by school districts participating in group purchasing programs for procuring services, commodities, supplies and equipment provided under School Lunch and Child Nutrition programs, as subject to public bid requirements prescribed by this section, see §37-11-7.

Mississippi Authority for Educational Television generally, see §§37-63-1 et seq.

Provisions governing prison industries, see §§47-5-531 through47-5-575.

Duty of prison auditor with respect to bids, purchases, and sales, see §47-5-35.

Application of definition of “minority” in Mississippi Small Business Assistance Act, see §57-10-513.

Bidding and contracting procedures under Mississippi Superconducting Super Collider Act, see §57-67-37.

Alternative bidding and contracting procedures under Mississippi Major Economic Impact Act, see §57-75-21.

Amount of a bond by a successful bidder for a contract for the purchase of equipment by or on behalf of the Mississippi Transportation Commission, see §65-1-85.

Contracts entered into by governmental entity under §65-43-3 exempt from provisions of this section, see §65-43-3.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

Alyce G. Clarke Mississippi Lottery Law, see §27-115-1 et seq.

Federal Aspects—

Class Life Asset Depreciation Range System, see note regarding former § 167(m) under 26 USCS § 167.

American Recovery and Reinvestment Act, see Public Law 111-5, 123 Stat. 115.

OPINIONS OF THE ATTORNEY GENERAL

Regardless of format, copyright library materials intended for circulation, including books, periodicals, maps, microforms, films, filmstrips, video tapes, audio tapes, records, and compact discs, are exempt from bid requirements. 1990 Miss. Op. Att'y Gen. 55.

If City of Tupelo requests and receives letter from State Auditor’s Department documenting Neilsen/Data Quest price on certain piece of equipment, City may then purchase such equipment from adjacent state agency if state agency price does not exceed Neilsen/Data Quest price; if piece of equipment is not listed, then city may purchase by negotiation. 1990 Miss. Op. Att'y Gen. 177.

Pearl River Valley Water Supply District is, in specific and limited context of state purchasing laws, governing authority, and as such may exercise discretionary authority afforded other governing authorities with respect to purchase of liability insurance. 1992 Miss. Op. Att'y Gen. 716.

Fact that port commission failed to take official action on emergency repair resolution “at the board meeting next” within subsection (k) of this section is not fatal to contract but is, at worst, harmless error; therefore, emergency repair bill may be lawfully considered for payment, provided all other requisites of subsection (k) of this section were, consistent with fact, adjudicated and spread on port commission minutes at either of commission’s next two meetings. 1993 Miss. Op. Att'y Gen. 1008.

Any purchase of materials by school board would have to be made in accordance with this section which provides that only expenditures of less than $5,000 may be made without advertising for bids; if school board elects to make multiple purchases connected to single project, it must exercise care not to split invoices or otherwise act so as to circumvent preceding provisions. 1993 Miss. Op. Att'y Gen. 27.

Lease-purchase of equipment by counties is governed by subsection (e) of this section which does not address refinancing arrangement; however, nothing in this statute appears to prohibit refinancing if in fact county can do so at more favorable terms, taking into consideration costs of refinancing, if any; if county desires to consider such, it will be bound by same provisions and limitations enumerated by subsection (e) of this section that apply to initial financing, including requirement that county obtain at least two written competitive bids. 1993 Miss. Op. Att'y Gen. 189.

Subsection (m)(viii) of this section exempts from bid requirements items available from only one source; therefore, Central Data Processing Authority is authorized to approve sole-source acquisitions of data processing equipment; accordingly, upon finding that operating system upgrade for Public Employees’ Retirement System is available from one source only, acquisition is exempt from competitive bidding requirements. 1993 Miss. Op. Att'y Gen. 366.

Board of supervisors could utilize properly bid and awarded term contract with vendor to provide asphalt, labor and equipment to overlay county roads where all preparatory work was to be performed by county employees with county equipment, and vendor was to merely deliver and install asphalt. 1993 Miss. Op. Att'y Gen. 468.

Board of supervisors may execute change order and pay contractor for any additional work performed pursuant to previously approved change order but when there has been no official action approving in advance additional work by contractor, board of supervisors is without authority to make payment for that additional work. 1993 Miss. Op. Att'y Gen. 458.

Statute does not contemplate or permit use of change orders to complete second phase of public construction project where contract and specifications were limited to first phase of construction and it was known during bidding of contract that substantial additional construction not provided for was contemplated at later time; second phase of renovation of hospital was not necessary or incidental to completion of first phase of construction and must be treated as new undertaking outside scope of contract and therefore hospital board had to solicit competitive bids in order to complete second phase of planned renovations. 1993 Miss. Op. Att'y Gen. 502.

Whether or not emergency situation exists such as to warrant raising this section exemption from bids is factual determination that must be made by municipal governing board, not attorney general. 1993 Miss. Op. Att'y Gen. 584.

Governing boards of counties and cities are not required to open bids during official meeting of board; governing boards in their discretion may direct that bids be received and opened on date and at time and place specified by board in request for bids by designated agent of board, such as clerk, deputy clerk or purchasing agent; such agent would, of course, only be authorized to open and announce bids in open, public proceeding where bidders, their representatives and general public could be present, could then be arranged, recorded and tabulated and then presented to governing boards at later official meeting for acceptance or rejection. 1993 Miss. Op. Att'y Gen. 781.

If proposed contract is to survey and reappraise plan proposed by county, Section 27-35-101 expressly requires competitive bidding but if contract is strictly to provide a professional service to county, it does not require competitive bidding under this section. Gex, Jan. 5, 1994, A.G.Op #93-0970.

There is no statutory or precedential prohibition that would preclude convicted felon from bidding on public contracts. 1994 Miss. Op. Att'y Gen. 38.

Although subsection (n)(ii) of this section provides for purchases to be made pursuant to purchase order from vendor for commodities by board of supervisors, there is no statutory authority within provisions of public purchases law for board of supervisors to expend public funds for membership fees and administrative fees for the privilege of purchasing from an individual vendor. 1994 Miss. Op. Att'y Gen. 914.

Governing authorities have obligation to carefully scrutinize each bid for not only amount of bid, but quality of bid and insolvency or delinquency of taxpayer vendor is factor to consider. 1994 Miss. Op. Att'y Gen. 964.

Subsection (m) of this section would permit a regional airport authority to transfer surplus equipment to the county without the necessity of competitive bids and upon such terms and conditions the authority deems appropriate so long as the authority receives fair market value therefor. 1995 Miss. Op. Att'y Gen. 112.

The awarding of a contract for services only does not necessitate competitive bidding under this section. 1995 Miss. Op. Att'y Gen. 175.

The provisions of Section 19-11-27 shall not apply to a contract, lease or lease-purchase contract entered into pursuant to this section. 1995 Miss. Op. Att'y Gen. 256.

Expenditure of gaming funds for road and bridge construction is subject to the limitation of Section 19-11-27 that the board, during the last three months of the last year of their term, shall not expend or authorize the expenditure of more than 25% of that item of the budget, except contracts, leases or lease-purchase agreements entered into pursuant to this section. 1995 Miss. Op. Att'y Gen. 256.

A governmental entity may exercise an option to renew a contract, entered into pursuant to subsection (n)(i) of this section and for a period of less than twenty-four months, for the time remaining in the twenty-four month period without rebidding the contract. 1995 Miss. Op. Att'y Gen. 290.

Pursuant to subsection (c) of this section, the county may not advertise and accept bids without proper authorization by the board of supervisors. Before any advertisement for bids is made, the board must adopt a resolution stating its intention to make a purchase, stating the specifications for the purchase and authorizing the bids. 1995 Miss. Op. Att'y Gen. 488.

Subsection (c) of this section, which requires advertisement for competitive sealed bids for certain purchases, makes no signature requirement. 1995 Miss. Op. Att'y Gen. 667.

If the one bid offered was for an automobile with a smaller engine than that specified for in the publication, then that bid cannot be accepted by the Town pursuant to subsection (d) of this section because other potential bidders were not put on notice that they might also submit bids for an automobile with a smaller engine. 1996 Miss. Op. Att'y Gen. 19.

Where a change is made by a governing authority in the plans and specifications of a proposed purchase, that any time after advertisement for bids and prior to acceptance, the procedure set out in this section must start anew. 1996 Miss. Op. Att'y Gen. 19.

There is no prohibition found in this section for constructing a proposed conference/convention center building in two phases to be spread over two or three years in the future, so long as it is commercially and fiscally reasonable. 1996 Miss. Op. Att'y Gen. 849.

Since there is no statute similar to Section 21-39-3 on county publishing contracts, the county may negotiate for such contracts, or may bid them out using this section and/or Section 19-3-35 as a guideline. 1996 Miss. Op. Att'y Gen. 135.

Where the bid specifications are stated in the advertisement itself and not referred to as on file with the clerk, a change in the specifications would require the procedure set out in this section to start anew, but, where the specifications are merely referred to in the advertisement as on file with the clerk, and where the right is reserved in the advertisement to amend the specifications upon reasonable notice to all who have examined or requested copies of those specifications from the clerk, readvertisement for bids following an amendment to the specifications would not be required. 1996 Miss. Op. Att'y Gen. 168.

Based on this section, the prices of individual items to be purchased by a city for landscape purposes are not controlling in determining the proper purchasing/bidding procedure. 1996 Miss. Op. Att'y Gen. 330.

Pursuant to subsection (m)(v) of this section, the governing authority may authorize in general terms the item or items that are to be purchased and the maximum bid authorized, and leave flexibility with the persons attending the public auction as to which particular item should be purchased for the governing authority. 1996 Miss. Op. Att'y Gen. 422.

The change order procedure under subsection (g) of this section cannot be utilized to amend contracts for the purchase of classroom furniture such as desks and chairs. 1996 Miss. Op. Att'y Gen. 569.

If proposed contractual changes are within the scope of the construction contract, then the procedure authorized by subsection (g) of this section could be utilized. However, if the contract is a separate one for the purchase of commodities as defined by Section 31-7-1(e), then the change order procedure could not be used. 1996 Miss. Op. Att'y Gen. 569.

The procedure for requesting proposals set out in subsection (t) of this section applies only to contracts with private waste disposal firms and does not apply to contracts between public agencies and solid waste management authorities, which are governed by Section 17-17-321. 1996 Miss. Op. Att'y Gen. 607.

Pursuant to this section a city may negotiate and sell surplus vehicles to the school district; however, the city must obtain fair market value for the vehicles. The vehicles may not be donated. 1996 Miss. Op. Att'y Gen. 572.

There is no legal authority, statutory or otherwise, for public school districts to delegate the duties set out in this section, concerning advertising and accepting bids for public purchases to a private nonprofit corporation. 1996 Miss. Op. Att'y Gen. 559.

Under the plain language of Section 31-7-38, if the University of Mississippi Medical Center does organize or participate in a group purchase program with other hospitals, then its purchases of supplies, commodities and equipment made through such program would be exempt from the provisions of Section 31-7-12 and this section. 1996 Miss. Op. Att'y Gen. 692.

Based on Sections 31-27-3, 31-27-5, 31-27-11, 31-27-13, 31-27-17 and the intent and policy of the Refinancing Act as announced by the Legislature, the certificates evidencing the debt of the District on the building constructed under the Lease-Purchase Act are bonds within the meaning of the statute and may be refunded by the issuance of general obligation refunding bonds. 1996 Miss. Op. Att'y Gen. 707.

As provided by Section 31-7-38, University Medical Center purchases of supplies, commodities and equipment made through a group purchasing program would be exempt from this section requirements, including competitive bidding. 1996 Miss. Op. Att'y Gen. 755.

Based on subsection (n)(ii) of this section and §31-7-109, there is no requirement that a separate receiving report be prepared for each and every delivery, load or shipment of gravel or other similar commodity received. Instead, statutory requirements are satisfied where a signed load ticket or receipt is issued evidencing each delivery, load or shipment received at and on the various delivery points and dates throughout each month. All of these signed tickets or receipts, in turn, are then attached to the receiving report covering the applicable period–a day, a week or any other reasonable time period not exceeding one month. 1996 Miss. Op. Att'y Gen. 768.

If a contract for solid waste collection will exceed $50,000.00, the provisions of subsection (t) of this section must be followed. 1996 Miss. Op. Att'y Gen. 816.

Amounts allocated for a public construction or renovation project include architectural fees or other costs if those fees and costs are included in the notice to receive written sealed proposals that are directed to bidders. 1997 Miss. Op. Att'y Gen. 277.

In negotiating with the lowest bidder to enter a public contract within allocated funds, subsection (d)(ii) of this section only allows the lowest bidder to reduce its bid to come within the amount of funds allocated and does not authorize an agency or governing authority to make reductions to plans or specifications. 1997 Miss. Op. Att'y Gen. 277.

Subject to review by a court of competent jurisdiction, a municipality has the authority to forgo advertising and bidding requirements and enter into an emergency repair contract upon a finding by the governing authority that an appropriate emergency exists, but the municipality may not forgive monthly rentals due under a lease to pay for such repairs. 1997 Miss. Op. Att'y Gen. 395.

Although a construction or architectural firm may not be paid twice for the same services, government entities may contract with a firm that is providing architectural services to also provide construction management services without advertising for bids either by entering into an additional contract or by amending the existing contract. 1997 Miss. Op. Att'y Gen. 471.

Giving the word “negotiate” its common and ordinary acceptation and meaning, subsection (d)(ii) of this section must be interpreted to allow the governing authority, in negotiating with the lowest bidder to enter a public contract within allocated funds, to make alterations to the plans and specifications for the construction project, as well as the price (modifying opinion to Webb dated May 23, 1997). 1997 Miss. Op. Att'y Gen. 577.

A governing body may, without the necessity of competitive bids, and upon such terms and conditions as the governing authority deems appropriate, sell and transfer property to other governing authorities at prices below market value if the selling governing authority finds as a matter of fact, and encompasses such finding upon its minutes, that the sale at below market value is in the best interest of the taxpayers of the state. 1997 Miss. Op. Att'y Gen. 770.

A county may enter into a contract with a computer company to develop a computer program and may sell its rights to such a program, but a county cannot develop a computer program solely for the purpose of sale for a profit; such a contract is permissible only as an incident to development of a product with a legitimate county or governmental purpose. 1998 Miss. Op. Att'y Gen. 787.

The only minority set-aside permitted in Mississippi is that which is found in statutory provision requiring that 20% of anticipated annual expenditures by agencies and governing authorities be set aside for purchase of commodities from minority businesses and that set-aside purchases be made from the lowest and best minority business bidder. 1998 Miss. Op. Att'y Gen. 838.

Funds collected, managed, and expended by the Chancery Clerk in connection with a preliminary engineering and environmental assessment phase of a thoroughfare project will be subject to the statute. 1998 Miss. Op. Att'y Gen. 195.

Where a private group donates funds collected to pay for a monument to the city, the city may not then use the funds donated to have the monument constructed. 1998 Miss. Op. Att'y Gen. 308.

Pursuant to Section 25-53-5(o), the Mississippi Department of Information Technology Services could utilize the State Contract Price list to acquire equipment, systems, and related services when applicable; however, this would not raise the advertisement for bids threshold to $10,000.00 as provided in the amendment to this section contained in Senate Bill 2193. 1998 Miss. Op. Att'y Gen. 288.

The general purchasing statute, this section, applies to purchases by the Department of Finance and Administration and thus, arguably, to Mississippi Department of Information Technology Services (ITS) under Section 25-53-5(o), but this general statute must yield to the specific requirements of 25-53-5(n), which sets out the threshold for advertising for bids by ITS. 1998 Miss. Op. Att'y Gen. 288.

Where a county solicits proposals for disposal of waste, but does not include a request for a proposal that would also include hauling or transportation of the waste, in order to let a contract for collection or transportation of waste, the county would have to solicit proposals first in accordance with the statute. 1998 Miss. Op. Att'y Gen. 310.

If the expenditure for the collection of trash will exceed $50,000.00, the bidding requirements set forth in subsection (t) must be followed. 1998 Miss. Op. Att'y Gen. 510.

The occasional rental of heavy equipment by a city does not come within the categories of contract or expenditure listed in the statute and, therefore, so long as the rental equipment is not used in the construction or installation of new facilities, and so does not constitute part of a construction contract, bidding is not required; the equipment use remains in the nature of a service contract which does not come within the restrictions of the statute. 1998 Miss. Op. Att'y Gen. 705.

Where the lowest and best bid received is more than ten percent (10%) above the amount of funds allocated, subsection (d)(ii) does not permit a school district to negotiate with such low bidder in order to enter into a contract. 1998 Miss. Op. Att'y Gen. 764.

Where a school board already allocated a sum certain for a building and elected to solicit bids for the building, but did not include all buildings in one bid solicitation, the board could not later add allocations for other unbid construction to its budget allocation and consider the bid already received as within the limits permitted by subsection (d)(ii). 1998 Miss. Op. Att'y Gen. 764.

A county purchase clerk may purchase equipment or supplies that are less than $1,500.00 at an equipment/supply auction subject to the subsequent approval of the claim by the board of supervisors. 1999 Miss. Op. Att'y Gen. 784.

A “bid” should be a firm offer to sell for a certain price, and a bid that is made “subject to availability” does not constitute a competitive written bid as required by this section. 1999 Miss. Op. Att'y Gen. 784.

There is no limitation in this section or in case law that sets any absolute numerical or percentage limitation on the amount by which a contract may be increased by change order; the only standard is reasonableness under the circumstances. 1999 Miss. Op. Att'y Gen. 47.

A correctional facility authority board may sell property to the Department of Corrections for less than fair market value as long as it makes the required determination that such would be in the best interest of the taxpayers of the state and gains approval from Department of Finance and Administration; however, it may not make an outright donation of the property (modified by opinion to Bryant dated June 9, 1999). 1999 Miss. Op. Att'y Gen. 108.

A municipal contract for the professional services of a tree surgeon is not subject to this section. 1999 Miss. Op. Att'y Gen. 185.

Section 31-7-1 and this section do not control in the purchase of personal property as part of the acquisition of an existing physical therapy and rehabilitation center. 1999 Miss. Op. Att'y Gen. 215.

A community hospital is authorized to purchase all tangible assets of a physical therapy and rehabilitation practice for no more than fair market value, without regard to this section and the general bid procedures set out therein; however, if real property is to be purchased as a part of this transaction, such purchase must be ratified by the governing authorities constituting the owner or owners of the hospital; further, no consideration may be paid for intangible assets of the practice. 1999 Miss. Op. Att'y Gen. 215.

There is no statutory requirement that a bid to supply commodities to a county must be dated. 1999 Miss. Op. Att'y Gen. 413.

A city cannot purchase personal property at public auction. 1999 Miss. Op. Att'y Gen. 600.

If a purchase of motor vehicles or other equipment from a federal or state agency or another governing authority at a public auction falls within the parameters of Section 31-7-13(m)(v), the governing authorities may make the purchase. 1999 Miss. Op. Att'y Gen. 600.

Section 61-3-15(c) cannot override the provisions of Section 31-7-13(g) regarding the ability to enter into change orders without board approval. 1999 Miss. Op. Att'y Gen. 647.

A county board of supervisors was required to advertise for the additional services of cleaning around garbage receptacles and hauling off excess garbage since the services would likely involve an expenditure of more than $50,000. 2000 Miss. Op. Att'y Gen. 1.

Where the board had developed and documented justification in accordance with the statute for requiring a single make and model of pump, the board could issue specifications limiting bidding to only that single make and model of pump. 2000 Miss. Op. Att'y Gen. 199.

A town may not enter into separate contracts in increments that will not exceed $10,000 for the purpose of circumventing the bid requirements of the statute. 2000 Miss. Op. Att'y Gen. 223.

The governing authorities of a city were required to advertise pursuant to subsection (t) for the additional service of providing customers with rolling containers, since this service would likely involve an expenditure of more than $50,000.00. 2000 Miss. Op. Att'y Gen. 320.

The statute should be read as requiring only two working days rather than 48 working hours with regard to issuance of addenda to bid specifications. 2000 Miss. Op. Att'y Gen. 390.

A contract with a city under which a company would provide the manpower, equipment, and expertise necessary to efficiently recover from a hurricane or other disaster was subject to requirements for advertising and taking bids since only contracts that are made during the time of an emergency are exempt from state laws governing construction, solid waste contracts and purchasing. 2000 Miss. Op. Att'y Gen. 579.

A municipality must comply with the statute if the municipality extends a water system or makes capital improvements to the system. 2000 Miss. Op. Att'y Gen. 673.

A county was required to readvertise for proposals in order to amend a solid waste collection and disposal contract to allow the county to utilize the county’s credit in order to obtain a more favorable lease-purchase price for garbage carts that would be used by customers. 2001 Miss. Op. Att'y Gen. 72.

Governing authorities may not accept a bid submitted after the time established for the receipt of bids in the notice, and the governing authorities must make the factual determination as to the actual time that bids are received for a contract for public construction or purchases of equipment. 2001 Miss. Op. Att'y Gen. 149.

A contract between Mississippi Department of Corrections and a private medical provider for healthcare services at a private prison is not subject to the state’s public bid law. 2001 Miss. Op. Att'y Gen. 652.

A contract allowing for the placement of a vending machine on the premises of a school under the management of the county school board does not fall within the purchases and/or rentals covered by the statute. 2001 Miss. Op. Att'y Gen. 670.

Provided the county board of supervisors has declared an emergency, construction at a regional correctional facility to repair tornado and windstorm damage falls into the category of a repair contract, which does not require bids in emergency situations. 2001 Miss. Op. Att'y Gen. 744.

A contract between a municipality and a company to manage the city waste water treatment plant, to maintain and repair water and sewer lines, pumps, wells, etc., to read meters and to assist the water department with customer relations falls within the ambit of subsection (r), even if the municipality owns the waste water treatment plant and all of the infrastructure. 2002 Miss. Op. Att'y Gen. 147.

Motor vehicles and equipment purchased at public auction by those entities which come under the public purchasing laws must be offered by a state agency or governing authority of the state of Mississippi. 2002 Miss. Op. Att'y Gen. 169.

The Port Authority does not have to require a certificate of responsibility for demolition contractors to bid on public projects; however, in its discretion, it may require contractors to have a certificate of responsibility prior to bidding on such projects. 2002 Miss. Op. Att'y Gen. 207.

A board of supervisors may establish a policy requiring bidding where state law does not require bidding but cannot establish a purchasing policy that supercedes state law. 2002 Miss. Op. Att'y Gen. 452.

A county office must obtain a purchase order through the centralized purchasing system of the county or a contract for the purchase as authorized by the board of supervisors; moreover, the board ultimately approve the purchase through the claims docket and/or by recital of the contract in their minutes. 2002 Miss. Op. Att'y Gen. 452.

Purchases of commodities under $3,500.00 may be made without competitive bid pursuant to §31-7-13(a); however, contracts for services require prior approval of the board of supervisors regardless of amount. 2002 Miss. Op. Att'y Gen. 452.

County would have to re-advertise for proposals in order to implement amendments to existing contract terms for waste disposal and collection exceeding $50,000.00. 2002 Miss. Op. Att'y Gen. 515.

Governing authorities of a municipality must comply with the procedures in Section 31-7-13(r) to enter into a contract for operation, management and maintenance of the city’s combined water and sewer system, as such a contract includes services of sewage collection. 2002 Miss. Op. Att'y Gen. 670.

City may not renew an existing contract for sewage collection or disposal of more than $ 50,000.00 but must follow the procedures set forth in Section 31-7-13(r) and request proposals. 2002 Miss. Op. Att'y Gen. 670.

An ordinance which prohibits potential contractors from the bidding process would be inconsistent with Section 31-7-13, which sets forth specific requirements for advertising and soliciting bids. 2002 Miss. Op. Att'y Gen. 119.

A school district may transfer used school buses for less than fair market value upon a proper finding by the governing body of the selling entity that such a transfer would be in the best interests of the taxpayers. 2002 Miss. Op. Att'y Gen. 719.

Section 31-7-14 does not include the procedure for contracting for water conservation systems and services, thus, a city was required to make two separate contracts, one under that section for the purchase and installation of energy efficiency equipment and systems, and one under this section for the purchase and installation of water conservation systems. 2002 Miss. Op. Att'y Gen. 708.

The Mississippi Industries for the Blind may sell products to state agencies that are manufactured, processed and produced by it in house, and these transactions are exempt from purchase law requirements set forth in Section 31-7-13. 2003 Miss. Op. Att'y Gen. 157.

The adoption of rules by the Department of Information Technology Services governing exemptions of certain purchases of products or services from governmental entities is within the statutory authority and discretion granted to ITS by the Legislature. 2003 Miss. Op. Att'y Gen. 203.

The sealed bid requirement of this section cannot be waived. 2003 Miss. Op. Att'y Gen. 411.

The failure to place the proper bid reference number on a bid appears to be a minor informality that can be waived, but it remains a question of fact. 2003 Miss. Op. Att'y Gen. 411.

If a school must disregard the low bidder whose bid did not comply in all respects with the bid proposal, the school may accept the next lowest bid or may reject and rebid the matter. 2003 Miss. Op. Att'y Gen. 411.

A domestic corporation must be duly incorporated and in good standing with the Secretary of State’s office. Further, Section 79-4-15.01 requires a foreign corporation to obtain a certificate of authority prior to transacting business in this state. Likewise, a dissolved corporation may not transact business in this state and is not subject to a bid award. 2003 Miss. Op. Att'y Gen. 411.

The Board of Trustees of State Institutions of Higher Learning and the universities under its management and control may hire or contract with a construction manager to perform services without the necessity of advertising for bids. 2003 Miss. Op. Att'y Gen. 562.

Where a performance bond was not included in bid specifications by a school board, the board should treat the bids as if the cost of the bond was included. The board thus has the authority to review the bids, consider the cost of the performance bond as already included in the bid submitted, and make a determination of lowest and best bid and reflect same as a finding on the board’s minutes. 2003 Miss. Op. Att'y Gen. 494.

Educational building corporations (EBCs), are alter egos of the Board of Trustees of State Institutions of Higher Learning and are subject to the purchasing laws of the state of Mississippi in contracting for the acquisition and construction of EBC projects. 2004 Miss. Op. Att'y Gen. 656.

If a bidder presenting a valid certificate of responsibility (COR) number is a company with which Finance and Administration/Bureau of Building has no past experience or past performance history, DFA/BOB may consider past experience with or past performance of the company from which the bidder originated, the bidder’s parent company, or the company with which the bidder merged, partnered, or changed names. If DFA/BOB determines it is reasonable to do so and thereafter accepts a bid other than the lowest bid submitted, it must place on its minutes the details of why it did not accept such bid, which details would include detailed calculations and narrative summary showing that the accepted bid was determined to be the lowest and best bid. Alternatively, it may reject all bids and readvertise the project. 2004 Miss. Op. Att'y Gen. 649.

A high bidder may not withdraw a bid after the bids are opened unless the bidder advises the public body which has solicited the bids that an honest mistake has been made. 2004 Miss. Op. Att'y Gen. 640.

Pursuant to the plain language of of subdivision (m)(xxix) of this section, state agencies are permitted to make purchases pursuant to qualified cooperative purchasing agreements. 2004 Miss. Op. Att'y Gen. 663.

A state agency may designate any of its personnel to be its purchasing agent. 2004 Miss. Op. Att'y Gen. 663.

The board of aldermen of a town may consider past performance of any of the contractors who have submitted bids for a construction project in making its determination of “lowest and best.” If a bid which is not the lowest is accepted, the municipal governing authorities must clearly set out in the official minutes information as described in subdivision (d)(i) of this section. 2004 Miss. Op. Att'y Gen. 40.

Provided the proper factual findings are made and the minutes reflect the detail required by subdivision (d)(i) of this section, then a contract may be awarded to a bidder not having the lowest bid. 2004 Miss. Op. Att'y Gen. 150.

A city may rely on a term contract to a vendor to provide “hot mix asphalt, per ton - laid in place” for a bond issue paving project. However, the city may, in its discretion, choose to advertise separately for bids on the new project. 2004 Miss. Op. Att'y Gen. 168.

In the face of the explicit statement in subsection (r) of this section that any “contract for garbage collection or disposal, contract for solid waste collection or disposal or contract for sewage collection or disposal, which involves an expenditure of more than Fifty Thousand Dollars ($ 50,000.00)” be let only after publicly advertising for proposals for those services, an attempt to remove such a contract from the mandate of this section by limiting the services provided to “professional services” would be impermissible. 2004 Miss. Op. Att'y Gen. 326.

In consideration of demolition and removal service performed by county inmates, the State Board of Education, as governing authority for the Mississippi School for the Blind, may transfer the salvageable surplus materials to the county and such transfer would be exempt from bid requirements as an intergovernmental sale or transfer pursuant to subdivision (m)(v) of this section. 2004 Miss. Op. Att'y Gen. 233.

Under the provisions of the last paragraph of §43-33-11, if a public housing authority awards contracts to other entities which will perform construction work in a public housing contract, those entities must comply with grant requirements but are not required to comply with the public purchasing laws, depending on the terms of the grant. 2004 Miss. Op. Att'y Gen. 528.

The Mississippi Department of Information Technology Services has the authority to establish reasonable rules, regulations and procedures to effectuate the utilization of cooperative purchasing agreements as provided in subdivision (m)(xxix) of this section for information technology purchases. 2004 Miss. Op. Att'y Gen. 572.

There no authority for the use of allowances under this section or any other provision of law governing public construction contracts in Mississippi. However, it would be permissible for a public owner, in developing plans and specifications for a public construction project, to instruct potential bidders that certain materials or equipment will be provided by the public owner during the construction process. Such materials or equipment could then be purchased during the course of construction by the public owner in the manner provided by law. 2004 Miss. Op. Att'y Gen. 586.

Where proposed changes to the original project would result in a substantially different project from that contemplated by the city or prospective bidders at the time that the original project was advertised for bids. Under these circumstances, the additional work cannot lawfully be accomplished through a change order to the existing contract. The city will be required be required to advertise forbids in accordance with this section. 2005 Miss. Op. Att'y Gen. 647.

There is no prohibition against a public owner advertising for bids for materials and later advertising for the installation of the materials as long as it is not done to circumvent the public purchasing and contracting laws. For example, if the project is split to steer the contract to a particular vendor or contractor, or if the project is split to avoid advertising or obtaining competitive written bids, then such activities would constitute a circumvention of the public purchasing and contracting laws and would be prohibited by subsection (o) of this section. 2005 Miss. Op. Att'y Gen. 12.

A governing authority may establish procedures for competitive bidding for purchases involving expenditures of less than $3500. Additionally, purchases of parts for in-house repairs to equipment are exempt from bidding requirement pursuant to Section 31-7-13(m)(iii). 2005 Miss. Op. Att'y Gen. 73.

A firm manufacturing and selling “specialty vehicles” to public agencies under the provisions of the state public purchasing laws is not required to obtain a Mississippi Motor Vehicle Dealer License. 2005 Miss. Op. Att'y Gen. 163.

Even though there was no authority for a school board to make a contractual payment to a contractor, the contractor might be entitled to recover in court the fair market value of the services provided, if the circumstances meet the requirements of Section 31-7-57(2). 2005 Miss. Op. Att'y Gen. 397.

The Mississippi Department of Transportation (MDOT) has the authority in times of emergency to utilize the “design-build” process described in Section 65-1-85 on bridge replacement projects, and, due to the emergency nature of the projects, MDOT is authorized to utilize the “design-build” process on more than one project even if the cost of each individually exceeds $50,000,000.00. 2005 Miss. Op. Att'y Gen. 491.

If a county loans drug testing equipment to another governmental entity, it may charge a “minimal fee” or charge for the cost of materials used in accordance with Section 31-7-13(m)(vi). 2005 Miss. Op. Att'y Gen. 598.

The Department of Finance and Administration may adopt as its own approved purchase agreements the cooperative agreements that have been developed by other states and local governments. 2006 Miss. Op. Att'y Gen. 159.

A contract for garbage collection may not contain a fuel adjustment charge. 2006 Miss. Op. Att'y Gen. 371.

A municipality may operate as its own “general contractor” and may “subcontract out” the work to build, remodel or repair fire stations within its jurisdiction, but only if it acts in accordance with all statutes regarding public construction and public purchasing. 2006 Miss. Op. Att'y Gen. 498.

Because the preparation or revision of the project specifications by the construction manager hired by a county would result in the manager’s firm or a related firm obtaining an unfair advantage over other potential bidders, a county would not be in compliance with public purchasing laws if it accepted a bid from the firm or a related firm. 2006 Miss. Op. Att'y Gen. 496.

When interpreting the provisions of Section 31-7-13(n)(iii) concerning the language “public construction,” the governing authority should refer to the definition of the term “construction” found in Section 31-7-1(g). 2006 Miss. Op. Att'y Gen. 581.

A term contract may be let for the purpose of performing all road projects, as long as the public work to be performed falls within the definition of “public construction” as defined in Section 31-7-1 and the term contract comports with the provisions of Section 31-7-13, including, but not limited to, Section 31-7-13(n)(iii). 2006 Miss. Op. Att'y Gen. 581.

A county or county park commission may contract construction and management of a county park to a third party, including a nonprofit corporation, but must first advertise and let the project for public bids under Miss. Code Ann. §31-7-13. 2007 Miss. Op. Att'y Gen. 106, 2007 Miss. AG LEXIS 95.

RESEARCH REFERENCES

ALR.

Waiver of competitive bidding requirements for state and local public building and construction contracts. 40 A.L.R.4th 968.

Public contracts: authority of state or its subdivision to reject all bids. 52 A.L.R.4th 186.

JUDICIAL DECISIONS

1. In general.

2. Factors considered.

3. Amendment of bid price.

4. Cancellation of a contract.

5. Relationship to other laws.

6. Exemption from bidding process.

7.-9. [Reserved for future use.]

10. Under former §§31-7-43,31-7-45.

1. In general.

Circuit court erred in affirming a city’s conditional award of a contract for a public construction project to bidder whose bid exceeded the project’s allocated funds by more than 10 percent because the city’s actions in making the bid dependent upon the city obtaining additional public funds to match the bid were not provided by law, it could not be argued fairly that the city’s actions were necessarily implied by the statute, and the foundational principles underlying the statutory requirements of competitive bidding negated any inference that the city could obtain additional public funds post-bid opening. Hemphill Constr. Co. v. City of Clarksdale, 250 So.3d 1258, 2018 Miss. LEXIS 356 (Miss. 2018).

Trial court properly remanded to the board of supervisors to provide a caterer with a due-process hearing and to consider evidence to determine if its prior contract rescission was justified because a supplementation of the factual basis of the board’s justification after the hearing was required to allow for judicial review of the board’s decision. Howell v. Bd. of Supervisors, 179 So.3d 34, 2015 Miss. App. LEXIS 187 (Miss. Ct. App.), cert. denied, 178 So.3d 729, 2015 Miss. LEXIS 566 (Miss. 2015).

Circuit court properly ruled that a contractor’s appeal of the decision of a county board of supervisors to award a contract to another was moot because the circuit court gave the board an opportunity to decide that it would reject all previous bids and reopen the request-for-proposals process, and the board decided to reject all bids and reopen the request-for-proposals process; any error that resulted from the circuit court’s decision to remand for reconsideration of the matter by the board was harmless because the circuit court could have ordered the board to reject all bids and reopen the request-for-proposals process. Precision Communs., Inc. v. Hinds County, 74 So.3d 366, 2011 Miss. App. LEXIS 252 (Miss. Ct. App.), cert. denied, 73 So.3d 1168, 2011 Miss. LEXIS 548 (Miss. 2011).

In a construction company’s breach of contract action, a trial court erred in granting summary judgment to the Mississippi Transportation Commission because the last sentence of a diesel fuel and asphalt cost (FAC) provision in the parties’ completion agreement should have been stricken because it contravened the requirements of Miss. Code Ann. §31-7-13(i) (Rev. 2008). While the FAC provision was unambiguous, and the plain meaning of the words used in the FAC supported the Commission’s interpretation of the contract, the last sentence of the FAC impermissibly locked in reimbursements to the construction company based on the price of petroleum as of the expiration of contract time. Hill Bros. Constr. Co. v. Miss. Transp. Comm'n, 42 So.3d 497, 2010 Miss. LEXIS 308 (Miss. 2010).

Circuit court properly dismissed a company’s challenge to the City’s decision to award a sewer improvement project to the second lowest bidder as the City complied with Miss. Code Ann. §31-7-13(d)(i), did not violate the company’s due process rights, and did not act arbitrarily and capriciously in rejecting the company’s lowest bid. Because the City rejected the company’s bid for reasons that could not be reduced to “detailed calculations,” the City’s minutes provided the minimal, requisite “detailed calculations” pursuant to §31-7-13(d)(i) by citing the dollar amounts of the lowest bid and the accepted bid. Nelson v. City of Horn Lake, 968 So. 2d 938, 2007 Miss. LEXIS 636 (Miss. 2007).

Circuit court properly dismissed a company’s challenge to the City’s decision to award a sewer improvement project to the second lowest bidder as the City complied with Miss. Code Ann. §31-7-13(d)(i), did not violate the company’s due process rights, and did not act arbitrarily and capriciously in rejecting the company’s lowest bid. Because the City’s advertisement for bids allowed for consideration of bidders’ “responsibility,” and because the City also reserved the right to investigate bidders, the City had the right to reject the company’s bid based on numerous complaints regarding the company’s prior work. Nelson v. City of Horn Lake, 968 So. 2d 938, 2007 Miss. LEXIS 636 (Miss. 2007).

H.B. 1671, Reg. Sess. (Miss. 2006), was a private law which enabled the city to obtain municipal parking facilities in exchange for the conveyance of air and development rights; the last sentences of sections 3 and 4 were unconstitutional under Miss. Const. Art. IV, § 87, as exempting the bill from compliance with Miss. Code Ann. §§21-17-1 and31-7-13 and were not merely procedural and minor. Oxford Asset Partners, LLC v. City of Oxford, 970 So. 2d 116, 2007 Miss. LEXIS 575 (Miss. 2007).

The Mississippi Emergency Management Law, §§33-15-1 et seq., is not to be read in pari materia with subsection (k) of this section; during an emergency, the Emergency Management Law controls. Bolivar County v. Wal-Mart Stores, Inc., 797 So. 2d 790, 1999 Miss. LEXIS 333 (Miss. 1999).

This section regulates the process by which boards of supervisors may purchase heavy equipment for road maintenance and other related purposes. Canton Farm Equipment, Inc. v. Richardson, 501 So. 2d 1098, 1987 Miss. LEXIS 2273 (Miss. 1987).

Although a county board of supervisors may advertise for purchase of equipment pursuant to this section, the board is not invariably required to accept the lowest bid, rather, the law contemplates that the board, if it accepts any bids at all, will accept the lowest and best bid and, if it accepts a bid that is not dollarwise the lowest, the board must place on its minutes the detailed calculations in a narrative summary explaining why the accepted bid was determined to be the lowest and best bid. Canton Farm Equipment, Inc. v. Richardson, 501 So. 2d 1098, 1987 Miss. LEXIS 2273 (Miss. 1987).

2. Factors considered.

That appellant’s suppliers were protected by a payment bond given under Miss. Code Ann. §85-7-185 [repealed] did not preclude a school board, which awarded the contract to the next lowest bidder, from considering appellant’s prior payment disputes with suppliers. Rod Cooke Constr. Co. v. Lamar County Sch. Bd., 135 So.3d 902, 2013 Miss. App. LEXIS 641 (Miss. Ct. App. 2013), cert. denied, 136 So.3d 437, 2014 Miss. LEXIS 204 (Miss. 2014).

School board’s award of contract to appellant’s competitor, though appellant was the lowest bidder, was not arbitrary or capricious, because the board was not statutorily obligated to accept the lowest bid, and the bid documents stated that the board could award a contract to an entity other than the lowest bidder if it determined it was “best” to do so. Rod Cooke Constr. Co. v. Lamar County Sch. Bd., 135 So.3d 902, 2013 Miss. App. LEXIS 641 (Miss. Ct. App. 2013), cert. denied, 136 So.3d 437, 2014 Miss. LEXIS 204 (Miss. 2014).

Decision by a county board of supervisors to award a public contract to construct a jail to a bidder who was the third lowest bidder was not arbitrary and capricious because the board had the discretion to consider a bidder’s prior experience when awarding the contract, Miss. Code Ann. §31-7-13, and the lowest bidder never submitted any documentation of prior experience and the second lowest bidder’s documentation of prior experience did not meet the prior experience requirement. Murphy & Sons, Inc. v. DeSoto County Bd. of Supervisors, 122 So.3d 87, 2013 Miss. App. LEXIS 58 (Miss. Ct. App.), cert. denied, 121 So.3d 918, 2013 Miss. LEXIS 506 (Miss. 2013).

Request by a county board of supervisors that bidders provide a list of prior jail-construction experience did not amount to an impermissible prequalification of bidders, Miss. Code Ann. §31-7-13, because the prior-experience requirement: (1) did not violate any of the purposes of the competitive bidding process; (2) was not unreasonably restrictive to bidders; and (3) left discretion to the board to consider bids that did not conform to the bid specifications. Murphy & Sons, Inc. v. DeSoto County Bd. of Supervisors, 122 So.3d 87, 2013 Miss. App. LEXIS 58 (Miss. Ct. App.), cert. denied, 121 So.3d 918, 2013 Miss. LEXIS 506 (Miss. 2013).

County board of supervisors’ consideration of a local company’s promise to employ local residents and provide special services to the elderly in awarding a contract for solid waste disposal, when it had failed to include them in the request for proposals, was a violation of Miss. Code Ann. ’ 31-7-13(r), requiring the bid process to be reinitiated. Preferred Transp. Co., LLC v. Claiborne County Bd. of Supervisors, 32 So.3d 549, 2010 Miss. App. LEXIS 170 (Miss. Ct. App. 2010).

In case in which a wastewater services company challenged a utility authority’s acceptance of another company’s proposal for the operation and management of the authority’s wastewater facilities, the services company unsuccessfully argued that there was no justification in awarding the winning company the contract because the services company’s proposal was the lowest price. Pursuant to Miss. Code Ann. §31-7-13(r), price was just one factor for the authority to consider. Wastewater Plant Serv. Co. v. Harrison County Util. Auth., 28 So.3d 686, 2010 Miss. App. LEXIS 97 (Miss. Ct. App. 2010).

