STATE OF MISSISSIPPI OFFICE OF THE STATE AUDITOR STACEY PICKERING, AUDITOR Legislative Update MAGPPA Biloxi, Mississippi October 17, 2017 Presented By: Mark W. Johnson Technical Assistance Division (800)-321-1275 E-Mail: tech@osa.ms.gov Mailing Address: Office of the State Auditor, PO Box 956, Jackson, MS 39205
Purchasing Professionals, Welcome to today s seminar. It is our honor to present the following information and we hope you will find it both informative and helpful. Our Technical Assistance Division is always available to answer any compliance related questions you may have. They can be contacted at 1-800-321-1275 or you can send an e-mail to tech@osa.ms.gov. Our website, www.osa.ms.gov, also includes resources that may be of assistance to you. In addition, if I can ever be of assistance to you personally, please do not hesitate in calling me. As always, I appreciate your service to your governing authority and to our state. You, along with your staff, serve in a very important role for the taxpayers of Mississippi. Respectfully yours, Stacey E. Pickering State Auditor 2
2017 SELECTED LEGISLATION House Bill 32 (Effective after passage) This amends 37-9-13 to require that a vacancy in the office of superintendent of schools elected in the November 2015 general election before January 1, 2019 shall immediately become an appointed position by the local school board. House Bill 51 (Effective July 1, 2017) This amends 21-19-15 removing the language that required parking signage be posted within 250 feet of the portion of the street or roadway where parking was regulated, now signage is required with no feet requirement. Amended 21-15-41 individuals serving in interim or holdover capacity shall expire within 180 days after the expiration of the position s term or within 180 days after the date of appointment. Actions taken or votes taken by such persons after such time shall be invalid. If council or board rejects or fails to confirm a mayor s appointment the mayor may not resubmit the same individual during the mayor s current remaining term of office. Amended 21-23-7 to where municipal judge can hold court within a 1-mile radius of municipality for any purpose. House Bill 336 (Effective July 1, 2017) This amends 33-4-1 to provide that monies in the Mississippi Military Family Relief Fund may be used to provide assistance to families that experience financial hardships as a result of a family member who is a member of the Mississippi National Guard regardless of whether the family member is a resident of Mississippi. House Bill 383 (Effective July 1, 2017) This amends 63-1-208 to require the Commissioner of Public Safety to adopt rules and regulations that provide for a military skills test waiver for CDL s as authorized by federal regulations. House Bill 455 (Effective July 1, 2017) This amends 49-7-31.5 deleting the repealer on the taking of nuisance animals and certain provisions relating to the transportation of wild hogs. House Bill 469 (Effective July 1, 2017) This amends 19-5-167 county board of supervisors shall have the authority to dissolve, redefine and reconfigure fire protection districts to ensure the most appropriate and efficient coverage. Boards cannot dissolve a district with outstanding debt unless arrangements are made for the assumption of the debt by 3
a subsequent district or the county. Boards may consolidate fire protection districts for administrative purposes but shall hold a public hearing to determine the public s interest. House Bill 638 (Effective after passage) This amends 99-19-51 revising the methods by which the death penalty may be carried out to include different substances and to include electrocution and firing squad. House Bill 645 (Effective July 1, 2017) Amends 99-19-301 through 99-19-307 to include law enforcement officer, firefighter and emergency medical technician to the group for enhancement of felony or misdemeanor penalties when the offense was committed with intent to target such individual or group due to their employment. Penalties for the offense may be enhanced by term of imprisonment or a fine of up to twice that authorized by law or both. House Bill 652 (Effective July 1, 2017 and after passage) Amends 43-21-301 and 43-21-303 to prohibit youth courts from establishing probable cause to remove a child from a home based solely upon parent s positive drug test for marijuana, however a finding may be based upon evidence-based of harm to child or parent s inability to provide care due to use of marijuana. (Effective July 1, 2017) During an emergency placement situation the Mississippi Department of Child Protection Services may request that a criminal justice agency perform a federal name-based criminal history records check of each adult residing in the home. (Effective after passage) House Bill 686 (Effective July 1, 2017) Amended 27-7-49 to allow a taxpayer to amend their income tax return within 3 years from the due date or the time of the extension due date if one was filed. Also amended 27-65-42 to allow a taxpayer to apply for a revision of tax assessed against him or her for sales tax at any time within 36 months from the date of the assessment or from the date the return was filed. House Bill 812 (Effective July 1, 2017) Information about any property seized will have to be posted to a website maintained by the Mississippi Bureau of Narcotics. The website will track seized property from the time of seizure to final disposition of the property. The district attorney will be required to upload the information to the website. MBN will have twelve months from the time the legislature appropriates sufficient money for the development of the website. Failure to substantially comply results in disqualification from applying for or receiving federal or state grants. Also, within 72 hours of a seizure, except in certain cases, the law enforcement agency must obtain a seizure warrant, per an amended Section 41-29-153. 4
