27 Miss. Code. R. 100-3-101

Current through September 24, 2024

Section 27-100-3-101 - CONTRACTING PROCEDURES

3-101.01Definition of Terms Used in this Chapter

(a)Award is the acceptance by an agency of a bid or proposal submitted by a vendor with the intention of entering into a contract for services.

(b)Bid shall be defined as an offer submitted by a prospective contractor in response to an Invitation for Bid.

(c)Capability as used in Section 3-101.01(w) (Definitions, Responsible Bidder, Offeror, or Respondent), means capability at the time of award of the contract.

(d)Competitive Bidding includes Invitations for Bids, Requests for Proposals, Requests for Qualifications, and any other alternative, generally accepted procurement method. See MS AG Op., Mosley (October 23, 2015).

(e)Competitive Sealed Bidding is the process of inviting and obtaining bids from competing sources in response to advertised competitive specifications, through the issuance of an Invitation for Bids (IFB), by which an award is made to the lowest and best bidder meeting the specifications and does not include discussions or negotiations with bidders.

(f)Competitive Sealed Proposals is the process of requesting and obtaining proposals from competing sources in response to advertised competitive specifications, through the issuance of a Request for Proposals (RFP), by which an award is made to the offeror who receives the highest score based on weighted evaluation criteria outlined in the RFP and includes discussions and negotiations with offerors.

(g)Competitive Sealed Qualifications is the process of requesting and obtaining statements of qualifications from competing sources in response to advertised competitive specifications, through the issuance of a Request for Qualifications (RFQ), by which an award is made to the respondent who receives the highest score based on weighted evaluation criteria outlined in the RFQ and includes discussions with respondents.

(h)Contract Worker, for purposes of these regulations, is a worker under contract with the State who meets the requirements for a contract worker under the Internal Revenue Code (See Appendix B) and is compliant with the applicable rules and regulations as stated herein.

(i)Cost Analysis is the evaluation of cost data for the purpose of arriving at costs actually incurred or estimates of costs to be incurred, prices to be paid, and costs to be reimbursed.

(j)Cost Data is information concerning the actual or estimated cost of labor, material, overhead, and other cost elements which have been actually incurred or which are expected to be incurred by the contractor in performing the contract.

(k)Cost-Reimbursement Contract means a contract under which a contractor is reimbursed for costs which are allowable and allocable in accordance with contract terms and the provisions of these regulations, and may receive a fee.

(l)Discussions, as used in the source selection process, means an exchange of information or other manner of negotiation during which the offeror and an agency may alter or otherwise change the conditions, terms, and price of the proposed contract. Discussions may be conducted in connection with competitive sealed proposals, competitive sealed qualifications, sole-source, and emergency procurements; discussions are not permissible in competitive sealed bidding (except to the extent permissible in the first phase of multi-step sealed bidding).

(m)Fixed Price Contract means a contract providing for a firm price, or a price that may be adjusted only in accordance with contract clauses providing for revision of the contract price under stated circumstances.

(n)Invitation for Bid means all documents, whether attached or incorporated by reference, utilized for soliciting competitive or multi-step competitive sealed bids.

(o)Net-of-Fee Contract means a contract in which there is no expenditure of state funds from any funding source (state, federal or other).

(p)Prequalification for Inclusion on Bidders Lists means determining in accordance with Section 3-402 (Prequalification of Prospective Contractors) that a prospective bidder or offeror satisfies the criteria established for being included on the bidders list.

(q)Price Analysis is the evaluation of price data, without analysis of the separate cost components and profit as in cost analysis, which may assist in arriving at prices to be paid and costs to be reimbursed.

(r)Price Data is factual information concerning prices, including profit, for supplies services, or construction substantially similar to those being procured. In this definition, "prices" refer to offered or proposed selling prices, historical selling prices, and current selling prices of such items. This definition refers to data relevant to both prime and subcontract prices.

(s)Proposal is the document submitted by the offeror in response to a Request for Proposal to be used as the basis for negotiations for entering into a contract. A proposal is usually requested in cases where the selection of a contractor is to be made on the basis of the performance that is offered rather than on that of price alone and may require an outline of details such as the vendor's qualifications and experience and the identification of problems and proposed solutions in addition to details of price.

(t)Purchase Description means the words used in a solicitation to describe the services to be purchased and includes the statement of work or deliverables attached to, or made a part of, the solicitation.

(u)Request for Proposal means all documents, whether attached or incorporated by reference, utilized for soliciting competitive proposals from potential vendors. A Request for Proposals should contain all evaluation criteria, including price and the weight for scoring each of the criteria. It should outline the intended procurement process and include all information required herein.

(v)Request for Qualifications means all documents, whether attached or incorporated by reference, utilized for soliciting statements of qualifications from potential vendors. A Request for Qualifications should contain all evaluation criteria and the weight for scoring each of the criteria. It should outline the intended procurement process and include all information required herein.

(w)Responsible Bidder, Offeror, or Respondent means a person who has the capability in all respects to perform fully the contract requirements and the integrity and reliability which will assure good faith performance.

(x)Responsive Bidder, Offeror, or Respondent means a person who has submitted a bid, proposal, or statement of qualifications which conforms in all material respects to the Invitation for Bid, Request for Proposal, or Request for Qualifications.

(y)Solicitation means an Invitation for Bid, a Request for Proposal, a Request for Qualifications, a request for quotations, or any other document issued by the State for the purpose of soliciting bids, proposals, or statements of qualifications relative to performing a state contract.

(z)Statement of Qualifications is the document submitted by the respondent to a Request for Qualifications to be used as the basis for a determination that the respondent is qualified or has specialized expertise to perform the scope of work or services required by the agency.

