New Regulations Effective July 2015

The Public Procurement Review Board approved new regulations regarding “sole source” and “emergency” procedures effective July 1, 2015. 

These new regulations change the way that sole source and emergency procurements are currently accomplished.  It is important that you take a few minutes to review and forward to all purchasing staff in your office.

  1.     Advertising requirements for proposed sole source procurements;
  2.     Procedures for vendor protests of proposed sole source procurements;
  3.     Advance approval for certain emergency procurements; and
  4.     A two-step procedure for filing documentation regarding both sole source and emergency procurements. 

 

The Office of Purchasing, Travel and Fleet Management is dedicated to assisting in making this transition as smoothly as possible.  Please feel free to call 601-359-3409 for assistance.

NEW PROCUREMENT REGULATIONS
EFFECTIVE IMMEDIATELY

The following sections of the Procurement Manual have been revised and are effective immediately.  Please make sure and review all new regulations.

2.102.04  Public Procurement Review Board (PPRB)  Approval

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

3.101.03    Exemptions Requiring Approval 

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

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

(2)           Items purchased for research that are available from only one source

3.109.02   Conditions for Use of Sole-Source / Research Procurement(s)

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

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

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

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

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

  1.             A description of the commodity that the agency is seeking to procure;
  1.             An explanation of why the commodity is the only one that can meet the needs of the agency;
  1.             An explanation of why the source is the only person or entity that can provide the required commodity;
  1.             An explanation of why the amount to be expended for the commodity is reasonable;
  1.             The efforts that the agency went through to obtain the best possible price for the commodity; and
  1.             Procedures for any person or entity that objects and proposes that the commodity published on the procurement portal is not sole source and can be provided by another person or entity.  These procedures shall direct the objecting person or entity to notify the agency that published the proposed sole source procurement request with a detailed explanation of why the commodity is not a sole source procurement.  If such an objection has been raised, the agency shall follow the following steps:  
  1.             If the agency determines after review that the commodity in the proposed sole source request can be provided by another person or entity, then the agency must withdraw the sole source request publication from the procurement portal website and submit the procurement of the commodity to an advertised competitive bid or selection process.

 

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

 

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

 

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

 

Following the approved purchase, per 31-7-13 (m) (viii) the executive head of the state agency, or his designees, shall file with the Department of Finance and Administration, documentation of the purchase, including a description of the commodity purchased, the purchase price thereof and the source from whom it was purchased when submitting the applicable payment request as more particularly prescribed in the DFA MAAPP Manual.  In the case of Institutions of Higher Learning, this can be done by adding an attachment to the university’s previously approved P1 request.

3.109.03   Negotiation in Sole-Source Procurement

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

3.110        Emergency Procurements

Notwithstanding any other provisions of this regulation, the Chief Procurement Officer, the head of a purchasing agency, or a designee of either officer may make or authorize others to make emergency procurements under emergency conditions as defined in Section 31-7-1(f), Mississippi Code of 1972, Annotated; provided, that such emergency procurements shall be made with such competition as is practicable under the circumstances. A written determination of the basis for the emergency and for the selection of the particular contractor shall be included in the contract file. Such purchases shall be made in compliance with Section 31-7-13(j), Mississippi Code of 1972, Annotated. Agencies shall notify or seek approval from, where required, the Office of Purchasing, Travel and Fleet Management by using the electronic P-1 process.

 

(1)           Emergencies threatening health and safety or property

 

If such emergency threatens the health or safety of any person, or the preservation or protection of property, then the provisions of competitive bidding shall not apply and any officer or agent of the agency having general or specific authority for making the purchase or repair contract shall approve the bill presented for payment and provide justification and certification in writing detailing from whom the purchase was made or with whom the repair contract was made to the Office of Purchasing, Travel and Fleet Management using the electronic P-1 process. 

The justification should be written in sufficient detail so that a person not familiar with the situation could be expected to understand the need to forego the normal purchasing procedure. As per Section 31-7-13(j), Mississippi Code of 1972, Annotated, the certification for an emergency purchase must be submitted on letterhead and signed by the executive head or his/her designee(s) of the requesting agency. Agencies shall address the following when preparing the justification:

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

(b)           What happened to cause the emergency?

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

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

(e)           The total purchases made shall only be for the purpose of meeting the needs created by the emergency situation. 

Following the emergency purchase, documentation of the purchase, including a description of the commodity purchased, the purchase price thereof and the nature of the emergency shall be filed with the Department of Finance and Administration when submitting the applicable payment request as more particularly prescribed in the DFA MAAPP Manual.  In the case of Institutions of Higher Learning, this can be done by adding an attachment to the university’s P1 request.

(2)           Emergencies Requiring Approval Prior to Purchase

If the governing board or the executive head, or his designees, of any agency of the state shall determine that an emergency exists in regard to the purchase of any commodities or repair contracts, so that the delay incident to giving opportunity for competitive bidding would be detrimental to the interests of the state, then the head of such agency, or his designees, shall seek approval of the Office of Purchasing, Travel and Fleet Management using the electronic P-1 process. 

The justification should be written in sufficient detail so that a person not familiar with the situation could be expected to understand the need to forego the normal purchasing procedure. As per Section 31-7-13(j), Mississippi Code of 1972, Annotated, the certification for an emergency purchase must be submitted on letterhead and signed by the executive head or his/her designee(s) of the requesting agency. Agencies shall address the following when preparing the justification:

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

(b)           What happened to cause the emergency?

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

(d)           The total purchases made shall only be for the purpose of meeting the needs created by the emergency situation.

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

Following the emergency purchase, documentation of the purchase, including a description of the commodity purchased, the purchase price thereof and the nature of the emergency shall be filed with the Department of Finance and Administration when submitting the applicable payment request as more particularly prescribed in the DFA MAAPP Manual.  In the case of Institutions of Higher Learning, this can be done by adding an attachment to the university’s P1 request.

3.110.04   Authority to Make Emergency Procurements

Any state agency may make emergency procurements when an emergency condition arises and the need cannot be met through normal procurement methods, provided approval by the executive head of the agency shall be obtained prior to the procurement and provided 3.110 is followed. Governing authorities shall comply with Section 31-7-13(k), Mississippi Code of 1972, Annotated.

Section 3.124.03 has been removed from the Manual.

3.124.03 Special Circumstances Required Information,

                SC-1

The information provided on the SC-1 document must be followed when submitting an electronic P-1. Information for SC-1 can be found in the Training Section of the OPTFM website.

(1)           Emergency purchase          

(2)           Sole-Source purchase           

(3)           Purchase for research

(4)           Exemption from state contract