House Bill 891 (Effective July 1, 2017) The MS Transportation Commission may allow counties to place welcome & recognition signs on state highways in unincorporated areas of a county in accordance with MDOT rules and regulations. Also the MS Transportation Commission may allow signs for institutions who are members of the MS Association of Independent Colleges and Universities that display the name and emblem of such institutions similar to signs erected for public state institutions of higher learning. House Bill 926 (Effective July 1, 2017) Authorizes the UMMC with IHL approval to enter into joint purchasing arrangements, joint ventures, joint operating agreements with community hospitals or other public or private health related organizations for financial or clinical integration. Amended 31-7-1 to place back the definitions which were inadvertently left off in prior year (Public Funds, Commodities, Equipment, Furniture, Emergency, Construction, Purchase, Ect.). Changed the definition of agency to exclude an academic medical center or health sciences school for the purchase of commodities used for clinical purposes. Added section 37-7-13 (m) (xxxvi) an exception to the bidding requirements for certain purchases by an academic medical center or health sciences school. House Bill 1106 (Effective January 1, 2018) Amended 31-7-13 to make reverse auctions the preferred method for receiving bids for purchases over $50,000. Purchasing entities may request approval from the public procurement review board to use an alternate method and they must approve any contract entered into by such alternate process. Does not apply to individual state institutions of higher learning. State agency contracts awarded pursuant to emergency purchase procedure shall not exceed 1 year. Agencies and governing authorities shall provide a secure system for accepting electronic bids for bidders who choose to submit bids electronically. Any special condition/requirement shall be specified in the advertisement for bids. Exemptions to this requirement are, if high speed internet access is currently unavailable, county population less than 20,000, or municipality population less than 10,000. Bidders are not required to use electronic system. When construction bids are submitted they shall include as attachments a certificate of responsibility or statement that bid does not exceed $50,000 if required. House Bill 1109 (Effective January 1, 2018) Established the Public Procurement Review Board as well as established the preferred method of accepting bids for purchases over $50,000 be by reverse auctions (HB 1106 language also in this bill) House Bill 1116 (Effective July 1, 2017) Amends 25-41-13 notice of called special meeting shall be posted to the public body s website not less than 1 hour before meeting if public body has a website and is capable to update the website. Must maintain a list of citizens, publications, broadcast and design media who have submitted in writing its 5
interest in receiving notices of meetings and transmit via email of facsimile such notice not less than 1 hour before meeting. May purge list of publications, broadcast and digital media every 24 months. Excludes emergency meetings, municipalities with population less than 25,000, and counties with population less than 50,000. House Bill 1119 (Effective July 1, 2017) Amends 25-41-5 public body may conduct teleconference meeting provided equipment used is located at normal meeting place or at public location specified in notice of special meeting and allow everyone in attendance to hear deliberations. An agenda and materials shall be made available to the general public. Votes shall be taken in a manner clearly audible or visible to all present at the public location. House Bill 1149 (Effective after passage) Amended 19-5-21 and 22 to allow a late fee to be assessed and collected on delinquent garbage fees of up to $1 or 10% per month whichever is greater on the current monthly bill. House Bill 1213 (Effective July 1, 2017) Authorizes the youth court to utilize a trained court-appointed special advocate volunteer in abuse and neglect cases. Creates a community-based placement for at-risk children pilot program for certain counties in order to plan for early intervention. House Bill 1321 (Effective after passage) Amends 67-3-9 revising the population of 2,500 to allow a city having a population of 1,500 or more according to the latest federal census and located within 3 miles of a city or county that permits the sale of beer and light wine to hold an election to allow such sales. House Bill 1322 (Effective July 1, 2017) Created 67-3-48 allowing a small craft brewery to sell retail light wine or beer produced at its brewery for consumption on or off the premises as long as the light wine and beer products are also made available for sale to wholesalers. Retail sales are limited to 10% or 1,500 barrels produced annually at the brewery. Retail sales to any one individual is limited to 576 ounces within a 24-hour period. 67-3- 48.1 was also created to allow the small craft brewery if acquired by or acquires an entity that does not meet the definition of a small craft brewery as long as the acquired facility still meets the definition. Amended 37-3-22 to establish the production limitation of a brewpub (75,000 gallons) and also authorized a brewpub to sell light wine and beer for off premises consumption in a growler. Amended 37-3-3 to define a small craft brewery as a person having a permit to brew not more than 60,000 barrels of light wine and beer annually and define growler to be a sealed container that holds not more than 128 ounces with a label stating what it contains. 6
