Can a Mississippi school district treat an online shopping cart printout as a competitive bid for purchases between $5,000 and $50,000?

Plain-English summary

The Monroe County School District superintendent asked a practical question: with online shopping growing, can a school treat a printed-out screen showing an item "in cart" with a price as a competitive bid? Some online stores don't offer signed quotes; some allow purchase orders.

Section 31-7-13(b) is the state's purchasing statute for purchases over $5,000 but not over $50,000. It eliminates the formal advertised-bid requirement, but requires "at least two (2) competitive written bids" before purchase from the lowest and best bidder.

The statute defines "competitive written bid" specifically:

a bid submitted on a bid form furnished by the buying agency or governing authority and signed by authorized personnel representing the vendor, or a bid submitted on vendor's letterhead or identifiable bid form and signed by authorized personnel representing the vendor.

Bids can be by fax, email, or other generally accepted method. Electronic bids don't need a signature unless the agency requires one.

A printed online shopping-cart screen is neither (1) a bid on the agency's bid form signed by the vendor, nor (2) a bid on the vendor's letterhead or identifiable bid form signed by the vendor. So it doesn't qualify.

The opinion is narrow: it addresses only the general application of subsection (b). Other Section 31-7-13 exemptions exist (specific commodities, emergencies) and the Department of Finance and Administration may have additional rules under Section 31-7-5.

What this means for you

For school districts and public purchasing officials

Under the opinion, a printed cost with a description of an item "in cart" is not a competitive written bid under Section 31-7-13(b) for a purchase over $5,000 but not over $50,000. The statute, as the opinion reads it, recognizes only two forms: a bid on a bid form furnished by the buying agency or governing authority and signed by the vendor's authorized personnel, or a bid on the vendor's letterhead or identifiable bid form and signed by the vendor's authorized personnel. The opinion notes that bids may be submitted by facsimile, electronic mail, or other generally accepted method, and that bids submitted by electronic transmission do not require the vendor's signature unless the agency or governing authority requires it.

On exemptions and DFA rules

The opinion is limited to the general application of subsection (b). It notes that several exemptions within Section 31-7-13 could apply depending on the type of commodity being purchased or if an emergency necessitates the purchase, but it expressly does not address those exemptions because more information would be needed. It also suggests consulting any applicable rules and regulations of the Department of Finance and Administration under Section 31-7-5.

Common questions

Q: Can a school treat an online "in cart" printout as a competitive bid?
A: No. The opinion holds that a printed cost with an item "in cart" is neither a bid on the agency's furnished bid form signed by the vendor, nor a bid on the vendor's letterhead or identifiable bid form signed by the vendor, so it is not a competitive written bid under Section 31-7-13(b).

Q: When does the two-bid rule in subsection (b) apply?
A: The opinion describes Section 31-7-13(b) as eliminating the need to publish or post an advertisement for bids when the purchase is more than $5,000 but not more than $50,000, in which case the purchase may be made from the lowest and best bidder as long as at least two competitive written bids are obtained beforehand.

Q: Does a bid have to be on paper, or can it be emailed?
A: The opinion quotes the statute allowing bids by facsimile, electronic mail, or other generally accepted method of distribution, and states that electronic-transmission bids do not require the vendor's signature unless the agency or governing authority requires it.

Q: What does "competitive" mean here?
A: The opinion quotes the statutory definition: bids "developed based upon comparable identification of the needs and ... developed independently and without knowledge of other bids or prospective bids."

Q: Do any exemptions let a school skip the two-bid process?
A: Possibly, but the opinion does not decide. It notes that Section 31-7-13 contains several exemptions tied to the type of commodity or to an emergency, but it expressly limits itself to subsection (b) and does not opine on whether any exemption applies.