Agency’s argument that competitive bidding laws prohibited it from paying the contractor for changes or modifications to the construction contract because the changes were not “commercially reasonable” as required by Miss. Code Ann. §31-7-13(g) was improper because the contractor made the agency aware of the complications. The contractor did not wait until the project had overrun before approaching the agency for change orders. Tupelo Redevelopment Agency v. Gray Corp., 972 So. 2d 495, 2007 Miss. LEXIS 577 (Miss. 2007).

Trial court properly upheld a county board of supervisors’ award of a construction contract to a resident contractor because a nonresident contractor, whose bid was the lowest, had some negative references. Pursuant to Miss. Code Ann. §31-7-13(d)(i), the board was free to consider the experience, skill, and reputation of the competing firms in determining which bid was the “lowest and best.” Billy E. Burnett, Inc. v. Pontotoc County Bd. of Supervisors, 940 So. 2d 241, 2006 Miss. App. LEXIS 138 (Miss. Ct. App.), cert. denied, 939 So. 2d 805, 2006 Miss. LEXIS 627 (Miss. 2006).

3. Amendment of bid price.

A governing authority cannot accept a bid price increase after sealed bids are opened, except where the error and the intended correct bid are evident on the face of the bid document. Hemphill Constr. Co. v. City of Laurel, 760 So. 2d 720, 2000 Miss. LEXIS 111 (Miss. 2000).

4. Cancellation of a contract.

Board of supervisors’ capricious rescission of a caterer’s contract for prisoner catering services was in error because it was arbitrarily based upon consideration of matters outside of the bid specifications; the board rescinded the award of the contract despite the caterer’s compliance with bid requirements and certifications, and it based its decision upon the testimony of the sheriff, which lacked a credible basis upon which it could base its decision. Howell v. Bd. of Supervisors, 179 So.3d 34, 2015 Miss. App. LEXIS 187 (Miss. Ct. App.), cert. denied, 178 So.3d 729, 2015 Miss. LEXIS 566 (Miss. 2015).

In a 42 U.S.C.S. § 1983 case in which a contract was extended for 24 months by a former mayor and board of aldermen (board) and the contract was cancelled by the new mayor and board, the contractor and the assignee argued unsuccessfully that the cancellation violated the Contracts Clause, U.S. Const. art. I, § 10. Even if it was determined that the cancellation of the contract constituted a substantial impairment and was not justified by a legitimate public purpose, the continuance of the contract against the wishes of the successor municipal board would have violated the board’s sovereignty as provided by Mississippi common law and Miss. Code Ann. §31-7-13(n)(i). ECO Res., Inc. v. City of Horn Lake, 640 F. Supp. 2d 826, 2009 U.S. Dist. LEXIS 55280 (N.D. Miss. 2009), aff'd, 379 Fed. Appx. 326, 2010 U.S. App. LEXIS 10183 (5th Cir. Miss. 2010).

In a case in which a contractor and its assignee argued that a new mayor and board of alderman ratified the contract extension made by the former mayor and board of alderman when they modified the contract, given the disclaimer in the mayor’s letter to the contractor, the contractor and its assignee failed to create a genuine issue of material fact establishing that the successor board of aldermen ratified the former board of aldermen’s agreement to extend the term of the maintenance contract. Pursuant to Miss. Code Ann. §31-7-13(n)(i) and Mississippi common law, the voiding of the maintenance contract by the successor board of aldermen did not offend Mississippi law. ECO Res., Inc. v. City of Horn Lake, 640 F. Supp. 2d 826, 2009 U.S. Dist. LEXIS 55280 (N.D. Miss. 2009), aff'd, 379 Fed. Appx. 326, 2010 U.S. App. LEXIS 10183 (5th Cir. Miss. 2010).

5. Relationship to other laws.

Substantial evidence supported a school district’s conservator’s decision to terminate a superintendent because the evidence showed the superintendent violated district policy and state law by obtaining vehicles without required competitive bids or approval of the district’s board of trustees and did not properly supervise an employee who acquired the vehicles. Leigh v. Aberdeen Sch. Dist., 207 So.3d 1276, 2016 Miss. App. LEXIS 307 (Miss. Ct. App. 2016), writ denied, 207 So.3d 1240, 2017 Miss. LEXIS 22 (Miss. 2017).

In a 42 U.S.C.S. § 1983 case in which a contractor and its assignee sued a city following the cancellation of a contract which had been extended for 24 months by the former mayor and board of alderman (board) and cancelled by the new mayor and board, the contractor and its assignee unsuccessfully argued that Miss. Code Ann. §21-7-7 authorized the original board to agree to the term extension. Under Miss. Code Ann. §31-7-13(n)(i), the contract extension was an ultra vires act in the sense that the former mayor and board could not legally agree to bind the new mayor and board to the contract. ECO Res., Inc. v. City of Horn Lake, 640 F. Supp. 2d 826, 2009 U.S. Dist. LEXIS 55280 (N.D. Miss. 2009), aff'd, 379 Fed. Appx. 326, 2010 U.S. App. LEXIS 10183 (5th Cir. Miss. 2010).

6. Exemption from bidding process.

In case in which a wastewater services company challenged a utility authority’s acceptance of another company’s proposal for the operation and management of the authority’s wastewater facilities, the services company unsuccessfully argued that the authority violated Miss. Code Ann. §31-7-13(c) and (d) by not re-opening the bidding so that other bidders could modify their bids and by not stating the reasons for not choosing the lowest bid. Neither subsection applied to the contract because the contract was for a wastewater-treatment system and was exempt from bidding requirements pursuant to Miss. Code Ann. §31-7-13(m)(xxii). Wastewater Plant Serv. Co. v. Harrison County Util. Auth., 28 So.3d 686, 2010 Miss. App. LEXIS 97 (Miss. Ct. App. 2010).

7.-9. [Reserved for future use.]

10. Under former §§ 31-7-43, 31-7-45.

A suit for bills of lumber, totaling over $1,400, sold to a member of a board of supervisors, without competitive bids having been secured, was dismissed, in the absence of a showing that any emergency existed suspending the requirement of the statute, notwithstanding it might be conceded that the account was susceptible of a breaking down into separate and independent items each less than $100. Duncan v. Board of Sup'rs, 4 So. 2d 219 (Miss. 1941).

A special act of the Legislature authorizing the board of supervisors of a designated county to reimburse a former sheriff thereof for expense incurred in purchasing disinfectants for the county jail, which claim had previously been disallowed by the board of supervisors, was void as being within the prohibition of this section [Code 1942, § 9027] in suspending the operation of a general law (Code 1942, § 9027) relating to the purchase of supplies by the county which expressly requires contracts for the purchase of supplies, etc., to be let upon competitive bids and prohibits any individual members of the board from making such purchases. Beall v. Board of Supervisors, 191 Miss. 470, 3 So. 2d 839, 1941 Miss. LEXIS 171 (Miss. 1941).

The statute was not complied with so as to permit recovery against a county for lumber supplies to a county supervisor for the repair of bridges in his district, one of which consumed more than $100 of such lumber, by dividing the bill for the total amounts of lumber into lots of less than $100 each, there being no emergency. Bigham v. Lee County, 184 Miss. 138, 185 So. 818, 1939 Miss. LEXIS 48 (Miss. 1939).

“Emergency” in statute authorizing members of board of supervisors to make emergency expenditures is unforeseen occurrence of combination of circumstances calling for immediate action. Attala County v. Mississippi Tractor & Equipment Co., 162 Miss. 564, 139 So. 628, 1932 Miss. LEXIS 146 (Miss. 1932).

Statute empowering members of board of supervisors to make emergency expenditures held inapplicable, where articles were purchased as needed for county’s road machinery. Attala County v. Mississippi Tractor & Equipment Co., 162 Miss. 564, 139 So. 628, 1932 Miss. LEXIS 146 (Miss. 1932).

When price of disinfectants for jail and courthouse exceeded one hundred dollars, individual member of board of supervisors had no authority to contract therefor. Franklin County v. American Disinfectant Co., 153 Miss. 583, 121 So. 271, 1929 Miss. LEXIS 59 (Miss. 1929).

§ 31-7-13.1. Dual-phase design-build method of construction contracting; two-phase procedure for awarding contracts; compliance with minimum building code standards; awarding stipulated fees.

  1. The method of contracting for construction described in this section shall be known as the “dual-phase design-build method” of construction contracting. This method of construction contracting may be used only when the Legislature has specifically required or authorized the use of this method in the legislation authorizing a project. At a minimum, the determination must include a detailed explanation of why using the dual-phase design-build method for a particular project satisfies the public need better than the traditional design-bid-build method based on the following criteria:
    1. The project provides a savings in time or cost over traditional methods; and
    2. The size and type of the project is suitable for design-build.
  2. For each proposed dual-phase design-build project, a two-phase procedure for awarding a contract must be adopted. During Phase One, and before solicitation of initial proposals, the agency or governing authority shall develop, with the assistance of an architectural or engineering firm, a scope of work statement that provides prospective offerors with sufficient information regarding the requirements of the agency or governing authority. The scope of work statement must include, but is not limited to, the following information:
    1. Drawings must show overall building dimensions and major lines of dimensions, and site plans that show topography, adjacent buildings and utilities;
    2. Drawings must include information to adequately explain HVAC, electrical and structural requirements;
    3. The scope of work statement also must include building elevations, sections and design details; and
    4. The scope of work statement must include general budget parameters, schedule or delivery requirements, relevant criteria for evaluation of proposals, and any other information necessary to enable the design-builders to submit proposals that meet the needs of the agency or governing authority.
  3. The agency or governing authority shall cause to be published once a week, for at least two (2) consecutive weeks in a regular newspaper published in the county in which the project is to be located, or a newspaper with statewide circulation, a notice inviting proposals for the dual-phase design-build construction project. The proposals shall not be opened in less than fifteen (15) working days after the last notice is published. The notice must inform potential offerors of how to obtain the scope of work statement developed for the project, and the notice must contain such other information to describe adequately the general nature and scope of the project so as to promote full, equal and open competition.
  4. The agency or governing authority shall accept initial proposals only from entities able to provide an experienced and qualified design-build team that includes, at a minimum, an architectural or engineering firm registered in Mississippi and a contractor properly licensed and domiciled in Mississippi for the type of work required. From evaluation of initial proposals under Phase One, the agency or governing authority shall select a minimum of two (2) and a maximum of five (5) design-builders as “short-listed firms” to submit proposals for Phase Two.
  5. During Phase Two, the short-listed firms will be invited to submit detailed designs, specific technical concepts or solutions, pricing, scheduling and other information deemed appropriate by the agency or governing authority as necessary to evaluate and rank acceptability of the Phase Two proposals. After evaluation of these Phase Two proposals, the agency or governing authority shall award a contract to the design-builder determined to offer the best value to the public in accordance with evaluation criteria set forth in the request for proposals, of which price must be one, but not necessarily the only, criterion.
  6. If the agency or governing authority accepts a proposal other than the lowest dollar proposal actually submitted, the agency or governing authority shall enter on its minutes detailed calculations and a narrative summary showing why the accepted proposal was determined to provide the best value, and the agency or governing authority shall state specifically on its minutes the justification for its award.
  7. All facilities that are governed by this section shall be designed and constructed to comply with standards equal to or exceeding the minimum building code standards employed by the state as required under Section 31-11-33 in force at the time of contracting. All private contractors or private entities contracting or performing under this section must comply at all times with all applicable laws, codes and other legal requirements pertaining to the project.
  8. At its discretion, the agency or governing authority may award a stipulated fee equal to a percentage, as prescribed in the request for proposals, of the project’s final design and construction budget, as prescribed in the request for proposals, but not less than two-tenths of one percent (2/10 of 1%) of the project’s final design and construction budget, to each short-list offeror who provides a responsive, but unsuccessful, proposal. If the agency or governing authority does not award a contract, all responsive final list offerors shall receive the stipulated fee based on the owner’s estimate of the project final design and construction budget as included in the request for proposals. The agency or governing authority shall pay the stipulated fee to each offeror within ninety (90) days after the award of the initial contract or the decision not to award a contract. In consideration for paying the stipulated fee, the agency or governing authority may use any ideas or information contained in the proposals in connection with any contract awarded for the project, or in connection with a subsequent procurement, without any obligation to pay any additional compensation to the unsuccessful offerors. Notwithstanding the other provisions of this subsection, an unsuccessful short-list offeror may elect to waive the stipulated fee. If an unsuccessful short-list offeror elects to waive the stipulated fee, the agency or governing authority may not use ideas and information contained in the offeror’s proposal, except that this restriction does not prevent the agency or governing authority from using any idea or information if the idea or information is also included in a proposal of an offeror that accepts the stipulated fee.
  9. This section shall not authorize the awarding of construction contracts according to any contracting method that does not require the contractor to satisfactorily perform, at a minimum, both any balance of design, using an independent professional licensed in Mississippi, and construction of the project for which the contract is awarded.
  10. The provisions of this section shall not affect any procurement by the Mississippi Transportation Commission.
  11. The provisions of this section shall not apply to procurement authorized in Section 59-5-37(3).

HISTORY: Laws, 2007, ch. 494, § 1; Laws, 2008, ch. 544, § 2, eff from and after passage (approved May 9, 2008.).

Amendment Notes —

The 2008 amendment added (11).

Cross References —

Performance and payment bonds required when using design-build or construction manager at risk methods of project delivery, see §31-5-52.

Penalties for violating the provisions of this chapter, see §31-7-55.

§ 31-7-13.2. Construction manager at risk method of project delivery; qualifications-based selection procedure for procuring architectural, engineering and land surveying services.

  1. When used in this section, “construction manager at risk” means a method of project delivery in which a construction manager guarantees a maximum price for the construction of a project and in which the governing authority or board, before using this method of project delivery, shall include a detailed explanation of why using the construction manager at risk method of project delivery for a particular project satisfies the public need better than that traditional design-bid-build method based on the following criteria:
    1. The use of construction manager at risk 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 construction management at risk method of project delivery.
  2. When the construction manager at risk method of project delivery is used:
    1. There may be a separate contract for design services and a separate contract for construction services;
    2. The contract for construction services may be entered into at the same time as a contract for the design services or later;
    3. Design and construction of the project may be in sequential or concurrent phases; and
    4. Finance, maintenance, operation, reconstruction or other related services may be included for a guaranteed maximum price.
  3. When procuring design professional services under a construction manager at risk project delivery method, the agency or governing authority shall procure the services of a design professional pursuant to qualifications-based selection procedures.
  4. Before the substantial completion of the design documents, the agency or governing authority may elect to hire a construction manager.
  5. When procuring construction management services, the agency or governing authority shall follow the qualifications-based selection procedures as outlined in subsection (10) of this section or the competitive sealed proposal procedures as outlined in Section 31-7-13.
  6. The agency or governing authority may require the architect or engineer and the construction manager, by contract, to cooperate in the design, planning and scheduling, and construction process. The contract shall not make the primary designer or construction manager a subcontractor or joint venture partner to the other or limit the primary designer’s or construction manager’s independent obligations to the agency or governing authority.
  7. Notwithstanding anything to the contrary in this chapter:
    1. Each project for construction under a construction manager at risk contract shall be a specific, single project with a minimum construction cost of Twenty-Five Million Dollars ($25,000,000.00).
    2. Each project under a construction manager at risk contract shall be a specific, single project. For the purposes of this paragraph, “specific, single project” means a project that is constructed at a single location, at a common location or for a common purpose.
  8. Agencies shall retain an independent architectural or engineering firm to provide guidance and administration of the professional engineering or professional architecture aspects of the project throughout the development of the scope, design, and construction of the project.
  9. The state shall, on an annual basis, compile and make public all proceedings, records, contracts and other public records relating to procurement transactions authorized under this section.
  10. For purposes of this section, the “qualifications-based selection procedure” shall include:
    1. Publicly announcing all requirements for architectural, engineering, and land surveying services, to procure these services on the basis of demonstrated competence and qualifications, and to negotiate contracts at fair and reasonable prices after the most qualified firm has been selected.
    2. Agencies or governing authorities shall establish procedures to prequalify firms seeking to provide architectural, engineering, and land surveying services or may use prequalification lists from other state agencies or governing authorities to meet the requirements of this section.
    3. Whenever a project requiring architectural, engineering, or land surveying services is proposed for an agency or governing authority, the agency or governing authority shall provide advance notice published in a professional services bulletin or advertised within the official state newspaper setting forth the projects and services to be procured for not less than fourteen (14) days. The professional services bulletin shall be mailed to each firm that has requested the information or is prequalified under Section 31-7-13. The professional services bulletin shall include a description of each project and shall state the time and place for interested firms to submit a letter of interest and, if required by the public notice, a statement of qualifications.
    4. The agency or governing authority shall evaluate the firms submitting letters of interest and other prequalified firms, taking into account qualifications. The agency or governing authority may consider, but shall not be limited to, considering:
      1. Ability of professional personnel;
      2. Past record and experience;
      3. Performance data on file;
      4. Willingness to meet time requirements;
      5. Location;
      6. Workload of the firm; and
      7. Any other qualifications-based factors as the agency or governing authority may determine in writing are applicable.

      The agency or governing authority may conduct discussions with and require public presentations by firms deemed to be the most qualified regarding their qualifications, approach to the project and ability to furnish the required services.

    5. The agency or governing authority shall establish a committee to select firms to provide architectural, engineering, and land surveying services. A selection committee may include at least one (1) public member nominated by a statewide association of the profession affected. The public member may not be employed or associated with any firm holding a contract with the agency or governing authority nor may the public member’s firm be considered for a contract with that agency or governing authority while serving as a public member of the committee. In no case shall the agency or governing authority, before selecting a firm for negotiation under paragraph (f) of this section, seek formal or informal submission of verbal or written estimates of costs or proposals in terms of dollars, hours required, percentage of construction cost, or any other measure of compensation.
    6. On the basis of evaluations, discussions, and any presentations, the agency or governing authority shall select no less than three (3) firms that it determines to be qualified to provide services for the project and rank them in order of qualifications to provide services regarding the specific project. The agency or governing authority shall then contact the firm ranked most preferred to negotiate a contract at a fair and reasonable compensation. If fewer than three (3) firms submit letters of interest and the agency or governing authority determines that one (1) or both of those firms are so qualified, the agency or governing authority may proceed to negotiate a contract under paragraph (g) of this section.
    7. The agency or governing authority shall prepare a written description of the scope of the proposed services to be used as a basis for negotiations and shall negotiate a contract with the highest qualified firm at compensation that the agency or governing authority determines in writing to be fair and reasonable. In making this decision, the agency or governing authority shall take into account the estimated value, scope, complexity, and professional nature of the services to be rendered. In no case may the agency or governing authority establish a maximum overhead rate or other payment formula designed to eliminate firms from contention or restrict competition or negotiation of fees. If the agency or governing authority is unable to negotiate a satisfactory contract with the firm that is most preferred, negotiations with that firm shall be terminated. The agency or governing authority shall then begin negotiations with the firm that is next preferred. If the agency or governing authority is unable to negotiate a satisfactory contract with that firm, negotiations with that firm shall be terminated. The agency or governing authority shall then begin negotiations with the firm that is next preferred. If the agency or governing authority is unable to negotiate a satisfactory contract with any of the selected firms, the agency or governing authority shall reevaluate the architectural, engineering, or land surveying services requested, including the estimated value, scope, complexity, and fee requirements. The agency or governing authority shall then compile a second list of not less than three (3) qualified firms and proceed in accordance with the provisions of this section. A firm negotiating a contract with an agency or governing authority shall negotiate subcontracts for architectural, engineering, and land surveying services at compensation that the firm determines in writing to be fair and reasonable based upon a written description of the scope of the proposed services.
  11. The provisions of this section shall not affect any procurement by the Mississippi Transportation Commission.

HISTORY: Laws, 2007, ch. 494, § 2, eff from and after July 1, 2007.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in the subsection (5). The reference to “Section 31-17-13” was changed to “Section 31-7-13”. The Joint Committee ratified the correction at its July 13, 2009, meeting.

Editor’s Notes —

The reference to “Section 31-17-13” in subsection (5) should probably be to “Section 31-7-13.”

Cross References —

Performance and payment bonds required when using design-build or construction manager at risk methods of project delivery, see §31-5-52.

Penalties for violating the provisions of this chapter, see §31-7-55.

§ 31-7-13.3 Fee for electronic submission of bids; fee charged winning bidder for participation in reverse auction.

  1. Any governingauthority accepting electronic bid submissions for procurements maycharge the bidder a fee, or may require a fee to be paid to a third-partyservice provider, for an electronic bid submission. The amount ofthe fee shall not exceed Fifty Dollars ($50.00) per bid.
  2. Any governingauthority using the reverse auction method of procurement may chargethe winning bidder a fee, or require the winning bidder to pay a feeto a third-party service provider, for participation in a reverseauction. The amount of the fee shall notexceed four percent (4%) of the winning bid amount.

HISTORY: Laws, 2018, ch. 306, § 1, eff from and after passage (approved March 5, 2018).

Editor’s note. —

Laws of 2018, ch. 306, § 2, effective March 5, 2018, provides: “Section 1 of this act shall be codified as a separate section within Chapter 7, Title 31, Mississippi Code of 1972.”

§ 31-7-14. Public contracts of energy efficiency services [Repealed effective July 1, 2019].

    1. For purposes of this section, the following words and phrases shall have the meaning ascribed herein, unless the context clearly indicates otherwise:

      Approval by the division of an energy services provider shall be granted in a prequalification process.

      Such energy services providers may petition the division to review their qualifications and deem them to be qualified for inclusion on a prequalification list if they meet the qualifications set forth by the division.

      Any energy services project that has been competitively bid and awarded prior to any change in law shall be allowed to continue under the laws current at the time the project was awarded.

      The division shall ensure that small businesses are not disadvantaged in the determination of a qualified energy services provider.

      1. “Division” means the Energy Division of the Mississippi Development Authority.
      2. “Energy services” or “energy efficient services” means energy efficiency equipment, services relating to the installation, operation and maintenance of equipment and improvements reasonably required to existing or new equipment and existing or new improvements and facilities including, but not limited to, heating, ventilation and air-conditioning systems, lighting, windows, insulation and energy management controls, life safety measures that provide long-term, operating-cost reductions, building operation programs that reduce operating costs, alternative fuel motor vehicles including vehicles that have been converted to such and ancillary equipment related to or associated with the fueling of alternative fuel motor vehicles, or other energy-conservation-related improvements, including improvements or equipment related to renewable energy, water and other natural resources conservation, including accuracy and measurement of water distribution and/or consumption, and other equipment, services and improvements providing verifiable cost savings.
      3. “Energy services provider” means a person or business with a successful record of documented energy savings projects that is experienced in the design, implementation and installation of energy conservation measures; has the technical capabilities to verify that such measures generate energy and operational cost savings or enhanced revenues; has the ability to guarantee the savings; has the ability to secure or arrange the financing necessary to support the implementation of the energy conservation measures; and is approved by the division.
      4. “Entity” means the board of trustees of any public school district, junior college, institution of higher learning, publicly owned hospital, state agency or governmental authority under this chapter.
      5. “Energy services contract” means an agreement to provide energy services which include, but are not limited to, the design, installation, financing and maintenance or management of the energy systems or equipment in order to improve its energy efficiency. Payments for the contract are not contingent upon the actual savings realized from the equipment.
      6. “Energy performance contract” means an agreement to provide energy services which includes, but is not limited to, the design, installation, financing and maintenance or management of the energy systems or equipment in order to improve its energy efficiency.
      7. “Shared-savings contract” means an agreement where the contractor and the entity each receive a preagreed percentage or dollar value of the energy cost savings over the life of the contract.
      8. “Reduce operating costs” means elimination of future expenses or avoidance of future replacement expenditures as a result of new equipment installed or services performed. Material savings, labor savings, cancelled maintenance contracts, et cetera, shall be considered as being viable to reduce operating costs. Reduce operating costs may be included in the performance contract or energy services agreement solely at the discretion of the entity. A contract that otherwise satisfies the requirements of this section shall satisfy the requirements allowing use of an energy performance, energy services or shared-savings contract even if the sole expense being eliminated is maintenance expense.
      9. “Capital cost avoidance” means planned capital improvement expenditures that will be avoided through implementation of the energy services project. Capital cost avoidance may be included in an energy services contract or an energy performance contract solely at the discretion of the entity. Capital cost avoidance may be claimed as an annual avoidance or as a one-time avoidance in a specific year of the contract term, depending upon the nature of the avoided capital cost.
      10. “Alternative fuel motor vehicle” means a motor vehicle propelled by alternative fuel either as a dedicated alternative fuel vehicle, as a bi-fuel vehicle using alternative fuel as one of its fuels, or as a dual fuel vehicle using alternative fuel as one of its fuels.
      11. “Energy conservation measure” means the individual items or components of a large energy services or energy efficient services program.
      12. “Simple payback period” means the amount of time for the recuperation of the initial investment. The simple payback period is calculated by dividing the initial investment by the annual savings. The simple payback period for any contract shall not exceed twenty (20) years. The simple payback period of an individual energy conservation measure shall not be considered in any evaluation provided the simple payback period for the contract does not exceed twenty (20) years.
    2. An entity may enter into an energy services contract, energy performance contract, shared-savings contract, any of which may contain a lease, or lease-purchase contract for energy efficiency equipment, services relating to the installation, operation and maintenance of equipment or improvements reasonably required to existing or new equipment and existing or new improvements and facilities and shall contract in accordance with the following provisions:
      1. The division may assemble a list of prequalified energy services providers. The division shall use objective criteria in the selection process. The criteria for evaluation shall include, but shall not be limited to, the following factors: to assess the capability of the qualified energy services provider in the area of design engineering, installation, maintenance and repairs associated with energy services or guaranteed energy performance contracts; qualifications including engineering depth and experience, post-installation project monitoring, data collection, and verification of and reporting of savings; overall project experience and qualifications; management capability; ability to access long-term sources of project financing; financial health and stability, litigation history with customers and other factors determined by the division to be relevant and appropriate and related to the ability to perform the project. The division shall either accept or reject an application for prequalification from an energy services provider within sixty (60) days after receipt. If the division fails to act within sixty (60) days from the date of receiving an application, then the application shall automatically be accepted and the energy services provider shall be added to the prequalified list.
      2. An entity shall publicly issue requests for proposals, advertised in the same manner as provided in Section 31-7-13 for seeking competitive sealed bids, concerning the provision of energy efficiency services relating to the installation, operation and maintenance of equipment, improvements reasonably required to existing or new equipment and existing or new improvements and facilities or the design, installation, ownership, operation and maintenance of energy efficiency equipment. Those requests for proposals shall contain terms and conditions relating to submission of proposals, evaluation and selection of proposals, financial terms, legal responsibilities, and any other matters as the entity determines to be appropriate for inclusion.
      3. Upon receiving responses to the request for proposals, the entity may select the most qualified proposal or proposals on the basis of experience and qualifications of the proposers, the technical approach, the financial arrangements, the overall benefits to the entity and any other relevant factors determined to be appropriate.
      4. An entity shall negotiate and enter into contracts with the person, persons, firm or firms submitting the proposal selected as the most qualified under this section.
      5. The annual rate of interest paid under any lease-purchase agreement authorized by this section shall not exceed the maximum interest rate to maturity on general obligation indebtedness permitted under Section 75-17-101.
      6. The maximum lease-purchase term for any equipment acquired under this section shall not exceed the lesser of twenty (20) years or the average useful life of the energy conservation measures from the date the energy conservation measures have been completed and accepted by the governmental unit.
      7. This subsection shall, with respect to the procurement of energy efficiency services and/or equipment, supersede any contradictory or conflicting provisions of Chapter 7, Title 31, Mississippi Code of 1972, and other laws with respect to awarding public contracts.
    1. The division may contract with a party selected under this subsection to provide financing to entities and private “nonprofit” hospitals, to purchase energy efficiency equipment, services relating to the installation, operation and maintenance of equipment or improvements reasonably required to existing or new equipment and existing or new improvements and facilities or an energy saving performance contract, energy services contract, or lease-purchase basis. Any energy efficiency lease financing contract entered into by the division before May 15, 1992, shall be valid and binding when the contract was entered into under this subsection.
    2. The entities and private “nonprofit” hospitals that decide to contract for energy efficiency equipment, services relating to the installation, operation and maintenance of equipment or improvements reasonably required to existing or new equipment and existing or new improvements and facilities on a lease, energy services contract or lease-purchase basis, may request financial assistance from the division.
    3. The provisions of any energy efficiency lease-purchase agreements authorized under this subsection (2) shall comply with the requirements of subsection (1)(b)(v) of this section. The term of any lease or lease-purchase agreement for energy efficiency services and/or equipment entered into under this section shall not exceed twenty (20) years, commencing on the completion of the installation of equipment or improvements under the contract.
    4. Any entity or private “nonprofit” hospital having approval of the division may borrow money in anticipation of entering into a lease-purchase agreement pursuant to subsection (2)(b) of this section. Any borrowing may be upon terms and conditions as may be agreed upon by the borrowing entity and the party advancing interim funds; however, the principal on any borrowing shall be repaid within a period of time not to exceed one hundred eighty (180) days. In borrowing money under this paragraph (d), it is not necessary to publish notice of intention to do so or to secure the consent of the qualified electors, either by election or otherwise. Any borrowing may be negotiated between the parties and is not required to be publicly bid, may be evidenced by negotiable notes or lease and shall not be considered when computing any limitation of indebtedness of the borrowing entity established by law. The principal, interest and costs of incurring any borrowing shall not exceed the principal amount of the final contract or agreement approved by the division, and accepted by the borrowing entity, under subsection (2)(b) of this section.
    5. This subsection (2) shall, with respect to the procurement of energy efficiency services and/or equipment, supersede the provisions of any contradictory or conflicting provisions of Chapter 7, Title 31, Mississippi Code of 1972, and other laws with respect to awarding public contracts.
  1. All lease-purchase agreements authorized by this section and the income from those agreements shall be exempt from all taxation within the State of Mississippi, except gift, transfer and inheritance taxes.
    1. An entity may contract for energy efficiency equipment services relating to the installation, operation or maintenance of equipment or improvements reasonably required to existing or new equipment and existing or new improvements and facilities on a shared-savings basis or performance basis.
    2. If an entity decides to enter into a contract for energy efficiency equipment, services relating to the installation, operation or maintenance of equipment or improvements reasonably required to existing or new equipment and existing or new improvements and facilities on a shared-savings basis or performance basis, the entity shall issue a request for proposals or a request for qualifications, as determined necessary by the division, in the same manner as prescribed under subsection (1)(b) of this section. The entity shall notify the division in writing of its intention to issue a request for proposals or a request for qualifications.
    3. The terms of any shared-savings contract, energy services contract, or energy performance contract entered into under this section may not exceed twenty (20) years, commencing on the completion of the installation of equipment or improvements under the contract.
    4. The terms of any shared savings or energy performance contract entered into under this section must contain a guarantee of savings clause from the company providing energy efficiency equipment services relating to the installation, operation and maintenance of equipment or improvements reasonably required to existing or new equipment and existing or new improvements and facilities.
    1. By March 1 and September 1 of each year, each entity that enters into an energy performance contract or shared-savings contract shall report to the division its energy usage by meter in dollars and consumption by fuel type for the previous six-month period determined by the division.
    2. The division shall remove qualified status of an energy services provider that fails to meet the reporting requirements of paragraph (a) of this subsection after two (2) such violations.
    3. Any costs associated with the reporting made under this subsection (5) shall be paid by the energy services provider.
  2. The contract may be construed to provide flexibility to public agencies in structuring agreements entered into hereunder so that economic benefits may be maximized.
  3. This section shall stand repealed on July 1, 2019.

HISTORY: Laws, 1985, ch. 493, § 1; Laws, 1992, ch. 571 § 1; Laws, 1997, ch. 405, § 1; Laws, 1998, ch. 593, § 1; Laws, 2000, ch. 503, § 1; Laws, 2006, ch. 503, § 1; Laws, 2014, ch. 481, § 1; Laws, 2017, ch. 424, § 1, eff from and after July 1, 2017.

Amendment Notes —

The 2006 amendment substituted “Mississippi Development Authority” for “Mississippi Department of Economic and Community Development” in (1)(a)(i); rewrote (1)(a)(ii); inserted “savings from energy operations maintenance and other cost avoidance measures” near the end of (1)(a)(iii); added (1)(a)(vii); substituted “existing or new equipment” for “existing equipment” and “existing or new improvements and facilities” for “existing improvements” throughout the section; and added (6).

The 2014 amendment inserted “alternative fuel motor . . . motor vehicles, or” in (1)(a)(ii); added (1)(a)(viii); inserted “energy performance contract, shared savings contract” near the beginning of (1)(b); in (2)(c), made stylistic changes, deleted “energy services performance contract, energy services contract” following “The term of any,” substituted “twenty (20)” for “fifteen (15),” and added “commencing on the . . . under the contract” at the end; substituted “paragraph (d)” for “subparagraph” in the third sentence of (2)(d); inserted “(2)” following “This subsection” near the beginning of (2)(e); in (4)(c), inserted “energy services contract,” and “energy” preceding “performance contract,” deleted “for efficiency services and/or equipment” preceding “entered into under this section,” substituted “twenty (20)” for “fifteen (15),” and added “commencing on the . . . under the contract” inserted “energy” following “any shared savings or” in (4)(d); and made minor stylistic changes throughout.

The 2017 amendment substituted “verifiable cost savings” for “energy efficiency as determined by the division” at the end of (1)(a)(ii); rewrote (1)(a)(iii), which read: “‘Energy performance contract’ means an agreement to provide energy services which include, but are not limited to, the design, installation, financing and maintenance or management of the energy systems or equipment in order to improve its energy efficiency. The energy savings are guaranteed by the performance contractor and savings from energy, operations, maintenance and other cost-avoidance measures can be used to repay the cost of the project”; added (1)(a)(iv) and (v), and redesignated (1)(a)(iv) through (vii) as (v) through (viii); rewrote former (1)(a)(v), which read: “‘Entity’ means the board of trustees of any public school district, junior college, institution of higher learning, publicly owned hospital, state agency or governing authority of this chapter”; added the second and third sentences of (1)(a)(viii); added (1)(a)(ix); redesignated former (1)(a)(viii) as (1)(a)(x); added (1)(a)(xi) and (xii); substituted “into an energy services contract” for “into a lease, energy services contract” in (1)(b); added (1)(b)(i) and redesignated former (i) through (iii) as (ii) through (iv); deleted former (1)(b)(iv), which required all contracts to contain an annual allocation dependency clause; rewrote (1)(b)(vi), which read: “The maximum lease-purchase term for any equipment acquired under this section shall not exceed the useful life of that equipment as determined according to the upper limit of the asset depreciation range (ADR) guidelines for the Class Life Asset Depreciation Range System established by the Internal Revenue Service under the United States Internal Revenue Code and the regulations thereunder as in effect on December 31, 1980, or comparable depreciation guidelines with respect to any equipment not covered by ADR guidelines”; substituted “subsection (1)(b)(v)” for “subsection (1)(b)(iv) and (v)” in (2)(c); in (4)(b), combined the former last two sentences into the current last sentence by deleting “The final contract shall be approved by the division” following “notify the division in writing”; rewrote (5), which read: “By September 1 of each year, each entity that receives financial assistance through the energy efficiency lease program shall annually report to the division its energy usage by meter in dollars and consumption by fuel type for the previous fiscal year,” and designated it (a), and added (b) and (c); and added (7).

Cross References —

Competitive bidding procedures, see §31-7-13.

Penalties for violating the provisions of this chapter, see §31-7-55.

Authority of agencies to contract for energy efficiency services, see §31-7-73.

School district’s authority to enter into contracts for energy efficiency services, see §37-7-301.

Authority of junior colleges to enter into contracts for energy efficiency services and equipment, see §37-29-67.

Authority of Board of Trustees of State Institutions of Higher Learning to enter into contracts for energy efficiency services or equipment, see §37-101-15.

Energy Management Law, see §57-39-101 et seq.

Federal Aspects—

Class Life Assett Depreciation Range System, see note regarding former § 167(m) under 26 USCS § 167.

OPINIONS OF THE ATTORNEY GENERAL

If professional engineering services and consultation relating to energy efficiency projects under this section do not involve the purchase of commodities, equipment, or furniture or the performance of construction, public advertisement and bids are not required: such contracts may come under the jurisdiction of the Personal Service Contract Review Board, pursuant to Section 25-9-120. 1998 Miss. Op. Att'y Gen. 631.

Community and junior colleges are not “agencies” for purposes of Senate Bill 3113 [Laws, 1998, ch. 593], and this legislation does not require local community and junior colleges to prepare detailed energy management plans and undertake energy efficiency projects. 1999 Miss. Op. Att'y Gen. 767.

Subsection (1) provides an exclusive method for obtaining energy efficiency services, and the University of Mississippi, having entered into a contract for energy efficient services pursuant thereto, was authorized to proceed thereunder regardless of whether the provider under such contract held a certificate of responsibility at the time of submission of its proposal or at the time of entry into the contract. Tyner, Jr., 1999 Miss. Op. Att'y Gen. 624.

A school district has no authority to prepay electrical service for a period of ten years. 1999 Miss. Op. Att'y Gen. 482.

This section does not include the procedure for contracting for water conservation systems and services, thus, a city was required to make two separate contracts, one under this section for the purchase and installation of energy efficiency equipment and systems, and one under Section 31-7-13 for the purchase and installation of water conservation systems. 2002 Miss. Op. Att'y Gen. 708.

The request for proposal required by Section 31-7-14 must include only a term setting forth how the energy efficiency project will be financed, whether it is with the contractor or by other means. 2003 Miss. Op. Att'y Gen. 183.

Section 31-7-14 exempts the procurement and contracting for installation of energy equipment and improvements from the competitive bid requirements of Section 31-7-13, regardless of the source of financing. 2003 Miss. Op. Att'y Gen. 183.

Section 31-7-14 does not authorize an amendment and/or supplement to an agreement for the purchase of energy efficiency equipment. Turner, Sept. 22, 2006, A.G. Op. 06-0440, 2006 Miss. AG LEXIS 343; modified by 2007 Miss. Op. Att'y Gen. 132, 2007 Miss. AG LEXIS 88.

A government entity may amend its energy efficiency contract in a manner consistent with Miss. Code Ann. §31-7-14 where the proposed amendment is within the scope of the original proposal, was contemplated in the original agreement, and would enhance the objectives of the original energy efficiency contract. Turner, March 5, 2007, A.G. Op. #07-00132, 2007 Miss. AG LEXIS 88, modifying Turner, Sept. 22, 2006, A.G. Op. 22, 2006, A.G. Op. # 06-0440, 2006 Miss. AG LEXIS 343.

§ 31-7-14.1. Division of Energy and Transportation authorized to establish energy savings incentive program.

  1. Any agency as defined in this chapter that receives state budgetary consideration and has submitted a detailed energy management plan to the Energy Division of the Department of Economic and Community Development, referred to in this section as “division,” as required under Section 57-39-111 shall undertake energy efficiency projects for the purpose of producing energy and/or dollar savings whereby a portion of the savings may be retained by the participating agency. The plan shall describe specific measures to be implemented to reduce the agency’s energy consumption by energy unit measure or energy cost. The division shall provide assistance in preparing the detailed energy management plan according to prescribed guidelines and reporting procedures. The plan shall specify a project description of the energy efficiency measures to be undertaken, including, but not limited to, type of measure, cost, estimated savings in dollars and energy units, project and measure location, and terms and conditions of project financing.
    1. Utilizing data submitted under Sections 57-39-107 and 57-39-109, the division shall develop and approve energy consumption baselines before project implementation, if feasible, and measure energy consumption after project implementation considering adjustments for any agency growth or reduction and seasonal variances, and calculate total energy savings. The division shall derive a baseline use allocation to be utilized and submitted in each participating agency’s annual budget.
    2. For purposes of this section, “net savings” and “net revenues” mean any funds remaining after payment of project capital costs, including debt service, and other payments and reserves as required by a bond resolution, loan agreement or other financing agreement and payment of project operating and maintenance expenses.
  2. Net savings and net revenues generated from projects shall be apportioned as follows:
    1. Any agency initiating energy savings through the implementation of an energy efficiency project may retain one-half (1/2) of all such net savings which may be used for any nonrecurring capital projects; and
    2. The remaining net savings and net revenues from conservation projects shall be remitted to the State General Fund.

      The Energy Division shall verify the net savings and net revenues on an annual basis.

  3. The use by an agency of net savings and net revenues from energy efficiency projects shall be in addition to, and shall not supplant or replace, funding from traditional sources for their normal operations and maintenance or capital budgets. It is the intent of this subsection to ensure that the agencies receive the full benefit intended by this section, and that the effect will not be diminished by budget adjustments inconsistent with this intent.

HISTORY: Laws, 1992, ch. 584, § 1; Laws, 1998, ch. 593, § 2; Laws, 2001, ch. 518, § 6, eff from and after passage (approved Mar. 30, 2001.).

Editor’s Notes —

Section 57-1-54 provides that wherever the term “Department of Economic and Community Development” appears in any law it shall mean the Mississippi Development Authority.

Section 57-39-107 referred to in (2)(a), was repealed by Laws of 2013, ch. 538, §§ 19 and 20, effective July 1, 2013.

Section 57-39-111 referred to in (1), was repealed by Laws of 2013, ch. 538, § 21, effective July 1, 2013.

Laws of 1992, ch. 584, § 2, effective from and after July 1, 1992, provided as follows:

“SECTION 2. Not more than five (5) agencies shall be authorized to conduct an energy savings program as described in this act. The Department of Economic and Community Development shall make the final determination as to which agencies shall participate in the program.”

Laws of 1998, ch. 593, § 13, eff from and after July 1, 1998, repealed Section 2 of Laws, 1992, ch. 584.

Laws of 2001, ch. 518, was House Bill No. 776, 2001 Regular Session, and originally passed both Houses of the Legislature on March 24, 2001. The Governor vetoed House Bill 776 on March 30, 2001. The veto was overridden by the State Senate and by the State House of Representatives on March 30, 2001.

