12 Miss. Code. R. 9-1.1
The Public Procurement Review Board ("PPRB") promulgates rules and regulations for the selection of personal and professional service contractors pursuant to its authority in Mississippi Code Annotated § 27-104-7.
Mississippi Code Annotated § 27-104-7 (1) provides that PPRB is to be composed of three individuals appointed by the Governor with the advice and consent of the Senate; two individuals appointed by the Lieutenant Governor with the advice and consent of the Senate; and the Executive Director of the Mississippi Department of Finance and Administration ("DFA") serving as an ex officio and nonvoting member. The PPRB appoints the Executive Director of DFA to make day-to-day administrative decisions on behalf of the Board.
The terms of PPRB members shall be a period of four years from the expiration date of the previous term. PPRB members shall continue to serve until such time as the member's successor is duly appointed and qualified, regardless as to whether the four-year term has expired.
As it relates to personal and professional service contracts, the powers and responsibilities of PPRB are delineated in Mississippi Code Annotated § 27-104-7. As of the effective date of these rules, those powers include:
* Promulgating the rules and regulations herein;
* Approving personal and professional service contracts in excess of $75,000.00;
* Requiring mandatory standards for competitive procurement, record keeping, financial responsibility, and monitoring contract performance;
* Reject any contract submitted for review or approval;
* Establishing a list of preapproved vendors with whom Agencies may contract without prior approval of PPRB;
* Approving contracts with other state entities not under the purview of PPRB;
* Evaluating and presenting recommendations on governmental privatization;
* Authorizing personal and professional service contracts be effective for more than one year provided the Agency is appropriated the funding;
* Requesting the Office of the State Auditor ("OSA") to conduct a performance audit on any personal or professional service contract;
* Preparing an annual report to the Legislature regarding contracts for services;
* Developing standards for approval of sole source contracts;
* Enforcing Mississippi Code Annotated §§ 31-7-401 through 31-7-423, which are the Best Practices for using Requests for Proposals and Requests for Qualifications; and
* In conjunction with the Mississippi State Personnel Board, to define the allowable legal relationship between contract workers (as opposed to independent contractors) and the Agencies under PPRB purview.
No member of PPRB shall use their official authority or influence to coerce, by threat of discharge from employment, or otherwise, the contracting for personal and professional services.
PPRB has authority to promulgate rules and regulations governing the solicitation and selection of personal and professional services for any form of consulting, policy analysis, public relations, marketing, public affairs, legislative advocacy services or any other contract that the board deems appropriate for oversight, with the following exceptions:
* personal and professional service contracts entered into by Agencies employing only non-state service employees as defined in Mississippi Code Annotated § 25-9-107(c), the individual state institutions of higher learning, and the Mississippi Department of Transportation;
* personal and professional service contracts entered into for computer or information technology-related services governed by the Mississippi Department of Information Technology Services;
* contracts with the professions specifically exempted from PPRB oversight by Mississippi Code Annotated § 27-104-7. As of the effective date of these rules, contracts with the following professionals to provide services in their professional capacity are exempt: attorneys, accountants, actuaries, auditors, architects, engineers, anatomical pathologists, and utility rate experts.
* Agency-specific contracts for which the Legislature granted a specific exemption in Mississippi Code Annotated § 27-104-7 or any other section of the Mississippi Code. It is the responsibility of each Agency to assert its own exemptions. See Chapter 12.
Any relationship which is something other than a contractual relationship is not governed by these rules and regulations and is outside the scope of PPRB's oversight authority.
The sole issue presented to and approved by PPRB with regard to procurement and contracting for personal and professional services is whether the Agencies under PPRB's purview are in compliance with the PPRB OPSCR Rules and Regulations. PPRB does not approve:
* the validity or extent of the Agency's need for personal and professional services;
* the Agency's legal authority to contract for the personal and professional services;
* whether the contract at issue complies with its funding source requirements; or
* any issue other than compliance with these rules and regulations.
Any subjective decision not specifically enunciated herein is left to the discretion of the procuring Agency. The judgment of PPRB will not be substituted for that of a procuring Agency where the procuring Agency has a legitimate business reason supporting any such decision.
For example, Agencies have full discretion as to the pricing structure used in a particular solicitation (i.e., unit pricing, flat fees, contingency fee, etc.). The Agency should use that discretion to obtain maximum value for itself and to maximize the purchasing power of the public funds with which it has been entrusted. Where the Agency has a legitimate business reason supporting its choice of pricing structure, it is left to the sole discretion of the procuring Agency as to whether the pricing structure chosen achieves maximum value.