3-101.02Exemptions Not Requiring Approval

By authority of the Mississippi Legislature, service contracts of $75,000 or less do not require approval of the PSCRB. Contracts which do not exceed $75,000 shall follow the procedures set forth in Section 3-205 (Small Purchases). The following are exempt from the purview of the PSCRB in accordance with Mississippi Code Annotated § 25-9-120(3)(a) and as determined by the PSCRB when performing duties for which they are licensed or certified:

(a) Accountant;

(b) Engineer;

(c) Architect;

(d) Attorney;

(e) Utility rate expert services;

(f) Auditor; and,

(g) Any contracting authority exempt by State statute (Mississippi Code Annotated § 25-9-120) including, but not limited to,

1) computer or information technology related services governed by the Mississippi Department of Information Technology Services;

2) personal service contracts entered into by the Mississippi Department of Transportation;

3) contracts for equipment repairs governed by Mississippi Code Annotated § 31-7-13;

4) contracts to manage trust funds by the Board of Trustees of the Public Employees' Retirement System, including, but not limited to, actuarial, custodial banks, cash management, investment consultant, and investment management contracts;

5) contracts entered into by the Department of Human Services through June 30, 2018, which the Executive Director of the Department of Human Services (DHS) determines would be useful in establishing and operating the Department of Child Protection Services (DCPS) after complying with Section 7-119; and

6) personal service contracts entered into by DCPS through June 30, 2019 after complying with Section 7-119.

If any agency determines that the vendor is performing licensed or certified duties, the agency should document its determination and include such documentation in the contract file.

The application of these exceptions shall be narrowly construed in favor of open, competitive bidding, whenever possible.

3-101.03Personal Liability

Mississippi Code Annotated § 31-7-57, holds state employees personally liable if they authorize or make a solicitation or award of a contract in violation of law.

3-101.04Contract Workers

A contract worker is a worker under contract with an agency who meets the requirements for a contract worker under the Internal Revenue Code for federal employment tax purposes. See Appendix B. Under these regulations, the usual common law rules are applicable to determine and require that the contract worker is an employee and not an independent contractor, requiring evidence of lawful behavioral control, lawful financial control, and lawful relationship of the parties. The agency shall make a written determination of this finding and maintain it in the procurement file. If the selected worker is a PERS retiree, the agency must be in compliance with the obligations outlined for the employer in Mississippi Code Annotated § 25-11-127. The PSCRB's authority over contracts for contract workers is the same as its authority over contracts for independent contractors.

Contract worker contracts must be competitively bid if the total contract value exceeds the $75,000 threshold. An agency may procure contract workers through the Alternative Competitive Procurement for Contract Workers, a Request for Qualifications, or another generally accepted method of competitive procurement in compliance with Section 3-201.03 (Alternative Procurement Procedures).

3-101.04.1Alternative Competitive Procurement for Contract Worker Contracts when Pricing is Set by the Agency

Under this method of procurement, the agency sets the pricing for a contract worker contract or contracts. The procurement shall be publicized on the Mississippi Contract/Procurement Opportunity Search Portal in accordance with Mississippi Code Annotated § 25-53-151 and in either the legal notices or employment section of a newspaper in accordance with Section 3-202.06 (Public Notice). The posting shall include the minimum qualifications for the contract worker position, the term and rate of pay and the deadline and manner for submitting applications. The minimum qualifications shall be established by the agency.

All applications received by the deadline shall be evaluated by the Agency Head, his designee(s), or an evaluation committee appointed by the Agency Head. For each contract worker position to be filled, or positions if more than one is needed, the same person or committee shall evaluate all applications.

Once evaluated, all applications shall be classified as either acceptable or unacceptable. For applications classified as unacceptable, the applicant shall be promptly notified in writing of the classification of the application as unacceptable and the reasons therefor. A copy of the notification letter shall be kept in the procurement file.

Interviews may be conducted with a number of applicants to be specified by the Agency Head, his designee(s), or the evaluation committee, from the list of applicants classified as acceptable. If interviews are conducted, after all interviews are completed, the applicants interviewed shall be evaluated based on predetermined criteria.

Recommendation(s) shall be made to the Agency Head, who may then award the contract(s). Notification that the contract has been awarded shall be promptly given in writing to all applicants whose applications were classified as acceptable. A copy of each notification letter shall be kept in the procurement file. A notice of award shall be made available to the public in accordance with Executive Order 1362. The public notice of award must be accompanied by an analysis as to why the personal or professional services contract was awarded, renewed, or amended.

3-101.04.2Procurement for Contract Worker when the Total Contract Value is Less than $75,000

The Agency Head shall adopt operational procedures for procuring contract workers when the total contract value is less than $75,000. Such operational procedures shall provide for obtaining adequate and reasonable competition and for making records to properly account for funds and to facilitate auditing of the Purchasing Agency. No approval by the PSCRB is required for these purchases.

3-101.04.3Approval of WIN Contracts

The state's accounting system routes WIN (contract worker) contracts with the same WIN number exceeding $75,000 to the PSCRB for approval. PSCRB staff has the authority to approve WIN contracts for which the total contract value, including modifications, does not exceed $75,000 during any 12-month period.

3-101.05Net-of-fee Contracts

Net-of-fee contracts do not involve expenditures of state funds; they do not come under PSCRB purview. An agency should maintain for its file a written determination that a contract is net-of-fee.

27 Miss. Code. R. 100-3-101

Adopted 1/15/2015

Amended 1/15/2015

Amended 4/14/2016

Amended 7/1/2016