Cross References —

Energy efficiency services and equipment acquired by school districts, community and junior colleges, institutions of higher learning and state agencies on shared-savings, lease or lease-purchase basis pursuant to this section exempt from bidding requirements, see §31-7-13.

Energy and transportation planning, see §57-39-1 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Community and junior colleges are not “agencies” for purposes of Senate Bill 3113 [Laws, 1998, ch. 593], and this legislation does not require local community and junior colleges to prepare detailed energy management plans and undertake energy efficiency projects. 1999 Miss. Op. Att'y Gen. 767.

§ 31-7-15. Preferences for awarding contracts for commodities; procurement of products made from recovered materials; state agencies to purchase products manufactured or sold by Mississippi Industries for the Blind whenever economically feasible.

  1. Whenever two (2) or more competitive bids are received, one or more of which relates to commodities grown, processed or manufactured within this state, and whenever all things stated in such received bids are equal with respect to price, quality and service, the commodities grown, processed or manufactured within this state shall be given preference. A similar preference shall be given to commodities grown, processed or manufactured within this state whenever purchases are made without competitive bids, and when practical the Department of Finance and Administration may by regulation establish reasonable preferential policies for other commodities, giving preference to resident suppliers of this state.
  2. Any foreign manufacturing company with a factory in the state and with over fifty (50) employees working in the state shall have preference over any other foreign company where both price and quality are the same, regardless of where the product is manufactured.
  3. On or before January 1, 1991, the Department of Finance and Administration shall adopt bid and product specifications to be utilized by all state agencies that encourage the procurement of commodities made from recovered materials. Preference in awarding contracts for commodities shall be given to commodities offered at a competitive price.
  4. Each state agency is required to procure products made from recovered materials when those products are available at a competitive price. For purposes of this subsection, “competitive price” means a price not greater than ten percent (10%) above the lowest and best bidder. A decision not to procure products made from recovered materials must be based on a determination that such procurement:
    1. Is not available within a reasonable period of time; or
    2. Fails to meet the performance standards set forth in the applicable specifications; or
    3. Is not available at a competitive price.
  5. Whenever economically feasible, each state agency is required to purchase products manufactured or sold by the Mississippi Industries for the Blind.

HISTORY: Codes, 1942, § 9024-08; Laws, 1962, ch. 497, § 8; Laws, 1988 Ex Sess, ch. 14, § 72; Laws, 1990, ch. 507, § 11; Laws, 1992, ch. 414 § 1; Laws, 2005, ch. 473, § 1, eff from and after July 1, 2005.

Cross References —

Preference for resident contractors, see §31-3-21.

Purchases made by state agencies or governing authorities involving items manufactured, processed or produced by the Mississippi Industries for the Blind exempt from §31-7-13 bidding requirements, see §31-7-13.

Preference for Mississippi manufacturer of certain equipment capable of being manufactured or assembled in separate units, see §31-7-16.

Penalties for violations of this chapter, see §31-7-55.

OPINIONS OF THE ATTORNEY GENERAL

If a bidder presenting a valid certificate of responsibility (COR) number is a company with which Finance and Administration/Bureau of Building has no past experience or past performance history, DFA/BOB may consider past experience with or past performance of the company from which the bidder originated, the bidder’s parent company, or the company with which the bidder merged, partnered, or changed names. If DFA/BOB determines it is reasonable to do so and thereafter accepts a bid other than the lowest bid submitted, it must place on its minutes the details of why it did not accept such bid, which details would include detailed calculations and narrative summary showing that the accepted bid was determined to be the lowest and best bid. Alternatively, it may reject all bids and readvertise the project. 2004 Miss. Op. Att'y Gen. 649.

§ 31-7-16. Purchase of certain equipment capable of being manufactured or assembled in separate units.

In the event equipment is required which is capable of being manufactured or assembled in separate units such as school bus chassis and bodies or other bodies of equipment installed upon chassis, and there is a manufacturer of such bodies located within the State of Mississippi, a public purchase may be made of such chassis and such body or equipment as separate items.

HISTORY: Laws, 1985, ch. 525, § 36, eff from and after July 1, 1985.

Cross References —

Preferences for awarding contracts relating to commodities grown, processed or manufactured in Mississippi, see §31-7-15.

Penalties for violating the provisions of this chapter, see §31-7-55.

§ 31-7-17. Repealed.

Repealed by Laws, 1988 Ex Sess, ch. 14 § 74, eff from and after passage (approved August 16, 1988).

[Codes, 1942, § 9024-09; Laws, 1962, ch. 497, § 9]

Editor’s Notes —

Former §31-7-17 related to the purchase of goods from the state penitentiary.

§ 31-7-18. Purchase of certain motor vehicles.

In addition to the method of purchasing authorized in this chapter, said governing authorities are hereby authorized to accept the lowest bid received from a motor vehicle dealer domiciled within the county of the governing authority for the purchase of any motor vehicle having a gross vehicle weight rating of less than twenty-six thousand (26,000) pounds that shall not exceed a sum equal to three percent (3%) greater than the price or cost which the dealer pays the manufacturer, as evidenced by the factory invoice for the motor vehicle. In the event said county does not have an authorized motor vehicle dealer, said board or governing authority may, in like manner, receive bids from motor vehicle dealers in any adjoining county.

No purchase of a motor vehicle under the provisions of this section shall be valid unless the purchase is made according to statutory bidding and licensing requirements. Provided, however, that the governing authorities may choose to purchase a motor vehicle from the authorized state contract dealer without having to advertise and receive bids therefor.

No purchase shall be made in excess of the approved state contract price by any of the aforementioned governing authorities when such authorities are situated wholly or in part in the county wherein the authorized state contract dealer for a particular item is domiciled.

HISTORY: Laws, 1980, ch. 440, § 7, eff from and after January 1, 1981.

Cross References —

Purchasing practices generally, see §31-7-11.

Penalties for violating the provisions of this chapter, see §31-7-55.

§ 31-7-19. Repealed.

Repealed by Laws, 1993, ch. 556, § 6, eff from and after July 1, 1993.

[Codes, 1942, § 9024-10; Laws, 1962, ch. 497, § 13; 1980, ch. 440, § 8; 1984, ch. 488, § 159; 1985, ch. 493, § 7; 1985, ch. 525, § 19]

Editor’s Notes —

Former §31-7-19 required equipment and furniture dealers to furnish list prices and specifications to the Department of Finance and Administration.

§ 31-7-21. Functions of Department of Finance and Administration.

The provisions of this chapter shall neither repeal nor modify the functions of the Governor’s Office of General Services as set forth in Sections 31-11-1 through 31-11-89.

HISTORY: Codes, 1942, § 9024-11; Laws, 1962, ch. 497, § 14; Laws, 1968, ch. 506, § 22; Laws, 1980, ch. 440, § 9; Laws, 1988 Ex Sess, ch. 14, § 73, eff from and after passage (approved August 16, 1988).

Editor’s Notes —

Section 7-1-451 provides that wherever the term “Office of General Services” appears in any law the same shall mean the Department of Finance and Administration.

Section 31-11-5, referred to in this section, was repealed by Laws of 1983, ch. 469, § 10, effective from and after July 1, 1983 and by Laws of 1984, ch. 488, § 38, effective from and after July 1, 1984.

Section 31-11-9, referred to in this section, was repealed by Laws of 1984, ch. 488, § 38, effective from and after July 1, 1984.

Sections 31-11-11 through 31-11-23, referred to in this section, were repealed by Laws of 1984, ch. 488, § 32, effective from and after July 1, 1984.

Sections 31-11-51 through 31-11-89, referred to in this section, were repealed by Laws of 1984, ch. 488, § 37, effective from and after July 1, 1984.

§ 31-7-23. Rebates, refunds, etc. from vendor to inure to benefit of agency or governing authority.

Any rebates, refunds, coupons, merit points, gratuities or any article of value tendered or received by any agency or governing authority from any vendor of material, supplies, equipment or other articles shall inure to the benefit of the agency or governing authority making the purchase. The agency or governing authority may, in accordance with its best interest, either take delivery of the article of value tendered and use the same or convert it to cash by selling it for its fair and reasonable value, making use of the proceeds from such sale for the exclusive benefit of the agency or governing authority.

HISTORY: Codes, 1942, § 9024.5; Laws, 1958, ch. 480, §§ 1-4; Laws, 1980, ch. 440, § 10, eff from and after January 1, 1981.

Cross References —

Penalties for violating the provisions of this chapter, see §31-7-55.

JUDICIAL DECISIONS

1. In general.

In a federal prosecution for mail fraud, the district judge erred in charging the jury that, under Mississippi law, “any rebates, refunds, coupons, merit points, gratuities, or any article of value tendered or received by any agency from any vendor of materials, supplies, equipment, or other articles shall inure to the benefit of the agency making the purchase,” notwithstanding the fact that the instruction was a correct statement of the law. The court should not have given it without further explaining how Mississippi law relates to the federal offense of mail fraud, since the violation of Mississippi law did not ipso facto constitute a violation of the federal mail fraud statute. United States v. Washington, 688 F.2d 953, 1982 U.S. App. LEXIS 25386 (5th Cir. Miss. 1982).

§§ 31-7-25 through 31-7-37. Repealed.

Repealed by Laws, 1980, ch 440, § 28, eff from and after January 1, 1981.

§31-7-25. [Codes, 1942, § 9026.5-01; Laws, 1962, ch. 414, § 1; 1970, ch. 421, § 1; Am Laws 1972, ch 496, § 1; 1975, ch. 331; 1978, ch 407, § 1]

§§31-7-27 through31-7-37. [Codes, 1942, §§ 9026.5-02 through 9026.5-07; Laws, 1962, ch. 414, §§ 2-71]

Editor’s Notes —

Former §31-7-25 related to purchases and contracts for certain hospitals. For present similar provisions, see §31-7-38.

Former §§31-7-27 through31-7-37 pertained to contracts and purchases by hospitals.

§ 31-7-38. Establishment of group purchasing programs by certain public hospitals and regional mental health centers.

The board of trustees or governing board of any hospital or regional mental health center owned or owned and operated separately or jointly by the State of Mississippi or any of its branches, agencies, departments or subdivisions, or by one or more counties, cities, towns, supervisors districts or election districts, or combinations thereof, may authorize by resolution the organization and operation of, or the participation in, a group purchasing program with other hospitals or regional mental health centers, for the purchase of supplies, commodities and equipment when it appears to the board of trustees or governing board that such a group purchasing program could or would affect economy or efficiency in their operations. Purchases by hospitals or regional mental health centers participating in group purchasing programs of supplies, commodities and equipment through such programs shall be exempt from the provisions of Sections 31-7-9, 31-7-10, 31-7-11, 31-7-12 and 31-7-13.

HISTORY: Laws, 1975, ch. 330; Laws, 1979, ch. 507; Laws, 1980, ch. 440, § 11; Laws, 1982, ch. 499, § 2; Laws, 1988 Ex Sess, ch. 14, § 66; Laws, 1990, ch. 520, § 1; Laws, 1993, ch. 322, § 1; Laws, 1994, ch. 471, § 1; Laws, 1999, ch. 318, § 1; Laws, 2001, ch. 335, § 1; Laws, 2001, ch. 473, § 1; Laws, 2005, ch. 360, § 1; Laws, 2010, ch. 345, § 1; Laws, 2013, ch. 444, § 1; Laws, 2016, ch. 395, § 1, eff from and after July 1, 2016.

Joint Legislative Committee Note —

Section 1 of ch. 335, Laws of 2001, eff from and after July 1, 2001 (approved March 5, 2001), amended this section. Section 1 of ch. 473, Laws of 2001, eff from and after July 1, 2001 (approved March 23, 2001), also amended this section. As set out above, this section reflects the language of Section 1 of ch. 473, Laws of 2001, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, and the effective dates of the amendments are the same, the amendment with the latest approval date shall supersede all other amendments to the same section approved on an earlier date.

Amendment Notes —

The 2005 amendment extended the date of the repealer for this section from “July 1, 2005” to “July 1, 2010.”

The 2010 amendment deleted the former next-to-last sentence, which read: “The Mississippi Department of Mental Health shall develop and submit to the Chairmen of the Senate and House Appropriations Committees a report analyzing the savings and economic benefits of the group purchasing program authorized under this section for state hospitals or regional mental health centers compared to the purchasing procedures authorized prior to passage of Laws, 2001, Chapter 473”; and extended the date of the repealer for the section by substituting “July 1, 2013” for “July 1, 2010.”

The 2013 amendment extended the repealer provision from “July 1, 2013” to “July 1, 2016.”

The 2016 amendment deleted the former last sentence, which read: “This section shall stand repealed on July 1, 2016.”

Cross References —

Exception from bid requirements for supplies and equipment purchased by hospitals through group purchase programs, see §31-7-13.

Penalties for violating the provisions of this chapter, see §31-7-55.

Regional mental health centers, see §§41-19-31 et seq.

OPINIONS OF THE ATTORNEY GENERAL

It was the intent of the Legislature to bring University Medical Center within the provisions of Section 31-7-38 when it gave the Medical Center the “ . . . power necessary to enter into group purchasing arrangements . . . ” 1996 Miss. Op. Att'y Gen. 692.

Under the plain language of Section 31-7-38, if the University of Mississippi Medical Center does organize or participate in a group purchase program with other hospitals, then its purchases of supplies, commodities and equipment made through such program would be exempt from the provisions of Sections 31-7-12 and 31-7-13. 1996 Miss. Op. Att'y Gen. 692.

The Medical Center would not be exempt from the provisions of Sections 31-7-9 and 31-7-11 when participating in a group purchase program, since Section 31-7-38 does not so provide. 1996 Miss. Op. Att'y Gen. 692.

As provided by Section 31-7-38, University Medical Center purchases of supplies, commodities and equipment made through a group purchasing program would be exempt from Section 31-7-13 requirements, including competitive bidding. 1996 Miss. Op. Att'y Gen. 755.

Section 31-7-38 does not exempt hospital group purchase programs from the provisions and requirements of Sections 31-7-9 and 31-7-11. These sections enumerate the duties and responsibilities of the Department of Finance and Administration with regard to purchases by state agencies, including University Medical Center. 1996 Miss. Op. Att'y Gen. 755.

§§ 31-7-39 through 31-7-45. Repealed.

Repealed by Laws, 1980, ch. 440, § 28, eff from and after January 1, 1981.

§31-7-39. [Codes, Hemingway’s 1917, § 6660; 1930, § 6064; Laws, 1942, § 9027; Laws, 1914, ch. 206; Laws, 1946, ch. 375, § 1; Laws, 1950, ch. 292, § 1; ch. 392, § 3; Laws, 1958, ch. 362; Laws, 1960, ch. 392, §§ 1-5; Laws, 1962, chs. 268, 414, 508, § 8; Laws, 1966, ch. 550, § 1; Laws, 1968, ch. 512, § 1; Am Laws, 1973, ch 426 § 1; Laws, 1974, ch. 541, § 1; Laws, 1975, ch. 470, § 1; Laws, 1976, ch. 491; Laws, 1977, ch 423; Laws, 1980, ch. 396]

§31-7-41. [Codes, Hemingway’s 1917, § 6660; 1930, § 6064; Laws, 1942, § 9027; Laws, 1914, ch. 206; Laws, 1946, ch. 375, § 1; Laws, 1950, ch. 292, § 1; ch. 392, § 3; Laws, 1958, ch. 362; Laws, 1960, ch. 392, §§ 1-5; Laws, 1962, chs. 268, 414, 508, § 8; Laws, 1966, ch. 550, § 1; Laws, 1968, ch. 512, § 1; Am Laws, 1975, ch. 470 § 2]

§31-7-43. [Codes, Hemingway’s 1917, § 6660; 1930, § 6064; 1942, § 9027; Laws, 1914, ch. 206; Laws, 1946, ch. 375, § 1; Laws, 1950, ch. 292, § 1; ch. 392, § 3; Laws, 1958, ch. 362; Laws, 1960, ch. 392, §§ 1-5; Laws, 1962, chs. 268, 414, 508, § 8; Laws, 1966, ch. 550, § 1; Laws, 1968, ch. 512, § 1; Am Laws 1975, ch. 470 § 3]

§31-7-45. [Codes, Hemingway’s 1917, § 6660; 1930, § 6064; Laws, 1942, § 9027; Laws, 1914, ch. 206; Laws, 1946, ch. 375, § 1; Laws, 1950, ch. 292, § 1; ch. 392, § 3; Laws, 1958, ch. 362; Laws, 1960, ch. 392, §§ 1-5; Laws, 1962, chs. 268, 414, 508, § 8; Laws, 1966, ch. 550, § 1; Laws, 1968, ch. 512, § 1]

Editor’s Notes —

Former §31-7-39 regulated purchases and contracts by county, municipal, school, and water supply district authorities. For provisions governing purchases by a municipality, see §21-17-1; for central purchases by counties, see §§31-7-101 et seq.; for purchases by school districts, see §§37-39-1 et seq.; for contract powers of water districts, see §51-7-25.

Former §31-7-41 required notice of intention to let contracts or purchases by school districts and public water supply districts. For purchases by school districts, see §§37-39-1 et seq; for contract powers of water districts, see §51-7-25.

Former §31-7-43 authorized county, municipal and district authorities to enter into a contract or make purchases during an emergency. For provisions governing purchases by a municipality, see §21-17-1; for central purchases by counties, see §§31-7-101 et seq; for purchases by school districts, see §§37-39-1 et seq; for contract powers of water districts, see §51-7-25.

Former §31-7-45 limited emergency purchases or contracts for counties, municipalities, and districts. For provisions governing purchases by a municipality, see §21-17-1; for central purchases by counties, see §§31-7-101 et seq; for purchases by school districts, see §§37-39-1 et seq; for contract powers of water districts, see §51-7-25.

§ 31-7-47. Preference to resident contractors.

In the letting of public contracts, preference shall be given to resident contractors, and a nonresident 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 nonresident bidder’s state, city, county, parish, province, nation or 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 nonresidents 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 nonresident.

HISTORY: Codes, Hemingway’s 1917, § 6660; 1930, § 6064; 1942, § 9027; Laws, 1914, ch. 206; Laws, 1946, ch. 375, § 1; Laws, 1950, ch. 292, § 1; ch. 392, § 3; Laws, 1958, ch. 362; Laws, 1960, ch. 392, §§ 1-5; Laws, 1962, chs. 268, 414, 508, § 8; Laws, 1966, ch. 550, § 1; Laws, 1968, ch. 512, § 1; Laws, 1980, ch. 440, § 12; Laws, 1995, ch. 408, § 1, eff from and after passage (approved March 15, 1995).

Cross References —

Authorization to contract with industries with respect to solid or hazardous waste treatment projects, see §§17-17-105,17-17-121.

Preference to resident contractors, see also §31-3-21.

OPINIONS OF THE ATTORNEY GENERAL

If a political subdivision of a foreign state has a bid preference law enforceable against Mississippi vendors, then Mississippi must reciprocally enforce such preference law against vendors of that political subdivision, and resident contractors domiciled anywhere in Mississippi are to be given preference over nonresidents whose home town or county gives them a preference over Mississippi bidders. 1998 Miss. Op. Att'y Gen. 675.

This section should be broadly construed to include state statutes, municipal ordinances or other rules and regulations of a state or political subdivision. 2003 Miss. Op. Att'y Gen. 411.

Whether bids are equal or substantially equal is a discretionary determination that the public body itself must initially make and that should be explained in the minutes. If it is determined that bids are or are not equal or substantially equal, then the statutory preference provisions in favor of Mississippi bidders apply or do not apply, respectively. Winfield, Jan, 29, 2004 Miss. Op. Att'y Gen. 03-0501.

JUDICIAL DECISIONS

1. In general.

2. Illustrative cases.

1. In general.

The meaning of the word “state” in §31-7-47 does not include political subdivisions of the state. Refrigeration Sales Co. v. State ex rel. Segrest, 645 So. 2d 1351, 1994 Miss. LEXIS 566 (Miss. 1994).

2. Illustrative cases.

Though appellant’s competitor, a Mississippi company, had not been entitled to a statutory preference since Alabama treated nonresident contractors in the same manner that Mississippi treated nonresident contractors, because the competitor’s residence played only a minor part in the school board’s decison to award the contract to the competitor, the award was not disturbed on appeal. Rod Cooke Constr. Co. v. Lamar County Sch. Bd., 135 So.3d 902, 2013 Miss. App. LEXIS 641 (Miss. Ct. App. 2013), cert. denied, 136 So.3d 437, 2014 Miss. LEXIS 204 (Miss. 2014).

§ 31-7-48. Repealed.

Repealed by Laws, 1980, ch. 440, § 28, eff from and after January 1, 1981.

[En, Laws, 1973, ch. 426, § 1]

Editor’s Notes —

Former §31-7-48 related to the individual liability of boards of trustees of school districts, boards of directors of public water supply districts and governing authorities of all municipalities for violation of sections governing contracts and purchases.

§ 31-7-49. Purchases under contract.

In placing orders for purchases under bids received and contracts awarded under the provisions of this chapter, the governing authority, by orders entered on its minutes, may authorize its members, or agents designated by its order, to place orders for the purchase of such supplies and materials from time to time during the period covered by the contract, as such supplies and materials are needed. Claims for such supplies so ordered by an individual board member or other duly authorized agent shall not be allowed and paid by the board until such claims shall have been approved in writing by the individual board member or agent who ordered such supplies or the successor to such member or agent.

HISTORY: Codes, 1942, § 9027-01; Laws, 1950, ch. 292, § 2; Laws, 1980, ch. 440, § 13; Laws, 1981, ch. 306, § 3; Laws, 1984, ch. 480, § 4, eff from and after July 1, 1984.

Cross References —

Authorization to contract with industries with respect to solid or hazardous waste treatment projects, see §§17-17-105,17-17-121.

Exemption of contract, lease, or lease-purchase agreements from prohibitions and restrictions, see §31-7-13.

§ 31-7-51. Repealed.

Repealed by Laws, 1993, ch. 556, § 6, eff from and after July 1, 1993.

[Codes, 1942, § 9027-11; Laws, 1956, ch. 373]

Editor’s Notes —

Former §31-7-51 required all state agencies and institutions to purchase only cotton mattresses, unless otherwise prescribed by a medical doctor.

§ 31-7-53. Fertilizer.

In making any and all purchases of fertilizer for all state institutions and agencies, the board, officer, or employee given the authority to make such purchases shall take into consideration the chemical analysis and percentage of plant food unit value in such fertilizer in determining the lowest and best bid. No awards of contracts shall be made until the best price is determined on the basis of the chemical analysis as to the plant food unit value of the product, and the contract shall be awarded on the basis of such an analysis of the plant food unit value.

This section does not apply for the purchase of material by research agencies of the state for use in experimental projects.

The state penitentiary board, the board of trustees of the state institutions of higher learning, and any other agency, department, or board of trustees of the State of Mississippi are hereby authorized to purchase all needed quantities of anhydrous ammonia and ammonium nitrate fertilizers available through the facilities of Mississippi State University of Agriculture and Applied Science. Such purchase may be at public or private sale, provided that such fertilizers can be obtained for not more than the price that the same are then available to such board, agency, or department from any other source.

HISTORY: Codes, 1942, §§ 9027-12, 9027-14; Laws, 1956, ch. 142; Laws, 1958, ch. 146.

Cross References —

Definition of term “fertilizer,” see §1-3-13.

§ 31-7-55. Penalties.

[For penalties applicable to violations occurring between January 1, 1981, and August 15, 1988, the following provisions govern.]

  1. It is hereby declared to be unlawful and a violation of public policy of the State of Mississippi for any elected or appointed public officer of the state or the executive head of a state board, commission, department, subdivision of the state government or governing authority to make any purchases without the full compliance with the provisions of Chapter 7, Title 31, Mississippi Code of 1972. Any elected or appointed public officer of the state or the executive head of a state board, commission, department, subdivision of the state government or governing authority who violates the provisions of Chapter 7, Title 31, Mississippi Code of 1972 shall be deemed guilty of a misdemeanor and, upon conviction therefor, shall be fined not less than One Hundred Dollars ($100.00) and not more than Five Hundred Dollars ($500.00) for each separate offense, or sentenced to the county jail for not more than six (6) months, or both such fine and imprisonment, and shall be removed from his office or position.
  2. Any person diverting the benefits of any article of value tendered or received by any agency or governing authority to his or her personal use, in violation of Section 31-7-23, shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00), or sentenced to the county jail for not more than six (6) months, or by both such fine and imprisonment, and shall be required to return the money value of the article unlawfully diverted to the agency involved.

HISTORY: Codes, 1930, § 6065; 1942, §§ 9024-14, 9024.5, 9027-02, 9028; Laws, 1950, ch. 292, § 3; Laws, 1958, ch. 480, §§ 1-4; Laws, 1970, ch. 353, § 1; Laws, 1980, ch. 440, § 14; Laws, 1988 Ex Sess, ch. 14, § 67, eff from and after passage (approved August 16, 1988).

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected an error in (1) and (2). The phrase “the provisions of this act” was changed to “the provisions of Chapter 7, Title 31, Mississippi Code of 1972” in two places. The Joint Committee ratified the correction at its August 5, 2008 meeting.

Editor’s Notes —

Laws of 1988, 1st Ex Sess, ch. 14, § 75, effective August 16, 1988, provides as follows:

“SECTION 75. Sections 31-7-55 and 31-7-57, as amended by House Bill 4 (Chapter 14), First Extraordinary Session of 1988, shall apply only to violations of such sections which occur on or after the passage of House Bill 4 (Chapter 14), First Extraordinary Session of 1988.”

Cross References —

Penalty for unauthorized appropriation on the part of members of the governing body of a municipality, see §21-39-15.

Prohibition against interest in school contracts on the part of school officials, see §37-11-27.

Failure on the part of officers to perform their duties, generally, see §97-11-37.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any felony violation, see §99-19-73.

OPINIONS OF THE ATTORNEY GENERAL

If Board of Education votes to approve expenditure to object not authorized by law, then Mississippi Code Sections 31-7-55 and 31-7-57 may create personal liability; if superintendent takes active role in such expenditure then personal liability may accrue for his or her action. 1994 Miss. Op. Att'y Gen. 1.

§ 31-7-55. Penalties.

[The following provisions apply to violations which occur on or after August 16, 1988.]

  1. It is hereby declared to be unlawful and a violation of public policy of the State of Mississippi for any elected or appointed public officer of an agency or a governing authority, or the executive head, any employee or agent of an agency or governing authority to make any purchases without the full compliance with the provisions of Chapter 7, Title 31, Mississippi Code of 1972.
  2. Except as otherwise provided in subsection (4) of this section, any person who intentionally, willfully and knowingly violates the provisions of Chapter 7, Title 31, Mississippi Code of 1972, shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than One Hundred Dollars ($100.00) and not more than Five Hundred Dollars ($500.00) for each separate offense, or sentenced to the county jail for not more than six (6) months, or both such fine and imprisonment, and shall be removed from his office or position.
  3. Any person who intentionally, willfully and knowingly violates the provisions of subsection (1) of Section 31-7-57 shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than One Hundred Dollars ($100.00) and not more than Five Hundred Dollars ($500.00), or sentenced to the county jail for not more than six (6) months, or both such fine and imprisonment, and shall be removed from his office or position.
  4. Any person diverting the benefits of any article of value tendered or received by any agency or governing authority to his or her personal use, in violation of Section 31-7-23, if the value of such article be less than Five Hundred Dollars ($500.00), shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00), or sentenced to the county jail for not more than six (6) months, or by both such fine and imprisonment, shall be removed from his office or position, and shall be required to return the money value of the article unlawfully diverted to the agency or governing authority involved. If the value of the article be Five Hundred Dollars ($500.00) or more, such person shall be guilty of a felony and, upon conviction, shall be punished by a fine of not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or sentenced to the Department of Corrections for not less than one (1) year nor more than five (5) years, or by both such fine and imprisonment, shall be removed from his office or position, and shall be required to return the money value of the article unlawfully diverted to the agency or governing authority involved.
  5. The provisions of this section are supplemental to any other criminal statutes of this state.

HISTORY: Codes, 1930, § 6065; 1942, §§ 9024-14, 9024.5, 9027-02, 9028; Laws, 1950, ch. 292, § 3; Laws, 1958, ch. 480, §§ 1-4; Laws, 1970, ch. 353, § 1; Laws, 1980, ch. 440, § 14; Laws, 1988 Ex Sess, ch. 14, § 67, eff from and after passage (approved August 16, 1988).

§ 31-7-57. Individual liability for unlawful expenditures; disposition of recovered funds.

  1. Any elected or appointed public officer of an agency or a governing authority, or the executive head, any employee or agent of an agency or governing authority, who appropriates or authorizes the expenditure of any money to an object not authorized by law, shall be liable personally for up to the full amount of the appropriation or expenditure as will fully and completely compensate and repay such public funds for any actual loss caused by such appropriation or expenditure, to be recovered by suit in the name of the governmental entity involved, or in the name of any person who is a taxpayer suing for the use of the governmental entity involved, and such taxpayer shall be liable for costs in such case. In the case of a governing board of an agency or governing authority, only the individual members of the governing board who voted for the appropriation or authorization for expenditure shall be liable under this subsection.
  2. No individual member, officer, employee or agent of any agency or board of a governing authority shall let contracts or purchase commodities or equipment except in the manner provided by law, including the provisions of Section 25-9-120(3), Mississippi Code of 1972, relating to personal and professional service contracts by state agencies; nor shall any such agency or board of a governing authority ratify any such contract or purchase made by any individual member, officer, employee or agent thereof, or pay for the same out of public funds unless such contract or purchase was made in the manner provided by law; provided, however, that any vendor who, in good faith, delivers commodities or printing or performs any services under a contract to or for the agency or governing authority, shall be entitled to recover the fair market value of such commodities, printing or services, notwithstanding some error or failure by the agency or governing authority to follow the law, if the contract was for an object authorized by law and the vendor had no control of, participation in, or actual knowledge of the error or failure by the agency or governing authority.
  3. The individual members, officers, employees or agents of any agency or governing authority as defined in Section 31-7-1 causing any public funds to be expended, any contract made or let, any payment made on any contract or any purchase made, or any payment made, in any manner whatsoever, contrary to or without complying with any statute of the State of Mississippi, regulating or prescribing the manner in which such contracts shall be let, payment on any contract made, purchase made, or any other payment or expenditure made, shall be liable, individually, and upon their official bond, for compensatory damages, in such sum up to the full amount of such contract, purchase, expenditure or payment as will fully and completely compensate and repay such public funds for any actual loss caused by such unlawful expenditure.
  4. In addition to the foregoing provision, for any violation of any statute of the State of Mississippi prescribing the manner in which contracts shall be let, purchases made, expenditure or payment made, any individual member, officer, employee or agent of any agency or governing authority who shall substantially depart from the statutory method of letting contracts, making payments thereon, making purchases or expending public funds shall be liable, individually and on his official bond, for penal damages in such amount as may be assessed by any court of competent jurisdiction, up to three (3) times the amount of the contract, purchase, expenditure or payment. The person so charged may offer mitigating circumstances to be considered by the court in the assessment of any penal damages.
  5. Any sum recovered under the provisions hereof shall be credited to the account from which such unlawful expenditure was made.
  6. Except as otherwise provided in subsection (1) of this section, any individual member of an agency or governing authority as defined in Section 31-7-1 shall not be individually liable under this section if he voted against payment for contracts let or purchases made contrary to law and had his vote recorded in the official minutes of the board or governing authority at the time of such vote, or was absent at the time of such vote.

HISTORY: Laws, 1974, ch. 444, §§ 1-3; Laws, 1980, ch. 440, § 15; Laws, 1981, ch. 306, § 4; Laws, 1988 Ex Sess, ch. 14, § 68; Laws, 1997, ch. 609, § 8, eff from and after June 29, 1997.

Editor’s Notes —

Laws of 1988, 1st Ex Sess, ch. 14, § 75, effective August 16, 1988, provides as follows:

“SECTION 75. Sections 31-7-55 and 31-7-57, as amended by House Bill 4 (Chapter 14) First Extraordinary Session of 1988, shall apply only to violations of such sections which occur on or after the passage of House Bill 4 (Chapter 14), First Extraordinary Session of 1988.”

Cross References —

Punitive damages, generally, see §11-1-65.

Penalties for violating the provisions of this chapter, see §31-7-55.

OPINIONS OF THE ATTORNEY GENERAL

Supervisors incur individual liability for unlawful expenditures pursuant to Section 31-7-57 even if president signed claims docket as required by Section 19-13-31; supervisors do not incur individual liability under Section 31-7-57 for lawful expenditures even if president failed to sign claims docket. 1993 Miss. Op. Att'y Gen. 519.

If Board of Education votes to approve expenditure to object not authorized by law, then Mississippi Code Sections 31-7-55 and 31-7-57 may create personal liability; if superintendent takes active role in such expenditure then personal liability may accrue for his or her action. 1994 Miss. Op. Att'y Gen. 1.

Section 31-7-57 provides for liability and it is irrelevant whether an error was made by making an unlawful budget allocation or whether an error was made in approving a claim pursuant to such appropriation. 1996 Miss. Op. Att'y Gen. 184.

Section 31-7-57 creates a right of action on the part of vendors whereby those vendors who have acted in good faith may seek relief in a court of competent jurisdiction. 1996 Miss. Op. Att'y Gen. 119.

Even though there was no authority for a school board to make a contractual payment to a contractor, the contractor might be entitled to recover in court the fair market value of the services provided, if the circumstances meet the requirements of Section 31-7-57(2). 2005 Miss. Op. Att'y Gen. 397.

RESEARCH REFERENCES

ALR.

Standard of proof as to conduct underlying punitive damage awards – modern status. 58 A.L.R.4th 878.

Private attorney general doctrine – State cases. 106 A.L.R.5th 523.

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 288, 291 et seq.

63C Am. Jur. 2d, Public Officers and Employees §§ 348 et seq., 391.

20A Am. Jur. Pl & Pr Forms (Rev), Public Officers and Employees, Forms 111 et seq.

CJS.

67 C.J.S., Officers and Public Employees §§ 259 et seq.

JUDICIAL DECISIONS

1. In general.

2. Credit cards.

1. In general.

Expenditures made by city are unlawful when made without express authorization in minutes of city’s board, resulting in actual loss to public body. Nichols v. Patterson, 678 So. 2d 673, 1996 Miss. LEXIS 299 (Miss. 1996).

A board of supervisors’ liability for compensatory damages for entering into purchase contracts in violation of the method of letting contracts mandated by §§19-13-37 [repealed] and31-7-57 would be limited to the actual loss sustained by the county; thus, the supervisors would be liable for all amounts of principal payment over and above the sums that would have been required under the purchase contract submitted by the lowest bidder, all sums expended for interest, finance charges and related costs, and any other sums as would be necessary to “fully and completely compensate and repay [the county] for any actual loss caused by such unlawful expenditure.” Richardson v. Canton Farm Equipment, Inc., 608 So. 2d 1240, 1992 Miss. LEXIS 596 (Miss. 1992).

Remedially, statute law provides that any member of the board of supervisors who causes a contract to be let in violation of state law may be liable individually and on his official bond for compensatory damages in such sum equal to the full amount of such unlawful contract, purchases, expenditures or payment and for penal damages not in a excess of $5,000. Canton Farm Equipment, Inc. v. Richardson, 501 So. 2d 1098, 1987 Miss. LEXIS 2273 (Miss. 1987).

A heavy equipment vendor, which in response to a county board of supervisor’s advertisement to purchase 2 backhoes had allegedly submitted the lowest and best bid, was not a mere taxpayer, but was a party claiming direct, adverse effect upon itself as a result of alleged conduct of the supervisors in purchasing the backhoes from the competitor and in arbitrarily and capriciously rejecting its bid, and as such, the vendor had a standing to maintain so much of its action as sought rescission of the purchase agreement between the supervisors and the competitor, as well as that part of its action wherein the vendor sought damages for such sale or a directive that its bid on the backhoes be accepted. Canton Farm Equipment, Inc. v. Richardson, 501 So. 2d 1098, 1987 Miss. LEXIS 2273 (Miss. 1987).

A heavy equipment vendor, which in response to county board of supervisor’s advertisement to purchase 2 backhoes had allegedly submitted the lowest and best bid, as a party claiming a direct, adverse effect upon itself as a result of the alleged conduct of the supervisors in purchasing the backhoes from a competitor and in arbitrarily and capriciously rejecting its bid, had standing as a taxpayer and as a private attorney general to seek an order requiring the supervisors to repay to the county the amounts expended on the contract with the competitor, and, in addition, to assess the supervisors with statutory penalties. Canton Farm Equipment, Inc. v. Richardson, 501 So. 2d 1098, 1987 Miss. LEXIS 2273 (Miss. 1987).

2. Credit cards.

In a case attempting to recoup payment from a former mayor, there was substantial evidence to support a finding that the mayor failed to provide itemization and documentation for credit card reimbursements; therefore, he was liable. The mayor’s argument that an auditor was required to show an “actual loss” besides the money being paid was rejected. Davis v. State ex rel. Hood, 198 So.3d 367, 2015 Miss. App. LEXIS 657 (Miss. Ct. App. 2015), cert. denied, 203 So.3d 596, 2016 Miss. LEXIS 379 (Miss. 2016).

Mayor had to repay expenditures charged on a city’s credit card because he failed to comply with a statute requiring receipts be given each month to a municipal clerk. Moreover, auditor was not required to show an “actual loss” beyond money being paid. Davis v. State ex rel. Hood, 198 So.3d 367, 2015 Miss. App. LEXIS 657 (Miss. Ct. App. 2015), cert. denied, 203 So.3d 596, 2016 Miss. LEXIS 379 (Miss. 2016).

§ 31-7-59. Purchase by municipalities from United States General Services Administration.

  1. Any municipality of over one hundred thousand (100,000) population, according to the latest decennial census and qualified to do so, is hereby empowered to purchase from the General Services Administration of the United States of America, without advertising for bids, any and all articles of supplies and equipment necessary for the operation of said municipality so long as the purchase price of such articles is below the purchase price of similar articles on a state contract accepted by the Office of General Services.
  2. The aforesaid supplies and equipment may likewise be purchased from the General Services Administration without advertising for bids even though the Office of General Services does not have same listed on statewide contracts so long as the purchase price thereof is ten percent (10%) below the latest purchase price of comparable supplies and equipment.

HISTORY: Laws, 1974, ch. 388, §§ 1, 2; Laws, 1984, ch. 488, § 160; Laws, 1985, ch. 525, § 20, eff from and after July 1, 1985.

Editor’s Notes —

Section 7-1-451 provides that wherever the term “Office of General Services” appears in any law the same shall mean the Department of Finance and Administration.

Cross References —

Penalties for violating the provisions of this chapter, see §31-7-55.

Federal Aspects—

General Services Administration of the United States of America generally, 40 USCS §§ 751 et seq.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 493 et seq.

CJS.

63 C.J.S., Municipal Corporations §§ 894 et seq.

§ 31-7-61. Governmental purchases of foreign beef; prohibition against.

It shall be unlawful for any person knowingly to purchase or to authorize or requisition the purchase of beef other than beef raised and produced within the United States when such purchase is to be paid by the state government or any of its political subdivisions out of public funds of any nature. However, all canned meats not available which are processed in the United States shall be exempt from Sections 31-7-61 through 31-7-65.

HISTORY: Laws, 1975, ch. 345, § 1, eff from and after passage (approved March 12, 1975).

Cross References —

Penalties for violating the provisions of this chapter, see §31-7-55.

Penalties for purchase of foreign beef, see §31-7-63.

§ 31-7-63. Governmental purchases of foreign beef; penalties.

Any person who violates the provisions of Section 31-7-61 shall be guilty of a misdemeanor and upon conviction shall be punished by imprisonment for not more than thirty (30) days or by a fine of not less than one hundred dollars ($100.00) nor more than five hundred dollars ($500.00). In addition to any criminal sanction authorized herein, a civil proceeding may be brought by a district attorney or county prosecuting attorney for recovery of funds paid out in violation of this section.

HISTORY: Laws, 1975, ch. 345, § 2, eff from and after passage (approved March 12, 1975).

Cross References —

Penalties for violating the provisions of this chapter, see §31-7-55.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violations, see §99-19-73.

§ 31-7-65. Governmental purchases of foreign beef; commissioner of agriculture and commerce to give notice.

The commissioner of agriculture and commerce of the State of Mississippi shall notify all state agencies, political subdivisions or public institutions within the State of Mississippi as to the provisions of Sections 31-7-61 through 31-7-65.

HISTORY: Laws, 1975, ch. 345, § 3, eff from and after passage (approved March 12, 1975).

Cross References —

Penalties for violating the provisions of this chapter, see §31-7-55.

Penalties for purchase of foreign beef, see §31-7-63.

§§ 31-7-67 through 31-7-71. Repealed.

Repealed by Laws, 1980, ch. 440, § 28, eff from and after January 1, 1981.

§31-7-67. [En Laws, 1976, ch. 466, § 1]

§31-7-69. [En Laws, 1976, ch. 466, § 2]

§31-7-71. [En Laws, 1976, ch. 466, § 3]

Editor’s Notes —

Former §31-7-67 authorized the purchase of certain commodities by local governments and school districts without advertising for bids where the price of the commodities does not exceed the approved state contract price.

Former §31-7-69 authorized local governments and school districts to purchase motor vehicles from local dealers at prices not in excess of three percent (3%) over the dealer invoice cost, subject to bidding and licensing requirements.

Former §31-7-71 prohibited local governments and school districts from making any purchase exceeding the approved state contract price when an authorized state contract dealer for the item purchased is located in the county.

§ 31-7-73. Authority of state agencies to contract for energy efficiency services.

Any state agency, as defined in Section 31-7-1, Mississippi Code of 1972, shall be authorized and empowered, in its discretion, to enter into an energy performance contract, energy services contract, on a shared-savings, lease or lease-purchase basis, for energy efficiency services and/or equipment as provided for in Section 31-7-14.

HISTORY: Laws, 1985, ch. 493, § 2; Laws, 2014, ch. 481, § 2, eff from and after July 1, 2014.

Amendment Notes —

The 2014 amendment substituted “enter into an energy performance contract, energy services contract” for “contract” and deleted “not to exceed ten (10) years” from the end.