Should Mississippi Code Annotated § 27-104-7 be revised such that the powers and duties of PPRB are expanded, modified, or removed, these rules shall be interpreted to reflect the statutory powers and duties of PPRB as of the date of the Board's exercise of any such power or duty.
The members of PPRB shall elect a Chair from among the membership, and he or she shall preside over the meetings of PPRB. PPRB shall elect a Vice Chair, who shall preside over the meetings in the absence of the Chair.
No business shall be transacted, including adoption of rules of procedure, without the presence of a quorum of the board. Three members shall be a quorum.
No action shall be valid unless approved by a majority of the members present and voting, entered upon the minutes of the Board and signed by the Chair.
Even so, procuring Agencies may execute contracts immediately after being approved at a PPRB meeting. Agencies are not required to delay contract execution until minutes are approved by the Board and signed by the Chair.
Minutes shall be kept of the proceedings of each meeting, copies of which shall be filed on a monthly basis with the Chairs of the Accountability, Efficiency and Transparency Committees ("AET Chairs") and the Chairs of the Appropriations Committees ("Appropriations Chairs") of the Mississippi State Senate and the Mississippi House of Representatives.
If PPRB rejects any contract submitted for approval, PPRB shall clearly set out the reasons for its action, including, but not limited to, the policy that the Agency has violated in its submitted contract and any corrective action the Agency may take to amend the contract to comply with the rules and regulations.
Notice of PPRB meetings, meeting Agendas, and meeting Minutes may be found posted on the DFA website.
PPRB shall have the discretion to grant exceptions to these rules and regulations when it is determined the deviation from these rules and regulations did not affect the competition, fairness, or transparency of the procurement process. Additionally, statutory irregularities will not result in rejection of the procurement by PPRB2 where PPRB determines all of the following criteria are met:
* The statutory noncompliance at issue has no specifically legislated consequence;
* There was not a substantial departure from the statutory requirements;
* The parties did not act intentionally, willfully, or knowingly;
* The optimal result was achieved by the procurement;
* There would be no actual loss or harm to the Agency;3
* There is no prejudice to any party or the Agency;
* The integrity and trustworthiness of the procurement was not affected; and
* The competition, fairness, or transparency of the procurement process was not affected.
Agencies seeking an exception for a statutory irregularity shall submit a memorandum stating the reasons PPRB should grant the exception pursuant to the standard set forth in this Section.
In addition to authority to grant exceptions, PPRB shall encourage Agencies to take any corrective action needed to bring an Agency into compliance with these rules and regulations and any relevant statutory requirements. Where corrective action results in compliance, no exception is required.
Any rule making oral proceedings or declaratory opinion issued by PPRB shall be governed by the Mississippi Administrative Procedures Law, codified at Mississippi Code Annotated §§ 25-43-1.101, et seq. Any request for such a proceeding or opinion shall be submitted to the Director of the Office of Personal Service Contract Review, who shall forward it to PPRB. PPRB will issue appropriate orders regarding procedure for the requested action and vote on final resolution of any such request at a regularly scheduled meeting.
2 PPRB administers the law as enacted by the Legislature and interpreted by the Courts. Where there has been no declaration from the judicial branch regarding any statute which affects the procurement process governed by these rules and regulations, PPRB is left to determine what the statute means and how it should be applied. In so doing, PPRB will assume that the Legislature did not intend that the statute would have an absurd purpose or would lead to an absurd result. PPRB recognizes Mississippi Courts have held statutes are directory rather than mandatory where the statute does not express a specific consequence for failure to comply. Finally, PPRB adopts the common law harmless error doctrine such that a procurement will not be rejected due to statutory noncompliance if PPRB can confidently say, after reviewing the entire procurement file, the noncompliance was harmless. See Clark v. Bryant, 253 So. 3d 297, 301-302 (Miss. 2018); King v. Mississippi Military Department, 245 So. 3d 404, 408 (Miss. 2018); USF&G v. Conservatorship of Melson, 809 So. 2d 647, 660 (Miss. 2002); Cook v. Mardi Gras Casino Corp., 697 So. 2d 378, 382 (Miss. 1997); and Smith v. State, 986 So. 2d 290, 300 (2008).
3 To determine whether there is an actual loss, PPRB will consider whether the Agency has demonstrated that the personal and professional services received are valued at or above the price the Agency will pay for those services. See Paxton v. Baum, 59 Miss. 531 (1882) (Where a contract was deemed unenforceable, the county would be liable for the value of the benefit received, which does not necessarily mean the contract price). The procuring Agency shall have the burden to demonstrate the price paid represents fair market value ("FMV") to the satisfaction of the PPRB.
12 Miss. Code. R. 9-1.1