If a Mississippi town's competitive bid notice for a construction project gets no response, can the design consultant just call up contractors privately and pick one?

Plain-English summary

The Town of Tutwiler is building a park expected to cost more than $75,000. The town clerk advertised for bids under § 31-7-13(c). No bids came in. The town's design consultant proposed a workaround: he would extend "private invitations" to qualified contractors he knew about, gather their bids, then pick the top three and recommend one to the Board of Aldermen.

The town's attorney asked the AG whether that workaround was allowed. The AG said no.

§ 31-7-13(c) sets the mandatory bidding procedure for public purchases over $75,000. The statute requires: advertising for competitive bids once each week for two consecutive weeks in a regular newspaper published in the county or municipality, with the bid opening at least seven working days after the last published notice (15 working days for construction projects over $75,000), and the notice must state the time and place for bid receipt and the project specifications.

§ 31-7-13(d)(i) sets the framework for "lowest and best bid" determination. If the governing authority accepts a bid other than the lowest, it must put detailed calculations and a narrative summary on the minutes showing how the accepted bid was determined to be the lowest and best, including dollar amounts.

The statute is mandatory, not optional. The Mississippi Supreme Court has held that county supervisors "may act and authorize bids and contracts only by orders and resolves formally adopted and entered on the minutes" (Richardson v. Canton Farm Equipment, Inc., 608 So. 2d 1240, 1246 (Miss. 1992)). The AG extended the same rule to municipal boards of aldermen. The 1995 MS AG Op., Evans, said it directly: there is "no authority which would permit the board to consider a bid for which there was no authorized advertisement."

Two separate problems with the consultant's workaround:

First, private invitations bypass the statutory advertisement. § 31-7-13 doesn't say "you can call contractors directly if no one responds." It says you advertise. Period.

Second, the design consultant cannot select the contractor for the town. The board of aldermen is the awarding authority. A third party making the selection (even subject to board "approval") undermines the lowest-and-best-bid framework, which has to be done by the governing authority on the minutes.

What the town can do: the design consultant or the town can contact potential contractors as outreach to let them know about the project. But that contact has to be in addition to the statutory advertisement, not in lieu of it. If the publication and notice deadlines have passed and no bids came in, the procedure starts over with a fresh advertisement.

What this means for you

If you are a Mississippi town clerk or city attorney facing a no-bids result

Under this opinion, when no bids come in on a § 31-7-13(c) project over $75,000, the procedure "must start anew" with a fresh advertisement. Private invitations cannot be substituted for the statutory publication and notice. The AG does note one permitted step: the town "could contact potential contractors in addition to publication to let them know about the project so that they may submit bids in accordance with the procedure." That direct contact has to be on top of the statutory advertisement, not in place of it.

If you are a design consultant working with a Mississippi municipality

Under this opinion, a design consultant cannot select the contractor for the town. The AG says allowing "a third party to select and recommend a contractor from a limited pool of bidders who respond to [a] private invitation does not comply with the procedure for selecting the lowest and best bid." The board of aldermen is the awarding authority and must determine the lowest and best bid on its minutes (Richardson (1992); Evans (1995)). Inviting contractors privately to bid in lieu of the statutory advertisement is not a path the statute supports.

If you are a contractor who wants to bid on Mississippi public projects

Under this opinion, the statutory advertisement is the channel that produces a valid procurement under § 31-7-13. A "private invitation" extended outside that process, in lieu of the required publication, is not authorized by the statute. If a town got no bids and is re-advertising, that is the proper process; a hand-picked private-invitation round is the workaround the AG rejected here.

If you are on a Mississippi board of aldermen voting on a contract award

Under this opinion, the board is the awarding authority and acts on bids and contracts "only by orders and resolves formally adopted and entered on the minutes" (Richardson (1992)). If the board accepts a bid other than the lowest, § 31-7-13(d)(i) requires detailed calculations and a narrative summary on the minutes, including the dollar amounts. A consultant's recommendation does not substitute for the board's own determination on the record.

Common questions

Q: What is the dollar threshold that triggers the bidding procedure in this opinion?
A: $75,000. The AG applies § 31-7-13(c)'s mandatory advertised-bidding procedure to a purchase involving an expenditure of more than $75,000, which is the Tutwiler park project.