Cross References —

Contracts for energy efficiency services, see §31-7-14.

Penalties for violating the provisions of this chapter, see §31-7-55.

Public Contracts for Purchase of Meat [Repealed]

§§ 31-7-75 through 31-7-83. Repealed.

Repealed by Laws, 1997, ch. 312, § 2, eff from and after July 1, 1997.

[Laws, 1988, ch. 501, §§ 1-5].

Editor’s Notes —

Former §§31-7-75 through31-7-83 provided for the regulation of public contracts for the purchase of meat.

Implementation of Central Purchasing by Counties

§ 31-7-101. Implementation of central purchase system; establishment of department of purchasing; appointment of purchase clerk and receiving clerk.

From and after the first Monday of January 1989, the supervisors of each county in the state shall establish a central purchase system. The central purchase system shall be administered by a county department of purchasing headed by a purchase clerk who, unless the chancery clerk is appointed by the board of supervisors as purchase clerk as hereinafter authorized, shall be appointed by the county administrator, with the approval of the board of supervisors, in any county required to operate under a countywide system of road administration, or who shall be appointed by the board of supervisors in any other county. The purchase clerk shall not be a member of the board of supervisors. The purchase clerk shall be the director of the department of purchasing. No person shall serve as the purchase clerk who, within one (1) year after his appointment, does not receive certification from the State Auditor as having successfully completed the professional education program offered for purchase clerks pursuant to Section 19-3-77.

The department of purchasing shall purchase all equipment, heavy equipment, machinery, supplies, commodities, materials and services used by any office or department of the county except for those offices or departments whose expenditures are not required by law to be approved by the board of supervisors. The purchase clerk may, subject to the approval of the entity which appointed him, hire personnel necessary to operate the department of purchasing efficiently. Unless the chancery clerk is appointed by the board of supervisors as receiving clerk as hereinafter authorized, the county administrator, with the approval of the board of supervisors, in any county required to operate under the countywide system of road administration, or the board of supervisors in any other county, shall appoint a receiving clerk, who shall not be a member of the board of supervisors. Assistant receiving clerks, when necessary, may be appointed by the receiving clerk subject to the approval of the entity which appointed him. No person shall serve as the receiving clerk who, within one (1) year after his appointment, does not receive certification from the State Auditor as having successfully completed the professional education program offered for receiving clerks pursuant to Section 19-3-77. The receiving clerk and his assistants shall be solely responsible for accepting the delivery of all equipment, heavy equipment, machinery, supplies, commodities, materials and services purchased by the county.

The purchase clerk shall disapprove any purchase requisitions which, in his opinion, are not in compliance with the purchasing laws of the state.

The board of supervisors may designate the chancery clerk, with his consent, to serve as the purchase clerk or assistant purchase clerk or as the receiving clerk or assistant receiving clerk; however a chancery clerk designated as purchase clerk or assistant purchase clerk may not also serve as receiving clerk or assistant receiving clerk, and a chancery clerk designated as receiving clerk or assistant receiving clerk may not serve as purchase clerk or assistant purchase clerk. Neither the purchase clerk nor any assistant purchase clerks shall serve as the receiving clerk or as an assistant receiving clerk.

When the chancery clerk serves as county administrator and purchase clerk or assistant purchase clerk, the receiving clerk and any assistant receiving clerks shall be appointed by and serve at the will and pleasure of the board of supervisors.

HISTORY: Laws, 1974, ch. 513, § 1; Laws, 1988 Ex Sess, ch. 14, § 21, eff from and after January 2, 1989.

Editor’s Notes —

Section 7-7-2 provides that the words “State Auditor of Public Accounts,” “State Auditor,” and “Auditor” appearing in the laws of this state in connection with the performance of Auditor’s functions shall mean the State Fiscal Officer.

Section 27-104-6 provides that whenever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration.”

Cross References —

Penalties for violating the provisions of this chapter, see §31-7-55.

General responsibilities of purchase clerk, see §31-7-103.

County employees permitted to also serve as purchase clerk, receiving clerk or inventory clerk, see §31-7-118.

Acquisition of public buildings, facilities, and equipment through rental contracts, see §§31-8-1 et seq.

OPINIONS OF THE ATTORNEY GENERAL

The purchasing clerk is in the executive branch of government. 2002 Miss. Op. Att'y Gen. 525.

It is within the authority and discretion of the purchase clerk to determine the propriety of a requisition and to approve or deny same. 2002 Miss. Op. Att'y Gen. 525.

Alleged violations of the countywide system of road administration, codified at Miss. Code Ann. §§19-2-1 et seq., should be filed with the State Auditor, who has the duty to enforce the provisions of the county unit system by issuing certificates of noncompliance. Brooks, March 2, 2007, A.G. Op. #07-00093, 2007 Miss. AG LEXIS 87.

JUDICIAL DECISIONS

1.-3. [Reserved for future use.]

4. Under former §31-7-39.

1.-3. [Reserved for future use.]

4. Under former § 31-7-39.

Where a county board of supervisors has advertised to purchase heavy equipment, a vendor who submits a bid has the right to expect that the board, if it accepts any bid at all, will accept the lowest and best bid and, if such vendor can prove that its bid was lowest and best and that the board’s action in accepting a competitor’s bid over its is arbitrary and capricious, such vendor is entitled to relief. Canton Farm Equipment, Inc. v. Richardson, 501 So. 2d 1098, 1987 Miss. LEXIS 2273 (Miss. 1987).

This section [Code 1942, § 9027] neither contemplates nor condones the use of public equipment, materials or labor on private projects for the benefit of individual landowners. Saxon v. Harvey, 190 So. 2d 901, 1966 Miss. LEXIS 1422 (Miss. 1966).

Members of a county hospital board are not personally liable for amounts paid in good faith to the Administrator for traveling expenses in performance of his duties, to an employee for special service rendered while not on salary, for purchases of supplies without competitive bids, and for flowers purchased, as an expression of sympathy, for funerals of members of families of hospital employees. Golding v. Salter, 234 Miss. 567, 107 So. 2d 348, 1958 Miss. LEXIS 530 (Miss. 1958).

County hospital trustees may not make themselves an allowance for services, where the law makes no provision therefor, although they act in good faith and from honest motives. Golding v. Salter, 234 Miss. 567, 107 So. 2d 348, 1958 Miss. LEXIS 530 (Miss. 1958).

A special act of the Legislature authorizing the board of supervisors of a designated county to reimburse a former sheriff thereof for expense incurred in purchasing disinfectants for the county jail, which claim had previously been disallowed by the board of supervisors, was void as being within the prohibition of this section [Code 1942, § 9027] in suspending the operation of a general law (Code 1942, § 9027) relating to the purchase of supplies by the county which expressly requires contracts for the purchase of supplies, etc., to be let upon competitive bids and prohibits any individual members of the board from making such purchases. Beall v. Board of Supervisors, 191 Miss. 470, 3 So. 2d 839, 1941 Miss. LEXIS 171 (Miss. 1941).

This section [Code 1942, § 9027] is mandatory. Beall v. Board of Supervisors, 191 Miss. 470, 3 So. 2d 839, 1941 Miss. LEXIS 171 (Miss. 1941).

The manifest purpose of the statute is to safeguard public contracts, and secure competitive bids from parties interested, to secure to the public fair contracts, and the advantages of competition. Bigham v. Lee County, 184 Miss. 138, 185 So. 818, 1939 Miss. LEXIS 48 (Miss. 1939).

Where supervisors awarded lumber dealer, as lowest bidder, contract for lumber for year, and in violation of contract purchased lumber from others, dealer’s suit for unliquidated damages for breach of contract held not maintainable. Board of Sup'rs v. Payne, 175 Miss. 12, 166 So. 332, 1936 Miss. LEXIS 10 (Miss. 1936).

In proceeding for mandamus to compel payment of claim for goods sold county which was ordered paid by the board of county supervisors, where order failed to disclose facts showing that contract of purchase was valid, Supreme Court could not presume that board of supervisors had complied with law regulating purchases by counties. Jackson Equipment & Service Co. v. Dunlop, 172 Miss. 752, 160 So. 734, 1935 Miss. LEXIS 163 (Miss. 1935).

Recovery cannot be had for disinfectants purchased by sheriff for county jail, courthouse, and poorhouse without authorization. American Disinfecting Co. v. Oktibbeha County, 110 So. 869 (Miss. 1927).

§ 31-7-103. General responsibility of purchase clerk; central purchase system to comply with requirements of State Department of Audit; purchases of $1,000.00 or less.

The purchase clerk shall be responsible as hereinafter provided for the purchase and acquisition of all equipment, heavy equipment, machinery, supplies, commodities, materials and services to be acquired for the county from successful bidders or other vendors, as authorized by law. The central purchase system shall comply with the requirements prescribed by the State Department of Audit under the authority of Section 7-7-211 and in accordance with Section 31-7-113, and the purchase clerk shall be responsible for the maintenance of such system. No requisition to purchase, purchase order or receiving report shall be required for the purchase of any item or services with an acquisition cost of not more than One Thousand Five Hundred Dollars ($1,500.00) in the aggregate; however, the invoice for every such purchase shall be signed by the department head or his or her designee, or a receipt signed by the person making the purchase shall be attached to the invoice and forwarded to the purchase clerk.No claim based on any such purchase shall be approved except after compliance with the provisions of this section.

HISTORY: Laws, 1974, ch. 513, § 2; Laws, 1975, ch. 359; Laws, 1984, ch. 312; Laws, 1985, ch. 514, § 12; Laws, 1988 Ex Sess, ch. 14, § 22; Laws, 1994, ch. 476, § 1; Laws, 2008, ch. 340, § 1; Laws, 2012, ch. 420, § 1; Laws, 2017, ch. 429, § 1, eff from and after July 1, 2017.

Amendment Notes —

The 2008 amendment substituted “Five Hundred Dollars ($500.00)” for “One Hundred Dollars ($100.00)” in the third sentence.

The 2012 amendment substituted “One Thousand Dollars ($1,000.00)” for “Five Hundred Dollars ($500.00)” in the third sentence.

The 2017 amendment substituted “One Thousand Five Hundred Dollars ($1,500.00)” for “One Thousand Dollars ($1,000.00)” in the third sentence.

Cross References —

Powers and duties of Department of Audit, see §7-7-211.

Penalties for violating the provisions of this chapter, see §31-7-55.

State Department of Audit to design and prescribe forms and system of records necessary for maintenance of central purchase, receiving and inventory systems, see §31-7-113.

Bond of purchase clerk, see §31-7-124.

OPINIONS OF THE ATTORNEY GENERAL

It is within the authority and discretion of the purchase clerk to determine the propriety of a requisition and to approve or deny same. 2002 Miss. Op. Att'y Gen. 525.

JUDICIAL DECISIONS

1. In general.

Receipt by a county supervisor of an invoice for services claimed to have been rendered violated the provisions of §31-7-103 in that the county was first invoiced for services, after which a requisition and purchase order were made to match the invoice. Cumbest v. State, 456 So. 2d 209, 1984 Miss. LEXIS 1754 (Miss. 1984).

§ 31-7-105. Procedure on bids.

Upon acceptance of any bid by the board of supervisors, as provided in Section 31-7-13, the clerk of the board of supervisors, shall forthwith deliver to the purchase clerk a certified copy of such accepted bid. The accepted bid or offer to furnish equipment, heavy equipment, machinery, supplies, commodities, materials or services shall constitute the sole source for such purchase, unless such purchase is otherwise authorized by law. The term “lowest and best bid” shall not include any person, firm, partnership or corporation other than the person, firm, partnership or corporation actually submitting the bid determined to be the lowest and best bid.

HISTORY: Laws, 1974, ch. 513, § 3; Laws, 1980, ch. 440, § 16; Laws, 1988 Ex Sess, ch. 14, § 23, eff from and after January 2, 1989.

Cross References —

Penalties for violating the provisions of this chapter, see §31-7-55.

Alternative bidding and contracting procedures under Mississippi Major Economic Impact Act, see §57-75-21.

Amount of a bond by a successful bidder for a contract for the purchase of equipment by or on behalf of the Mississippi Transportation Commission, see §65-1-85.

RESEARCH REFERENCES

ALR.

Public contracts: authority of state or its subdivision to reject all bids. 52 A.L.R.4th 186.

§ 31-7-107. Inventory control.

In addition to the required central purchase system, from and after the first Monday in January 1989, each county shall establish and maintain an inventory control system pursuant to requirements prescribed by the State Department of Audit under the authority of Section 7-7-211 and in accordance with Section 31-7-113; provided, however, that not more than a sixty (60) day inventory of supplies, commodities and materials shall be kept on hand unless otherwise approved by the board of supervisors. The inventory control clerk shall be employed or designated in the same manner and by the same entity which employs or designates the purchase clerk. The inventory control clerk shall be responsible for the maintenance of such system and such other personnel as may be required for the efficient operation of the inventory control system and shall not be a member of the board of supervisors. No person shall serve as the inventory control clerk who, within one (1) year after his appointment, does not receive certification from the State Auditor as having successfully completed the professional education program offered for inventory control clerks pursuant to Section 19-3-77. The opening entries of such system shall be compiled by the inventory control clerk from a physical inventory which the board of supervisors shall cause to be made of all property of the county by April 1, 1989, and such beginning inventory shall be recorded in the minutes of the board of supervisors. The clerk of the board of supervisors shall deliver to the inventory control clerk a certified copy of such inventory within seven (7) days after the acceptance of the beginning inventory by the board of supervisors. Following acceptance of the beginning inventory, the inventory control clerk, pursuant to regulations promulgated by the State Auditor, shall perform physical inventories of assets of the county on or before October 1 of each year and shall file with the board of supervisors, in triplicate, a written report of such inventory. The clerk of the board of supervisors shall keep the original of each inventory report so filed by the inventory control clerk as a permanent record of the county and shall forward a copy to the State Department of Audit not later than October 15. In a separate report to the clerk of the board, the inventory control clerk shall list additions to and deletions from the annual inventory report and shall also list items unaccounted for from the previous annual inventory report.

HISTORY: Laws, 1974, ch. 513, § 4; Laws, 1988 Ex Sess, ch. 14, § 24, eff from and after January 2, 1989.

Editor’s Notes —

Section 7-7-2 provides that the words “State Auditor of Public Accounts,” “State Auditor,” and “Auditor” appearing in the laws of this state in connection with the performance of Auditor’s functions shall mean the State Fiscal Officer.

Section 27-104-6 provides that whenever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration.”

Cross References —

Powers and duties of Department of Audit, see §7-7-211.

Penalties for violating the provisions of this chapter, see §31-7-55.

State Department of Audit to design and prescribe forms and system of records necessary for maintenance of central purchase, receiving and inventory systems, see §31-7-113.

Bond of Inventory control clerk, see §31-7-124.

OPINIONS OF THE ATTORNEY GENERAL

Alleged violations of the countywide system of road administration, codified at Miss. Code Ann. §§19-2-1 et seq., should be filed with the State Auditor, who has the duty to enforce the provisions of the county unit system by issuing certificates of noncompliance. Brooks, March 2, 2007, A.G. Op. #07-00093, 2007 Miss. AG LEXIS 87.

§ 31-7-109. Receiving reports.

The receiving clerk or his assistants shall, upon proper delivery of equipment, heavy equipment, machinery, supplies, commodities, materials or services, acknowledge receipt of goods in compliance with a receipting system prescribed by the State Department of Audit under the authority of Section 7-7-211 and in accordance with Section 31-7-113, and the receiving clerk shall be responsible for the maintenance of such system.

HISTORY: Laws, 1974, ch. 513, § 5; Laws, 1975, ch. 360; Laws, 1988 Ex Sess, ch. 14, § 25, eff from and after January 2, 1989.

Cross References —

Powers and duties of Department of Audit, see §7-7-211.

Accounting for commodities purchased by governing authorities pursuant to provisions on bidding requirements, see §31-7-13.

Penalties for violating the provisions of this chapter, see §31-7-55.

State Department of Audit to design and prescribe forms and system of records necessary for maintenance of central purchase, receiving and inventory systems, see §31-7-113.

Bond of receiving clerk, see §31-7-124.

OPINIONS OF THE ATTORNEY GENERAL

Based on Section 31-7-13(n)(ii) and 31-7-109, there is no requirement that a separate receiving report be prepared for each and every delivery, load or shipment of gravel or other similar commodity received. Instead, statutory requirements are satisfied where a signed load ticket or receipt is issued evidencing each delivery, load or shipment received at and on the various delivery points and dates throughout each month. All of these signed tickets or receipts, in turn, are then attached to the receiving report covering the applicable period–a day, a week or any other reasonable time period not exceeding one month. 1996 Miss. Op. Att'y Gen. 768.

§ 31-7-111. Custody of records.

Such records, reports, supporting documents or data compiled, maintained, protected or otherwise in the custody of either the purchase clerk or the inventory control clerk shall be made freely available to the other immediately upon request. Such records, reports, supporting documents or data shall be public records and shall be made available for inspection during reasonable hours to any person requesting the same.

HISTORY: Laws, 1974, ch. 513, § 6, eff from and after passage (approved April 4, 1974).

Cross References —

Penalties for violating the provisions of this chapter, see §31-7-55.

§ 31-7-113. State department of audit to design and prescribe forms and systems.

The State Department of Audit, under the authority of Section 7-7-211, shall design and prescribe the form of the inventory to be made, the form of the purchase requisition, the form of the purchase order, the form of the receiving report; prescribe systems of filing and prescribe the system of records necessary for the maintenance of a central purchase system, receiving system and an inventory control system; and shall promulgate and prescribe such other documentation, procedures and regulations necessary for the efficient maintenance of such systems.

HISTORY: Laws, 1974, ch. 513, § 7; Laws, 1988 Ex Sess, ch. 14, § 26, eff from and after January 2, 1989.

Cross References —

Powers and duties of Department of Audit, see §7-7-211.

Penalties for violating the provisions of this chapter, see §31-7-55.

Requirement that a county central purchase system comply with the requirements of the State Department of Audit, see §31-7-103.

Inventory control relating to public purchases, see §31-7-107.

Requirement that county receiving clerks acknowledge receipt of goods and services in compliance with receipting system prescribed by State Department of Audit, see §31-7-109.

§ 31-7-115. Audit reports.

The State Auditor, or a certified public accountant employed by the State Auditor, shall, upon the close of the fiscal year of the county, make an audit of the books, records, supporting documents and other data of the county purchase clerk and the inventory control clerk. The Auditor shall review the county’s compliance with Section 31-7-13(d), (k) and (m). The audit report shall include a schedule of purchases not made from the lowest bidder under the authority of Section 31-7-13(d), with the reasons given therefor. The audit report shall include a schedule of emergency purchases made under the authority of Section 31-7-13(k). The audit report shall include a schedule of purchases made noncompetitively from a sole source under the authority of Section 31-7-13(m). Such audit report shall be published in at least one (1) newspaper published in the county, or if no newspaper is published in the county, then in a newspaper having general circulation in the county.

HISTORY: Laws, 1974, ch. 513, § 8; Laws, 1986, ch. 489, § 15; Laws, 1994, ch. 594, § 1, eff from and after July 1, 1994.

Editor’s Notes —

Section 7-7-2 provides that the words “State Auditor of Public Accounts,” “State Auditor,” and “Auditor” appearing in the laws of this state in connection with the performance of Auditor’s functions shall mean the State Fiscal Officer.

Section 27-104-6 provides that whenever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration.”

Cross References —

Penalties for violating the provisions of this chapter, see §31-7-55.

§ 31-7-117. Repealed.

Repealed by Laws, 1988 Ex Sess, ch. 14, § 61, eff from and after January 2, 1989.

[En Laws, 1974, ch. 513, § 9]

Editor’s Notes —

Former §31-7-117 provided for penalties for a county that failed to establish and maintain a central purchase system. For a similar provision, see §19-2-11.

§ 31-7-118. County employees permitted to also serve as purchase clerk, receiving clerk or inventory clerk.

  1. Nothing in Sections 31-7-101 through 31-7-127 shall be construed to prohibit the board of supervisors from designating any county employees, in addition to other responsibilities, to also serve as purchase clerk, receiving clerk or inventory control clerk; however, except as otherwise authorized in Section 19-4-1 and subsection (2) of this section, any employee designated to serve as one of the foregoing shall not at the same time be designated to serve as any of the other.
  2. In any county having a population of less than three thousand (3,000) according to the latest federal decennial census, the board of supervisors may, in its discretion, designate the same person to serve as purchase clerk, receiving clerk and inventory control clerk, or any combination of such positions.

HISTORY: Laws, 1988 Ex Sess, ch. 14, § 27, eff from and after January 2, 1989.

Cross References —

Appointment of purchase clerk, see §31-7-101.

General responsibilities of purchase clerk, see §31-7-103.

OPINIONS OF THE ATTORNEY GENERAL

There is no statutory prohibition to a E-911 Commissioner being appointed as a receiving clerk under Mississippi’s Public Purchasing Laws. 1998 Miss. Op. Att'y Gen. 650.

§ 31-7-119. Board of supervisors not to purchase, order or receive products for county; exceptions.

  1. Except as provided in subsection (2) of this section, neither the board of supervisors nor any member thereof shall individually purchase, order or receive any equipment, heavy equipment, machinery, supplies, commodities, materials or services for the use or benefit of the county.
  2. In any county in which the board of supervisors is not required to operate on a countywide system of road administration, the prohibition as provided in subsection (1) of this section shall not apply (a) to purchases of not more than One Thousand Five Hundred Dollars ($1,500.00) in the aggregate; or (b) to the purchase of parts or repair services in emergency situations, which purchases are exempt from bid requirements pursuant to Section 31-7-13(m) (ii) and (iii), Mississippi Code of 1972. Any supervisor who purchases any item or services in accordance with this subsection (2) shall sign the invoice or receipt and forward it to the purchase clerk in the manner provided by Section 31-7-103. No claim based on any such purchase shall be approved unless the purchase was made in compliance with the provisions of this subsection.

HISTORY: Laws, 1974, ch. 513, § 10; Laws, 1988 Ex Sess, ch. 14, § 28; Laws, 1994, ch. 476, § 2; Laws, 2008, ch. 340, § 2; Laws, 2012, ch. 420, § 2; Laws, 2017, ch. 429, § 2, eff from and after July 1, 2017.

Amendment Notes —

The 2008 amendment substituted “Five Hundred Dollars ($500.00)” for “One Hundred Dollars ($100.00)” in the first sentence of (2).

The 2012 amendment substituted “One Thousand Dollars ($1,000.00)” for “Five Hundred Dollars ($500.00)” in the first sentence of (2).

The 2017 amendment, in the first sentence of (2), substituted “One Thousand Five Hundred Dollars ($1,500.00)” for “One Thousand Dollars ($1,000.00).”

Cross References —

Penalties for violating the provisions of this chapter, see §31-7-55.

OPINIONS OF THE ATTORNEY GENERAL

A claim for services or equipment cannot be amended by the board of supervisors and made legal by the issuance of a purchase order, requisition, and receiving report after the actual transaction has occurred. 1992 Miss. Op. Att'y Gen. 386.

A county board of supervisors could not legally pay the claim of a paving company for work performed where there was no purchase order number given because of the lack of compliance with the central purchasing statutes. 1999 Miss. Op. Att'y Gen. 618.

§§ 31-7-121 and 31-7-123. Repealed.

Repealed by Laws, 1988 Ex Sess, ch. 14, § 61, eff from and after January 2, 1989.

§31-7-121. [En Laws, 1974, ch. 513, § 11]

§31-7-123. [En Laws, 1974, ch. 513, § 12; 1986, ch. 458, § 35]

Editor’s Notes —

Former §31-7-121 provided that the clerk of the chancery court would be liable for payment of claims unlawfully filed.

Former §31-7-123 provided for bonding requirements for the purchase clerk. Bonding requirements can now be found in §31-7-124.

§ 31-7-124. Bond of purchase clerk, receiving clerk and inventory control clerk.

The purchase clerk, receiving clerk and inventory control clerk shall give bond in a penalty equal to Seventy-five Thousand Dollars ($75,000.00) with sufficient surety, to be payable, conditioned and approved as provided by law. All assistant purchasing, receiving and inventory control clerks shall be bonded in a penalty not less than Fifty Thousand Dollars ($50,000.00). Such bond shall be in addition to any other bond required by law, with sufficient surety, to be payable, conditioned and approved as provided by law. The premiums of such bonds shall be paid from any funds available to the board of supervisors for the payment of such premiums.

HISTORY: Laws, 1988 Ex Sess, ch. 14, § 29; Laws, 2009, ch. 467, § 13, eff from and after July 1, 2009.

Amendment Notes —

The 2009 amendment substituted “not less than Fifty Thousand Dollars ($50,000.00)” for “equal to Ten Thousand Dollars ($10,000.00)” at the end of the second sentence.

§ 31-7-125. Repealed.

Repealed by Laws, 1988 Ex Sess, ch. 14, § 61, eff from and after January 2, 1989.

[En Laws, 1974, ch. 513, § 13; 1986, ch. 458, § 36]

Editor’s Notes —

Former §31-7-125 provided the bonding requirements for the inventory control clerk. Bonding requirements can now be found in §31-7-124.

§ 31-7-127. Enforcement.

In order to ensure the proper enforcement of Sections 31-7-101 through 31-7-127, as well as to ensure the enforcement of all other laws pertaining to county government or the board of supervisors, the district attorney, in addition to any other powers he already has, shall have the power to investigate the personnel, records or supervisors of any county in his district and shall have the power to bring criminal or civil actions to recover funds illegally spent, to recover damages, or to seek injunctive relief to prevent unlawful acts or compel lawful ones by supervisors or other personnel of county government. In the event of a refusal or failure of the district attorney to act, the Attorney General in a proper case may exercise the above powers of the district attorney, notwithstanding the absence of a request for investigation or action by the district attorney.

HISTORY: Laws, 1974, ch. 513, § 14; Laws, 1988 Ex Sess, ch. 14, § 30, eff from and after January 2, 1989.

Cross References —

Penalties for violating the provisions of this chapter, see §31-7-55.

§ 31-7-129. Repealed.

Repealed by Laws, 1983, ch. 469, § 10, eff from and after July 1, 1983.

[En Laws, 1974, ch. 513, § 15]

Editor’s Notes —

Former §31-7-129 prohibited the county purchasing clerk from having a beneficial interest in any county contract or purchase.

Bureau of Communications [Repealed]

§§ 31-7-201 through 31-7-225. Repealed.

Repealed by Laws, 1995, ch. 622, § 23, eff from and after July 1, 1995.

§31-7-201. [Laws, 1983, ch. 516, § 1; Laws, 1984, ch. 488, § 289]

§31-7-203. [Laws, 1983, ch. 516, § 2; Laws, 1984, ch. 374, § 1; Laws, 1984, ch. 488, § 290; Laws, 1985, ch. 525, § 21; 1994 Ex Sess, ch. 26, § 23]

§31-7-205. [Laws, 1983, ch. 516, § 3; Laws, 1984, ch. 488, § 291]

§31-7-207. [Laws, 1983, ch. 516, § 4; Laws, 1984, ch. 488, § 292; Laws, 1985, ch. 525, § 22]

§31-7-209. [Laws, 1983, ch. 516, § 5; Laws, 1984, ch. 488, § 293; Laws, 1985, ch. 525, § 23]

§31-7-211. [Laws, 1983, ch. 516, § 13; Laws, 1984, ch. 488, § 294; Laws, 1985, ch. 525, § 24]

§31-7-213. [Laws, 1983, ch. 516, § 6; 1984, ch. 488, § 295; Laws, 1985, ch. 525, § 25]

§31-7-215. [Laws, 1983, ch. 516, § 7; Laws, 1984, ch. 488, § 296; Laws, 1985, ch. 525, § 26]

§31-7-217. [Laws, 1983, ch. 516, § 8; Laws, 1984, ch. 488, § 297; Laws, 1985, ch. 525, § 27]

§31-7-219. [Laws, 1983, ch. 516, § 9; Laws, 1984, ch. 488, § 298; Laws, 1985, ch. 525, § 28]

§31-7-221. [Laws, 1983, ch. 516, § 10; 1984, ch. 374, § 2; Laws, 1984, ch. 488, § 299; Laws, 1985, ch. 525, § 29]

§31-7-223. [Laws, 1983, ch. 516, § 11; Laws, 1984, ch. 488, § 300; Laws, 1985, ch. 525, § 30; Laws, 1986, ch. 329]

§31-7-225. [Laws, 1983, ch. 516, § 12; Laws, 1984, ch. 488, § 301; Laws, 1985, ch. 525, § 31]

Editor’s Notes —

Former §31-7-201 was entitled: Bureau of communications. For current provisions relating to acquisition, operation and maintenance of telecommunications systems, see §§25-53-101 et seq.

Former §31-7-203 was entitled: Definitions. For current provisions relating to acquisition, operation and maintenance of telecommunications systems, see §§25-53-101 et seq.

Former §31-7-205 was entitled: Administration by purchase division, commission of budget and accounting; purpose. For current provisions relating to acquisition, operation and maintenance of telecommunications systems, see §§25-53-101 et seq.

Former §31-7-207 was entitled: Rules and regulations; employment of personnel. For current provisions relating to acquisition, operation and maintenance of telecommunications systems, see §§25-53-101 et seq.

Former §31-7-209 was entitled: Duties and powers of office of telecommunications. For current provisions relating to acquisition, operation and maintenance of telecommunications systems, see §§25-53-101 et seq.

Former §31-7-211 was entitled: Additional duties. For current provisions relating to acquisition, operation and maintenance of telecommunications systems, see §§25-53-101 et seq.

Former §31-7-213 was entitled: Cooperation from state agencies. For current provisions relating to acquisition, operation and maintenance of telecommunications systems, see §§25-53-101 et seq.

Former §31-7-215 was entitled: Purchase or lease of telecommunications system. For current provisions relating to acquisition, operation and maintenance of telecommunications systems, see §§25-53-101 et seq.

Former §31-7-217 was entitled: Transactions dealing with telecommunications system conducted through office of telecommunications. For current provisions relating to acquisition, operation and maintenance of telecommunications systems, see §§25-53-101 et seq.

Former §31-7-219 was entitled: Applicability to specific telecommunications equipment, For current provisions relating to acquisition, operation and maintenance of telecommunications systems, see §§25-53-101 et seq systems and services.

Former §31-7-221 was entitled: Types of contracts permitted in procurement of telecommunications equipment, systems and services. For current provisions relating to acquisition, operation and maintenance of telecommunications systems, see §§25-53-101 et seq.

Former §31-7-223 was entitled: Method of procurement. For current provisions relating to acquisition, operation and maintenance of telecommunications systems, see §§25-53-101 et seq.

Former §31-7-225 was entitled: General provisions applicable to all procurements. For current provisions relating to acquisition, operation and maintenance of telecommunications systems, see §§25-53-101 et seq.

Timely Payment for Purchases by Public Bodies

§ 31-7-301. Legislative findings; meaning of term “public bodies.”

  1. The Legislature hereby declares that it is essential to the efficient operation of public bodies of this state that adequate supplies of goods and services continue to be available from private sources; that the good name and credit of the state may be promoted by timely and responsible payment of just claims; and that fair compensation be awarded suppliers when payments of their claims are delayed without justification.
  2. The term “public bodies” shall mean all state agencies, political subdivisions, school districts, municipalities and public corporations, whether created by charter, statute or executive order, whether supported wholly or in part by public funds, or which expend public funds.

HISTORY: Laws, 1986, ch. 489, § 1, eff from and after October 1, 1986.

Cross References —

Provision that the processing of claims by boards of supervisors of counties is subject to the provisions of this section, see §19-13-31.

Provision that the processing of claims by governing authorities of municipalities is subject to the provisions of this section, see §21-39-9.

Provision that this section does not affect payments under public works contracts pursuant to §§31-5-25 and31-5-27, see §31-7-315.

Penalties for violating the provisions of this chapter, see §31-7-55.

OPINIONS OF THE ATTORNEY GENERAL

Miss. Code Section 31-7-301 states that purpose of statutes providing for timely payment for purchases by public bodies is to ensure that adequate supplies of goods and services are available to state and to promote timely and responsible payment of just claims. 1993 Miss. Op. Att'y Gen. 15.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Works and Contracts §§ 8-29.

CJS.

72 C.J.S. Supp, Public Contracts §§ 1-24, 41.

§ 31-7-303. Time for filing requisition for payment of invoice; time for mailing warrant in payment of invoice.

  1. The requisition for payment of an invoice submitted to a public body and required by law to be filed with the State Fiscal Management Board shall be filed with the State Fiscal Management Board not later than thirty (30) days after receipt of the invoice and receipt, inspection and approval of the goods or services, except that in the case of a bona fide dispute the requisition for payment shall contain a statement of the dispute and authorize payment only in the amount not disputed. If a requisition for payment filed within the thirty-day period is returned by the State Fiscal Management Board because of an error, it shall nevertheless be deemed timely filed. The thirty-day filing requirement may be waived by the State Fiscal Management Board on a showing of exceptional circumstances in accordance with rules and regulations established by the State Fiscal Management Board.
  2. The warrant, in payment of an invoice submitted to a public body of the state, shall be mailed or otherwise delivered by the public body not later than fifteen (15) days after filing of the requisition for payment; however, this requirement may be waived by the State Fiscal Management Board on a showing of exceptional circumstances in accordance with rules and regulations of the State Fiscal Management Board or as otherwise provided in Section 7-7-35, Mississippi Code of 1972.

HISTORY: Laws, 1986, ch. 489, § 2, eff from and after October 1, 1986.

Editor’s Notes —

Section 27-104-1 provides that the term “Fiscal Management Board” shall mean the “Department of Finance and Administration.”

Cross References —

Provision that this section does not affect payments under public works contracts pursuant to §§31-5-25 and31-5-27, see §31-7-315.

Penalties for violating the provisions of this chapter, see §31-7-55.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Works and Contracts §§ 8-29.

CJS.

72 C.J.S. Supp, Public Contracts §§ 1-24, 41.

§ 31-7-305. Recordkeeping and notice requirements; time for mailing check in payment of invoice; time for payment in event of dispute; interest penalties.

  1. All public bodies of the state, including those which issue checks and those which file requisitions for payment with the State Fiscal Management Board, shall keep a record of the date of receipt of the invoice, dates of receipt, inspection and approval of the goods or services, date of issuing the check or date of filing the requisition for payment, as the case may be, and date of mailing or otherwise delivering the warrant or check in payment thereof. In the event that the State Fiscal Management Board mails or otherwise delivers the warrant directly to the claimant, pursuant to Section 7-7-35, Mississippi Code of 1972, the State Fiscal Management Board shall notify the public body of the date thereof. The provisions of this section are supplemental to the requirements of Sections 19-13-29, 21-39-7, 21-39-13 and 37-5-93, Mississippi Code of 1972.
  2. All public bodies that are authorized to issue checks in payment of goods and services and are not required to issue requisitions for payment to the State Fiscal Management Board shall mail or otherwise deliver such checks no later than forty-five (45) days after receipt of the invoice and receipt, inspection and approval of the goods or services; however, in the event of a bona fide dispute, the public body shall pay only the amount not disputed.
  3. If a warrant or check, as the case may be, in payment of an invoice is not mailed or otherwise delivered within forty-five (45) days after receipt of the invoice and receipt, inspection and approval of the goods and services, the public body shall be liable to the vendor, in addition to the amount of the invoice, for interest at a rate of one and one-half percent (1-1/2 %) per month or portion thereof on the unpaid balance from the expiration of such forty-five-day period until such time as the warrant or check is mailed or otherwise delivered to the vendor. The provisions of this paragraph shall apply only to undisputed amounts for which payment has been authorized. In the case of an error on the part of the vendor, the forty-five-day period shall begin to run upon receipt of a corrected invoice by the public body and upon compliance with the other provisions of this section. The various public bodies shall be responsible for initiating the penalty payments required by this subsection and shall use this subsection as authority to make such payments. Also, at the time of initiating such penalty payment, the public body shall specify in writing an explanation of the delay and shall attach such explanation to the requisition for payment of the penalty or to the file copy of the check issued by the public body, as the case may be.
    1. In the event of a bona fide dispute as to an invoice, or any portion thereof, the dispute shall be settled within thirty (30) days after interest penalties could begin to be assessed, if it were not for the dispute.
    2. If a warrant or check, as the case may be, in payment of an invoice, subject to a prior dispute, is not mailed or otherwise delivered within thirty (30) days after settlement of the dispute, the public body shall be liable to the vendor, in addition to the amount of the invoice, for interest at a rate of one and one-half percent (1-1/2 %) per month or portion thereof on the unpaid balance from the expiration of said thirty-day period until such time as the warrant or check is mailed or otherwise delivered to the vendor. At the time of initiating such penalty payment, the public body shall specify in writing an explanation of the delay and shall attach such explanation to the requisition for payment of the penalty or to the file copy of the check issued by the public body, as the case may be. The interest penalty prescribed in this paragraph shall be in lieu of the penalty provided in subsection (3).

HISTORY: Laws, 1986, ch. 489, § 3, eff from and after October 1, 1986.

Editor’s Notes —

Section 37-5-93 referred to in (1) was repealed by Laws of 1986, ch. 492, § 84, eff from and after July 1, 1987.

Section 27-104-1 provides that the term “Fiscal Management Board” shall mean the “Department of Finance and Administration.”

Cross References —

Provision that the processing of claims by boards of supervisors of counties is subject to the provisions of this section, see §19-13-31.

Provision that the processing of claims by governing authorities of municipalities is subject to the provisions of this section, see §21-39-9.

Penalties for violating the provisions of this chapter, see §31-7-55.

Provision that this section does not affect payments under public works contracts pursuant to §§31-5-25 and31-5-27, see §31-7-315.

OPINIONS OF THE ATTORNEY GENERAL

Miss. Code Section 31-7-305 provides for interest on late payments for goods or services purchased by a municipality. 1993 Miss. Op. Att'y Gen. 15.

Only board of supervisors can pass on claim of vendor and order it paid; if claim is denied and later determined to have been properly allowable by court of competent jurisdiction, then any interest determined to be owing should be paid by board of supervisors. 1994 Miss. Op. Att'y Gen. 135.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Works and Contracts §§ 8-29.

CJS.

72 C.J.S. Supp, Public Contracts §§ 1-24, 41.

JUDICIAL DECISIONS

1. In general.

Corporation, which had contracted with a county to reseal a road, was not entitled to prejudgment interest under Miss. Code. Ann. §31-7-305 because there was no bad faith or sinister motive behind the contract dispute. Southland Enters., Inc. v. Newton County, 940 So. 2d 937, 2006 Miss. App. LEXIS 101 (Miss. Ct. App.), cert. denied, 939 So. 2d 805, 2006 Miss. LEXIS 739 (Miss. 2006).

Because a contractor was awarded an amount in quantum meruit, the county was not liable for statutory interest or attorney’s fees. Southland Enters. v. Newton County, 838 So. 2d 286, 2003 Miss. LEXIS 68 (Miss. 2003).

§ 31-7-307. Disclosure of late payments and interest penalties; preferential payment of certain invoices to obtain discount.

  1. The budget request submitted by a public body to the Legislature shall specifically disclose the amount of any interest paid by any public body pursuant to Sections 31-7-301 through 31-7-317. However, no provision of Sections 31-7-301 through 31-7-317 authorizes a new appropriation to cover such interest penalties, and public bodies shall not seek to increase appropriations for the purpose of obtaining funds to pay any interest penalties.
  2. All public bodies of the state, including those which issue checks and those which file requisitions for payment with the State Fiscal Management Board, shall monthly notify the State Fiscal Management Board of the number and dollar amount of late payments by the public body along with the amounts of interest paid and the specific steps being taken to reduce the incidence of late payments.
  3. If the terms of the invoice provide a discount for payment in less than forty-five (45) days, public bodies shall preferentially process it and use all diligence to obtain the savings by compliance with the invoice terms, if it would be cost effective.

HISTORY: Laws, 1986, ch. 489, § 4, eff from and after October 1, 1986.

Editor’s Notes —

Section 27-104-1 provides that the term “Fiscal Management Board” shall mean the “Department of Finance and Administration.”

Cross References —

Provision that this section does not affect payments under public works contracts pursuant to §§31-5-25 and31-5-27, see §31-7-315.

Penalties for violating the provisions of this chapter, see §31-7-55.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Works and Contracts §§ 8-29.

CJS.

72 C.J.S. Supp, Public Contracts §§ 1-24, 41.

§ 31-7-309. Recovery of attorney’s fees in action to collect interest penalty.

Whenever a vendor brings formal administrative or judicial action to collect interest due under Sections 31-7-301 through 31-7-317, the public body shall be required to pay any reasonable attorney’s fees if the vendor prevails.

HISTORY: Laws, 1986, ch. 489, § 5, eff from and after October 1, 1986.

Cross References —

Provision that the processing of claims by boards of supervisors of counties is subject to the provisions of this section, see §19-13-31.

Provision that the processing of claims by governing authorities of municipalities is subject to the provisions of this section, see §21-39-9.

Provision that this section does not affect payments under public works contracts pursuant to §§31-5-25 and31-5-27, see §31-7-315.

Penalties for violating the provisions of this chapter, see §31-7-55.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Works and Contracts §§ 8-29.

CJS.

72 C.J.S. Supp, Public Contracts §§ 1-24, 41.

JUDICIAL DECISIONS

1. In general.

Corporation that had contracted with a county to reseal a road was not entitled to attorney fees under Miss. Code Ann. §31-7-309 because the corporation was not entitled to an award under Miss. Code Ann. §31-7-305, and Miss. Code Ann. §31-5-25 did not provide for a statutory award of attorney fees. Southland Enters., Inc. v. Newton County, 940 So. 2d 937, 2006 Miss. App. LEXIS 101 (Miss. Ct. App.), cert. denied, 939 So. 2d 805, 2006 Miss. LEXIS 739 (Miss. 2006).

