12 Miss. Code. R. 9-14.15
Where the successful vendor following a competitive procurement ("the original awardee") ultimately defaults on the resulting contract, the Agency may contract with the vendor who would have been awarded the contract had the original awardee been disqualified during the competitive procurement process ("the second place vendor").
In this context, default requires that the original awardee either abandoned the contract or objectively failed to perform such that contract termination was in the Agency's best interest. Where the Agency can demonstrate an objective failure by the original awardee to perform the contract requirements, it shall be in the sole discretion of the Agency to determine whether contract termination is in its own best interest.
The PPRB shall not approve contracts under this Section where the Agency has terminated a contract with the original awardee simply because the Agency preferred to contract with the second place vendor. It shall be the Agency's burden to demonstrate to PPRB that the original awardee's default was objectively caused by action or inaction on the part of the original awardee and not the preferences of the procuring Agency.
Other than as limited by Section 14.15.3, any contract entered into under Section 14.15 shall include the same terms and conditions - including price - which would have applied had the second place vendor been awarded the contract following the competitive procurement. Under no circumstances may an Agency contract under Section 14.15 for services outside of those included in the original procurement.
The period of performance for any new contract entered into under Section 14.5 shall be limited to the amount of time remaining from the original procurement.
For example, if an Agency procured a service to be provided for three years (36 months) but the original awardee terminates the contract after 18 months, the Agency may enter into a new contract with the second place vendor for the 18 months remaining from the procurement under the pricing and all other terms and conditions the second place vendor agreed to in responding to the procurement.
When in the Agency's best interest to contract with the second place vendor for a period of performance longer than the time which remains from the original procurement, the Agency may submit a written request for PPRB approval to do so. The request shall:
* Explain the circumstances leading to the request;
* Explain why the amount of additional time requested is reasonable;
* Explain the detriment to the Agency if limited to the time remaining from the original competitive procurement and the benefit to the Agency if not so limited;
* Explain that the terms and conditions, including price, in the new contract reflect those which the second place vendor agreed to in response to the original procurement; and
* Be signed by the Agency Head.
PPRB approval is required for any contract entered into under Section 14.15 which would require PPRB approval if entered into under any other circumstances.
For example, a $60,000.00 contract entered into pursuant to Section 14.15 does not require PPRB approval because it does not meet the dollar threshold for Board approval.
The Agency may use the process described in Section 14.12.2.1 to contract with the second place vendor under this Section where circumstances are such that the Agency needs to enter a contract under Section 14.15 prior to receiving PPRB approval.
For example, if the original awardee is providing mission-critical services and terminates its contract without notice on the 15th of the month, but PPRB is not scheduled to meet until the first Wednesday of the following month, the Agency may contract under Section 14.15 and request retroactive approval of that contract as described in Section 14.12.2.1.
If the second place vendor refuses to contract under Section 14.15, the Agency may attempt to contract with other vendors who responded to the original competitive procurement in the order they would have been awarded the contract (i.e., the Agency may go to the third place vendor if the second place vendor refuses, the Agency may go to the fourth place vendor if the third place vendor refuses, and so on) if the Agency - in its sole discretion - determines doing so is in its best interest. The Agency must maintain documentation of the higher ranked vendors' refusal to contract in the Agency Procurement File.
12 Miss. Code. R. 9-14.15