Q: How long after the last published notice can bids be opened?
A: Under § 31-7-13(c)(i) as quoted in the opinion, not less than 7 working days after the last published notice, and for a construction project estimated to cost more than $75,000, not less than 15 working days, with the notice published once each week for two consecutive weeks.

Q: Where must the advertisement be published?
A: In a regular newspaper published in the county or municipality where the governing authority is located. The opinion quotes the statute's fallback: if there is no newspaper published locally, notice is given by posting at the courthouse (or, for municipalities, the city hall) and two other public places, plus publication in some newspaper of general circulation.

Q: Can a design consultant just recommend a contractor for the board to approve?
A: Not as a substitute for the statutory process. The AG says letting a third party select and recommend a contractor from a private-invitation pool does not comply with the lowest-and-best-bid procedure, which the governing authority itself must follow on its minutes.

Q: What does the town do when no bids are received?
A: The AG says that if the publication and notice deadlines have passed and no bids were received, the procedure in § 31-7-13 "must start anew," meaning the town re-advertises.

Background and statutory framework

§ 31-7-13 is Mississippi's public purchasing statute. It governs purchases by all governing authorities (counties, municipalities, school districts, state agencies) of equipment, supplies, and services.

Subsection (c) sets the mandatory bidding procedure for purchases over $75,000:

• (c)(i): advertising for competitive bids once each week for two consecutive weeks in a regular newspaper, with bid opening at least 7 working days (15 for construction projects over $75,000) after the last notice.

Subsection (d)(i) governs lowest-and-best-bid determination:

• If the governing authority accepts a bid other than the lowest, detailed calculations and narrative summary go on the minutes, including dollar amounts.
• No agency or governing authority may accept a bid based on items not in the specifications.

The Mississippi Supreme Court in Richardson v. Canton Farm Equipment, Inc., 608 So. 2d 1240, 1246 (Miss. 1992), held that county supervisors act on bids and contracts only by orders and resolves formally adopted and entered on the minutes. The same minute-rule applies to municipal boards of aldermen and other public bodies.

The AG opinion line: Evans (1995) (no authority to consider a bid for which there was no authorized advertisement); Frieson (2023) (private invitations cannot substitute for advertisement; consultant cannot select the contractor).

§ 7-5-25 limits the AG to prospective state-law questions. The AG cannot validate or invalidate past actions, so the opinion is forward-looking only.

Citations

• Miss. Code Ann. § 7-5-25 (limits on AG opinion authority)
• Miss. Code Ann. § 31-7-13(c) (mandatory bidding procedure for purchases over $75,000)
• Miss. Code Ann. § 31-7-13(c)(i) (advertisement requirements)
• Miss. Code Ann. § 31-7-13(d)(i) (lowest and best bid determination)
• Richardson v. Canton Farm Equipment, Inc., 608 So. 2d 1240 (Miss. 1992) (board action on bids and contracts must be by orders and resolves formally adopted on minutes)
• MS AG Op., Evans (Aug. 16, 1995) (no authority to consider bid without authorized advertisement)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/01/R.Frieson-January-24-2023-Consultant-Selecting-Contractor-for-Town-Construction-Project.pdf

Original opinion text

January 24, 2023
Renetha L. Frieson, Esq.
Attorney, Town of Tutwiler
Post Office Box 1811
Greenville, Mississippi 39702-1811
Re:

Consultant Selecting Contractor for Town Construction Project

Dear Ms. Frieson:
The Office of the Attorney General has received your request for an official opinion.

Background
Your request provides the facts as follows: The town of Tutwiler is in the process of constructing
a park that is anticipated to cost more than $75,000.00. In accordance with Section 31-7-13(c) of
the Mississippi Code, the town clerk advertised for competitive bids; however, no bids were
received in response to the advertisement. The design consultant for the project requested
permission to extend "private invitations" to potential qualified contractors, to select a contractor
from the top three bidders of the potential qualified contractors, and to recommend the contractor
he selects to the Board of Supervisors for approval.
Questions Presented

1. Can the Board of Aldermen authorize a design consultant to extend "private invitations" to
   potential qualified contractors for competitive bids when no bids were received after
   publishing for competitive bids in the local newspaper under Section 31-7-13(c)?
2. Would allowing the design consultant to extend "private invitations" for competitive bids
   violate Section 31-7-13(c) when no bids were received after publishing for competitive
   bids in the local newspaper under Section 31-7-13(c)?
3. If the Board of Aldermen is permitted to authorize the design consultant to extend "private
   invitations" to potential qualified contractors, can the Board of Aldermen allow the design
   consultant to select and recommend a contractor from the top three bidders resulting from
   the design consultant's private invitation?