Based upon the delay in payment to the construction company by the county for a completed project, the trial court properly awarded the company interest, costs, and attorney’s fees as prescribed by Miss. Code Ann. §§31-5-25 and31-7-309; such an award was supported by the record on appeal as the record contained a contract which provided for interest in the event of late payment, clearly detailed the schedule for progress payments, and clearly prescribed the manner in which final payment was to take place; the county’s deposit with the court clearly showed that the funds were present to pay the remaining portion of the contract, but for reasons unknown, the county chose not to honor the final payment provision of the contract until a lawsuit had been filed to determine each party’s rights. Humphreys County v. Guy Jones, Jr. Constr. Co., 910 So. 2d 1129, 2005 Miss. App. LEXIS 202 (Miss. Ct. App. 2005).

Because a contractor was awarded an amount in quantum meruit, the county was not liable for statutory interest or attorney’s fees. Southland Enters. v. Newton County, 838 So. 2d 286, 2003 Miss. LEXIS 68 (Miss. 2003).

§ 31-7-311. Annual summary of payment record.

The State Fiscal Management Board shall submit to the Appropriations Committee of each house of the Legislature by January 15 of each year a report summarizing the payment record for the preceding fiscal year. The report shall include the number and dollar amount of late payments by each public body along with the amounts of interest paid and the specific steps being taken to reduce the incidence of late payments.

HISTORY: Laws, 1986, ch. 489, § 6, eff from and after October 1, 1986.

Editor’s Notes —

Section 27-104-1 provides that the term “Fiscal Management Board” shall mean the “Department of Finance and Administration.”

Cross References —

Provision that the processing of claims by boards of supervisors of counties is subject to the provisions of this section, see §19-13-31.

Provision that the processing of claims by governing authorities of municipalities is subject to the provisions of this section, see §21-39-9.

Provision that this section does not affect payments under public works contracts pursuant to §§31-5-25 and31-5-27, see §31-7-315.

Penalties for violating the provisions of this chapter, see §31-7-55.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Works and Contracts §§ 8-29.

CJS.

72 C.J.S. Supp, Public Contracts §§ 1-24, 41.

§ 31-7-313. Adoption and promulgation of rules and regulations.

The State Fiscal Management Board is authorized and directed to adopt and promulgate rules and regulations necessary to implement this section.

HISTORY: Laws, 1986, ch. 489, § 7, eff from and after October 1, 1986.

Editor’s Notes —

Section 27-104-1 provides that the term “Fiscal Management Board” shall mean the “Department of Finance and Administration.”

Cross References —

Provision that the processing of claims by boards of supervisors of counties is subject to the provisions of this section, see §19-13-31.

Provision that the processing of claims by governing authorities of municipalities is subject to the provisions of this section, see §21-39-9.

Provision that this section does not affect payments under public works contracts pursuant to §§31-5-25 and31-5-27, see §31-7-315.

Penalties for violating the provisions of this chapter, see §31-7-55.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Works and Contracts §§ 8-29.

CJS.

72 C.J.S. Supp, Public Contracts §§ 1-24, 41.

§ 31-7-315. Relation to provisions governing payments under public works contracts.

Sections 31-7-301 through 31-7-317 shall not affect payment under public works contracts as provided in Sections 31-5-25 and 31-5-27, Mississippi Code of 1972.

HISTORY: Laws, 1986, ch. 489, § 8, eff from and after October 1, 1986.

Cross References —

Penalties for violating the provisions of this chapter, see §31-7-55.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Works and Contracts §§ 8-29.

CJS.

72 C.J.S. Supp, Public Contracts §§ 1-24, 41.

§ 31-7-317. Feasibility studies.

  1. The Governor’s Office of General Services shall study the feasibility of:
    1. Requiring the Bureau of Purchasing to act as purchasing agent for state agencies;
    2. Requiring the Bureau of Purchasing to purchase frequently used products and supplies and warehouse them for state agencies, especially in the Jackson metropolitan area; and
    3. A small business/minority set-aside program.
  2. On or before January 15, 1987, the Governor’s Office of General Services shall transmit its written report of the feasibility studies to the Legislature, along with its recommendations and an estimate of the fiscal impact of the recommendations. If the Governor’s Office of General Services recommends that the bureau should be required to act as purchasing agent for smaller state agencies, the report shall include a list of state agencies to be included.

HISTORY: Laws, 1986, ch. 489, § , eff from and after passage (approved April 15, 1986).

Editor’s Notes —

Section 7-1-451 provides that wherever the term “Office of General Services” appears in any law the same shall mean the Department of Finance and Administration.

Cross References —

Penalties for violating the provisions of this chapter, see §31-7-55.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Works and Contracts §§ 8-29.

CJS.

72 C.J.S. Supp, Public Contracts §§ 1-24, 41.

Best Practices for Soliciting Requests for Proposals or Requests for Qualifications

§ 31-7-401. Applicability.

Except as otherwise provided by law, the provisions of Sections 31-7-401 through 31-7-423 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. Any agency that is required to receive approval by the Public Procurement Review Board before entering into a personal or professional services contract as provided in subsection (2)(g) of Section 27-104-7 shall implement the best practices specified in Sections 31-7-401 through 31-7-423. The Public Procurement Review Board shall promulgate any necessary rules and regulations to administer the provisions of Sections 31-7-401 through 31-7-423.

HISTORY: Laws, 2017, ch. 400, § 1, eff from and after Jan. 1, 2018.

§ 31-7-403. 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:
    1. The need for flexibility;
    2. The type of evaluations that will be needed after offers are received;
    3. Whether the evaluation factors involve the relative abilities of offerers to perform, including degrees of technical or professional experience or expertise;
    4. Whether the type of need to be satisfied involves weighing artistic and aesthetic values to the extent that price is a secondary consideration;
    5. Whether the types of supplies, services or construction may require the use of comparative judgmental evaluations to evaluate them adequately; and
    6. 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:
    1. Whether the contract needs to be a contract other than a fixed-price type contract;
    2. Whether oral or written discussions may need to be conducted with offerers concerning technical and price aspects of their proposals;
    3. Whether offerers may need to be afforded the opportunity to revise their proposals, including price;
    4. 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
    5. Whether the primary consideration in determining award may not be price.
  4. On or before January 1 of each year, and every time a chief procurement officer is hired, each state agency shall provide to the state purchasing agent the name of the state agency’s chief procurement officer and information identifying the state agency’s central purchasing office, if applicable. If the chief procurement officer of 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. 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 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.

    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 chief procurement officer shall consider the following factors:

    1. Whether quality, availability or capability is overriding in relation to price in procurements for research and development, technical supplies or services;
    2. 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
    3. 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.

HISTORY: Laws, 2017, ch. 400, § 2, eff from and after Jan. 1, 2018.

§ 31-7-405. Content of the request for proposals or request for qualifications.

  1. The request for proposals or request for qualifications shall include the following:
    1. 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;
    2. The purchase description, evaluation factors, delivery or performance schedule and any inspection and acceptance requirements that are not included in the purchase description;
    3. The contract terms and conditions, including warranty and bonding or other security requirements, as applicable;
    4. 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
    5. 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.
  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 chief procurement officer of the requesting agency.

HISTORY: Laws, 2017, ch. 400, § 3, eff from and after Jan. 1, 2018.

§ 31-7-407. 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 chief procurement officer 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:
    1. The due date for responses;
    2. The name and phone number of the officer conducting the procurement; and
    3. 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 chief procurement officer, unless a shorter time is deemed necessary for a particular procurement as determined in writing by the chief procurement officer of the requesting agency.
  3. Each chief procurement officer 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 chief procurement officer may provide notice in an alternative manner about the request for proposals or request for qualifications in addition to the methods provided for in Sections 31-7-401 through 31-7-423.
  4. The Department of Finance and Administration (DFA) shall monitor agency websites and the Mississippi procurement portal to ensure that the agencies are posting the required notice. DFA 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.

HISTORY: Laws, 2017, ch. 400, § 4, eff from and after Jan. 1, 2018.

§ 31-7-409. Pre-proposal conferences.

  1. Pre-proposal conferences may be conducted to explain the procurement requirements. If a chief procurement officer 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 chief procurement officer 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, the chief procurement officer 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 chief procurement officer may need to make after the conference.
  3. The chief procurement officer 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. A chief procurement officer may mandate attendance at a conference if he or she feels it is critical to understanding the solicitation. Once the conference is over, the chief procurement officer 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.

HISTORY: Laws, 2017, ch. 400, § 5, eff from and after Jan. 1, 2018.

§ 31-7-411. Drafting the request for proposals or request for qualifications.

  1. In addition to the items listed in Sections 31-7-401 through 31-7-423, the contents of a request for proposals or request for qualifications shall also include the following:
    1. 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
    2. 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.

HISTORY: Laws, 2017, ch. 400, § 6, eff from and after Jan. 1, 2018.

§ 31-7-413. Evaluation factors in the request for proposals or request for qualifications.

  1. When the chief procurement officer 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.
    1. The request for proposals or request for qualifications shall state all of the approved evaluation factors, including price, and their relative importance. When the chief procurement officer 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 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 31-7-423(1).
    2. 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 Sections 31-7-401 through 31-7-423. 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.

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

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

      c. Has the past performance of the offerer’s proposed methodology been documented?

      d. Does the offerer’s proposal or qualification use innovative technology and techniques?

      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?

      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?

      1. Technical factors (Proposed methodology):
      2. Management factors (Factors that will require the identity of the offerer to be revealed must be submitted separately from other factors):
      3. 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?

HISTORY: Laws, 2017, ch. 400, § 7, eff from and after Jan. 1, 2018.

§ 31-7-415. 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 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 31-7-423(1). 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 chief procurement officer 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.

HISTORY: Laws, 2017, ch. 400, § 8, eff from and after Jan. 1, 2018.

§ 31-7-417. 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 chief procurement officer shall designate a person to prepare a register of proposals 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 chief procurement officer 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 31-7-423(1).

HISTORY: Laws, 2017, ch. 400, § 9; Laws, 2017, ch. 411, § 2, eff from and after Jan. 1, 2018.

Amendment Notes —

The 2017 amendment, effective January 1, 2018, deleted “and the Public Procurement Review Board shall assess that person a fine of not less than One Thousand Dollars ($1,000.00) and the chief procurement officer who designated that person to establish the register of proposals or qualifications shall be removed from his or her office and assessed a fine of not less than One Thousand Dollars ($1,000.00)” from the end of the next-to-last sentence of (2).

§ 31-7-419. 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:
    1. Promote understanding of the state’s requirements and the offerer’s proposals or qualifications; and
    2. 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.
  3. 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 chief procurement officer 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.

HISTORY: Laws, 2017, ch. 400, § 10, eff from and after Jan. 1, 2018.

§ 31-7-421. Best and final offers.

The chief procurement officer 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 chief 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. Offerers shall also be informed that if they do not submit a notice of withdrawal or another best and final offer, their immediate previous offer will be construed as their best and final offer.

HISTORY: Laws, 2017, ch. 400, § 11, eff from and after Jan. 1, 2018.

§ 31-7-423. 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 chief procurement officer 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 chief procurement officer.

HISTORY: Laws, 2017, ch. 400, § 12, eff from and after Jan. 1, 2018.

Chapter 8. Acquisition of Public Buildings, Facilities, and Equipment Through Rental Contracts

§ 31-8-1. Legislative purpose; construction of chapter.

The purpose of this chapter is to provide a method to enable counties and municipalities to acquire public buildings, facilities and equipment through the use of rental contracts. This chapter shall be construed in conformity with such intention and shall be an alternative to those methods which may be otherwise provided by law.

HISTORY: Laws, 1990, ch. 564, § 1, eff from and after July 1, 1990.

Editor’s Notes —

On June 18, 1990, the United States Attorney General interposed no objection to the addition of this section by Laws of 1990, Ch. 564.

Cross References —

Lease of real property to private entity for construction or renovation of facilities described in this section, see §31-8-7.

OPINIONS OF THE ATTORNEY GENERAL

The governing authorities of a municipality may lease municipal property to a company to construct a telecommunications tower and building that will be owned by the city once completed, and the company may lease space on the tower for its own use as consideration for the lease of the municipal property pursuant to this chapter. 1999 Miss. Op. Att'y Gen. 38.

§ 31-8-3. Purposes for which counties and municipalities may lease facilities.

The counties and municipalities of this state, acting by and through the governing authorities thereof, are hereby authorized and empowered to enter into lease agreements with any corporation, partnership, limited partnership, joint venture or individual under which the county or municipality may agree to lease a facility for use by the lessor for any of the following purposes for a primary term not to exceed twenty (20) years:

Public buildings;

Courthouses;

Office buildings;

Jails;

Auditoriums;

Community centers;

Civic art centers;

Public libraries;

Gymnasiums; and

Machinery and equipment for use in connection with any of the above, but shall not include office furniture and/or office machines, provided that the primary term of a lease with respect to machinery and equipment shall not exceed the estimated useful economic life of such machinery and equipment, as such useful economic life is mutually agreed upon by the lessor and lessee.

Nothing in this section shall be construed to authorize the acquisition of public school buildings through the use of rental contracts.

HISTORY: Laws, 1990, ch. 564, § 2, eff from and after July 1, 1990.

Editor’s Notes —

On June 18, 1990, the United States Attorney General interposed no objection to the addition of this section by Laws of 1990, Ch. 564.

OPINIONS OF THE ATTORNEY GENERAL

Lease purchase agreement calling for a private corporation to lease/purchase certain real estate to a county for a term of 20 years and then convey title to the county at the end of that term and also providing that the corporation has an exclusive right to operate a community center on the property for a term of 99 years after the original agreement expires does not violate the rule that one board of supervisors cannot bind a successor board and the 20-year lease term is binding on the current board. However, the clause granting an exclusive right to operate the community center for a term of 99 years is not binding on the current board or successor boards and is voidable at the option of the board. 2004 Miss. Op. Att'y Gen. 329.

RESEARCH REFERENCES

ALR.

Power of municipal corporation to lease or sublet property owned or leased by it. 47 A.L.R.3d 19.

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 540, 556-559.

§ 31-8-5. Option to purchase.

All such leases shall contain an option granting to the county or municipality the right to purchase the leased property upon the expiration of the primary term, or upon such earlier date as may be agreed upon, at a price not to exceed the unpaid principal balance at such time.

HISTORY: Laws, 1990, ch. 564, § 3, eff from and after July 1, 1990.

Editor’s Notes —

On June 18, 1990, the United States Attorney General interposed no objection to the addition of this section by Laws of 1990, Ch. 564.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 540, 556-559.

§ 31-8-7. Lease of real property by municipality to private concern for construction or renovation of buildings or facilities; subleases to United States Postal Service or to any other state or federal agency.

  1. The counties and municipalities of the state are authorized to lease publicly owned real property to any corporation, partnership, limited partnership, joint venture or individual for the purpose of enabling such person to construct or renovate thereon any of the buildings or facilities described in Section 31-8-1 and to lease such buildings and facilities to the county or municipality. No such ground lease shall be for a primary term in excess of the primary term of the lease with respect to the buildings and facilities to be constructed thereon.
  2. The counties and municipalities of the state are authorized to sublease buildings and facilities leased pursuant to subsection (1) of this section to the United States Postal Service or to any state or federal governmental agency. Any sublease entered into pursuant to this subsection may contain an option granting the sublessee the right to purchase the leased property upon the expiration of the primary term of the sublease, or upon such earlier date as may be agreed upon, at a price not to exceed the unpaid principal balance at such time.

    Before entering into any lease agreement pursuant to this subsection, the board of supervisors or the governing authorities of the municipality shall follow and be subject to the same procedures regarding publishing notice, filing protest and holding an election specified for lease agreements under Section 31-8-11, except that the notice shall not state that the rental is a continuing obligation and a charge against the general credit and leasing power of the county or municipality.

HISTORY: Laws, 1990, ch. 564, § 4; Laws, 1996, ch. 473, § 1, eff from and after passage (approved April 5, 1996).

Editor’s Notes —

On June 18, 1990, the United States Attorney General interposed no objection to the addition of this section by Laws of 1990, Ch. 564.

RESEARCH REFERENCES

ALR.

Power of municipal corporation to lease or sublet property owned or leased by it. 47 A.L.R.3d 19.

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 540, 556-559.

§ 31-8-9. Term of lease; pledge of full faith and credit; limitation of obligation to money appropriated.

Subject to the provisions of this chapter, any such lease agreement may extend over any period, notwithstanding any provision or rule of law to the contrary, and any such lease agreement shall be binding upon the county or municipality and any other party thereto in accordance with its terms. Any such lease agreement may include, at the discretion of the governing authorities entering into the same, a pledge of the full faith and credit of such county or municipality for the payment of its monetary obligations thereunder; or may contain a provision that so long as no default of any monetary obligation of the lessee has occurred, the lessee’s obligation to pay any amounts due or perform any covenants requiring or resulting in the expenditure of money shall be contingent and expressly limited to the extent of any specific appropriation made by the governing authorities to fund such lease agreement, and that nothing contained in the lease agreement shall be construed as creating any monetary obligation on the part of the lessee beyond such current and specific appropriation. Obligations incurred by a county or municipality under the provisions of this chapter secured by a pledge of its full faith and credit shall be included within the limitation on bonded indebtedness established by law for counties and municipalities.

HISTORY: Laws, 1990, ch. 564, § 5, eff from and after July 1, 1990.

Editor’s Notes —

On June 18, 1990, the United States Attorney General interposed no objection to the addition of this section by Laws of 1990, Ch. 564.

RESEARCH REFERENCES

ALR.

Power of municipal corporation to lease or sublet property owned or leased by it. 47 A.L.R.3d 19.

§ 31-8-11. Notice of intent to lease; protest; election; advertisement of lease agreement; award of lease.

Before entering into any lease agreement pursuant to this chapter secured by a pledge of its full faith and credit, the governing authorities of any county or municipality shall publish notice of their intention to receive suitable proposals for the leasing of such buildings, facilities or equipment. Such notice shall specify the nature of the proposed building, facility or equipment, the general geographic area in which the same is to be located, the term of the proposed lease agreement, that the obligation to pay rentals during the primary term is to be a continuing obligation of and a charge against the general credit and leasing power of the county or municipality, and the date and hour on or before which such proposals may be received. Such notice shall be published by municipalities and counties in the same manner as required for publishing notice of intention to issue general obligation bonds of the county or municipality, as appropriate. If at least twenty percent (20%), or fifteen hundred (1500), of the qualified electors of a county, whichever is less, or at least ten percent (10%), or fifteen hundred (1500), of the qualified electors of a municipality, whichever is less, file a written protest with the appropriate governing authorities, then an election shall be called by the county in the same manner as provided for the issuance of county general obligation bonds in Sections 19-9-11 through 19-9-17, Mississippi Code of 1972, or by a municipality in the same manner as provided for the issuance of municipal general obligation bonds in Sections 21-33-307 through 21-33-311, Mississippi Code of 1972, to determine whether or not the proposed lease agreement may be executed by the county or municipality. The lease agreement shall be advertised for competitive sealed proposals once each week for two (2) consecutive weeks in a regular newspaper published or having a general circulation in the county or municipality of the governing authority. The date as published for the proposal opening shall be not less than five (5) working days after the last published notice. The lease shall be awarded to the person submitting the lowest and best proposal; however, all proposals may be rejected.

HISTORY: Laws, 1990, ch. 564, § 6, eff from and after July 1, 1990.

Editor’s Notes —

The Mississippi Attorney General’s Office, pursuant to Section 5 of the Voting Rights Act of 1965, as amended, requested preclearance of Chapter 564, Laws of 1990 (codified herein as §§31-8-1 through31-8-13), and the request was received by the United States Attorney General’s Office on April 18, 1990. On June 18, 1990, the United States Attorney General’s Office interposed no objection to the provisions of Chapter 564, Laws, 1990, which provides for referendum procedures regarding lease agreements by a county or municipality.

RESEARCH REFERENCES

ALR.

Power of municipal corporation to lease or sublet property owned or leased by it. 47 A.L.R.3d 19.

Public contracts: authority of state or its subdivision to reject all bids. 52 A.L.R.4th 186.

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 540, 556-559.

§ 31-8-13. Full and complete authority for leases.

This chapter, without reference to any other statute, shall be deemed to be full and complete authority for the authorization, execution and delivery of lease agreements authorized hereunder, and shall be construed as an additional and alternative method therefor, and none of the present restrictions, requirements, conditions and limitations of law applicable to the acquisition, construction and drawing of buildings or facilities in this state shall apply to lease agreements under this chapter, and no proceedings shall be required for the authorization, execution and delivery of such leases other than those required herein, and all powers necessary to be exercised in order to carry out the provisions of this chapter are hereby conferred.

HISTORY: Laws, 1990, ch. 564, § 7, eff from and after July 1, 1990.

Editor’s Notes —

On June 18, 1990, the United States Attorney General interposed no objection to the addition of this section by Laws of 1990, Ch. 564.

Chapter 9. Surplus Property Procurement Commission

§ 31-9-1. Definitions.

  1. For purposes of this chapter, the term “office of general services” shall mean the Governor’s office of general services acting through the bureau of surplus property.
  2. Wherever the term “surplus property procurement commission” appears in the laws of the State of Mississippi, it shall be construed to mean the Governor’s office of general services.

HISTORY: Codes, 1942, § 9028-01; Laws, 1946, ch. 214, § 1; Laws, 1948, ch. 359, § 1; Laws, 1952, ch. 336, §§ 1-3; Laws, 1964, ch. 492; Laws, 1980, ch. 491, § 23; Laws, 1984, ch. 488, § 25, eff from and after July 1, 1984.

Editor’s Notes —

Section 7-1-451 provides that wherever the term “Office of General Services” appears in any law the same shall mean the Department of Finance and Administration.

Laws of 1984, ch. 488, § 341, provides as follows:

“SECTION 341. Nothing in this act shall affect or defeat any claim, assessment, appeal, suit, right or cause of action which accrued prior to the date on which the applicable sections of this act become effective, whether such assessments, appeals, suits, claims or actions shall have been begun before the date on which the applicable sections of this act become effective or shall thereafter be begun.”

Cross References —

Effect of any member of a board, commission, council or authority changing domicile after appointment, see §7-13-9.

Use of surplus federal property by state educational institutions, see §35-3-15.

§ 31-9-3. Repealed.

Repealed by Laws, 1984, ch. 488, § 38, eff from and after July 1, 1984.

[Codes, 1942, § 9028-02; Laws, 1946, ch. 214, § 2]

Editor’s Notes —

Former §31-9-3 provided for the organization of the surplus property procurement commission.

§ 31-9-5. Powers and duties.

  1. The Office of General Services with the approval of the Public Procurement Review Board shall negotiate and contract with any appropriate agency or commission of the United States government or of the State of Mississippi for the purpose of purchasing or otherwise securing surplus material or property in bulk lots or quantities, and for the purpose of assisting all agencies, departments, institutions and instrumentalities of the State of Mississippi, the boards of supervisors of the various counties, and the governing authorities of the various municipalities, drainage districts and other taxing units in purchasing, leasing or otherwise securing surplus material or property. After ascertaining the needs of the various state departments and institutions, counties, municipalities, drainage districts and other taxing units, the Office of General Services may enter into contracts with the governing authorities of such governmental entities as will enable them to carry out the provisions of this section.
  2. The Office of General Services also may acquire state or federal government surplus property for nonprofit and tax exempt health and educational institutions, Boy Scouts, Girl Scouts, Camp Fire Girls, military academies, volunteer fire departments, nonprofit cooperative water associations, Boys Clubs of America and Girls Clubs of America; however, deliveries to these institutions shall be made only after they have established their eligibility by meeting the requirements of the federal government, have requested the Office of General Services to act for them in acquiring government surplus property, and have agreed to comply with both the state and federal laws pertaining to acquisition and utilization of the property.
  3. [Repealed]
  4. The Office of General Services may do all other things which may be necessary to effectuate the purposes of this section.

HISTORY: Codes, 1942, §§ 9028-03, 9028-05, 9028-08; Laws, 1946, ch. 214, §§ 3, 5; Laws, 1952, ch. 337, §§ 1-5; Laws, 1956, ch. 366, §§ 1-5; Laws, 1958, ch. 470, § 1; Laws, 1960, ch. 377, § 2; Laws, 1960, ch. 398, § 2; Laws, 1962, ch. 484, § 10; Laws, 1971, ch. 450, § 1; Laws, 1984, ch. 488, § 26; Laws, 1992, ch. 572 § 1; Laws, 1994, ch. 392, § 1; Laws, 2004, ch. 577, § 1, eff from and after July 1, 2004.

Editor’s Notes —

Section 7-1-451 provides that wherever the term “Office of General Services” appears in any law the same shall mean the Department of Finance and Administration.

Former (3), which authorized state agencies to donate goods or services for the support of local chapters of the American Red Cross, was repealed by its own terms, effective from and after July 1, 2005.

Amendment Notes —

The 2004 amendment added (3).

OPINIONS OF THE ATTORNEY GENERAL

Under Miss. Code Section 31-9-5, it is “self-evident” that Office of General Services has specific statutory authority to contract for federal surplus; further, Office of General Services may accept state surplus property, but is not required to accept such property; however, whether or not such arrangement would be prohibited by any federal-state agreement or federal law regarding federal surplus is question of federal law. 1993 Miss. Op. Att'y Gen. 176.

§ 31-9-7. Repealed.

Repealed by Laws, 1984, ch. 488, § 38, eff from and after July 1, 1984.

[Codes, 1942, § 9028-04; Laws, 1946, ch. 214, § 4; 1948, ch. 374, § 1; 1958, ch. 470, § 2; 1960, ch. 398, § 1; 1966, ch. 445, § 34; 1970, ch. 474, § 1]

Editor’s Notes —

Former §31-9-7 provided for a director and employees of the surplus property procurement commission.

§ 31-9-9. Laws regulating public purchases waived.

All laws or parts of laws requiring the various state institutions, departments, and agencies, the boards of supervisors of the various counties, and the governing authorities of the various municipalities, drainage districts, and other taxing units to advertise or request and receive bids for the purchase of furniture, equipment, supplies, and other commodities are hereby waived for the purposes of this chapter and shall not be applicable to purchases made hereunder.

HISTORY: Codes, 1942, § 9028-06; Laws, 1946, ch. 214, § 6.

Cross References —

Kind of paper to be used in printing, see §31-1-5.

Requirement for bids on public purchases, see §31-7-13.

§ 31-9-11. Repealed.

Repealed by Laws, 1984, ch. 488, § 38, eff from and after July 1, 1984.

[Codes, 1942, § 9028-07; Laws, 1946, ch. 14, § 7]

Editor’s Notes —

Former §31-9-11 contained provisions for compensating members of the surplus property procurement commission.

§ 31-9-13. Revolving fund.

In lieu of regular appropriations, the Department of Finance and Administration may assess against each institution, agency or individual acquiring surplus property from and through the Department of Finance and Administration a fee or commission on each item in sufficient amount to establish and maintain a revolving fund, to be used to operate and support the Department of Finance and Administration. The Department of Finance and Administration shall follow the procedure outlined by the United States Department of Health and Human Services in establishing the fund, and the fund shall never exceed more than One Million Dollars ($1,000,000.00) above and beyond four (4) months of operating expenses of the Department of Finance and Administration.

With this revolving fund so acquired, the Department of Finance and Administration shall meet all items of expense incurred in acquiring, transporting, warehousing and distributing property to eligible applicants and also all items of expense incident to the operation of the offices of the Department of Finance and Administration, including salaries, office supplies and necessary general expenses, and all other items as are covered by legislative appropriation for those purposes.

The Department of Finance and Administration may escalate, budget and expend funds from the revolving fund in an amount not to exceed Two Hundred Fifty Thousand Dollars ($250,000.00) in any one fiscal year to carry out the provisions of this section.

HISTORY: Codes, 1942, § 9028-08; Laws, 1952, ch. 337, §§ 1-5; Laws, 1956, ch. 366, §§ 1-5; Laws, 1958, ch. 470, § 1; Laws, 1960, ch. 377, § 2; Laws, 1960, ch. 398, § 2; Laws, 1962, ch. 484, § 10; Laws, 1971, ch. 450, § 1; Laws, 1984, ch. 488, § 27; Laws, 2005, ch. 475, § 1; Laws, 2006, ch. 576, § 1; Laws, 2007, ch. 306, § 1, eff from and after July 1, 2007.

Amendment Notes —

The 2005 amendment, in the last sentence of the first paragraph, substituted “United States Department of Health and Human Services” for “United States Department of Health Education and Welfare,” substituted “One Million Dollars ($1,000,000.00)” for “two hundred fifty thousand dollars ($250,000.00),” substituted “four (4) months of operating expenses” for “the current monthly operating expenses,” and made a minor stylistic change; and added the last two paragraphs.

The 2006 amendment extended the repealer provision from “July 1, 2006” to “July 1, 2008” in the last paragraph.

The 2007 amendment substituted “Department of Finance and Administration” for “Office of General Services” eight times throughout the section; and deleted the former last paragraph, which read “This section shall stand repealed on July 1, 2008.”

§ 31-9-15. Inventories.

The Office of General Services shall furnish to the State Auditor of Public Accounts copies of transfers of property to state boards, commissions and agencies on all property transferred to such agencies, federal reviews, in addition to an inventory on all furniture, equipment, machinery and vehicles used by the Office of General Services in carrying out the purposes of this chapter. The Office of General Services shall likewise keep a perpetual current inventory on all property in books and records.

HISTORY: Codes, 1942, § 9028-08; Laws, 1952, ch. 337, §§ 1-5; Laws, 1956, ch. 366, §§ 1-5; Laws, 1958, ch. 470, § 1; Laws, 1960, ch. 377, § 2; Laws, 1960, ch. 398, § 2; Laws, 1962, ch. 484, § 10; Laws, 1971, ch. 450, § 1; Laws, 1984, ch. 488, § 28; Laws, 1995, ch. 562, § 1; Laws, 2009, ch. 546, § 11, eff from and after passage (approved Apr. 15, 2009.).

Editor’s Notes —

Section 7-1-451 provides that wherever the term “Office of General Services” appears in any law the same shall mean the Department of Finance and Administration.

Section 7-7-2 provides that the words “State Auditor of Public Accounts,” “State Auditor,” and “Auditor” appearing in the laws of this state in connection with the performance of Auditor’s functions shall mean the State Fiscal Officer.

Section 27-104-6 provides that whenever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration.”

Amendment Notes —

The 2009 amendment deleted the former first sentence, which read: “The said office of general services shall prepare such inventories of surplus property as may be prescribed by the State Auditor of Public Accounts on all items of property with a single original acquisition cost in excess of Three Hundred Dollars ($300.00), and copies of said inventories shall be filed with the State Auditor of Public Accounts”; deleted “as prescribed and installed by the State Department of Audit, and said books shall be audited at least once each year by said department. In the event property acquired under the provisions of this chapter is not in a usable condition, the office of general services shall not dispose of such property in any manner whatsoever without the approval of the State Auditor of Public Accounts” at the end of the section; and made minor stylistic changes.

Chapter 11. State Construction Projects

In General

§ 31-11-1. Bureau of building, grounds, and real property management; definitions.

  1. For purposes of this chapter, the term “state building commission” shall mean the Governor’s office of general services acting through the bureau of building, grounds and real property management.
  2. Wherever the term “state building commission” or “building commission” appears in the laws of the State of Mississippi, it shall be construed to mean the Governor’s office of general services.

HISTORY: Codes, 1942, § 9023-01; Laws, 1944, ch. 328, § 1; Laws, 1984, ch. 488, § 29, eff from and after July 1, 1984.

Editor’s Notes —

Section 7-1-451 provides that wherever the term “Office of General Services” appears in any law the same shall mean the Department of Finance and Administration.

Cross References —

Effect of any member of a board, commission, council or authority changing domicile after appointment, see §7-13-9.

Authority as to lease or rent of certain lands in the city of Jackson, see §29-1-203.

Authority with respect to state flood insurance program, see §§29-13-1 et seq.

Performance of services on state property by the director of the highway department, see §65-1-10.

§ 31-11-3. Powers and duties.

  1. The Department of Finance and Administration, for the purposes of carrying out the provisions of this chapter, in addition to all other rights and powers granted by law, shall have full power and authority to employ and compensate architects or other employees necessary for the purpose of making inspections, preparing plans and specifications, supervising the erection of any buildings, and making any repairs or additions as may be determined by the Department of Finance and Administration to be necessary, pursuant to the rules and regulations of the State Personnel Board. The department shall have entire control and supervision of, and determine what, if any, buildings, additions, repairs, demolitions or improvements are to be made under the provisions of this chapter, subject to the regulations adopted by the Public Procurement Review Board.
  2. The department shall have full power to erect buildings, make repairs, additions or improvements, demolitions, to grant or acquire easements or rights-of-way, and to buy materials, supplies and equipment for any of the institutions or departments of the state subject to the regulations adopted by the Public Procurement Review Board. In addition to other powers conferred, the department shall have full power and authority as directed by the Legislature, or when funds have been appropriated for its use for these purposes, to:
    1. Build a state office building;
    2. Build suitable plants or buildings for the use and housing of any state schools or institutions, including the building of plants or buildings for new state schools or institutions, as provided for by the Legislature;
    3. Provide state aid for the construction of school buildings;
    4. Promote and develop the training of returned veterans of the United States in all sorts of educational and vocational learning to be supplied by the proper educational institution of the State of Mississippi, and in so doing allocate monies appropriated to it for these purposes to the Governor for use by him in setting up, maintaining and operating an office and employing a state director of on-the-job training for veterans and the personnel necessary in carrying out Public Law No. 346 of the United States;
    5. Build and equip a hospital and administration building at the Mississippi State Penitentiary;
    6. Build and equip additional buildings and wards at the Boswell Retardation Center;
    7. Construct a sewage disposal and treatment plant at the Mississippi State Hospital, and in so doing acquire additional land as may be necessary, and to exercise the right of eminent domain in the acquisition of this land;
    8. Build and equip the Mississippi central market and purchase or acquire by eminent domain, if necessary, any lands needed for this purpose;
    9. Build and equip suitable facilities for a training and employing center for the blind;
    10. Build and equip a gymnasium at Columbia Training School;
    11. Approve or disapprove the expenditure of any money appropriated by the Legislature when authorized by the bill making the appropriation;
    12. Expend monies appropriated to it in paying the state’s part of the cost of any street paving;
    13. Sell and convey state lands when authorized by the Legislature, cause said lands to be properly surveyed and platted, execute all deeds or other legal instruments, and do any and all other things required to effectively carry out the purpose and intent of the Legislature. Any transaction which involves state lands under the provisions of this paragraph shall be done in a manner consistent with the provisions of Section 29-1-1;
    14. Collect and receive from educational institutions of the State of Mississippi monies required to be paid by these institutions to the state in carrying out any veterans’ educational programs;
    15. Purchase lands for building sites, or as additions to building sites, for the erection of buildings and other facilities which the department is authorized to erect, and demolish and dispose of old buildings, when necessary for the proper construction of new buildings. Any transaction which involves state lands under the provisions of this paragraph shall be done in a manner consistent with the provisions of Section 29-1-1;
    16. Obtain business property insurance with a deductible of not less than One Hundred Thousand Dollars ($100,000.00) on state-owned buildings under the management and control of the department; and
    17. In consultation with and approval by the Chairmen of the Public Property Committees of the Senate and the House of Representatives, enter into contracts for the purpose of providing parking spaces for state employees who work in the Woolfolk Building, the Carroll Gartin Justice Building or the Walter Sillers Office Building.
  3. The department shall survey state-owned and state-utilized buildings to establish an estimate of the costs of architectural alterations, pursuant to the Americans With Disabilities Act of 1990, 42 USCS, Section 12111 et seq. The department shall establish priorities for making the identified architectural alterations and shall make known to the Legislative Budget Office and to the Legislature the required cost to effectuate such alterations. To meet the requirements of this section, the department shall use standards of accessibility that are at least as stringent as any applicable federal requirements and may consider:
    1. Federal minimum guidelines and requirements issued by the United States Architectural and Transportation Barriers Compliance Board and standards issued by other federal agencies;
    2. The criteria contained in the American Standard Specifications for Making Buildings Accessible and Usable by the Physically Handicapped and any amendments thereto as approved by the American Standards Association, Incorporated (ANSI Standards);
    3. Design manuals;
    4. Applicable federal guidelines;
    5. Current literature in the field;
    6. Applicable safety standards; and
    7. Any applicable environmental impact statements.
  4. The department shall observe the provisions of Section 31-5-23, in letting contracts and shall use Mississippi products, including paint, varnish and lacquer which contain as vehicles tung oil and either ester gum or modified resin (with rosin as the principal base of constituents), and turpentine shall be used as a solvent or thinner, where these products are available at a cost not to exceed the cost of products grown, produced, prepared, made or manufactured outside of the State of Mississippi.
  5. The department shall have authority to accept grants, loans or donations from the United States government or from any other sources for the purpose of matching funds in carrying out the provisions of this chapter.
  6. The department shall build a wheelchair ramp at the War Memorial Building which complies with all applicable federal laws, regulations and specifications regarding wheelchair ramps.
  7. The department shall review and preapprove all architectural or engineering service contracts entered into by any state agency, institution, commission, board or authority regardless of the source of funding used to defray the costs of the construction or renovation project for which services are to be obtained to ensure compliance with purchasing regulations and to confirm that the contracts are procured by a competitive qualification-based selection process except where such appointment is for an emergency project or for a continuation of a previous appointment for a directly related project. The provisions of this subsection (7) shall not apply to any architectural or engineering contract fully paid for by self-generated funds of any of the state institutions of higher learning, nor shall they apply to community college projects that are fully funded from local funds or other nonstate sources which are outside the Department of Finance and Administration’s appropriations or as directed by the Legislature. The provisions of this subsection (7) shall not apply to any construction or design projects of the State Military Department that are fully or partially funded from federal funds or other nonstate sources, nor shall they apply to any project of the State Department of Transportation.
    1. The department shall have the authority to obtain annually from 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 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, and shall annually report the same to the Legislative Budget Office, the Chairman of the House Public Property Committee and the Chairman of the Senate Public Property Committee before September 1.
    2. All state agencies, departments and institutions are required to cooperate with the Department of Finance and Administration in carrying out the provisions of this subsection.
    3. Expenditures shall not include those amounts expended for janitorial, landscaping or administrative support, but shall include expenditures from both state and nonstate sources.
    4. Expenditures shall not include amounts expended by the department on behalf of state agencies, departments and institutions through the Department of Finance and Administration administered contracts, but shall include amounts transferred to the Department of Finance and Administration for support of such contracts.
  8. As an alternative to other methods of awarding contracts as prescribed by law, the department may elect to use the method of contracting for construction projects set out in Sections 31-7-13.1 and 31-7-13.2; however, the dual-phase design-build method of construction contracting authorized under Section 31-7-13.1 may be used only when the Legislature has specifically required or authorized the use of this method in the legislation authorizing a project.
  9. The department shall have the authority, for the purposes of carrying out the provisions of this chapter, and in addition to all other rights and powers granted by law, to create and maintain a list of suspended and debarred contractors and subcontractors. Consistent with this authority, the department may adopt regulations governing the suspension or debarment of contractors and subcontractors, which regulations shall be subject to the approval of the Public Procurement Review Board. A suspended or debarred contractor or subcontractor shall be disqualified from consideration for contracts with the department during the suspension or debarment period in accordance with the department’s regulations.
  10. This section shall not apply to the Mississippi State Port Authority.

HISTORY: Codes, 1942, § 9023-02; Laws, 1944, ch. 328, §§ 2-4; Laws, 1946, ch. 386, §§ 1, 2; Laws, 1950, ch. 392, § 2; Laws, 1981, ch. 323, § 1; Laws, 1984, ch. 488, § 30; Laws, 1991, ch. 411, § 1; Laws, 1993, ch. 615, § 2; Laws, 1994, ch. 448, § 1; Laws, 1994 Ex Sess, ch. 26, § 24; Laws, 2004, 3rd Ex Sess, ch. 1, § 189; Laws, 2005, ch. 504, § 1; Laws, 2006, ch. 457, § 3; Laws, 2006, ch. 579, § 2; Laws, 2007, ch. 494, § 8; Laws, 2008, ch. 488, § 1; Laws, 2010, ch. 314, § 3; Laws, 2011, ch. 485, § 1; Laws, 2012, ch. 485, § 3; Laws, 2014, ch. 533, § 3; Laws, 2016, ch. 399, § 2; Laws, 2017, ch. 351, § 1, eff from and after July 1, 2017.

Joint Legislative Committee Note —

Section 3 of ch. 457, Laws of 2006, effective from and after July 1, 2006 (approved March 23, 2006), amended this section. Section 2 of ch. 579, Laws of 2006, effective from and after July 1, 2006 (approved April 21, 2006), also amended this section. As set out above, this section reflects the language of Section 2 of ch. 579, Laws of 2006, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, and the effective dates of the amendments are the same, the amendment with the latest approval date shall supersede all other amendments to the same section approved on an earlier date.

Editor’s Notes —

Section 7-1-451 provides that wherever the term “Office of General Services” appears in any law the same shall mean the Department of Finance and Administration.

The name of the Boswell Retardation Center, referred to in (2)(f), has been changed to Boswell Regional Center.

Laws of 1984, ch. 328, effective from and after July 1, 1984, authorized the state building commission and the state department of mental health to sell certain property to the city of Magee, Mississippi, and to use the proceeds of such sale to purchase certain property for the South Mississippi Retardation Center.

Laws of 1986, ch. 443, authorizes the issuance of bonds of the state or the borrowing of money for the acquisition of certain property to be used for state offices.

Laws of 1987, ch. 405, effective from and after passage (approved March 20, 1987), provides that the Bureau of Building, Grounds and Real Property Management of the Governor’s office of General Services is authorized and directed to lease certain public property on Capers Avenue in Jackson, Mississippi to the State Board of Rehabilitation Services for the use of the Division of Vocational Rehabilitation and for related purposes. It is also provided that the lease will contain such terms and conditions as may be necessary and appropriate to meet requirements imposed upon the Board for programs operated on the property, and that the Bureau of Building, Grounds and Real Property Management and the Office of the Attorney General are authorized to prepare and file the necessary related documents.