House Bill 1585 (Effective July 1, 2017) Amended 51-35-333 to allow the board of directors of a district formed under the urban flood and drainage control act to levy special assessments on property in the district that is directly or indirectly benefited from flood and drainage control improvement projects. House Bill 1601 (Effective July 1, 2017) An act authoring taxpayers to establish a first-time home buyer savings account which can be excluded from gross income for state income tax purposes as long as the distributions from such accounts are used to pay eligible cost related to the purchase of a first home. Limited to $2,500 for individual and $5,000 for married couples. Senate Bill 2013 (Effective after passage) Amended 19-5-95 to revise the maximum amount of aid to volunteer and municipal fire departments and fire protection districts provided by a county. County with a population of less than 150,000 can appropriate $250 and the amount that a ¼-mill levy would produce, not to exceed ¼ mill total. County with a population of 150,000 or greater can appropriate $1,000 and the amount that a ¾-mill levy would produce not to exceed ¾ mill total. Senate Bill 2263 (Effective July 1, 2017) Amended 27-39-203 allowing a municipality having a population of less than 2,000 according to the latest federal census to advertise the annual budget hearing by posting a notice in three public places. Senate Bill 2271 (Effective July 1, 2017) Amended 49-7-5 and 49-7-9 to exempt certain honorably discharged veterans with a combat-related disability from hunting and fishing license when participating in a special hunt or fishing trip that is available only to such persons. Senate Bill 2305 (Effective July 1, 2017) Amended 63-3-809 to require an approaching driver to slow down and move into the left lane to allow a rural mail carrier to enter the roadway in safety. Senate Bill 2398 (Effective July 1, 2017) Amended 37-9-13 to revise the qualifications for superintendents from 4 years to 6 years, which shall include 3 years of administrative experience in a school with an A or B rating or in a school which increased its rating while appointee was principal. Also, to require that a vacancy in the office of superintendent of schools elected in the November 2015 general election before January 1, 2019 shall immediately become an appointed position by the local school board. Alternative qualifications may be adopted by the Department of Education. 7
Senate Bill 2437 (Effective July 1, 2017) Amended 27-101-21 to require taxing entities to file their annual report on tax revenues with the Department of Revenue instead of the State Auditor. Senate Bill 2612 (Effective July 1, 2017) Amended 67-1-101 to include several cities in the definition of municipalities whose governing authorities may establish leisure and recreation districts and to allow several counties to establish such districts. Senate Bill 2710 (Effective after passage) An act to prohibit a state agency, department, political subdivision, county, municipality, university, college, community college or junior college from creating, planning, implementing, assisting, participating in or enabling a sanctuary policy. Senate Bill 2724 (Effective July 1, 2017) Amended 63-2-1 to require all passengers in motor vehicles to wear seat belts. Senate Bill 2836 (Effective July 1, 2017) Amended 31-7-103 and 31-7-119 to increase the minimum amount required for using a purchase order to $1,500 from $1,000. 8
PURCHASING CHANGES HB 926, HB 1109, HB 1106 Current Purchase Law Contains no definitions Allows a choice of receiving sealed bids, electronic bids, bids from reverse auction, or any other method that promotes open competition. The method is chosen by the governing authority. House Bill 926, Effective July 1, 2017 Replaces Definitions House Bill 1109, Effective January 1, 2018 Requires Reverse Auctions House Bill 1106, Effective January 1, 2018 Requires Reverse Auctions Has Electronic Bid Section Current Language for Bids The purchasing entity may designate the method by which the bids will be received, including, but not limited to, bids sealed in an envelope, bids received electronically in a secure system, bids received via a reverse auction, 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. New Language for Bids 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. 9
Electronic Bids 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. 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) and 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. Opinion to Nowak June 9, 2017 Q House Bill 1106 (2017) amends Section 31-7-13 to provide that Reverse auctions shall be the primary method for receiving bids during the bidding process. It also provides that a purchasing entity may determine 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. Does this only apply to state agencies, or does it apply to all local government entities? A These provisions apply to governing authorities as well as state agencies. Had the Legislature intended them to only apply to state agencies, they would have said state agencies instead of purchasing authorities. In our opinion, purchasing authorities includes all entities subject to the requirements of Section 31-7-13. Opinion to Smith September 29, 2017 Q We were assured that (HB 1106) would only apply to state agencies and not political subdivisions. Therefore I would ask that the opinion previously issued by your office (to Nowak) be withdrawn and a substitute opinion be inserted... A We remain of the opinion that, due to the plain and unambiguous language contained in the statute, (Section) 31-7-13, specifically Section 31-7-13(c)(i)(2), applies to state agencies and governing authorities. 10
BEST PRACTICES Before entering into a contract for reverse auction services, the governing authority should issue publicly a request for proposals for such services. Negotiate and enter into a contract with the most qualified proposal. The contract shall be specific as to the cost being charged the governing authority and shall not allow any fee to participate be borne by potential bidders. (See AG Ops to Moseley, 1/24/14; Morgan, 8/19/16) The governing authority should develop clear detailed specifications, define requirements, and maintain a list of who has requested and received these specifications. Section 31-7-13(c)(v) states that governing authority shall not require a bidder to submit their bid electronically. The governing authority shall provide a bidder wishing to participate in a reverse auction the means with which to participate non-electronically. The governing authority should suggest that all participants in the reverse auction have a backup plan/computer in case of any unforeseen technical failures. The governing authority should allow for an auto-extend during an auction so a bid in the last minute or so does not end the bidding without allowing for other bidders to improve their bid. 11