Brief Response

1. No. Issuing private invitations to select contractors does not comply with the publication
   or notice requirements in Section 31-7-13(c) for purchases over $75,000. If the publication
   and notice deadlines have passed, and no bids were received, the procedure set out in
   Section 31-7-13 must start anew.
2. Our response to your first question renders this question moot.
3. Our response to your first question renders this question moot.
   Applicable Law and Discussion
   As an initial matter, the Office of the Attorney General is authorized to issue official opinions for
   prospective use only and cannot validate or invalidate past actions. See Miss. Code Ann. § 7-5-25.
   In response to your first question, Section 31-7-13(c)(i), which outlines the mandatory bidding
   procedure for purchases over $75,000.00 provides, in relevant part:
   Purchases which involve an expenditure of more than Seventy-five Thousand
   Dollars ($75,000.00), exclusive of freight and shipping charges, may be made from
   the lowest and best bidder after advertising for competitive bids once each week
   for two (2) consecutive weeks in a regular newspaper published in the county or
   municipality in which such agency or governing authority is located.
   *

*

*

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The date as published for the bid opening shall not be less than seven (7) working
days after the last published notice; however, if the purchase involves a construction
project in which the estimated cost is in excess of Seventy-five Thousand Dollars
($75,000.00), such bids shall not be opened in less than fifteen (15) working days
after the last notice is published and the notice for the purchase of such construction
shall be published once each week for two (2) consecutive weeks. . . . The notice
of intention to let contracts or purchase equipment shall state the time and place at
which bids shall be received, list the contracts to be made or types of equipment or
supplies to be purchased, and, if all plans and/or specifications are not published,
refer to the plans and/or specifications on file. If there is no newspaper published
in the county or municipality, then such notice shall be given by posting same at
the courthouse, or for municipalities at the city hall, and at two (2) other public
places in the county or municipality, and also by publication once each week for
two (2) consecutive weeks in some newspaper having a general circulation in the
county or municipality in the above-provided manner. . . .
Miss. Code Ann. § 31-7-13(c)(i)1, 3.

The municipality must also comply with the requirements for determining the lowest and best bid
in Section 31-7-13(d)(i), which specifically provides:
If any governing authority accepts a bid other than the lowest bid actually
submitted, it shall place on its minutes detailed calculations and narrative summary
showing that the accepted bid was determined to be the lowest and best bid,
including the dollar amount of the accepted bid and the dollar amount of the lowest
bid. No agency or governing authority shall accept a bid based on items not
included in the specifications.
The above quoted sections do not provide for issuing private invitations for bids in lieu of the
mandatory publication and notice procedures as described in your request. Further, allowing a third
party to select and recommend a contractor from a limited pool of bidders who respond to the
private invitation does not comply with the procedure for selecting the lowest and best bid. The
Mississippi Supreme Court has held that county supervisors "may act and authorize bids and
contracts only by orders and resolves formally adopted and entered on the minutes." Richardson
v. Canton Farm Equipment, Inc., 608 So. 2d 1240, 1246 (Miss. 1992). This is true for a municipal
board of aldermen as well. Interpreting Section 31-7-13, this office has previously opined that
there is "no authority which would permit the board to consider a bid for which there was no
authorized advertisement." MS AG Op., Evans at *1 (Aug. 16, 1995). While the town could
contact potential contractors in addition to publication to let them know about the project so that
they may submit bids in accordance with the procedure set forth in Section 31-7-13, doing such in
lieu of the statutory bidding procedure is not authorized by the statute. Accordingly, it is the
opinion of this office that Tutwiler must comply with the publication and notice deadlines and the
procedure for selecting the lowest and best bid in Section 31-7-13(d)(i), which does not
contemplate or allow for private invitations for bids in lieu of the competitive bid procedure. If the
publication and notice deadlines have passed, and no bids were received, the procedure set out in
Section 31-7-13 must start anew.
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/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General