Laws of 1988, ch. 341, effective from and after its passage (approved April 15, 1988), provides as follows:

“SECTION 1. The Bureau of Building, Grounds and Real Property Management of the Governor’s Office of General Services, hereinafter in this act referred to as “bureau,“ is hereby authorized and empowered, in its discretion, to expend not more than Thirty-two Thousand Two Hundred Forty-one Dollars and Sixty-seven Cents ($32,241.67) out of Special Fund Number 3921 in the State Treasury (created in Chapter 328, General Laws of 1984) to repair and remodel those two (2) buildings located on land in the First Judicial District of Harrison County, Long Beach, Mississippi, described as follows:

“A parcel of land beginning at the intersection of the east line of Lot 46 of the White & Calvert Survey and the north margin of Railroad Street and from such point run thence North along the east line of Lot 46 a distance of 250 feet to the property of the State, run thence South 77 degrees 52 minutes West a distance of 260 feet along the property of the State to a point, run thence South 16 degrees 13 minutes East a distance of 271.5 feet to the north margin of Railroad Street; and run thence North 69 degrees 53 minutes East along the north margin of Railroad Street a distance of 190 feet, to the point of beginning. Such property is bounded south by Railroad Street, West and North by the State, and East by Cart.

“SECTION 2. The State Board of Mental Health, hereinafter in this act referred to as “board,“ shall recommend to the bureau those repairs and remodeling to the buildings described in Section 1 of this act which the board determines necessary to convert such buildings for effective use by the South Mississippi Mental Retardation Center. Final plans and specifications for the repair and remodeling shall be approved by both the bureau and the board. The actual work of repairs and remodeling shall be supervised by the bureau.

“SECTION 3. If the actual expenditure for the repair and remodeling authorized by this act is less than the balance held in Special Fund Number 3921, the bureau shall transfer the amount remaining in such special fund to the board. Any amounts so transferred to the board may be expended by the board for the use and benefit of the South Mississippi Retardation Center.

“SECTION 4. This act shall take effect and be in force from and after its passage.”

Laws of 1989, ch. 365, as amended by Laws of 1990, ch. 551, § 1, authorizes and empowers the Division of General Services of the State Department of Finance and Administration to sell and convey certain state-owned land located in Hinds County to the offerer of the highest and best price.

Laws of 1994, ch. 515, § 1, effective from and after passage (approved March 25, 1994), provides as follows:

“SECTION 1. The Department of Finance and Administration, acting through the Bureau of Building, Grounds and Real Property Management under Section 7-1-451 et seq. and Section 31-11-1 et seq., Mississippi Code of 1972, is authorized to construct and equip capital improvements and purchase equipment for the Department of Corrections as follows:

Department of Corrections . . . . . $13,413,000.00.

Central Mississippi Correctional Facility . . . . . $9,000,000.00.

Construct and equip a 128 bed male minimum security unit . . . . . $1,600,000.00.

Construct and equip a 120 bed maximum security reception diagnostic and

classification unit . . . . . $6,080,000.00.

Construct and equip a 52 bed female minimum security unit . . . . . $1,220,000.00.

Construct and equip a work compound building . . . . . $100,000.00.

Modular units for 200 beds . . . . . $950,000.00.

State Penitentiary at Parchman . . . . . $1,463,000.00.

Construct and equip classroom and office additions to the Alcohol and Drug

Program . . . . . $588,000.00.

Construct and equip classroom and office additions to the Pre-Release

Program . . . . . $875,000.00.

Three additional Restitution Centers . . . . . $1,000,000.00.

Renovation of existing Restitution Centers . . . . . $1,000,000.00.

Total . . . . . $13,413,000.00”.

Laws of 1994, ch. 526, §§ 1, 2, eff from and after July 1, 1994, provides as follows:

“SECTION 1. The Department of Finance and Administration, acting through the Bureau of Building, Grounds and Real Property Management under Section 7-1-451 et seq., and Section 31-11-1 et seq., Mississippi Code of l972, is hereby authorized to construct the following capital improvements:

Administration Building . . . . . $5,000,000.00.

Department of Wildlife, Fisheries and Park

Construct, equip and furnish an administration building on the department property at LeFleurs Bluff State Park or any other state-owned property in Jackson, Mississippi . . . . . $5,000,000.00.

“SECTION 2. The Department of Finance and Administration is hereby expressly authorized and empowered to receive and expend any local or other source funds in connection with the expenditure of funds appropriated by the legislature.”

Amendment Notes —

The 2004 amendment (3rd Ex Sess, ch. 1) added (2)(p); rewrote (9); and made minor stylistic changes.

The 2005 amendment added (2)(q), and made minor stylistic changes.

The first 2006 amendment (ch. 457) extended the date of the repealer in (2)(q) by substituting “July 1, 2010” for “July 1, 2006.”

The second 2006 amendment (ch. 579) rewrote (9) and added (10).

The 2007 amendment substituted “under regulations adopted by the Public Procurement Review Board” for “subject to the approval of the Public Procurement Review Board” in the last sentence of (1) and the first sentence of (2); rewrote (9); and deleted former (10), which required the department to adopt building code standards for new construction of public facilities consistent with the provisions of §31-11-33.

The 2008 amendment, in the last sentence of (1), inserted “demolitions” and substituted “subject to the regulations” for “under regulations”; and in the introductory paragraph of (2), inserted “demolitions, to grant or acquire easements or rights-of-way,” substituted “subject to the regulations” for “under regulations,” and made a minor stylistic change.

The 2010 amendment extended the date of the repealer for paragraph (2)(q) by substituting “July 1, 2014” for “July 1, 2010.”

The 2011 amendment added (10).

The 2012 amendment substituted “Mississippi State Hospital” for “state insane hospital” in (2)(g); and added (11).

The 2014 amendment deleted the last sentence in (2)(q), which read “The provisions of this paragraph (q) shall stand repealed on July 1, 2014.”

The 2016 amendment, in (7), added “to ensure compliance…for a directly related project” at the end of the first sentence, inserted “fully” twice in the second sentence, and in the last sentence, inserted “fully or partially” and added “nor shall they apply…Department of Transportation” at the end.

The 2017 amendment rewrote (8), which read: “The department shall have the authority to obtain annually from the state institutions of higher learning information on all building, construction and renovation projects including duties, responsibilities and costs of any architect or engineer hired by any such institutions” and designated it (8)(a); and added (8)(b) through (d).

Cross References —

Creation of the Department of Finance and Administration, see §7-1-451.

Creation of the public procurement review board, see §27-104-7.

Other duties with respect to the Heber Ladner Building, see §29-5-99.

Requirement that plaques on buildings financed with funds of state or political subdivision acknowledge contribution of taxpayers, see §29-5-151.

Powers and duties concerning the sale or acquisition of property by the board of trustees of state institutions of higher learning for use or benefit of the Mississippi State University of Agriculture and Applied Science, see §37-113-7.

Authority with respect to Boswell Regional Center, see §41-19-203.

Powers and duties with respect to leasing state lands within wildlife conservation management areas, see §49-5-13.

Duties concerning leasing of state park land, see §55-3-47.

Preparation of energy management plans, see §§57-39-101 et seq.

Authority to convey to the Mississippi Department of Transportation a right-of-way across certain lands, see §65-1-161.

OPINIONS OF THE ATTORNEY GENERAL

Section 31-11-3 delegates plenary power to the Commission to construct state buildings. Such grant of specific power denies contrary power. 1996 Miss. Op. Att'y Gen. 630.

Each county is required under Miss. Code Ann. §19-7-1 to build a jail within the corporate limits of the municipality where the courts are required to sit. A municipality is obligated to grant a special exception to its zoning ordinances unless it is determined, consistent with the facts, that construction of a county jail would create a public nuisance or a clear and present danger to the public health and welfare. Yancey, 2007 Miss. Op. Att'y Gen. 120, 2007 Miss. AG LEXIS 75.

RESEARCH REFERENCES

ALR.

Construction and effect of § 504 of the Rehabilitation Act of 1973 (29 USCS § 794) prohibiting discrimination against otherwise qualified handicapped individuals in specified programs or activities. 44 A.L.R. Fed. 148.

Construction and application of Architectural Barriers Act (42 USCS §§ 4151-4157) providing for design and construction of public buildings to accommodate physically handicapped. 78 A.L.R. Fed. 877.

Am. Jur.

13 Am. Jur. 2d, Buildings § 31.

15 Am. Jur. 2d, Civil Rights § 60.5.

4 Am. Jur. Legal Forms 2d, Buildings §§ 49:11 et seq. (moving or demolishing buildings).

JUDICIAL DECISIONS

1. In general.

In an action by a prime contractor against the Building Commission alleging breach of duty to coordinate the work between three prime contractors by failing to properly supervise the construction of a building, the trial court properly sustained the Building Commission’s demurrer to the complaint since §31-11-3 does not require that the Building Commission coordinate or supervise but merely authorizes it to employ independent contractors for that purpose; nor did the Building Commission have an “implied” contractual duty to coordinate the work of three prime contractors and to see that the work of each was performed properly, since the contracts with the prime contractors showed that the Building Commission relied upon the contractors to coordinate among themselves. Hanberry Corp. v. State Bldg. Com., 390 So. 2d 277, 1980 Miss. LEXIS 2087 (Miss. 1980).

In a proceeding instituted by the state building commission to enjoin the board of trustees of state institutions of higher learning from using self-generated funds, as distinguished from legislatively appropriated funds, to construct facilities at the institutions under its supervision without the approval of and control by the building commission, the chancery court properly dissolved a temporary injunction and dismissed the bill of complaint although it should have relied upon Miss Const § 213-A, which gives the board of trustees management and control of the institutions under its supervision, as well as upon §37-101-15, which sets out the general powers and duties of the board. The powers and duties granted to the building commission under §31-11-3 apply only to management and control of funds legislatively appropriated to both agencies, while the management and control of self-generated funds remain with the constitutionally organized board of trustees. State ex rel. Allain v. Board of Trustees, 387 So. 2d 89, 1980 Miss. LEXIS 2050 (Miss. 1980).

The authority given by Code 1972 §21-19-25 to municipalities for the adoption of building codes does not go so far as to authorize municipalities to require the State Building Commission to submit plans and specifications for the construction of buildings or pay fees to municipalities for building permits; the grant of specific power to the Commission under Code 1972 §31-11-3 to construct state buildings supersedes municipal building codes. Jackson v. Mississippi State Bldg. Com., 350 So. 2d 63, 1977 Miss. LEXIS 2214 (Miss. 1977).

§ 31-11-4. Facilities Management Advisory Committee.

  1. There is hereby created the Facilities Management Advisory Committee, hereinafter referred to as the “committee,” for the purpose of advising the Bureau of Building, Grounds and Real Property Management, Department of Finance and Administration, with its duties of preplanning, construction, repair and renovation for buildings of all state agencies, institutions and departments.
  2. The committee shall be composed of the following eight (8) members:
    1. The Chairman and Vice-Chairman of the Senate Public Property Committee;
    2. The Chairman and Vice-Chairman of the House Public Building, Grounds and Lands Committee;
    3. Two (2) Senators appointed by the Lieutenant Governor; and
    4. Two (2) Representatives appointed by the Speaker of the House of Representatives.
  3. The committee shall advise the Bureau of Building, Grounds and Real Property Management with its duties of preplanning, construction, repair and renovation for buildings of all state agencies, institutions and departments, including but not limited to the following:
    1. Traveling with the Bureau of Building, Grounds and Real Property Management to inspect and consider requests for improvement and repair of buildings of state agencies, institutions and departments;
    2. Acquiring a working knowledge of state building matters in order to become leaders in facility related legislation; and
    3. Advising and making recommendations to the Legislature on matters relating to preplanning, construction, repair and renovation for all state buildings.
  4. The members of the committee shall have no jurisdiction or vote on any matter within the jurisdiction of the Bureau of Building, Grounds and Real Property Management.
  5. No committee member may receive per diem, travel or other expenses unless authorized by the Management Committees of the Senate and the House of Representatives. Members of the committee shall be paid from the contingent expense funds of the Senate and the House of Representatives in the same amounts as provided for committee meetings when the Legislature is not in session; however, no per diem or expense for attending meetings of the committee will be paid while the Legislature is in session.

HISTORY: Laws, 1996, ch. 533, § 1, eff from and after passage (approved April 12, 1996).

§ 31-11-5. Repealed.

Repealed by Laws, 1983, ch. 469, § 10, eff from and after July 1, 1983; and by Laws, 1984, ch. 488, § 38, eff from and after July 1, 1984.

[Codes, 1942, § 9023-03; Laws, 1944, ch. 328, § 5]

Editor’s Notes —

Former §31-11-5 prohibited nepotism by members of the state building commission.

§ 31-11-7. Reports.

The office of general services shall submit a full report of its work and all transactions carried on by it and a complete statement of all expenditures made by it, to each regular session of the legislature or to a special session before that time if its work has been completed.

HISTORY: Codes, 1942, § 9023-04; Laws, 1944, ch. 328, § 6; Laws, 1984, ch. 488, § 31, eff from and after July 1, 1984.

Editor’s Notes —

Section 7-1-451 provides that wherever the term “Office of General Services” appears in any law the same shall mean the Department of Finance and Administration.

§ 31-11-9. Repealed.

Repealed by Laws, 1984, ch. 488, § 38, eff from and after July 1, 1984.

[Codes, 1942, § 9023-05; Laws, 1944, ch. 328, § 7; 1950, ch. 467; 1980, ch. 560, § 11]

Editor’s Notes —

Former §31-11-9 provided for compensation and expenses for members of former state building commission.

§§ 31-11-11 through 31-11-23. Repealed.

Repealed by Laws, 1984, ch. 488, § 32, eff from and after July 1, 1984.

§§31-11-11 through31-11-19. [Codes, 1942, § 9023-11; Laws, 1946, ch. 446, §§ 1-9]

§§31-11-21 through31-11-23. [Codes, 1942, § 9023-51; Laws, 1960, ch. 383, §§ 1-4]

Editor’s Notes —

Laws of 1984, ch. 488, § 341, provides as follows:

“SECTION 341. Nothing in this act shall affect or defeat any claim, assessment, appeal, suit, right or cause of action which accrued prior to the date on which the applicable sections of this act become effective, whether such assessments, appeals, suits, claims or actions shall have been begun before the date on which the applicable sections of this act become effective or shall thereafter be begun.”

Former §31-11-11 permitted establishment of a building commission revolving fund for transfers of funds appropriated but not spent.

Former §31-11-13 permitted investment by state bond retirement commission of funds in building commission revolving fund in United States government securities.

Former §31-11-15 provided for the purchase and sale of United States securities by state bond retirement commission.

Former §31-11-17 provided that securities purchased under former §§31-11-11 through31-11-19 be deposited with state treasurer.

Former §31-11-19 required that the state bond retirement commission make rules and regulations to carry out the provisions of former §§31-11-11 through31-11-19.

Former §31-11-21 provided for borrowing money for interim financing of building projects.

Former §31-11-23 provided that borrowed money shall be evidenced by interim certificates or negotiable notes, and also provided that income therefrom shall be exempt from taxes.

§ 31-11-25. Right of eminent domain.

The office of general services with the approval of the public procurement review board shall have the power and authority to acquire in its own name, or in the name of such other agency or instrumentality in the State of Mississippi as it may deem proper, by purchase, contribution or otherwise, all land and real property which shall be necessary and desirable in connection with the development or expansion of any state institution or public agency of this state upon any real property adjacent to or contiguous to such institution or agency or in connection with any project under the supervision of said office of general services for the construction, repair, remodeling, renovating, or making additions to any building structure or other facility which the office of general services is required or authorized by law to construct, repair, remodel, or make an addition to. If the office of general services shall be unable to agree with the owner or owners of any such land or real property which is necessary or desirable for the public use in connection with any such project, the office of general services shall have the power and authority to acquire any such land or real property by condemnation proceedings in the manner otherwise provided by law and, for such purpose, the right of eminent domain is hereby conferred upon and vested in said office of general services.

HISTORY: Codes, 1942, § 9023-52; Laws, 1960, ch. 382.5; Laws, 1962, ch. 604; Laws, 1984, ch. 488, § 33, eff from and after July 1, 1984.

Editor’s Notes —

Section 7-1-451 provides that wherever the term “Office of General Services” appears in any law the same shall mean the Department of Finance and Administration.

Cross References —

Eminent domain generally, see §§11-27-1 et seq.

Creation of the public procurement review board, see §27-104-7.

JUDICIAL DECISIONS

1. In general.

Fee holder (the State of Mississippi) was not named as a party to the condemnation proceedings, and because the condemnation was filed against the estate, the Mississippi Department of Finance and Administration (DFA) stood only to acquire that which was held by DFA, that was, the temporary rights of redemption and possession held by the estate; these rights expired on August 28, 2002, and thereafter, neither the estate nor the DFA had any interest or rights in the property. Smith v. Jackson State Univ., 995 So. 2d 88, 2008 Miss. LEXIS 454 (Miss. 2008).

A circuit court erred in reducing the acreage of a railroad right-of-way sought to be condemned by the State for a penitentiary based on its finding that the State had shown no need for more than a short stretch of the right-of-way where the circuit court found neither fraud nor clear abuse of discretion. Governor's Office of General Services v. Carter, 573 So. 2d 736, 1990 Miss. LEXIS 839 (Miss. 1990).

The State’s acquisition of an abandoned railroad right-of-way contiguous to the boundary of a state penitentiary was clearly for a public purpose where there was no suggestion that the State had any plan to use the property in any fashion except to be a part of the state penitentiary grounds. Governor's Office of General Services v. Carter, 573 So. 2d 736, 1990 Miss. LEXIS 839 (Miss. 1990).

§ 31-11-27. Study of capital needs; annual reports.

    1. The Department of Finance and Administration shall conduct a detailed study of the building and other capital needs at each state institution and at each community college and junior college immediately prior to September first in 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 repairs required to place the facility in good condition;
      5. An estimate of the cost of major renovations, if contemplated; and
      6. A determination of the new building and other facility needs of each institution with such needs classified under immediate or long range requirements.
    2. All state agencies, departments and institutions are hereby required and directed to cooperate with the Department of Finance and Administration in carrying out the provisions of this section. For purposes of validating subsection (1)(a)(iii) above, each roof of a building not planned for demolition must be visually inspected by institution or agency facilities’ staff, by a licensed architect or engineer or by thermal imaging inspection at least every three (3) years.
    3. The Department of Finance and Administration shall submit a detailed report to the Legislative Budget Office, the House Public Property Committee and the Senate Public Property Committee on or before September first of each year. Such report shall be in such detail and in such form as may be prescribed by the Legislative Budget Office.
    4. The architect or building inspector of the Department of Finance and Administration shall make a biennial inspection of the New Capitol, Old Capitol, Woolfolk State Office Building, War Memorial Building, the Governor’s Mansion, and all other buildings under jurisdiction of the Department of Finance and Administration for structural or other physical needs or defects of such buildings, and he shall further inquire of the department or its representatives regarding the condition of the buildings. He shall make a written report of his finding to the Department of Finance and Administration, Governor, Lieutenant Governor and Speaker of the House of Representatives. The report shall also make recommendations for repairs and list, by number, the priority which should be given to making necessary repairs.
    1. In addition to any report required in subsection (1) of this section, the Department of Finance and Administration shall prepare and submit an annual report to the Legislative Budget Office, the House Public Property Committee and the Senate Public Property Committee describing the proposed capital improvements projects for state agencies, departments and institutions for the upcoming five-year period. The Department of Finance and Administration shall not be required to include in the report any project costing less than One Million Dollars ($1,000,000.00). The department shall submit the report before September 1 of each year. The report shall include at least the following information:
      1. A prioritized list of the projects proposed for the five-year period, with each project ranked on the basis of need, consistent with the primary goal of preserving existing capital assets where possible and replacing existing capital assets where necessary;
      2. A prioritized list of the projects proposed for the next regular legislative session, with each project ranked on the basis of need, consistent with the primary goal of preserving existing capital assets where possible and replacing existing capital assets where necessary;
      3. A prioritized list of the projects requested by each state agency, department or institution;
      4. A detailed explanation of criteria used by the Department of Finance and Administration to rank projects for purposes of any list it prepares under this paragraph (a);
      5. A detailed statement of justification for each project;
      6. The approximate cost for each project, including, but not limited to, itemized estimates of costs for preplanning, constructing, furnishing and equipping a project, and costs for property acquisition;
      7. The estimated beginning date and completion date for each project;
      8. Whether a project, as proposed, is a complete project or a phase or part of a project;
      9. How a project will affect the operating budget of the applicable agency, department or institution for the upcoming five-year period, regarding such items as additional personnel requirements, utility costs, maintenance costs, security costs, etc. Any request for new construction other than replacement, or for purposes other than incidental expansion of existing facilities, shall also identify the total amount of nonstate funds to support such project;
      10. The proposed method of financing each project and the effect such financing will have on the state budget, including an estimate of any required debt service for the project, and an estimate of any federal funds or other funds that the agency, department or institution may have access to because of the project; and
      11. A list of the projects requested by each agency, department or institution for the five-year period, with each project ranked by the appropriate agency, department or institution on the basis of need.
    2. To enable the Department of Finance and Administration to prepare the report required in this subsection (2), it may require all state agencies, departments and institutions to file a capital improvements projects request with such information and in such form and in such detail as the department may deem necessary and advisable. Such request shall be filed with the Department of Finance and Administration no later than August 1 of each year.

HISTORY: Codes, 1942, § 9023-54; Laws, 1962, ch. 608, §§ 1-3; Laws, 1964, ch. 572, § 1; Laws, 1984, ch. 488, § 34; Laws, 1994, ch. 439, § 1, eff from and July 1, 1994; Laws, 2000, ch. 531, § 5, eff from and after passage (approved Apr. 30, 2000); Laws, 2018, ch. 450, § 1, eff from and after July 1, 2018.

Editor’s Notes —

Section 7-1-451 provides that wherever the term “Office of General Services” appears in any law the same shall mean the Department of Finance and Administration.

Amendment Notes —

The 2018 amendment, in (1)(a), inserted “community college and” in the introductory paragraph, and added “including current conditions…junior college” at the end of (iii); in (1)(b), substituted “required and directed” for “authorized and directed” in the first sentence, and added the last sentence; inserted “the House Public Property Committee and the Senate Public Property Committee” in (1)(c); and in (2)(a), substituted “the House Public Property Committee” for “the House Public Buildings, Grounds and Lands Committee” in the introductory paragraph, added "consistent with the primary goal of preserving existing capital assets where possible and replacing existing capital assets where necessary” at the end of (i) and (ii), and added the last sentence of (ix).

Cross References —

Joint legislative budget committee and legislative budget office, generally, see §§27-103-101 et seq.

Functions of capitol commission, see §§29-5-1 et seq.

§ 31-11-29. Capital expense and development budget.

The legislative budget office shall prepare and submit to each regular session of the legislature a “capital expense and development” budget based on information furnished as herein provided by the office of general services, plus such other information as may be obtained. The said budget shall contain an estimate of the immediate and the long term capital needs of each state department, agency, institution, and each junior college. Such budget shall include a description of the buildings and other facilities which are recommended as needed at each institution, along with an estimate of the cost. The budget shall also include a suggested method of financing the immediate needs. “Immediate needs” shall be construed to mean: buildings, major improvements, and other facilities required for the proper functioning of the institution for the next year. “Long range” needs shall be construed to mean: buildings, major improvements, and other facilities of a similar nature which may be required at some indefinite date in the future.

HISTORY: Codes, 1942, § 9023-55; Laws, 1962, ch. 608, § 4; Laws, 1984, ch. 488, § 35, eff from and after July 1, 1984.

Editor’s Notes —

Section 7-1-451 provides that wherever the term “Office of General Services” appears in any law the same shall mean the Department of Finance and Administration.

Cross References —

Joint legislative budget committee and legislative budget office, generally, see §§27-103-101 et seq.

§ 31-11-30. Capital improvements costing $2 million or more to be funded in two phases; each phase to be funded in separate legislative sessions; phase 1 to be preplanned capital improvements project budget projection; phase 2 to be actual repair, renovation, construction, remodeling, etc.; exemptions.

  1. Every capital improvements project for new facilities, costing Two Million Dollars ($2,000,000.00) or more, which is developed to repair, renovate, construct, remodel, add to or improve a state-owned public building shall be funded by the Legislature in two (2) phases. The two-phase funding requirement shall not apply to capital improvements projects for a state-owned port or where the Legislature finds that an emergency or critical need must be met or a court order complied with. The two (2) phases shall not be funded in the same regular session of the Legislature. Each phase shall be funded in a separate session of the Legislature. Phase 1 shall be a preplanned capital improvements project budget projection for the project and shall be funded first. Phase 2 shall be the actual repair, renovation, construction, remodeling, addition to or improvement of the state-owned public building and the acquisition of furniture and equipment for the capital improvements project and shall be funded second.
  2. For the purposes of this section:
    1. “Preplanned” or “preplanning” means the preliminary planning that establishes the program, scope, design and budget for a capital improvements project.
    2. “Emergency” has the meaning as defined in Section 31-7-1.
    3. “Critical need” means necessary to meet accreditation standards or necessary to respond to failures in planning.
  3. Every state agency that plans to repair, renovate, construct, remodel, add to or improve a state-owned public building shall submit a preplanned capital improvements project budget projection to the Bureau of Building, Grounds and Real Property Management for evaluation. The bureau shall assess the need for all preplanned projects submitted and shall compile a report on its findings. Any capital improvements project for new facilities costing less than Two Million Dollars ($2,000,000.00) shall not be required to be preplanned.
  4. Upon the completion of any preplanning for a capital improvements project, if such preplanning is funded with self-generated funds by a state agency, the plan shall be submitted to the bureau for evaluation.
  5. This section shall not apply to capital improvements projects authorized by the Legislature before the 2001 Regular Session of the Legislature.
  6. This section shall not apply to any community or junior college project funded in whole or in part by either state bonds or funds appropriated for that construction by the Legislature.

HISTORY: Laws, 2000, ch. 531, § 6; Laws, 2007, ch. 527, § 1, eff from and after July 1, 2007.

Amendment Notes —

The 2007 amendment, inserted “for new facilities” and substituted “Two Million Dollars ($2,000,000.00)” for “One Million Dollars ($1,000,000.00)” in the first sentence of (1) and the last sentence of (3); in (2), added (b) and (c) and divided the former section into the present introductory paragraph and (a) by inserting the colon following “section” and deleting “the term” from the beginning of (a); and added (6).

§ 31-11-31. Commission designated to act for state in matters relating to Federal Higher Education Facilities Act of 1963.

The office of general services of the State of Mississippi is hereby authorized and empowered to act as the commission designated to perform all functions on behalf of the State of Mississippi as provided for and required in Public Law No. 88-204 of the 88th Congress of the United States of America and being entitled “Higher Education Facilities Act of 1963” as thereafter amended, and the said office of general services is hereby granted such power and authority necessary for the purpose of performing for and on behalf of the State of Mississippi all things required to be done and performed by the office of general services as specified in said Public Law No. 88-204 of the 88th Congress of the United States government, as thereafter amended.

HISTORY: Codes, 1942, § 9023-56; Laws, 1964, ch. 413; Laws, 1984, ch. 488, § 36, eff from and after July 1, 1984.

Editor’s Notes —

Section 7-1-451 provides that wherever the term “Office of General Services” appears in any law the same shall mean the Department of Finance and Administration.

Federal Aspects—

Higher Education Facilities Act of 1963, see note under 20 USCS § 701.

§ 31-11-33. Construction of new public facility to comply with certain building code standards; definitions; specifications; regulation of certain building features.

  1. For purposes of this section, the following terms shall have the meanings hereinafter ascribed:
    1. “Department” means the Department of Finance and Administration, Bureau of Building, Grounds and Real Property Management.
    2. “Public facility” means any building or other facility owned by the State of Mississippi, or by any agency, department of the State of Mississippi, that is occupied, used or under the control of the State of Mississippi, or any agency or department of the State of Mississippi, or any junior college district of the State of Mississippi, or the Board of Trustees of State Institutions of Higher Learning of the State of Mississippi, or any institution under the jurisdiction of the Board of Trustees of State Institutions of Higher Learning of the State of Mississippi.
  2. Any public facility newly constructed from and after July 1, 2006, shall comply with and be built according to specifications not less stringent than those required by the International Code Council and such other standards as adopted by the department that provide guidelines for plumbing, electrical, gas, sanitary and other physical components of new building construction.
  3. Upon the awarding of a design contract for a new public facility, the architect/engineer shall prepare drawings and specifications in conformity with the code requirements in effect at the time of agreement or, if the code requirements at the time of the agreement are amended, then the drawings and specifications shall be prepared according to the more stringent standards.
  4. The department may regulate the height, number of stories and size of public facilities, the percentage of the lot that may be occupied, courts and other open spaces, and the location and use of public facilities.

HISTORY: Laws, 2006, ch. 579, § 1, eff from and after July 1, 2006.

§ 31-11-35. Adoption of rules and regulations regarding energy performance of state-funded buildings; design and construction of major facility projects to meet or exceed certain energy requirements.

  1. The Department of Finance and Administration shall adopt rules and regulations which:
    1. Optimize the energy performance of state-funded buildings throughout the state;
    2. Increase the demand for building and construction materials, finishes, furnishings and other products made in or incorporating materials produced in Mississippi;
    3. Improve environmental quality in this state by decreasing the discharge of pollutants from state-funded buildings;
    4. Conserve energy and utilize local and renewable energy sources;
    5. Protect and restore this state’s natural resources by avoiding development of inappropriate state-funded building sites;
    6. Reduce the burden on public water supply and treatment by reducing potable water consumption; and
    7. Encourage obtaining ENERGY STAR designation from the United States Environmental Protection Agency to further demonstrate a building project’s energy independence.
  2. Except as otherwise provided in Section 39-25-1, each major facility project shall be designed and constructed to meet or exceed the requirements of ASHRAE 90.1-2010 or any more stringent code adopted by the Bureau of Building, Grounds and Real Property Management and the Department of Finance and Administration.
  3. In order to achieve sustainable building standards, construction projects may utilize a nationally recognized high performance environmental building rating system; provided, however, that any such rating system that uses a material or product-based credit system which is disadvantageous to materials or products manufactured or produced in Mississippi shall not be utilized. Additionally, such rating systems shall not exclude certificate credits for forest products certified by the Sustainable Forestry Initiative, Forest Stewardship Council or the American Tree Farm System. The Department of Finance and Administration shall designate rating systems which meet these criteria and may establish its own rating system.
  4. A nationally certified commissioning authority professional shall certify that the major facility project’s systems for heating, ventilation, air-conditioning, energy conservation and water conservation are installed and working properly to ensure that each major facility project performs according to the major facility project’s overall environmental design intent and operational objectives.
  5. For purposes of this section, a major facility project shall mean either:
    1. A state-funded new construction building project which is:
      1. From July 1 through December 31, 2009, the project shall be larger than twenty thousand (20,000) gross square feet;
      2. From January 1, 2010, through December 31, 2010, the project shall be larger than fifteen thousand (15,000) gross square feet;
      3. From January 1, 2011, through December 31, 2011, the project shall be larger than ten thousand (10,000) gross square feet; and
      4. From January 1, 2012, and thereafter, the project shall be larger than five thousand (5,000) gross square feet.
    2. A state-funded renovation project which involves more than fifty percent (50%) of the replacement value of the facility where compliance is cost-effective and practical.
  6. A major facility project shall not mean a building, regardless of size, which does not have conditioned space as defined by Standard 90.1 of the American Society of Heating, Refrigerating, and Air-Conditioning Engineers.
  7. For purposes of this section, a “major facility project” shall include, but not be limited to, the construction or renovation of buildings that are financed, in whole or in part, through the use of a Community Development Block Grant.

HISTORY: Laws, 2008, ch. 519, § 1; Laws, 2009, ch. 327, § 1; Laws, 2013, ch. 401, § 1; Laws, 2013, ch. 539, § 1; Laws, 2017, ch. 361, § 3, eff from and after passage (approved Mar. 20, 2017).

Joint Legislative Committee Note —

Section 1 of ch. 401, Laws of 2013, effective from and after July 1, 2013 (approved March 20, 2013), amended this section. Section 1 of ch. 539, Laws of 2013, effective from and after July 1, 2013 (approved April 23, 2013), also amended this section. As set out above, this section reflects the language of both amendments, pursuant to Section 1-1-109, which gives the Joint Legislative Committee on Compilation, Revision and Publication of Legislation authority to integrate amendments so that all versions of the same code section enacted within the same legislative session may become effective. The Joint Committee ratified the integration of these amendments as consistent with the legislative intent at the August 1, 2013, meeting of the Committee.

Amendment Notes —

The 2009 amendment added (7).

The first 2013 amendment (ch. 401), inserted “Grounds and Real Property Managment” in (2); added the next-to-last sentence in (3); and made minor stylistic changes.

The second 2013 amendment (ch. 539) rewrote (2) which read “Each major facility project shall be designed and constructed to exceed the requirements of the energy conservation guides adopted by the Department of Finance and Administration, Bureau of Building, Grounds and Real Property Management, by at least thirty percent (30%) where it is determined by the Department of Finance and Administration that such thirty percent (30%) efficiency is cost effective”; added “where compliance is cost-effective and practical” at the end of (5)(b); and made a minor stylistic change.

The 2017 amendment, effective March 20, 2017, added the exception at the beginning of (2); and made minor stylistic changes.

Revenue-Producing Projects [Repealed]

§§ 31-11-51 through 31-11-89. Repealed.

Repealed by Laws, 1984, ch. 488, § 37, eff from and after July 1, 1984.

§31-11-51. [Codes, 1942, § 9023-22; Laws, 1956, ch. 280, § 2]

§31-11-53. [Codes, 1942, § 9023-23; Laws, 1956, ch. 280, § 3; Laws, 1962, ch. 507, § 1]

§§31-11-55 through31-11-87. [Codes, 1942, §§ 9023-24 to 9023-40; Laws, 1956, ch. 280, §§ 4-20]

§31-11-89. [Codes, 1942, § 9023-41; Laws, 1956, ch. 280, § 21; Laws, 1983, ch. 313, § 1]

Editor’s Notes —

Former §31-11-51 set out definitions for terms used in former §§31-11-51 through31-11-89.

Former §31-11-53 set out the powers of the former state building commission.

Former §31-11-55 authorized contracts, leases, and agreements by state institutions with the former state building commission.

Former §31-11-57 authorized the issuance of negotiable revenue bonds by the former state building commission.

Former §31-11-59 provided that revenue bonds issued have status of negotiable instruments and were exempt from taxation.

Former §31-11-61 provided for the sale of bonds by the former state building commission.

Former §31-11-63 provided that the proceeds of bonds be paid into a building commission construction fund.

Former §31-11-65 provided for the validation of bonds that were issued.

Former §31-11-67 stated that bonds issued under former §§31-11-51 through31-11-89 did not constitute a debt of the state.

Former §31-11-69 set out the terms and conditions provided in a resolution or lease contract relating to a project.

Former §31-11-71 pledged the revenues for payment of bonds and established a sinking fund.

Former §31-11-73 set out the rights and remedies of bondholders.

Former §31-11-75 authorized the issuance of revenue refunding bonds.

Former §31-11-77 stated that the bonds issued under former §§31-11-51 through31-11-89 were legal investments for fiduciaries.

Former §31-11-79 provided that property owned by the former state building commission was exempt from taxation.

Former §31-11-81 permitted the former state building commission to accept grants and contributions.

Former §31-11-83 provided that all moneys and revenue received by the former state building commission were deemed to be trust funds for the purposes set out in former §§31-11-51 through31-11-89.

Former §31-11-85 provided that existing laws were not affected by former §§31-11-51 through31-11-89.

Former §31-11-87 provided for representation and payment of expenses of former state building commission.

Former §31-11-89 provided for the withdrawal of funds from the state building fund.

Additional Revenue-Producing Projects [Repealed]

§§ 31-11-111 through 31-11-139. Repealed.

Repealed by Laws, 1984, ch. 488, § 37, eff from and after July 1, 1984.

§31-11-111. [Codes, 1942, § 9023-61; Laws, 1963, 1st Ex Sess ch. 15, § 1; 1966, Ex Sess ch. 40, § 1]

§31-11-113. [Codes, 1942, § 9023-62; Laws, 1963, 1st Ex Sess ch. 15, § 2; 1966, Ex Sess ch. 40, § 2; Laws, 1972, ch. 513, § 1; Laws, 1978, ch. 508, § 1]

§§31-11-115 through31-11-135. [Codes, 1942, §§ 9023-63 to 9023-72; Laws, 1963, 1st Ex Sess ch. 15, §§ 3-12]

§31-11-137. [Codes, 1942, § 9023-73; Laws, 1963, 1st Ex Sess ch. 15, § 13; Laws, 1983, ch. 313, § 2]

§31-11-139. [Codes, 1942, § 9023-74; Laws, 1963, 1st Ex Sess ch. 15, § 14]

Editor’s Notes —

Former §31-11-111 provided for additional revenue-producing facilities for institutions of higher learning.

Former §31-11-113 authorized the issuance of general obligation bonds of state.

Former §31-11-115 provided for investigation and determination of need for additional revenue-producing facilities for institutions of higher learning.

Former §31-11-117 required a declaration of need for additional revenue-producing projects.

Former §31-11-119 pledged the state’s full faith, credit, and taxing power.

Former §31-11-121 provided for the issuance of general obligation bonds.

Former §31-11-123 declared that bonds were negotiable instruments and exempt from taxation.

Former §31-11-125 provided for the sale of bonds.

Former §31-11-127 provided for the rights and remedies of bondholders.

Former §31-11-129 provided for the validation of bonds.

Former §31-11-131 provided that bonds were legal investments for fiduciaries.

Former §31-11-133 provided for a special fund and for the transfer of pledged income and revenues derived from fees, rentals, and other charges to be paid by students, faculty members, and others.

Former §31-11-135 provided for the levy of an ad valorem tax.

Former §31-11-137 provided for the deposit and withdrawal of funds from the sale of bonds; established special fund known as the state institutions of higher learning revenue-producing facilities fund.

Former §31-11-139 provided that existing laws were not affected by former §§31-11-111 through31-11-139.

Chapter 13. Validation of Public Bonds

§ 31-13-1. State Bond Attorney.

The Governor, with the advice and consent of the Senate, shall appoint a qualified and practicing attorney at law, to be known as the State Bond Attorney, who shall possess the same qualifications for office as the Attorney General, who shall serve a term of office concurrent with that of the Governor or until his successor is appointed and qualified, and whose duties shall be those hereinafter specified.

HISTORY: Laws, 1992, ch. 302 § 1, eff from and after passage (approved March 2, 1992).

Editor’s Notes —

A former §31-13-1 ([Codes, Hemingway’s 1921 Supp. § 3812a; 1930, § 312; 1942, § 4313; Laws, 1907, ch. 28; Laws, 1928, ch. 32; Laws, 1984, ch. 488, § 331; Laws, 1986, ch. 370] Repealed by Laws, 1986, ch. 370, § 1, from and after July 1, 1990) provided for the appointment of a state’s bond attorney.

Cross References —

Qualifications for circuit and chancery court judges, see Miss. Const., Art. 6, § 154.

Qualifications for office of Attorney General, see Miss. Const., Art. 6, § 173.

§ 31-13-3. “Bonds” defined.

The word “bond” or “bonds,” when used in this chapter, shall be deemed to include every form of written obligation that may be now or hereafter legally issued by any county, municipality, school district, road district, drainage district, levee district, sea wall district, and of any other district or subdivision whatsoever, as now existing or as may be hereafter created.

HISTORY: Codes, 1930, § 315; 1942, § 4316; Laws, 1928, ch. 32.

Cross References —

Issuance of bonds for Gulf Regional District, see §17-11-35.

Validation of bonds issued pursuant to Mississippi Regional Solid Waste Management Authority Act, see §17-17-337.

Validation of bonds issued to finance construction and improvement of public facilities, see §29-17-21.

Validation of refunding bonds issued under §§31-15-1 through31-15-19, see §31-15-19.

Validation of refunding bonds issued under §§31-15-21 through31-15-27, see §31-15-27.

Validation of notes evidencing temporary borrowings made in anticipation of issuance of state-supported debt, see §31-17-181.

Validation of bonds issued by the Mississippi Development Bank, see §31-25-37.

Authorization to validate bonds issued to fund the Institute for Technology Development, see §31-29-15.

Issuance of municipal securities pursuant to Water Pollution Control Revolving Fund Act, see §49-17-89.

Applicability of this chapter to bonds issued by the Pearl River Valley Water Supply District under the Metropolitan Area Water Supply Act (§§51-9-189 et seq.), see §51-9-209.

Validation of bonds relating to the Pearl River Basin Development District, see §51-11-27.

Validation of bonds issued for local governments freight rail service projects, see §57-44-27.

Application of the provisions of this section to evidences of indebtedness issued for borrowing money from Mississippi Development Authority, see §57-61-37.

Validation of bonds authorized by the Mississippi Major Economic Impact Act, see §57-75-15.

Proceedings pertaining to bond validations, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Securities and Obligations §§ 1 et seq.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March 1982.

JUDICIAL DECISIONS

1. In general.

2. “Bond.”

1. In general.

For purposes of Tax Injunction Act (28 USCS § 1341), plaintiffs have “plain, speedy and efficient remedy” for presenting their claims under § 5 of Voting Rights Act of 1965 in bond validation proceedings as set forth in §§31-13-3 through31-13-7. Pendleton v. Heard, 642 F. Supp. 940, 1986 U.S. Dist. LEXIS 21116 (S.D. Miss. 1986), rev'd, 824 F.2d 448, 1987 U.S. App. LEXIS 10999 (5th Cir. Miss. 1987).

Municipality may issue bonds for purchase and maintenance of water works, payable serially over period of 25 years. Street v. Ripley, 173 Miss. 225, 161 So. 855, 1935 Miss. LEXIS 237 (Miss. 1935).

Statute authorizing validation of municipal bonds, held to include bonds for water works, payable solely from revenues derived therefrom. Street v. Ripley, 173 Miss. 225, 161 So. 855, 1935 Miss. LEXIS 237 (Miss. 1935).

2. “Bond.”

Tax anticipation note met the definition of a bond under this statute because it was a written obligation from a county. Russell v. Humphreys Cnty. Bd. of Supervisors (In re Validation of Tax Anticipation Note), 187 So.3d 1025, 2016 Miss. LEXIS 138 (Miss. 2016).