Background and statutory framework

The opinion turns on two provisions of Mississippi's public purchasing law in Title 31, Chapter 7:

• Section 31-7-13: purchasing thresholds and bid procedures, including the subsection (b) "two competitive written bids" path for purchases over $5,000 but not over $50,000.
• Section 31-7-5: the Department of Finance and Administration's authority to promulgate purchasing rules, which the opinion suggests the requester also consult.

Section 31-7-13(b), as the opinion explains, removes the advertised-bid requirement in the $5,000-to-$50,000 band but substitutes a two-bid requirement, and it defines "competitive written bid" by the two signed forms quoted above. The opinion notes that other exemptions exist within Section 31-7-13 depending on the commodity or an emergency, but it does not reach them.

Citations and references

Statutes:

• Miss. Code Ann. § 31-7-5, DFA purchasing rules
• Miss. Code Ann. § 31-7-13, purchasing thresholds and procedures
• Miss. Code Ann. § 31-7-13(b), $5,000-$50,000 competitive written bid requirement

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/05/B.Jernigan-May-26-2022-Competitive-Written-Bid-under-Section-31-7-13.pdf

Original opinion text

May 26, 2022

Brian Jernigan
Superintendent of Education
Monroe County School District
Post Office Box 209
Amory, Mississippi 38821

Re: Competitive Written Bid under Section 31-7-13

Dear Mr. Jernigan:

The Office of the Attorney General has received your request for an official opinion.

Background

In your request, you assert that there is an increase in online product availability, more often at a lower price. You further state that certain online businesses do not offer a signed quote, but some do allow purchase orders where payment is not rendered until the product is received.

Question Presented

Is a printed cost with a description of an item "in cart" an allowable quote for local education agencies to make purchases that are over $5,000 but less than $50,000 pursuant to Mississippi Code Annotated Section 31-7-13(b)?

Brief Response

No. Section 31-7-13(b) defines two specific and detailed types of "competitive written bids" that are acceptable for a purchase over the amount of $5,000 but not over the amount of $50,000. A printed cost with a description of an item "in cart" is not one of the "competitive written bids" contemplated by or allowed by the statute.

Applicable Law and Discussion

Section 31-7-13(b) eliminates the need for publishing or posting an advertisement for bids where the purchasing agent is expending more than $5,000 but not more than $50,000. According to that statute, purchases costing an amount within those parameters may be made from the lowest and best bidder without publishing or posting advertisements for bids so long as at least two (2) competitive written bids are obtained prior to making a purchase. Miss. Code Ann. § 31-7-13(b). The statute further provides, in pertinent part:

The term "competitive written bid" shall mean a bid submitted on a bid form furnished by the buying agency or governing authority and signed by authorized personnel representing the vendor, or a bid submitted on vendor's letterhead or identifiable bid form and signed by authorized personnel representing the vendor. "Competitive" shall mean that the bids are developed based upon comparable identification of the needs and are developed independently and without knowledge of other bids or prospective bids… Bids may be submitted by facsimile, electronic mail or other generally accepted method of information distribution. Bids submitted by electronic transmission shall not require the signature of the vendor's representative unless required by agencies or governing authorities.

Miss. Code Ann. § 31-7-13(b). A printed cost with a description of an item "in cart" is neither a bid submitted on a bid form furnished by the buying agency or governing authority and signed by the vendor's authorized personnel, nor a bid submitted on a vendor's letterhead or an identifiable bid form and signed by the vendor's authorized personnel. As such, this office is of the opinion that such a printed cost is not a competitive written bid as required under Section 31-7-13(b).

Notably, there are several exemptions within Section 31-7-13 that could apply depending on the type of commodity being purchased or if there is an emergency that necessitates a purchase at the price point contemplated in subsection (b). However, this opinion is limited to the general application of subsection (b) and does not consider any of those exemptions because additional information would be necessary to opine on their specific application. Additionally, you may also wish to consult any applicable rules and regulations promulgated by the Department of Finance and Administration pursuant to Section 31-7-5.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Abby C. Overby
Abby C. Overby
Special Assistant Attorney General