12 Miss. Code. R. 9-1.4
These rules and regulations do not confer rights on any participant in the procurement process unless explicitly so stated. The following rights and responsibilities apply to any solicitation, contract, decision, or action which is subject to the PPRB OPSCR Rules and Regulations.
All parties are required to act in good faith at all times during the processes governed by these rules and regulations.
Should any party discover an act of bad faith by any other party during the course of a procurement or an ongoing contract with the state, such discovery shall be reported to the Agency Head of the procuring Agency, PPRB, the AET Chairs, OSA, and where appropriate, the Public Integrity Division ("PID") of the Office of the Attorney General ("AGO").
Any such report to PPRB shall be made by reporting the matter to the Director of OPSCR, who will provide the information to PPRB. PPRB shall have full discretion to handle such reports on a case-by-case basis and may take any action it deems appropriate including, but not limited to, rescinding prior approval of a contract.
Vendors and the state have any and all remedies available in equity and/or at law if it is discovered a party or parties acted in bad faith. Any such remedies may be pursued in a Court of competent jurisdiction or under any relevant regulatory scheme. Any such action would be separate and distinct from the administrative procurement and approval process governed by these rules and regulations and shall have no effect on the processes herein.
Agencies seeking to contract for personal and professional services have the responsibility to maximize competition to the extent practical, to treat all offerors or potential offerors fairly and equitably, and to provide a transparent and reliable process through which contract(s) will be awarded.
Because the procurement process governed by these rules and regulations is aimed at maximizing value in the provision of personal and professional services which meet the procuring Agency's needs, the requirement that an Agency promote the principles of competition, fairness, and transparency do not require that an Agency sacrifice its own legitimate business needs to do so. However, a procuring Agency shall not use this flexibility to limit the qualified offerors to a single vendor and/or declare a service provider a sole source.
The PPRB will not substitute its judgment for that of the procuring Agency where an Agency has made a subjective decision implicating the principles of competition, fairness, or transparency and the Agency has a legitimate business reason supporting the decision.
Where procuring Agencies are making decisions which implicate the principles of competition, fairness, or transparency at any point during the procurement process, a best practice is to place a contemporaneous memorandum in the Agency Procurement File explaining the decision and documenting the legitimate business reason(s) therefore.
Contract rights do not vest in any party until the contract is legally executed. Agencies procuring personal and professional services under these rules and regulations are under no obligation to award a contract following issuance of a solicitation.5
Property rights do not inure to any vendor until such time as services have been provided under a legally executed contract. No party responding to a solicitation issued pursuant to these rules and regulations has a legitimate claim of entitlement to be awarded a contract or to the provision of work thereunder.6 Procuring Agencies are under no obligation to award a contract following issuance of a solicitation and an Agency may terminate a legally executed contract at any time for the Agency's own convenience.
All parties shall bear their own respective costs incurred in participating in the procurement process. This includes, but is not limited to, the cost of preparation of any response to a solicitation issued pursuant to these rules and regulations, cost associated with travel to pre-submission conferences and/or site visits, and any costs related to pursuit of a request for reconsideration regardless of the outcome. Nothing in Section 1.4.4 shall prevent an Agency from requiring a bond from any vendor requesting reconsideration.
An anti-competitive practice is a practice among vendors which reduces or eliminates competition or restrains trade. Such practices include, but are not limited to, identical bidding, price fixing, rotating low bids, sharing business, tie-in sales, and group boycotts. Vendors are prohibited by federal and Mississippi law from collectively responding to a solicitation in a manner that controls directly or indirectly the price of the personal or professional service sought. Mississippi Code Annotated § 75-21-15.
Every solicitation shall provide that by submitting a bid or other response, the bidder or offeror certifies that the price submitted was independently arrived at without collusion.
Anti-competitive practices shall be treated as an issue of bad faith as discussed in Section 1.4.1.1.
Ethics in any solicitation and/or contract entered, approved under, or otherwise subject to these rules and regulations shall be governed by the Mississippi Ethics in Government laws, codified at Mississippi Code Annotated §§ 25-4-101 through 25-4-121 and any opinions issued by the Mississippi Ethics Commission. Any questions regarding ethics in public procurement shall be directed to the Mississippi Ethics Commission. Failure of any party to comply with the Mississippi Ethics in Government laws shall be reported to the Mississippi Ethics Commission and shall also be treated as an issue of bad faith as discussed in Section 1.4.1.1.
Pursuant to Mississippi Code Annotated § 31-7-57, state officials may be held personally liable for contracting in violation of law.
State Agencies spend significant staff time and resources issuing, evaluating, and awarding contracts. All Agencies have the right to make every reasonable effort to preserve any solicitation issued to the extent it can be preserved in compliance with these rules and regulations and any relevant statutory requirements.
For example, if an Agency issues a Notice of Intent to Award following a Request for Proposals to a vendor who will not accept the contract award, the Agency has the right to rescind the original Notice of Intent to Award and issue a new Notice of Intent to Award to the vendor with the second highest score, rather than cancel the solicitation.
Where any Agency takes any action or makes a determination aimed at preserving its procurement, the Agency shall make a written determination explaining the action taken or the decision made and providing the Agency's reason therefor. Such determination shall be made part of the Agency Procurement File.
An Agency is not required to preserve its procurement when the Agency determines it is in the Agency's best interest to cancel the solicitation. Nothing in these rules and regulations shall be construed to confer any grievance right to any participant in the procurement process due to cancellation of a solicitation.
All vendors who are awarded contracts shall be in compliance with Mississippi Code Annotated § 79-4-15.01 regarding authorization to transact business in Mississippi.
The Agency Head of any Agency procuring personal and professional services under these rules shall delegate the following responsibilities to one or more members of the Agency's staff:
* Procuring all personal and professional services needed by the Agency;
* Establishing programs for the inspection, testing, and acceptance of services;
* Ensuring Agency compliance with these rules and regulations;
* Ensuring contractor compliance with all contract terms and conditions.
Any controversies arising under a contract subject to these rules and regulations shall be governed by the terms of the contract and relevant principles of contract law.
There is no statutory right to seek judicial review of a decision made pursuant to these rules and regulations. A procuring Agency may proceed with contract execution and implementation immediately following PPRB approval of its contract(s). See Section 1.1.7.3.
5See Miss. Dept. of Environmental Quality v. Pacific Chlorine, Inc., 100 So. 3d 432 (Miss. 2012).
6 A property interest protected by due process requires that the party claiming that interest have a "legitimate claim of entitlement" to a benefit. The Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).
12 Miss. Code. R. 9-1.4