§ 31-13-5. Determination of validity of bond issues.

When any county, municipality, school district, road district, drainage district, levee district, sea wall district, or any other district or subdivision authorized to issue bonds shall take steps to issue bonds for any purpose whatever, the officer or officers of such county, municipality, or district charged by law with the custody of the records of same shall, if the board issuing same so determine by order entered on its minutes, transmit to said bond attorney a certified copy of all legal papers pertaining to the issuance of said bonds, including transcripts of records and ordinances, proof of publication, and tabulation of vote, if any, and any other facts pertaining to said issuance. Said bond attorney shall thereupon as expeditiously as possible examine said legal papers, pass upon the sufficiency thereof, and render an opinion in writing, addressed to the board proposing to issue said bonds, as to the validity of same; and if any further action on the part of said board is necessary or any further data is desired, he shall indicate what is necessary to be done in the premises in order to make said bonds legal, valid, and binding. When in his opinion all necessary legal steps have been taken to make the said bond issue legal, valid, and binding, he shall render a written opinion to that effect and shall transmit all legal papers, together with his opinion, to the clerk of the chancery court of the county in which the district or municipality proposing to issue said bonds is situated, or if said district embraces more than one (1) county or parts of more than one county, then to the chancery clerk of any one of said counties. The chancery clerk shall file the same, enter the same on the docket of the chancery court, and shall promptly notify the chancellor of the district in writing that said papers are on file and the cause has been docketed. The chancellor shall then notify the chancery clerk to set the matter for hearing at some future date, not less than ten (10) days thereafter, and the clerk shall give not less than five (5) days’ notice by making at least one (1) publication in some paper published in the county where the case is docketed, addressed to the taxpayers of the county, municipality, or district proposing to issue said bonds, advising that the matter will be heard on the day named. If on the day set for hearing there is no written objection filed by any taxpayer to the issuance of said bonds, a decree approving the validity of same shall be entered by the chancellor; and if the chancellor be not present the clerk shall forward him the decree prepared by the state’s bond attorney for his signature, and shall enter the said decree upon his minutes in vacation.

If no written objection is filed to the validation of the bonds, certificates of indebtedness, or other written obligations which are being validated, by any taxpayer to the issuance of same, then the validation decree shall be final and forever conclusive from its date, and no appeal whatever shall lie therefrom.

If at the hearing any taxpayer of the county, municipality, or district issuing said bonds appears and files, or has filed written objection to the issuance of said bonds, then the chancellor, or the chancery clerk if the chancellor be not present, shall set the case over for another day convenient to the chancellor, not less than ten days thereafter, and shall notify the bond attorney to appear and attend the hearing. On the hearing the chancellor may hear additional competent, relevant and material evidence under the rules applicable to such evidence in the chancery court, so as to inquire into the validity of the bonds or other obligations proposed to be issued, and enter a decree in accordance with his finding.

Where written objections have been filed to the validation but not otherwise, if either party shall be dissatisfied with the decree of the chancellor, an appeal shall be granted as in other cases, provided such appeal be prosecuted and bond filed within twenty (20) days after the chancellor enters his decree. However, no appeal shall lie in any case unless written objection has been filed to the validation of the bonds or other obligations by the time set for the validation hearing. The chancery clerk shall certify the record to the supreme court as in other cases, and the supreme court shall hear the case as a preference case.

HISTORY: Codes, Hemingway’s 1921 Supp. § 3812b; 1930, § 313; 1942, § 4314; Laws, 1917, ch. 28; Laws, 1922, ch. 252; Laws, 1928, ch. 32.

Cross References —

Validation of bonds to carry out purposes of Gulf Regional District Law, see §17-11-51.

Validation of bonds issued pursuant to Mississippi Regional Solid Waste Management Authority Act, see §17-17-337.

Validation of revenue bonds issued by county cooperative service districts, see §19-3-106.

Issuance of county bonds and notes, see §§19-9-1 et seq.

Issuance of municipal bonds, see §§21-33-301 et seq.

Validation of bonds issued to finance construction and improvement of public facilities, see §29-17-21.

Validation of refunding bonds issued under §§31-15-1 through31-15-19, see §31-15-19, see §31-15-19.

Validation of refunding bonds issued under §§31-15-21 through31-15-27, see §31-15-27.

Validation of notes evidencing temporary borrowings made in anticipation of issuance of state-supported debt, see §31-17-181.

Validation of bonds issued by the Mississippi Development Bank, see §31-25-37.

Validation of refunding bonds, see §31-27-23.

Authorization to validate bonds issued to fund the Institute for Technology Development, see §31-29-15.

Bonds to finance dormitories and other housing facilities at junior colleges, see §§37-29-109 et seq.

School district bonds, see §§37-59-1 et seq.

Validation of general obligation bonds issued for the purpose of renovating or repairing facilities at various institutions of higher learning, the Education and Research center, and the Gulf Coast Research Laboratory, see §37-101-321.

Validation of bonds of the Mississippi Educational Facilities Authority for Private, Nonprofit Institutions of Higher Learning, see §37-104-27.

Validation of bonds issued for Mississippi Opportunity Loan Program Act, see §37-145-35.

Applicability of bond validation procedures to bonds of Mississippi Hospital Equipment Financing Authority, see §41-73-75.

Validation of bonds issued by Mississippi Home Corporation, see §43-33-729.

Issuance of municipal securities pursuant to Water Pollution Control Revolving Fund Act, see §49-17-89.

Applicability of this chapter to bonds issued by the Pearl River Valley Water Supply District under the Metropolitan Area Water Supply Act (§§51-9-189 et seq.), see §51-9-209.

Bonds to finance improvement of surplus airport land for industrial purposes, see §§57-7-1 et seq.

Validation of bonds issued by county industrial development authority, see §57-31-17.

Application of the provisions of this section to evidences of indebtedness issued for borrowing money from Mississippi Development Authority, see §57-61-37.

Validation of bonds issued pursuant to the Mississippi Superconducting Super Collider Act, see §57-67-15.

Validation of bonds authorized by the Mississippi Major Economic Impact Act, see §57-75-15.

Validation of bonds sold to finance improvements to state harbors, see §59-5-49.

Validation of bonds issued for improvements on state fairgrounds, see §69-5-25.

Objections to determinations by the Municipal Gas Authority of Mississippi, concerning projects that are to be financed by the issuance of bonds, see §77-6-17.

Validation of bonds issued by the Municipal Gas Authority of Mississippi, see §77-6-49.

Proceedings pertaining to bond validations, see Miss. R. Civ. P. 81.

OPINIONS OF THE ATTORNEY GENERAL

County is not required to go through process of validating urban renewal bonds issued pursuant to Section 43-35-1 et seq., although it may do so; if chancellor enters decree confirming and validating bonds or if supreme court on appeal enters decree confirming and validating bonds, validity of bonds is forever conclusive against county for all purposes. 1992 Miss. Op. Att'y Gen. 959.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Securities and Obligations §§ 384 et seq.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March 1982.

JUDICIAL DECISIONS

1. In general.

2. Validity.

3. Construction and application, generally.

4. Parties.

5. Notice.

6. Jurisdiction of chancery court.

6.5. Evidence.

7. Conclusiveness of decree validating bonds.

8. Appeals.

1. In general.

City of Hattiesburg could lawfully proceed with issuance of general obligation industrial park bonds under Chapter 886, Local and Private Laws of Mississippi, Regular Session 1984, which dispenses with the necessity for a bond issue election, except upon petition of 10 percent of the city’s registered voters. Brandon v. Hattiesburg, 493 So. 2d 324, 1986 Miss. LEXIS 2532 (Miss. 1986).

Constitutionality of statute under which utility district has been organized and purports to exist may be considered at bond validation hearing, but not thereafter; on other hand, whether organization of district is lawful in sense that, in accordance with enabling legislation, all of “i’s” are dotted and “t’s” crossed is ordinarily regarded as collateral and may not be inquired into, provided there has been adequate opportunity to litigate question at earlier point in time. In re Validation of $7,800,000 Combined Utility System Revenue Bond, etc., 465 So. 2d 1003, 1985 Miss. LEXIS 1939 (Miss. 1985).

No inquiry, in proceeding to validate bonds, into reasonableness of leaving land out of district. Board of Sup'rs v. Holley, 141 Miss. 432, 106 So. 644, 1926 Miss. LEXIS 438 (Miss. 1926).

Powers herein conferred upon the State Bond Attorney are not judicial. Bacot v. Board of Sup'Rs., 124 Miss. 231, 86 So. 765, 1920 Miss. LEXIS 504 (Miss. 1921).

Such powers as herein conferred may be exercised by the bond attorney. Bacot v. Board of Sup'Rs., 124 Miss. 231, 86 So. 765, 1920 Miss. LEXIS 504 (Miss. 1921).

2. Validity.

In bond judgment and declaratory judgment actions by objectors against county utility district that proposed to issue revenue bonds to finance a water and sewage center, Mississippi Constitution, Art IV, § 87-90 did not sap the local and private act of its enabling power, where the local and private act furthered the same general purposes and policies as the general act, the differences between the two were primarily procedural or otherwise relatively minor, and the citizens of the political subdivision covered by the local and private act had alternatives in that they could proceed under either that act or the general law; notwithstanding that the objectors may not have been afforded reasonable advance notice of the meeting in which the board of commissioners formerly adopted resolutions concerning the project, the revenue bond did not violate the due process clause of the Mississippi Constitution. In re Validation of $7,800,000 Combined Utility System Revenue Bond, etc., 465 So. 2d 1003, 1985 Miss. LEXIS 1939 (Miss. 1985).

This chapter is held to be constitutional. Bacot v. Board of Sup'Rs., 124 Miss. 231, 86 So. 765, 1920 Miss. LEXIS 504 (Miss. 1921).

3. Construction and application, generally.

Defects in a certified transcript sent to the state bond attorney were not so severe as to preclude issuance of the bonds where the defects consisted of a failure to include notice of the special meeting in the transcript, the transcript’s representation of the late signing of the meeting’s minutes, the representation of the signature of a president who had resigned several months earlier, and an inaccurate statement in the bond transcript certification that “there was no litigation pending or threatened in any way involving the issuance and sale of the Bonds.” Shipman v. North Panola Consol. Sch. Dist., 641 So. 2d 1106, 1994 Miss. LEXIS 372 (Miss. 1994).

In determining the validity of certain bonds which were issued by a city for the purpose of acquiring hospital facilities, the trial court properly declined to receive evidence on the collateral matter of the facility’s proposed location. In re Validation of $15,000,000 Hospital Revenue Bonds etc., 361 So. 2d 44, 1978 Miss. LEXIS 2343 (Miss. 1978).

This section [Code 1942, § 4314] permits written objections only up to the time set for the validation hearing, and thereafter it was within the discretion of the chancellor to allow or overrule a motion to amend objections filed by the protestants. Ramond v. Bay St. Louis, 218 So. 2d 719, 1969 Miss. LEXIS 1613 (Miss. 1969).

Objection to a validation of bonds may not be based on the fact that the president of the board of supervisors signed the minutes on the day following that specified by law, where the day specified was a legal holiday. Gordon v. Monroe County, 244 Miss. 849, 147 So. 2d 126, 1962 Miss. LEXIS 515 (Miss. 1962).

If upon a demurrer or motion to strike, an objection is held insufficient, the objector has a right to amend at any time prior to final hearing. Mills v. Richton Municipal Separate School Dist., 236 Miss. 273, 110 So. 2d 349, 1959 Miss. LEXIS 317 (Miss. 1959).

The statute clearly requires that when objections are filed a hearing must be had within ten days, at which time any competent, relevant and material evidence may be heard. Mills v. Richton Municipal Separate School Dist., 236 Miss. 273, 110 So. 2d 349, 1959 Miss. LEXIS 317 (Miss. 1959).

In proceedings for issuance of bonds under Code of 1942, § 6370, authorizing consolidated school districts to issue bonds for improvement and repair of school buildings, allegations of objectors that signers of petition did not constitute a majority, which, if true, would render bonds void, was improperly stricken by the court, which should have heard and determined the same as required by due process. In re Savannah Special Consol. School Dist., 208 Miss. 460, 44 So. 2d 545, 1950 Miss. LEXIS 265 (Miss. 1950).

While it is true that in a proceeding to validate refunding bonds, a taxpayer may appear and object if there are no bonds to be refunded, or that none will be due or can be made to be due at the time the refunding bonds will be sold, and that upon such objection the court will be obliged to decide that issue, it is still an issue solely between the board and the taxpayers, and if the questions involved be decided in favor of the bonds proposed to be issued and the bonds are validated, the bonds as validated become of unquestionable legality as between the county, the taxpayers, and the purchasers of the refunding bonds. Love v. Humphreys County, 190 Miss. 365, 200 So. 245, 1941 Miss. LEXIS 51 (Miss. 1941).

An order by the Board of Supervisors after issuance of a refunding bond and validation thereof by proceedings in the chancery court, amending its original order for the issuance of such bonds by the inclusion of the clause “without option of prior payment” which as against the taxpayers the board had no right to make because of its disadvantageous purpose, was of no valid effect and could not be set up as a ground of objection by holders of bonds of the original issue against a subsequent issue of bonds to refund such original issue. Love v. Humphreys County, 190 Miss. 365, 200 So. 245, 1941 Miss. LEXIS 51 (Miss. 1941).

The validation proceedings for refunding bonds do not include or preclude the holders of the older bonds which are proposed to be refunded, since they have not been made parties to the refunding validation proceedings and should they elect not to surrender their bonds but to hold them and seek to collect the interest thereon, and should sue therefor, they would be met with no more than what confronts litigants generally, that is to say, the obstacle of stare decisis, but not with any such defenses as res adjudicata or the law of the case. Love v. Humphreys County, 190 Miss. 365, 200 So. 245, 1941 Miss. LEXIS 51 (Miss. 1941).

Where there has been no validation by the chancery court of a bond issue, every question which may go to the validity of the bond remains open to the taxpayer to raise an appropriate suit by him at any time when he may be called upon to contribute to the payment of the bond and his attack may question every step taken in the issuance of the original order on through the intermediate orders to and including the final order and any amendatory order. Love v. Humphreys County, 190 Miss. 365, 200 So. 245, 1941 Miss. LEXIS 51 (Miss. 1941).

Where election commissioners certified to a Board of Supervisors the essential matters necessary for the issuance of bonds of a school district, and had determined all the jurisdictional facts essential to the validity of the election, and the Board of Supervisors had found all the jurisdictional facts essential to the issuance of the bonds and had directed their issuance and validation, the pendency of a mandamus suit in the circuit court was no bar to a validation proceeding in chancery court, where no appeal was taken from the order of the Board of Supervisors to the circuit court, a mandamus suit being no substitute for the appeal provided by statute. In re Validation of Bonds, 185 Miss. 864, 188 So. 318, 1939 Miss. LEXIS 168 (Miss. 1939).

Supervisors must find as jurisdictional fact proposed funding bonds will not increase bonded debt beyond ten percent of assessed valuation, and set forth such fact in order. Lee v. Hancock County, 181 Miss. 847, 178 So. 790, 1938 Miss. LEXIS 124 (Miss. 1938).

Taxpayers may amend objections to issuance of bonds at any time prior to final hearing. Lee v. Hancock County, 181 Miss. 847, 178 So. 790, 1938 Miss. LEXIS 124 (Miss. 1938).

Clear intent of statute is that proposed bond issue shall not be permitted if there is valid objection thereto. Lee v. Hancock County, 181 Miss. 847, 178 So. 790, 1938 Miss. LEXIS 124 (Miss. 1938).

Municipality could issue bonds for purchase and maintenance of municipal waterworks payable serially over period of 25 years, and municipality’s right to contract to pay for service in aid of maintenance of sinking fund for retirement of bonds was coextensive with right to issue bonds. Street v. Ripley, 173 Miss. 225, 161 So. 855, 1935 Miss. LEXIS 237 (Miss. 1935).

Validity of provision in bond ordinance providing for issuance of bonds for purchase and maintenance of municipal waterworks which obligated municipality to pay into a sinking fund a fixed sum as reasonable value of fire protection derived from given number of hydrants could be determined in validation proceedings. Street v. Ripley, 173 Miss. 225, 161 So. 855, 1935 Miss. LEXIS 237 (Miss. 1935).

Statute held to include validation proceedings for bonds issued by municipality for purchase and maintenance of municipal waterworks, notwithstanding bonds were payable solely out of revenues from such enterprise. Street v. Ripley, 173 Miss. 225, 161 So. 855, 1935 Miss. LEXIS 237 (Miss. 1935).

Municipality could issue bonds for purchase and maintenance of municipal waterworks payable serially over period of 25 years. Street v. Ripley, 173 Miss. 225, 161 So. 855, 1935 Miss. LEXIS 237 (Miss. 1935).

In bond validation proceeding, it was unnecessary that taxpayers be summoned individually to comply with due process. Love v. Mayor & Board of Aldermen, 162 Miss. 65, 138 So. 600, 1932 Miss. LEXIS 109 (Miss. 1932).

4. Parties.

A bond validation proceeding is a case in court between the issuing district and the taxpayers. Mills v. Richton Municipal Separate School Dist., 236 Miss. 273, 110 So. 2d 349, 1959 Miss. LEXIS 317 (Miss. 1959).

Validation proceedings are solely between the county as a governmental entity and the taxpayers of the county, and those who hold the bonds or other obligations which are to be paid or refunded are not necessary parties, or even proper parties. Love v. Humphreys County, 190 Miss. 365, 200 So. 245, 1941 Miss. LEXIS 51 (Miss. 1941).

Where taxpayers were given notice of proceedings for validation of bonds issued for purchase and maintenance of municipal waterworks and municipality was made party to proceedings, all necessary parties were properly joined. Street v. Ripley, 173 Miss. 225, 161 So. 855, 1935 Miss. LEXIS 237 (Miss. 1935).

5. Notice.

Publication of notice to taxpayers is process which requires their appearance if they wish to object to the validation of bonds. Mills v. Richton Municipal Separate School Dist., 236 Miss. 273, 110 So. 2d 349, 1959 Miss. LEXIS 317 (Miss. 1959).

Since bonds for consolidated school districts may be issued on petition of majority of qualified electors under Code 1942, § 6370, and no provision is made for notice to those affected so that they may have an opportunity to be heard prior to issuance, the validating act, this section [Code 1942, § 4314], must be construed so as to give to those who have had no opportunity to protest action of board the right to hearing, when they respond to notice to taxpayers in validation proceedings, otherwise state constitutional provision against deprivation of property except by due process of law is violated. In re Savannah Special Consol. School Dist., 208 Miss. 460, 44 So. 2d 545, 1950 Miss. LEXIS 265 (Miss. 1950).

The notice of validation proceedings in connection with the issuance of bonds for the construction or purchase of a municipal electric plant was not required to have affixed to it the seal of the chancery court. Mississippi Power & Light Co. v. Batesville, 187 Miss. 737, 193 So. 814, 1940 Miss. LEXIS 247 (Miss. 1940).

Validation statute held to require notice to taxpayers of proceedings to validate issuance of bonds for purchase and maintenance of municipal waterworks. Street v. Ripley, 173 Miss. 225, 161 So. 855, 1935 Miss. LEXIS 237 (Miss. 1935).

6. Jurisdiction of chancery court.

Chancery court had jurisdiction to validate notes issued for building program of agricultural high school-junior college, since it was a “school district.” Humphreys v. Hinds County Agricultural, etc., Junior College, 177 Miss. 1, 170 So. 530, 1936 Miss. LEXIS 239 (Miss. 1936); Wyatt v. Harrison-Stone-Jackson Agricultural High School-Junior College, 177 Miss. 13, 170 So. 526, 1936 Miss. LEXIS 238 (Miss. 1936).

Chancery court had jurisdiction to entertain proceedings for validation of bonds issued by municipality for purchase and maintenance of municipal waterworks, notwithstanding bonds were to be paid solely by revenue from waterworks. Street v. Ripley, 173 Miss. 225, 161 So. 855, 1935 Miss. LEXIS 237 (Miss. 1935).

Law for validating bonds held not to divest circuit court of jurisdiction of appeal after order of issuance. Pearce v. Mantachie Consol. School Dist., 134 Miss. 497, 99 So. 134, 1924 Miss. LEXIS 287 (Miss. 1924).

Although the Constitution does not specifically give the chancery court jurisdiction of matters contained in this chapter, the legislature has authority to confer such jurisdiction upon the chancery courts. Bacot v. Board of Sup'Rs., 124 Miss. 231, 86 So. 765, 1920 Miss. LEXIS 504 (Miss. 1921).

6.5. Evidence.

Chancellors do not have discretion in admitting and/or considering relevant evidence in the context of the statute for determining the validity of bond issues; therefore, a chancellor erred by finding that the time had passed for the presentation of evidence as to the sufficiency of the signatures on the petition. Not only was it the correct time for presenting evidence of the sufficiency of the signatures on the petition, but it was the only time. Russell v. Humphreys Cnty. Bd. of Supervisors (In re Validation of Tax Anticipation Note), 187 So.3d 1025, 2016 Miss. LEXIS 138 (Miss. 2016).

7. Conclusiveness of decree validating bonds.

Objections made to entire record prior to chancery decree validating bonds for street improvement, held concluded by validation decree. City of Lexington v. Wilson's Estate, 170 Miss. 282, 151 So. 164, 1933 Miss. LEXIS 17 (Miss. 1933).

Decrees validating street improvement bonds held res judicata in subsequent suit by abutting owner to enjoin enforcement of assessment. West Point v. Hawkins, 164 Miss. 591, 145 So. 345, 1933 Miss. LEXIS 240 (Miss. 1933).

Bill for injunction to restrain city officials from issuing bonds could not be maintained to test constitutional questions conclusively adjudicated in validation proceedings by final decree therein entered. Love v. Mayor & Board of Aldermen, 162 Miss. 65, 138 So. 600, 1932 Miss. LEXIS 109 (Miss. 1932).

Decree of validation held res judicata as to issuance of bonds by city, payment of proceeds to purpose for which issued, and accomplishment of equalization intended by rebate, refund, and remission of taxes, yet unpaid under prior paving project. Love v. Mayor & Board of Aldermen, 162 Miss. 65, 138 So. 600, 1932 Miss. LEXIS 109 (Miss. 1932).

Judgment by default permitted by taxpayers in bond validation proceeding has same effect as any other judgment by default rendered by court of competent jurisdiction. Love v. Mayor & Board of Aldermen, 162 Miss. 65, 138 So. 600, 1932 Miss. LEXIS 109 (Miss. 1932).

Decree validating bonds of separate school district held conclusive against collateral attack on validity of order creating district. Von Zondt v. Braxton, 149 Miss. 461, 115 So. 557, 1928 Miss. LEXIS 43 (Miss. 1928).

Decree validating school bond issue in taxpayers’ proceeding held res judicata as to subsequent attack by different taxpayers. Von Zondt v. Braxton, 149 Miss. 461, 115 So. 557, 1928 Miss. LEXIS 43 (Miss. 1928).

Judgment validating drainage district bonds in regular proceedings pursuant to statutory notice is conclusive on all parties. Jackson & E. R. Co. v. Burns, 148 Miss. 7, 113 So. 908, 1927 Miss. LEXIS 4 (Miss. 1927), cert. denied, 278 U.S. 562, 49 S. Ct. 27, 73 L. Ed. 506, 1928 U.S. LEXIS 339 (U.S. 1928).

8. Appeals.

In action by registered voters against county board of supervisors alleging that board violated due process right by refusing to hold election on bond issues, refusal did not rise to level of constitutional deprivation, and even if board members, as alleged, improperly eliminated signatures on plaintiffs’ protest petition or viewed required number of signatures too restrictively, proper avenue for such claims was through state election procedures, not action in federal court. Thrasher v. Board of Supervisors, 765 F. Supp. 896, 1991 U.S. Dist. LEXIS 7289 (N.D. Miss. 1991).

An appeal by taxpayers to the circuit court from orders and allowances made by the board of supervisors with respect to the issuance of county funding bonds was improper where the bill of exceptions failed to set forth the facts in full and was not signed by the president of the board as the law required, and items which should have been entered and a statement as to their correctness was left to the clerk. In re Validation of $50,000 Serial Funding Bonds, 187 Miss. 512, 193 So. 449, 1940 Miss. LEXIS 231 (Miss. 1940).

An appeal to the circuit court by taxpayers from orders and allowances made by the county board of supervisors with respect to the issuance of county funding bonds was ineffective where the chancery court had acquired jurisdiction of the whole matter in a validation proceeding. In re Validation of $50,000 Serial Funding Bonds, 187 Miss. 512, 193 So. 449, 1940 Miss. LEXIS 231 (Miss. 1940).

The chancery court, having acquired jurisdiction of a proceeding or validation of county funding bonds, erred in dismissing the proceedings, in view of the fact that it had the power to pass upon the legality of the bond issue in all respects, including the various claims constituting the alleged indebtednesses, and an appeal by the taxpayers to the circuit court during the pendency of such proceeding in the chancery court was improper. In re Validation of $50,000 Serial Funding Bonds, 187 Miss. 512, 193 So. 449, 1940 Miss. LEXIS 231 (Miss. 1940).

The right of a taxpayer to prosecute appeals from orders and allowances by a board of supervisors in connection with the issuance of funding bonds to matters in which he has no pecuniary or property interest is limited. In re Validation of $50,000 Serial Funding Bonds, 187 Miss. 512, 193 So. 449, 1940 Miss. LEXIS 231 (Miss. 1940).

With respect to an appeal to the circuit court by taxpayers from orders and allowances of a board of supervisors with respect to issuance of county funding bonds, a party having a claim to be allowed or having been allowed by the board is an interested party on an appeal to the circuit court, and separate appeals from all orders must be prosecuted where an appeal has been taken, and the bill of exceptions must either be filed during the court term or meeting of the board of supervisors or within such time as the law or the board might allow for filing such bill and appeal. In re Validation of $50,000 Serial Funding Bonds, 187 Miss. 512, 193 So. 449, 1940 Miss. LEXIS 231 (Miss. 1940).

See, also, In re Validation of Bonds, 185 Miss. 864, 188 So. 318, 1939 Miss. LEXIS 168 (Miss. 1939).

§ 31-13-7. Final decree validating bonds to be forever conclusive.

If the chancellor shall enter a decree confirming and validating said bonds and there shall be no appeal by either party from said decree, or if on appeal the supreme court enters its decree confirming and validating said bonds or other written obligations, the validity of said bonds or other written obligations so issued shall be forever conclusive against the county, municipality, or district issuing same; and the validity of said bonds or other written obligations shall never be called in question in any court in this state.

HISTORY: Codes, Hemingway’s 1921 Supp. § 3812c; 1930, § 314; 1942, § 4315; Laws, 1917, ch. 28; Laws, 1928, ch. 32.

Cross References —

Issuance of Gulf Regional District bonds, see §17-11-35.

Validation of bonds issued pursuant to Mississippi Regional Solid Waste Management Authority Act, see §17-17-337.

Validation of bonds issued to finance construction and improvement of public facilities, see §29-17-21.

Validation of refunding bonds issued under §§31-15-1 through31-15-19, see §31-15-19, see §31-15-19.

Validation of refunding bonds issued under §§31-15-21 through31-15-27, see §31-15-27.

Validation of notes evidencing temporary borrowings made in anticipation of issuance of state-supported debt, see §31-17-181.

Validation of bonds issued by the Mississippi Development Bank, see §31-25-37.

Authorization to validate bonds issued to fund the Institute for Technology Development, see §31-29-15.

Validation of bonds issued by Mississippi Home Corporation, see §43-33-729.

Issuance of municipal securities pursuant to Water Pollution Control Revolving Fund Act, see §49-17-89.

Applicability of this chapter to bonds issued by the Pearl River Valley Water Supply District under the Metropolitan Area Water Supply Act (§§51-9-189 et seq.), see §51-9-209.

Application of the provisions of this section to evidences of indebtedness issued for borrowing money from the Mississippi Development Authority, see §57-61-37.

Validation of bonds issued pursuant to the Mississippi Superconducting Super Collider Act, see §57-67-15.

Validation of bonds authorized by the Mississippi Major Economic Impact Act, see §57-75-15.

Objections to determinations by the Municipal Gas Authority of Mississippi, concerning projects that are to be financed by the issuance of bonds, see §77-6-17.

Validation of bonds issued by the Municipal Gas Authority of Mississippi, see §77-6-49.

Proceedings pertaining to bond validations, see Miss. R. Civ. P. 81.

OPINIONS OF THE ATTORNEY GENERAL

As a general proposition, when there has been no official action approving in advance additional work by a contractor, a governing authority is not permitted to pay for the additional work; however, if a contract is to be performed and paid upon a “unit price,” a governing authority may find, consistent with fact, and encompass such findings in an order spread upon its minutes, that a proposed change order is necessary or incidental to the completion of the work as originally bid, is commercially reasonable, is not made to circumvent the public purchasing statutes, and that the increase in costs is reasonable, and may thereafter approve the change order even after the work has been performed. 1999 Miss. Op. Att'y Gen. 160.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Securities and Obligations § 397.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March 1982.

JUDICIAL DECISIONS

1. In general.

2. Record.

3. Collateral attack.

1. In general.

In action by registered voters against county board of supervisors alleging that board violated due process right by refusing to hold election on bond issues, refusal did not rise to level of constitutional deprivation, and even if board members, as alleged, improperly eliminated signatures on plaintiffs’ protest petition or viewed required number of signatures too restrictively, proper avenue for such claims was through state election procedures, not action in federal court. Thrasher v. Board of Supervisors, 765 F. Supp. 896, 1991 U.S. Dist. LEXIS 7289 (N.D. Miss. 1991).

An appeal involving the question whether an objector was properly required to furnish a bond for costs, in default of which the objections were dismissed without a hearing and the bonds were declared valid, is one from a final decree. Mills v. Richton Municipal Separate School Dist., 236 Miss. 273, 110 So. 2d 349, 1959 Miss. LEXIS 317 (Miss. 1959).

The question whether an objector to a bond issue was properly required to give a bond for costs as a condition of being heard in default of which the objections were dismissed and the bonds declared valid, does not become moot upon delivery of the bonds to a purchaser. Mills v. Richton Municipal Separate School Dist., 236 Miss. 273, 110 So. 2d 349, 1959 Miss. LEXIS 317 (Miss. 1959).

Objections made to entire record prior to chancery decree validating bonds for street improvement held concluded by validation decree. City of Lexington v. Wilson's Estate, 170 Miss. 282, 151 So. 164, 1933 Miss. LEXIS 17 (Miss. 1933).

Decrees validating street improvement bonds held res judicata in subsequent suit by abutting owner to enjoin enforcement of assessment. West Point v. Hawkins, 164 Miss. 591, 145 So. 345, 1933 Miss. LEXIS 240 (Miss. 1933).

Decree of validation held res judicata as to issuance of bonds by city, payment of proceeds to purpose for which issued, and accomplishment of equalization intended by rebate, refund, and remission of taxes yet unpaid under prior paving project. Love v. Mayor & Board of Aldermen, 162 Miss. 65, 138 So. 600, 1932 Miss. LEXIS 109 (Miss. 1932).

Judgment by default permitted by taxpayers in bond validation proceeding has same effect as any other judgment by default rendered by court of competent jurisdiction. Love v. Mayor & Board of Aldermen, 162 Miss. 65, 138 So. 600, 1932 Miss. LEXIS 109 (Miss. 1932).

A judgment validating drainage district bonds in regular proceedings pursuant to statutory notice is conclusive on all parties. Jackson & E. R. Co. v. Burns, 148 Miss. 7, 113 So. 908, 1927 Miss. LEXIS 4 (Miss. 1927), cert. denied, 278 U.S. 562, 49 S. Ct. 27, 73 L. Ed. 506, 1928 U.S. LEXIS 339 (U.S. 1928).

No inquiry, in proceedings to validate bonds, into reasonableness of leaving certain land out of district. Board of Sup'rs v. Holley, 141 Miss. 432, 106 So. 644, 1926 Miss. LEXIS 438 (Miss. 1926).

This chapter is not intended to deprive the circuit court of jurisdiction of appeals taken from the order of the board of supervisors but contemplates that the validating proceedings may be had after the proper board or court has entered its decree or order of issuance and no appeal has been taken therefrom. Pearce v. Mantachie Consol. School Dist., 134 Miss. 497, 99 So. 134, 1924 Miss. LEXIS 287 (Miss. 1924).

Where the order of the board of supervisors in attempting to establish a road district includes therein more territory than is contained in the petition, the order is void and may be attacked in a validation proceeding. Bryant v. Board of Sup'rs, 133 Miss. 714, 98 So. 148, 1923 Miss. LEXIS 180 (Miss. 1923).

Bonds issued by a county, municipality or district although without authority, validated under this chapter are binding and valid. Parker v. Board of Sup'rs, 125 Miss. 617, 88 So. 172, 1921 Miss. LEXIS 149 (Miss. 1921).

2. Record.

The board cannot present one record to the taxpayers for the validation of bonds and then present to them a more burdensome or less advantageous record when they are called on to pay, and since the rights of bondholders are based on what the board has validly done, the bondholders cannot insist on any record which, as against the taxpayers, the board had no right to make. Love v. Humphreys County, 190 Miss. 365, 200 So. 245, 1941 Miss. LEXIS 51 (Miss. 1941).

When there has been a validation decree that decree forecloses every question which could have been raised by any taxpayer against the legality of the issue; wherefore, it follows that when the board presents to the taxpayers a certified record for validation and gives them notice to come into court if they have any objection to what the record shows and proposes, that record must remain unchanged in all particulars which otherwise would operate adversely to the interest of the taxpayers. Love v. Humphreys County, 190 Miss. 365, 200 So. 245, 1941 Miss. LEXIS 51 (Miss. 1941).

Judgment under record showing jurisdictional facts, proceedings creating drainage districts and legal assessments of benefits and damages constitute res adjudicata. Jackson & E. R. Co. v. Burns, 148 Miss. 7, 113 So. 908, 1927 Miss. LEXIS 4 (Miss. 1927), cert. denied, 278 U.S. 562, 49 S. Ct. 27, 73 L. Ed. 506, 1928 U.S. LEXIS 339 (U.S. 1928).

Where the record before the board shows the jurisdictional facts, in so far as matters of fact are concerned, in a proceeding to validate road bonds, the validity of the creation of the road district cannot be inquired into. Borroum v. Purdy Road Dist., 131 Miss. 778, 95 So. 677, 1923 Miss. LEXIS 216 (Miss. 1923).

3. Collateral attack.

Subsequent to bond validation decree becoming final, taxpayer may not be heard to complain of legality or constitutionality of facet of bond issue or project to be funded which could have been presented and fully heard at bond validation hearing; however, that which could not have been presented (because of limited scope of hearing or whatever) may not be precluded from subsequent litigation consistent with due process. In re Validation of $7,800,000 Combined Utility System Revenue Bond, etc., 465 So. 2d 1003, 1985 Miss. LEXIS 1939 (Miss. 1985).

After a decree of validation, this statute [Code 1942, § 4315] forecloses all objections that could have been urged before the chancellor at the hearing of the proceedings as to the validity of the bonds, where he had jurisdiction of the subject matter and the parties, including the objection that no notice was given to the taxpayers in regard to the board’s intention to issue the same; nor can the decree be collaterally attacked where, instead of appearing to be void on its face, it adjudicates all of the facts necessary to show its validity, and was rendered by a court of competent jurisdiction. Town of Decatur v. Brogan, 184 Miss. 402, 185 So. 809, 1939 Miss. LEXIS 46 (Miss. 1939).

Bill for injunction to restrain city officials from issuing bonds could not be maintained to test constitutional questions conclusively adjudicated in validation proceedings by final decree therein entered. Love v. Mayor & Board of Aldermen, 162 Miss. 65, 138 So. 600, 1932 Miss. LEXIS 109 (Miss. 1932).

§ 31-13-9. Validated bonds to be so stamped; use of facsimile.

Whenever any bonds are validated under the provisions of this chapter, the clerk or other proper officer of the county, municipality, or district issuing same shall stamp or write on each of said bonds over his signature and the seal of the issuer the words “validated and confirmed by decree of the chancery (or supreme) court,” together with the date of the rendition of the final decree validating same, which entry shall be taken as evidence of the validation of said bonds in any court in this state. If the resolution authorizing the issuance of the bonds shall so provide, such signature and seal under this section may be a facsimile.

HISTORY: Codes, Hemingway’s 1921 Supp. § 3812d; 1930, § 316; 1942, § 4317; Laws, 1917, ch. 28; Laws, 1928, ch. 32; Laws, 1978, ch. 327, § 1; Laws, 1985, ch. 427, eff from and after July 1, 1985.

Cross References —

Validation of bonds issued pursuant to Mississippi Regional Solid Waste Management Authority Act, see §17-17-337.

Validation of bonds issued to finance construction and improvement of public facilities, see §29-17-21.

Validation of refunding bonds issued under §§31-15-1 through31-15-19, see §31-15-19, see §31-15-19.

Validation of refunding bonds issued under §§31-15-21 through31-15-27, see §31-15-27.

Validation of notes evidencing temporary borrowings made in anticipation of issuance of state-supported debt, see §31-17-181.

Validation of bonds issued by the Mississippi Development Bank, see §31-25-37.

Authorization to validate bonds issued to fund the Institute for Technology Development, see §31-29-15.

Validation of bonds issued by Mississippi Home Corporation, see §43-33-729.

Issuance of municipal securities pursuant to Water Pollution Control Revolving Fund Act, see §49-17-89.

Applicability of this chapter to bonds issued by the Pearl River Valley Water Supply District under the Metropolitan Area Water Supply Act (§§51-9-189 et seq.), see §51-9-209.

Application of the provisions of this section to evidences of indebtedness issued for borrowing money from the Mississippi Development Authority, see §57-61-37.

Validation of bonds issued pursuant to the Mississippi Superconducting Super Collider Act, see §57-67-15.

Validation of bonds authorized by the Mississippi Major Economic Impact Act, see §57-75-15.

Objections to determinations by the Municipal Gas Authority of Mississippi, concerning projects that are to be financed by the issuance of bonds, see §77-6-17.

Validation of bonds issued by the Municipal Gas Authority of Mississippi, see §77-6-49.

Proceedings pertaining to bond validations, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March 1982.

§ 31-13-11. Court costs and bond attorney’s fee and expenses.

The court costs in all such cases shall be paid by the county, municipality, or district proposing to issue said bonds or other written obligations, and in addition to such costs it shall also pay to the bond attorney a fee of not more than one-tenth of one percent (1/10 of 1%), provided said fee shall not be less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00), of the amount of the bonds or other obligations issued or proposed to be issued. The payment of this fee shall be full compensation for all legal services rendered in connection with the issuance of said bonds, except that when the state’s bond attorney attends a hearing of objection to the validation of said bonds, his actual and necessary expenses and a reasonable rate of compensation for attending the said hearing as required by this chapter shall be taxed as a part of the costs of the validation proceedings, upon approval by the clerk or chancellor of an itemized account of such expenses and time expended. If objection is filed to the validation of said bonds, then in that event the taxation of court costs, including expenses and a reasonable rate of compensation for the bond attorney, shall be discretionary with the chancellor, as in other cases in the chancery court, against the issuing board or district, or the objector or objectors, or apportioned as the chancellor may deem proper.

HISTORY: Codes, Hemingway’s 1921 Supp. § 3812e; 1930, § 317; 1942, § 4318; Laws, 1917, ch. 28; Laws, 1928, ch. 32; Laws, 1968, ch. 370, § 1; Laws, 1979, ch. 371; Laws, 1983, ch. 373, eff from and after passage (approved March 21, 1983).

Cross References —

Validation of bonds issued pursuant to Mississippi Regional Solid Waste Management Authority Act, see §17-17-337.

Validation of bonds issued to finance construction and improvement of public facilities, see §29-17-21.

Validation of refunding bonds issued under §§31-15-1 through31-15-19, see §31-15-19, see §31-15-19.

Validation of refunding bonds issued under §§31-15-21 through31-15-27, see §31-15-27.

Validation of notes evidencing temporary borrowings made in anticipation of issuance of state-supported debt, see §31-17-181.

Validation of bonds issued by the Mississippi Development Bank, see §31-25-37.

Authorization to validate bonds issued to fund the Institute for Technology Development, see §31-29-15.

Validation of bonds issued by Mississippi Home Corporation, see §43-33-729.

Issuance of municipal securities pursuant to Water Pollution Control Revolving Fund Act, see §49-17-89.

Applicability of this chapter to bonds issued by the Pearl River Water Supply District under the Metropolitan Area Water Supply Act (§§51-9-189 et seq.), see §51-9-209.

Application of the provisions of this section to evidences of indebtedness issued for borrowing money from the Mississippi Development Authority, see §57-61-37.

Validation of bonds authorized by the Mississippi Major Economic Impact Act, see §57-75-15.

Objections to determinations by the Municipal Gas Authority of Mississippi, concerning projects that are to be financed by the issuance of bonds, see §77-6-17.

Proceedings pertaining to bond validations, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Securities and Obligations § 401.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March 1982.

JUDICIAL DECISIONS

1. In general.

An objector may not be required to furnish a bond for costs as a condition of being heard, at least in a prohibitive amount. Mills v. Richton Municipal Separate School Dist., 236 Miss. 273, 110 So. 2d 349, 1959 Miss. LEXIS 317 (Miss. 1959).

Chapter 15. Refunding Bonds

§ 31-15-1. Short title.

Sections 31-15-1 through 31-15-19 may be cited as the “General Refunding Law of 1934.”

HISTORY: Codes, 1942, § 4358; Laws, 1934, ch. 143.

Cross References —

Inapplicability of debt limitations to refunding bonds, see §31-15-9.

Refunding of bonded indebtedness for maintenance of sea walls or road protection structures, see §§65-33-61 et seq.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Securities and Obligations §§ 215 et seq.

CJS.

81A C.J.S., States §§ 454, 455.

§ 31-15-3. Definitions.

Whenever used in Sections 31-15-1 through 31-15-19, the words “political subdivision” shall be deemed as including any county, city, town, or village, whether operating under the code chapter, a special charter, or the commission form of government; and any supervisors district, road district, municipal separate school district, rural separate school district, consolidated school district, line separate school district, or school district of any other form.

The words “governing authority”, wherever used in the aforesaid sections, shall be understood as referring to the following: for counties, supervisors districts, road districts, school districts (other than municipal separate school districts), the board of supervisors of the county; for cities, towns, or villages operating under the code, the board of mayor and aldermen thereof; for cities, towns, or villages operating under special charters, the legislative body thereof created by such charters; for cities, towns, or villages operating under the commission form of government, the council or commission thereof; for municipal separate school districts, the governing authority of the city, town, or village within such district.

HISTORY: Codes, 1942, § 4359; Laws, 1934, ch. 143.

Cross References —

Issuance of refunding bonds by drainage districts, see §51-33-39.

§ 31-15-5. Election not required.

  1. The governing authority of any political subdivision may, without an election on the question of the issuance thereof, issue the bonds of such subdivision for the purpose of refunding any bonded indebtedness of such subdivision now or hereafter outstanding, whether such bonded indebtedness shall at the time of such refunding be due or to mature in the future, and regardless of whether the issuance of such refunding bonds shall create a total bonded indebtedness of such subdivision in excess of the then existing statutory limitation of debt.
  2. The board of supervisors of any county may issue the bonds of any county, consolidated school district, rural separate school district or separate road district, for the purpose of refunding the outstanding bonded indebtedness of any such county or district when the same shall mature, whether now due or to become due in the future without notice and without an election on the question of the issuance of same, regardless of whether or not the issuance of such bonds shall create a total bonded indebtedness in excess of the then existing statutory limitation of debt.
  3. Such bonds may be issued in sufficient amount to pay and retire any of the then outstanding bonds, whether matured or to mature in the future, together with interest thereon to the date of the refunding bonds or to such prior date as the governing authority may determine; and such power to refund such bonds and interest may be exercised whenever funds available from taxes are not sufficient to pay such outstanding bonds and the interest thereon whenever they may mature.

HISTORY: Codes, Hemingway’s 1921 Supp. § 6662j; 1930, § 5986; 1942, §§ 4346, 4360; Laws, 1920, ch. 207; Laws, 1932, ch. 167; Laws, 1934, ch. 143.

Cross References —

Purposes for which board of supervisors may issue bonds, see §19-9-1.

Debt limitation on county bonds, see §19-9-5.

Limitations on bonded indebtedness of municipalities, see §21-33-303.

Refunding of municipal special assessment bonds, see §21-41-49.

Validation of refunding bonds, see §31-15-19.

Limitation on bonded indebtedness of school districts, see §37-59-5.

Borrowing for certain capital improvements as being outside school district’s debt limitation, see §37-59-115.

RESEARCH REFERENCES

ALR.

Presumptions and burden of proof as to violation of or compliance with public debt limitation. 16 A.L.R.2d 515.

Am. Jur.

64 Am. Jur. 2d, Public Securities and Obligations §§ 50 et seq.

CJS.

81A C.J.S., States §§ 437, 443-445.

JUDICIAL DECISIONS

1. In general.

Although this section [Code 1942, § 4360] does not in express terms make the issuance of refunding bonds mandatory, it is mandatory where it applies, as where a municipality has an outstanding bonded indebtedness for which it has no funds to discharge either the principal or interest and some of the interest can be saved by issuing refunding bonds; under such conditions it is mandatory on the municipal authority to refund the bonds and they are authorized to incur the necessary expenses, including reasonable attorney’s fees, to do so. City of Louisville v. Chambers, 190 Miss. 833, 1 So. 2d 771, 1941 Miss. LEXIS 95 (Miss. 1941).

It is not necessary that the board of supervisors of a county should adjudicate that the funds available from taxes would not be sufficient to pay the next maturing bonds and all accrued interest, nor that any bond was then in default, as a condition precedent to its right to issue refunding bonds. In re Validation of Road Protection Bonds, 184 Miss. 727, 184 So. 815, 1938 Miss. LEXIS 314 (Miss. 1938); Love v. Humphreys County, 190 Miss. 365, 200 So. 245, 1941 Miss. LEXIS 51 (Miss. 1941).

Notwithstanding the contention that the board of supervisors of a county had unlawfully transferred a sum of money from the road protection bond fund to another county fund thereby bringing about a deficit in the funds available for meeting the amount due on the original bond issue, and that the taxpayers were entitled to have the money returned to the road protection bond fund, the board of supervisors would nevertheless have been authorized to issue refunding bonds in order to avoid default being made as to future instalments due. In re Validation of Road Protection Bonds, 184 Miss. 727, 184 So. 815, 1938 Miss. LEXIS 314 (Miss. 1938).

Proposed county bonds to take up outstanding county obligations were “funding” and not “refunding” bonds, and therefore limited to ten per cent of assessed value of taxable property of county. Lee v. Hancock County, 181 Miss. 847, 178 So. 790, 1938 Miss. LEXIS 124 (Miss. 1938).

“Refunding bond” is a bond issued to pay off an older issue; to “refund a debt” meaning to fund it again or anew; the word “fund” in this connection meaning to convert into a more or less permanent debt bearing regular interest. Lee v. Hancock County, 181 Miss. 847, 178 So. 790, 1938 Miss. LEXIS 124 (Miss. 1938).

Supervisors must find as jurisdictional fact proposed funding bonds will not increase bonded debt beyond ten percent of assessed valuation, and set forth such fact in order. Lee v. Hancock County, 181 Miss. 847, 178 So. 790, 1938 Miss. LEXIS 124 (Miss. 1938).

Clear intent of statute is that proposed bond issue shall not be permitted if there is valid objection thereto. Lee v. Hancock County, 181 Miss. 847, 178 So. 790, 1938 Miss. LEXIS 124 (Miss. 1938).

§ 31-15-7. Interest and form.

Such refunding bonds shall bear such rate or rates of interest as may be determined by the governing body, not exceeding, however, six percent (6%) per annum payable semi-annually; shall be in such denomination or denominations and form as may be determined by resolution or order of the governing authority; and shall be executed in behalf of the subdivision by such officer or officers thereof as may be determined in such resolution or order. The interest to accrue on such refunding bonds shall be represented by coupons to be attached thereto, which may be executed by the facsimile signature of such officer or officers. All such bonds shall be made to mature serially, beginning not more than five (5) years and running not longer than thirty (30) years after their date, with not less than one percent (1%) of the total issue to mature each year during the first six (6) years, beginning in the fifth year, after the date of such bonds; not less than three percent (3%) of the said total issue to mature annually during the next succeeding ten-year (10-year) period of the life of such bonds; and not less than five percent (5%) of said total issue to mature annually during the next succeeding ten-year (10-year) period of the life of the bonds.

HISTORY: Codes, 1942, § 4361; Laws, 1934, ch. 143; Laws, 1936, ch. 279; Laws, 1938, Ex. ch. 74.

RESEARCH REFERENCES

CJS.

81A C.J.S., States § 438.

JUDICIAL DECISIONS

1. In general.

Refunding bonds of a county were not invalid because they matured serially five years from the date of their issuance, since the words of the statute “after this date” were intended to read “after their date,” particularly in view of further language of the statute specifying what percent of the total issues should mature the first six years, “beginning in the fifth year after the date of such bonds,” and in view of the fact that if the statute had intended to require all refunded bonds issued thereunder to begin maturing in not more than five years after its passage, instead of five years from the date of their issuance, then it would necessarily follow that bonds issued immediately prior to the expiration of five years from the passage of the statute would mature before ample opportunity would be afforded the governing authority to dispose of it. In re Validation of Road Protection Bonds, 184 Miss. 727, 184 So. 815, 1938 Miss. LEXIS 314 (Miss. 1938).

§ 31-15-9. Sale and redemption; acceptance of bonds.

The resolution or order providing for the issuance of such bonds may reserve unto the governing authority the right to call in, pay, and redeem such bonds in the inverse order of their numbers and maturities, prior to the maturity date or dates thereof on any interest payment date. Whenever it is desired to exercise the aforesaid right, if reserved in such resolution or order, the governing authority shall cause written notice thereof to be delivered to the bank or office at which such bonds are payable. Such notice shall be so delivered not less than thirty days prior to the interest payment date designated for the redemption of such bonds, after which date so designated, no further interest shall accrue on the bonds so called for redemption. Such refunding bonds may be sold for not less than par and accrued interest, or may be exchanged at par for bonds and interest coupons to be refunded thereby.

The board of supervisors may accept county bonds, consolidated school district bonds, rural separate school district bonds or separate road district bonds, as the case may be, at not more than par and interest accruing thereon at the rate fixed in the bonds to be refunded in exchange for said refunding county bonds, consolidated school district bonds, rural separate school district bonds or separate road district bonds, as the case may be. In accepting any bond in exchange for, or in payment of, any such refunding bond, no bond shall be accepted in such exchange or payment that is secured by the property of a smaller or different district, or other subdivision, than that securing the refunding bonds so issued.

HISTORY: Codes, Hemingway’s 1921 Supp. § 6662j; 1930, § 5986; 1942, §§ 4346, 4361; Laws, 1920, ch. 207; Laws, 1932, ch. 167; Laws, 1934, ch. 143; Laws, 1936, ch. 279; Laws, 1938, Ex. ch. 74.

RESEARCH REFERENCES

ALR.

Presumptions and burden of proof as to violation of or compliance with public debt limitation. 16 A.L.R.2d 515.

Am. Jur.

64 Am. Jur. 2d, Public Securities and Obligations §§ 215 et seq.

CJS.

81A C.J.S., States §§ 449, 450.

JUDICIAL DECISIONS

1. In general.

Refunding bonds of a county were not invalid because they matured serially five years from the date of their issuance, since the words of the statute “after this date” were intended to read “after their date,” particularly in view of further language of the statute specifying what percent of the total issues should mature the first six years, “beginning in the fifth year after the date of such bonds,” and in view of the fact that if the statute had intended to require all refunded bonds issued thereunder to begin maturing in not more than five years after its passage, instead of five years from the date of their issuance, then it would necessarily follow that bonds issued immediately prior to the expiration of five years from the passage of the statute would mature before ample opportunity would be afforded the governing authority to dispose of it. In re Validation of Road Protection Bonds, 184 Miss. 727, 184 So. 815, 1938 Miss. LEXIS 314 (Miss. 1938).

Proposed county bonds to take up outstanding county obligations were “funding” and not “refunding” bonds, and therefore limited to ten percent. of assessed value of taxable property of county. Lee v. Hancock County, 181 Miss. 847, 178 So. 790, 1938 Miss. LEXIS 124 (Miss. 1938).

“Refunding bond” is a bond issued to pay off an older issue; to “refund a debt” meaning to fund it again or anew; the word “fund” in this connection meaning to convert into a more or less permanent debt bearing regular interest. Lee v. Hancock County, 181 Miss. 847, 178 So. 790, 1938 Miss. LEXIS 124 (Miss. 1938).

Supervisors must find as jurisdictional fact proposed funding bonds will not increase bonded debt beyond ten percent of assessed valuation, and set forth such fact in order. Lee v. Hancock County, 181 Miss. 847, 178 So. 790, 1938 Miss. LEXIS 124 (Miss. 1938).

Clear intent of statute is that proposed bond issue shall not be permitted if there is valid objection thereto. Lee v. Hancock County, 181 Miss. 847, 178 So. 790, 1938 Miss. LEXIS 124 (Miss. 1938).

§ 31-15-11. General obligations.

All refunding bonds issued under the provisions of Sections 31-15-1 through 31-15-19 shall be general obligations of the political subdivisions issuing same, and the governing authority of such subdivision shall annually levy a tax upon all taxable property therein sufficient to pay the principal of and the interest on such bonds as the same matures and accrues. The full faith, credit, and resources of such subdivision shall be and are hereby irrevocably pledged to the payment of such bonds, both as to principal and interest.

HISTORY: Codes, 1942, § 4362; Laws, 1934, ch. 143.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Securities and Obligations §§ 347 et seq.

§ 31-15-13. Time limit.

The governing authority may, at any time or times, exercise the powers granted by Sections 31-15-1 through 31-15-19 in the refunding of any or all of the bonds and interest coupons of any one (1) or more of the issues of bonds then outstanding. No refunding bonds shall be issued at any time after three (3) years from the date of the resolution or order providing therefor.

HISTORY: Codes, 1942, § 4363; Laws, 1934, ch. 143.

JUDICIAL DECISIONS

1. In general.

There is nothing in the statute indicating a purpose on the part of the legislature to limit the period of its operation as a law, or the time within which outstanding bonded indebtedness may be refunded under any of its terms and provisions, where the funds available from taxes are not sufficient to pay such indebtedness when due. In re Validation of Road Protection Bonds, 184 Miss. 727, 184 So. 815, 1938 Miss. LEXIS 314 (Miss. 1938).

§ 31-15-15. Invalid bonds.

In the event that any of the refunding bonds authorized to be issued under Sections 31-15-1 through 31-15-19 should be declared by any court of competent jurisdiction to be invalid, the holder or holders thereof shall be subrogated to all of the rights, remedies, and privileges had and possessed by the holder or holders of the bonds or interest coupons refunded thereby.

HISTORY: Codes, 1942, § 4364; Laws, 1934, ch. 143.

§ 31-15-17. Additional method.

Sections 31-15-1 through 31-15-19, without reference to any other statute, shall be deemed full and complete authority for the issuance of refunding bonds by political subdivisions of the state, and shall be construed as an additional and alternative method therefor. None of the present restrictions, requirements, conditions, or limitations of law applicable to the issuance of bonds by political subdivisions of this state shall apply to the issuance and sale or exchange of bonds under the aforesaid sections, and no proceedings shall be required for the issuance of such bonds other than those provided for and required herein. All powers necessary to be exercised by the governing authority of any such political subdivision in order to carry out the provisions of said sections are hereby conferred.

HISTORY: Codes, 1942, § 4365; Laws, 1934, ch. 143.

Cross References —

Limitation on county’s bonded indebtedness, see §19-9-5.

Limitation on bonded indebtedness of municipality, see §21-33-303.

Limitation on amounts which may be borrowed in anticipation of taxes, see §21-33-325.

Exemption of bonds to be paid by special assessments from general debt limitations of municipalities, see §21-41-47.

Exemption of refunding bonds from limitation on bonded indebtedness of county or consolidated or rural separate school district or separate road district, see §31-15-9.

Limitation on indebtedness of school districts, see §37-59-5.

Limitation on amounts of money to be borrowed in anticipation of taxes by school districts, see §37-59-37.

Limitation of bonded indebtedness of urban flood and drainage control districts, see §51-35-323.

Limitation on county’s bonded indebtedness for recreational facilities, see §55-9-3.

Exemption of harbor development bonds from debt limitations, see §59-7-317.

Exemption of bridge revenue bonds from debt limitations, see §65-25-41.

JUDICIAL DECISIONS

1. In general.

The words “all powers necessary” include the authorization not only of the means and measures absolutely necessary, but of all reasonably appropriate and useful means to the end to be accomplished and which, in the judgment of the board will most advantageously effect it. Causey v. Jones, 193 Miss. 495, 10 So. 2d 356, 1942 Miss. LEXIS 141 (Miss. 1942).

Supervisors of a county, which was in default in the payment of bonds, were empowered to employ a qualified firm to aid the board in devising and carrying out a refunding program for the rehabilitation of the county’s financial structure, and appropriations of county funds to reimburse the firm for its services was an object authorized by law. Causey v. Jones, 193 Miss. 495, 10 So. 2d 356, 1942 Miss. LEXIS 141 (Miss. 1942).

§ 31-15-19. Validation.

Any bonds issued under the provisions of Sections 31-15-1 through 31-15-19 may be validated under Sections 31-13-1 through 31-13-11.

HISTORY: Codes, 1942, § 4366; Laws, 1934, ch. 143.

Cross References —

Validation of bonds issued under §§31-15-21 through31-15-27, see §31-15-27.

§ 31-15-21. Refund of bonds not based on ad valorem tax.

Any bonds heretofore or hereafter issued under authority of Sections 21-27-11, 21-27-23, 21-27-41 through 21-27-43, or revenue bonds payable from funds other than the proceeds of ad valorem taxes heretofore or hereafter issued under authority of any other law of the State of Mississippi may be refunded upon surrender, whether such bonds are due, optional, or not yet matured. Such refunding bonds shall be negotiable, shall be authorized by resolution adopted by the board or governing body which shall have authorized the bonds that are being refunded, and may either be delivered in exchange for the bonds to be refunded or sold at not less than par and the proceeds applied to the retirement of such bonds.

HISTORY: Codes, 1942, § 4367; Laws, 1940, ch. 281.

§ 31-15-23. Interest and form.

Such refunding bonds may bear interest at such rate or rates not exceeding that allowed in Section 75-17-103, shall mature at such time or times not exceeding thirty (30) years from their date, may be subject to redemption at such times and at such premiums, and shall be in such form and in all other respects be of such details and issued under such conditions as may be determined in the resolution authorizing the bonds.

HISTORY: Codes, 1942, § 4368; Laws, 1940, ch. 281; Laws, 1987, ch. 407, eff from and after passage (approved March 20, 1987).

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Securities and Obligations §§ 376 et seq.

CJS.

81A C.J.S., States § 438.

§ 31-15-25. Security.

Such refunding bonds shall be payable from the same sources of revenue and so far as possible shall be secured in the same manner and by the same covenants and agreements as were the bonds refunded. All provisions of the law under which the bonds refunded were issued, which provide for the security of such bonds and the requirements for fixing rates sufficient to operate the project acquired or improved and to pay principal of and interest on the bonds, shall remain in effect and shall be fully applicable to the refunding bonds issued hereunder. In no event shall taxes be levied for the payment of such bonds, and they shall recite on their face that they are payable only from revenues.

HISTORY: Codes, 1942, § 4369; Laws, 1940, ch. 281.

§ 31-15-27. Validation.

Refunding bonds issued under Sections 31-15-21 through 31-15-27 may be validated in the chancery court pursuant to the provisions of Sections 31-13-1 through 31-13-11, and shall be exempt from all state, county, municipal, and other taxation under the laws of Mississippi.

HISTORY: Codes, 1942, § 4370; Laws, 1940, ch. 281.

Cross References —

Validation of bonds issued under §§31-15-1 through31-15-19, see §31-15-19.

Chapter 17. State Bonds; Retirement of Bonds

State Bond Commission

§ 31-17-1. Composition of State Bond Commission.

The State Bond Commission shall be composed of the Governor, the Attorney General, and the State Treasurer.

HISTORY: Codes, 1942, § 4380; Laws, 1936, ch. 196.

Cross References —

Commission’s authority to borrow funds for flood relief upon request by State Commission of Budget and Accounting, see §27-107-165.

Actions of members of the State Bond Commission as the Educational Facilities Authority for Private, Nonprofit Institutions of Higher Learning, see §37-104-5.

OPINIONS OF THE ATTORNEY GENERAL

The Board of Trustees of State Institutions of Higher Learning and the various universities under its management and control are within the definition of “agency” as set forth in subsection (a) of this section, and are subject to the requirements of §31-7-13 and other statutes governing public construction. 2003 Miss. Op. Att'y Gen. 537.

Sections 31-17-1 and 31-17-13 authorize repairs and restoration of a public building on an emergency basis without complying with the advertisement requirements contained in Section 31-7-13. These provisions do not authorize the renovation and retrofitting of a newly acquired building without complying with such advertising requirements. 2006 Miss. Op. Att'y Gen. 227.

§ 31-17-3. General powers of State Bond Commission.

The State Bond Commission, with the approval and consent of the State Auditor of Public Accounts and the chairman of the State Tax Commission, is hereby authorized to purchase outstanding bonds of the State of Mississippi, retire such bonds, and pay the purchase price thereof out of any surplus remaining in the state treasury at the end of any fiscal year, all in accord with the provisions of Sections 31-17-21 through 31-17-25. The State Bond Commission, with the consent and approval of the state auditor of public accounts and the chairman of the State Tax Commission, shall determine the amount of bonds to be purchased, the maximum price to be paid therefor not to exceed par and accrued interest, and the date upon which it will receive proposals to purchase such bonds, all in accord with the provisions of Sections 31-17-21 through 31-17-25.

HISTORY: Codes, 1942, § 4380; Laws, 1936, ch. 196.

Editor’s Notes —

Section 7-7-2 provides that the words “State Auditor of Public Accounts,” “State Auditor,” and “Auditor” appearing in the laws of this state in connection with the performance of Auditor’s functions shall mean the State Fiscal Officer.

Section 27-104-6 provides that whenever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration.”

See Chapter 443, Laws of 1986, which authorizes the issuance of bonds of the state or the borrowing of money for the acquisition of certain property to be used for state offices.

Section 27-3-4 provides that the terms “‘Mississippi State Tax Commission,’ ‘State Tax Commission,’ ‘Tax Commission’ and ‘commission’ appearing in the laws of this state in connection with the performance of the duties and functions by the Mississippi State Tax Commission, the State Tax Commission or Tax Commission shall mean the Department of Revenue.”

Section 27-3-4 provides that the terms “‘Chairman of the Mississippi State Tax Commission,’ ‘Chairman of the State Tax Commission,’ ‘Chairman of the Tax Commission’ and ‘chairman’ appearing in the laws of this state in connection with the performance of the duties and functions by the Chairman of the Mississippi State Tax Commission, the Chairman of the State Tax Commission or the Chairman of the Tax Commission shall mean the Commissioner of Revenue of the Department of Revenue.”

Cross References —

State bond retirement revolving fund, see §31-17-27.

Registration of bonds with Executive Director of the Department of Finance and Administration, see §31-19-17.

Authority of commission to borrow funds for Institute for Technology Development upon approval by Mississippi Development Authority of resolution by board of directors of the institute, see §31-29-5.

State bond commission’s function in regard to development of harbors, see §§59-5-41 et seq.

State Bond Commission’s authority with respect to general obligation bonds providing funds for Emerging Crops Fund under Mississippi Farm Reform Act, see §69-2-19.

State Bond Commission’s selection of newspaper or journal for purposes of giving notice of bond sales under Mississippi Farm Reform Act, see §69-2-27.

Role of officers of State Bond Commission in execution of bonds issued under Mississippi Farm Reform Act, see §69-2-29.

State Bond Commission’s transfer of bond proceeds to Emerging Crops Fund under Mississippi Farm Reform Act, see §69-2-31.

OPINIONS OF THE ATTORNEY GENERAL

In negotiating changes to the requirements as stated in the request for proposals (RFP) for garbage collection and disposal services where the specifications in the RFP required a bond, the county must either keep that as a requirement, or re-advertise for proposals. 2002 Miss. Op. Att'y Gen. 500.

In a proposed contract for garbage collection and disposal services where the contractor will be handling all billing, resulting in no direct expenditures by the county, and none in excess of $ 50,000.00, §31-7-3(r) would apply because, regardless of whether the county is responsible for billing or the contractor assumes that responsibility, the public entity is required to advertise for proposals. 2002 Miss. Op. Att'y Gen. 500.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Securities and Obligations §§ 339 et seq.

§ 31-17-5. Requests for proposals for bond counsel and certain information about bond counsel once selected to be posted on Department of Finance and Administration and State Treasurer websites.

  1. When a request for proposals for bond counsel for a general obligation or revenue bond issue is issued on behalf of the State Bond Commission, the request for proposal shall be posted on the website of the Department of Finance and Administration and the State Treasurer.
  2. Once bond counsel is selected for a bond issue, the name and address of the counsel selected shall be posted on the website of the Department of Finance and Administration and the State Treasurer. The amount of any payments made to bond counsel for his or her services as bond counsel shall be posted on the website of the Department of Finance and Administration and the State Treasurer.

HISTORY: Laws, 2013, ch. 569, § 42, eff from and after passage (approved April 25, 2013).

State Bond Retirement Commission

§ 31-17-11. Composition of state bond retirement commission.

There is hereby created the state bond retirement commission which shall be composed of the Governor, the Attorney General, and the State Treasurer. The Governor shall be the chairman of the commission, and the Attorney General shall be the secretary thereof.

HISTORY: Laws, 1944, ch. 140, § 1, eff from and after passage (approved Feb. 4, 1944).

§ 31-17-13. General duties of state bond retirement commission.

It shall be the duty of the state bond retirement commission to administer the state bond retirement revolving fund provided for in Section 31-17-27, and to perform such other duties as may be prescribed in Sections 31-17-27 through 31-17-43.

HISTORY: Laws, 1944, ch. 140, § 1, eff from and after passage (approved Feb. 4, 1944).

Cross References —

Functions of State Bond Commission, see §31-17-3.

OPINIONS OF THE ATTORNEY GENERAL

Reading Section 17-17-5 and Section 31-17-13 in pari materia, the governing authority of a municipality may not exercise an option to extend a garbage collection or transportation contract beyond a six year term without advertising for proposals as set out in the latter statute. 1998 Miss. Op. Att'y Gen. 755.

The Board of Trustees of State Institutions of Higher Learning and the various universities under its management and control are within the definition of “agency” as set forth in §31-7-1(a), and are subject to the statutory requirements of this section and other statutes governing public construction. 2003 Miss. Op. Att'y Gen. 537.

Pursuant to Section 31-7-13 as well as the Emergency Management and other statutes, it is legal to donate equipment, supplies, manpower and financial aid to another county in Mississippi during a state of emergency. 2005 Miss. Op. Att'y Gen. 478.

State agencies and governing authorities may employ the respective provisions of Section 31-7-13(j) and (k) to contract for emergency repairs to public buildings that were damaged by Hurricanes Katrina and Rita, if the requirements of those paragraphs are met. 2005 Miss. Op. Att'y Gen. 534.

Sections 31-17-1 and 31-17-13 authorize repairs and restoration of a public building on an emergency basis without complying with the advertisement requirements contained in Section 31-7-13. These provisions do not authorize the renovation and retrofitting of a newly acquired building without complying with such advertising requirements. 2006 Miss. Op. Att'y Gen. 227.

Retirement of Bonds

§ 31-17-21. State bonds; notice of intention to purchase.

In the event it is determined to purchase outstanding bonds of the state as provided in Section 31-17-3, then sixty (60) days prior to the date fixed for the sale of said bonds, the state bond commission shall advertise its intention to purchase the bonds of the state for at least two (2) consecutive weeks in two (2) newspapers, one (1) of which shall be published in Jackson, Mississippi, and the other a financial journal having general circulation among bond buyers and dealers. Said advertisement shall state the amount of bonds to be purchased, the maximum price to be paid therefor, and the date upon which it will receive sealed proposals for outstanding bonds of the State of Mississippi.

HISTORY: Codes, 1942, § 4381; Laws, 1936, ch. 196.

RESEARCH REFERENCES

ALR.

Application of requirement that newspaper be locally published for official notice publication. 85 A.L.R.4th 581.

§ 31-17-23. State bonds; best bid accepted.

The State Bond Commission shall accept the bid or bids determined by it to be most favorable to the state. The interest rate and maturity of the bonds to be purchased shall be taken into consideration in determining the best bid.

HISTORY: Codes, 1942, § 4382; Laws, 1936, ch. 196.

§ 31-17-25. State bonds; purchase of bonds sold below par.

Where the bonds of the state were sold for less than par and accrued interest, then the State Bond Commission shall not pay a greater price than the price for which the bonds were sold.

HISTORY: Codes, 1942, § 4383; Laws, 1936, ch. 196.

Cross References —

Acceptance of best bid by the commission, see §31-17-23.

Purchase of local bonds sold below par, see §31-17-49.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Securities and Obligations §§ 205 et seq.

§ 31-17-27. State bonds; state bond retirement revolving fund.

There is hereby created a fund in the State Treasury only to the extent herein provided, to be known as the “state bond retirement revolving fund,” to be kept separate and distinct from all other funds of the state. Said state bond retirement revolving fund shall consist of such sums as may be appropriated thereto in accordance with law, all sums received from the sale of any bonds as hereinafter provided, all funds received from the payment of either principal or interest on such bonds, and all sums transferred to it or otherwise received and covered into said fund under the provisions of Sections 31-17-27 through 31-17-43. It shall be the duty of the state bond retirement commission, and it is hereby authorized and empowered, to make all needful rules and regulations not inconsistent with the provisions of said sections and which in the discretion of the commission may be necessary or advisable in the administration of the provisions of said sections. The state bond retirement revolving fund hereby created shall be a special trust fund irrevocably pledged to the ultimate retirement of all outstanding full faith and credit bonds of the State of Mississippi as hereinafter provided.

HISTORY: Laws, 1944, ch. 140, § 2, eff from and after passage (approved Feb. 4, 1944).

Cross References —

State bond retirement commission, see §31-17-11.

§ 31-17-29. State bonds; funds in state bond retirement revolving fund may be invested in federal securities.

Until such funds are needed for the payment of outstanding full faith and credit bonds of the state as herein provided, the state bond retirement commission is hereby authorized to invest any funds held in the state bond retirement revolving fund in bonds, notes, certificates, and other interest bearing obligations which are a direct obligation of the United States of America, hereinafter referred to as federal securities.

Any federal securities so purchased shall be the property of the State of Mississippi, and the principal and any and all interest accruing on such federal securities shall be collected by the commission as an agency of the state and covered into the state bond retirement revolving fund as the same shall mature and accrue. The commission is hereby authorized to sell any federal securities belonging to the state bond retirement revolving fund whenever, in the judgment of the commission, such sale will be to the best interest of the state. Sales shall be made at the best price obtainable, and all funds realized therefrom shall be covered into the state bond retirement revolving fund.

HISTORY: Laws, 1944, ch. 140, § 3, eff from and after passage (approved Feb. 4, 1944).

§ 31-17-31. State bonds; deposit of federal securities.

All sums paid into the state bond retirement revolving fund shall be kept by the State Treasurer as are other public funds. All federal securities purchased under the provisions of Section 31-17-29 shall be deposited with the State Treasurer and shall be kept by him as are other bonds owned by the state, but he may deposit same under proper trust receipts with one or more state depositories or with any federal reserve bank of the United States.

HISTORY: Laws, 1944, ch. 140, § 8; Laws, 1944, ch. 141, § 1, eff from and after passage (approved Feb. 24, 1944).

§ 31-17-33. State bonds; method of retirement by state bond retirement commission.

The purpose of Sections 31-17-27 through 31-17-43 is to create a fund for the ultimate retirement of the full faith and credit bonds of the State of Mississippi issued and outstanding as of July 1, 1944, and to set aside, earmark, and irrevocably pledge from the cash now in or to be added to the general fund of the state treasury a sum sufficient to pay all outstanding full faith and credit bonds of the State of Mississippi. To that end, therefore, not less than fifteen (15) days prior to each maturity date of full faith and credit bonds authorized to be retired from funds in the state bond retirement revolving fund under the provisions of said sections, an amount sufficient to pay the principal thereof at such maturity date shall be made available by the state bond retirement commission and shall be withdrawn from the state bond retirement revolving fund upon the order of the commission for the payment thereof, as provided by law. This process shall continue and like withdrawals shall be made at each succeeding maturity date of full faith and credit bonds authorized to be retired from funds in the state bond retirement revolving fund until the said state bond retirement revolving fund shall be exhausted or until all full faith and credit bonds of the state outstanding at July 1, 1944, shall be fully paid and satisfied. When all such bonds are paid, any balance remaining in said state bond retirement revolving fund shall be transferred to the general fund of the state.

HISTORY: Laws, 1944, ch. 140, § 4, eff from and after passage (approved Feb. 4, 1944).

§ 31-17-35. State bonds; maturity dates to be noted.

To effectuate the purpose of Sections 31-17-27 through 31-17-43, the state bond retirement commission is hereby required to take cognizance of the maturity date of the full faith and credit bonds of the state issued and outstanding as of July 1, 1944, and shall invest the funds constituting the state bond retirement revolving fund in United States government securities having maturity dates that bear a reasonable relation to the maturity dates of the full faith and credit bonds of the state to be retired from funds constituting the said state bond retirement revolving fund.

HISTORY: Laws, 1944, ch. 140, § 5, eff from and after passage (approved Feb. 4, 1944).

§ 31-17-37. State bonds; procedure when funds of state bond retirement revolving fund are inadequate to meet payments.

Should the maturity dates of federal securities held by the state bond retirement commission fail to coincide with the maturity dates of the full faith and credit bonds of the state to the extent that the funds belonging to the state bond retirement revolving fund shall be inadequate to pay the principal of full faith and credit bonds on any maturity date as required by the terms of Sections 31-17-27 through 31-17-43, then in such event the commission is hereby authorized and directed to either sell a sufficient amount of its securities to realize the amount necessary to pay the principal of such maturing bonds or borrow from other sources an amount necessary to provide the funds with which to make such payment, at the lowest and best rate of interest obtainable, after having publicly advertised for bids. The commission shall not pay a higher rate of interest than two percent (2%) for such loans. Such loans shall be evidenced by notes signed in the name of the State of Mississippi by the commission. No such loan shall be made unless there are federal securities held by the commission maturing not later than two (2) years next after the date of the note evidencing the loan, which said federal securities so held, together with the interest thereon, shall be sufficient in amount to retire the said loan and the interest thereon. In no event shall any federal securities held by the commission under the terms of said sections be pledged, hypothecated, or otherwise given as security for any such loan. The chairman of the commission shall accompany each note evidencing funds borrowed with his certificate showing in detail the federal securities held by the commission, the proceeds of which are to be used for the retirement of the said loan. When such certificate shall show that as of the date of any such loan, there was then held by the commission federal securities the par value of which, together with the interest thereon, shall equal or exceed the full amount of the loan covered thereby, such loan shall be in all respects a valid, binding obligation of the State of Mississippi, and shall be promptly paid according to its tenor by the commission.

HISTORY: Laws, 1944, ch. 140, § 6, eff from and after passage (approved Feb. 4, 1944).

§ 31-17-39. State bonds; expenditures from and transfer of state bond retirement revolving fund.

All sums paid into and actually in the state bond retirement revolving fund, including the original legislative appropriation, the proceeds from federal securities sold under the provisions of Sections 31-17-27 through 31-17-43, and sums received from the payment of either principal or interest on federal securities purchased hereunder, shall be continuously available to the state bond retirement commission for expenditure or transfer in accordance with the provisions and to carry out the purpose of said sections without the necessity of further appropriation by the Legislature. All such sums shall be considered in the State Treasury only for the purpose and to the extent necessary to make them public funds and subject to the same protection as other public funds. These funds shall be paid out or transferred as provided herein on warrants issued according to law, pursuant to requisitions signed by the chairman and secretary of the commission, on authority of the commission.

HISTORY: Laws, 1944, ch. 140, § 7, eff from and after passage (approved Feb. 4, 1944).

§ 31-17-41. State bonds; records and reports of state bond retirement commission.

The state bond retirement commission shall keep full and accurate minutes of its proceedings. Full and complete records of all transactions made under the authority of Sections 31-17-27 through 31-17-43 and of all sums received into and disbursed from said state bond retirement revolving fund shall be kept by the secretary; and an annual report thereof shall be made by the commission, which shall be filed in the office of the Secretary of State and be subject to public inspection. A full report of such transactions and of all such receipts and disbursements shall be made to each regular session of the legislature.

HISTORY: Laws, 1944, ch. 140, § 9, eff from and after passage (approved Feb. 4, 1944).

§ 31-17-43. State bonds; expenses of state bond retirement commission.

The state bond retirement commission shall pay the necessary expenses incurred in carrying out the provisions of Sections 31-17-27 through 31-17-43 out of any appropriation made for that purpose by the Legislature.

HISTORY: Laws, 1944, ch. 140, § 10, eff from and after passage (approved Feb. 4, 1944).

§ 31-17-45. Local bonds; repurchase authorized.

The board of supervisors of any county in this state, the mayor and board of aldermen of any municipality in this state, or the governing body of any other taxing district in the state may, in its discretion, purchase outstanding bonds of said county, municipality, or other taxing district and retire such bonds and pay the purchase price thereof out of any surplus remaining in the treasury of such county, municipality, or other taxing district at the end of any fiscal year. The governing body of said taxing districts shall determine the amount of bonds to be purchased, the maximum price to be paid therefor, but in no event to exceed par and accrued interest thereon, and the date upon which it will receive proposals to purchase said bonds.

HISTORY: Codes, 1942, § 4371; Laws, 1934, ch. 334.

Cross References —

Purchase of outstanding bonds with excess bond and interest funds by county board of supervisors, see §19-9-25.

Use of bond and interest funds to buy outstanding municipal bonds, see §21-33-321.

Requirement that supervisors and taxing districts pay bonds and coupons of taxing districts promptly at maturity, see §31-19-9.

§ 31-17-47. Local bonds; notice of intention to purchase.

In the event a surplus is remaining in the treasury of any county, municipality or other taxing district at the end of any fiscal year as provided by Section 31-17-45, then within ten (10) days thereafter the said board of supervisors, mayor and board of aldermen, or the governing body of other taxing districts may advertise its intention to purchase the bonds of such county, municipality, or other taxing district by publishing a notice thereof at least ten (10) days in some newspaper published in said county and one (1) other financial journal having a general circulation among bond buyers and dealers. Said advertisement shall state the amount of bonds to be purchased, the maximum price to be paid therefor, and the date upon which it will receive sealed proposals for outstanding bonds of said taxing district.

Said board of supervisors, mayor and board of aldermen, or the governing body of other taxing districts shall accept the bid or proposal determined and adjudged by it to be most favorable to such taxing district. The interest rate and maturity of the bonds to be purchased shall be taken into consideration in determining the best bid.

However, it shall be optional with the board of supervisors, mayor and board of aldermen, or the governing body of other taxing districts as to whether or not it will advertise its intention to purchase its bonds as provided by this section. In the event the board of supervisors, mayor and board of aldermen, or the governing body of other taxing districts shall determine that it is most advantageous to the county, city, or other taxing district not to so advertise, it may buy and retire its bonds at a private sale without publication of its intention to do so.

HISTORY: Codes, 1942, §§ 4372, 4373; Laws, 1934, ch. 334.

Cross References —

Retirement of state bonds by state bond retirement commission, see §31-17-33.

RESEARCH REFERENCES

ALR.

Application of requirement that newspaper be locally published for official notice publication. 85 A.L.R.4th 581.

§ 31-17-49. Local bonds; purchase of bonds sold below par.

Where the bonds so purchased of said county, municipality, or other taxing districts were sold for less than par and accrued interest, then the said board of supervisors, mayor and board of aldermen, or other governing authority of such taxing district, as the case may be, shall not pay a greater price than the price for which the bonds were sold.

HISTORY: Codes, 1942, § 4374; Laws, 1934, ch. 334.

Cross References —

Purchase of state bonds sold below par, see §31-17-25.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Securities and Obligations §§ 205 et seq.

§ 31-17-51. Local bonds; restrictions on purchases.

Surplus funds shall be expended under the provisions of Sections 31-17-45 through 31-17-51 for the purpose only of retiring the bonds issued in the particular taxing district for which said funds were collected. In no event shall bonds issued for any other taxing district be purchased with funds collected for any district other than those collected from the same identical taxing district.

HISTORY: Codes, 1942, § 4375; Laws, 1934, ch. 334.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Securities and Obligations §§ 343 et seq.

§ 31-17-53. Local bonds; pledge of securities, properties, and taxes.

The counties, municipalities, and other local authorities possessing power to refund bonds under any statute of Mississippi may, for retiring and paying such refunding bonds and interest, pledge and make applicable to and available therefor any and all securities, properties, and taxes that were pledged, applicable to, or available for the paying of the original issue and interest thereon, so refunded, but only to the same extent, amount, and purposes.

HISTORY: Codes, 1942, § 4376; Laws, 1934, ch. 333.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Securities and Obligations §§ 343 et seq.

§ 31-17-55. Local bonds; cancellation.

Whenever the board of supervisors of any county or the board of mayor and aldermen or the proper authorities of any municipalities and/or of any taxing district or other subdivision of any county may have acquired title to any of the bonds of such county, district, or municipality by purchase with, or at the expense of, the sinking funds of the particular sinking fund collected for the purpose of paying the principal of and interest on bonds of the issue so acquired, and sufficient funds shall accumulate in such sinking fund above the amount invested in such bonds, when added to other funds to be paid into said sinking funds within the succeeding twelve (12) months, to provide for and pay the principal of and interest on the bonds of such issue maturing and falling due within the succeeding twelve (12) months, the board of supervisors of such county and of the county embracing such district, and/or board of mayor and aldermen or proper authorities of such municipality or district or subdivision may cancel such bonds so acquired, by order entered upon its minutes and its clerk making entry of cancellation of such bonds upon the proper bond register and stamping or perforating same to show cancellation thereof after cancellation of such bonds, no further taxes shall be levied or collected for the payment of the principal of or interest on the bonds so canceled.

HISTORY: Codes, 1942, § 4377; Laws, 1936, ch. 275.

§ 31-17-57. State and local bonds; paying agent to repay unused funds.

When funds are forwarded to the paying agent of the state, any county or taxing district thereof, or any municipality for the purpose of paying bonds and interest coupons as provided by law, and all bonds and interest coupons to be paid out of such funds are not presented for payment to such paying agent within one (1) year after the due date of such bonds and interest coupons, such bonds and interest coupons shall be payable at the state treasury, the county depository, or the municipal depository, as the case may be.

The paying agent shall submit as of June 30 and December 31 of each year, and within thirty (30) days of that date, a statement of the amount paid on bonds and interest coupons of each bond issue during the previous twelve (12) months and the balance remaining in its hands for such payment at the conclusion of one (1) year on the date submitted, and at least one (1) year from the date the bonds or coupons were due. With the statement submitted, the paying agent shall remit and refund, without demand or request, such balance in its hands. Any money so recovered shall be deposited to the credit of the fund from which it was drawn, and if said fund no longer exists, then said money shall be deposited to the credit of the general fund of the state, county, district or municipality, as the case may be.

HISTORY: Codes, 1942, § 4378; Laws, 1938, ch. 134; Laws, 1982, ch. 376, § 4, eff from and after July 1, 1982.

§ 31-17-59. State and local bonds; demand for repayment.

It shall be the duty of the auditor and the state treasurer, within sixty (60) days after the close of each fiscal year, to check the records in their offices and ascertain definitely the amount of bonds and interest coupons which have matured more than twelve (12) months before the close of the last fiscal year and which have not been paid; and if it shall appear that funds for the payment of suc