IN THE SUPREME COURT OF MISSISSIPPI NO. 2017-CA-00008-SCT HEMPHILL CONSTRUCTION COMPANY , INC.

v. CITY OF CLARKSDALE, MISSISSIPPI

DATE OF JUDGMENT: 11/28/2016 TRIAL JUDGE: HON. LINDA F. COLEMAN TRIAL COURT ATTORNEYS: CHRISTOPHER SOLOP CURTIS D. BOSCHERT LYNN PATTON THOMPSON KIMBERLY TAFT PURDIE COURT FROM W HICH APPEALED: COAHOMA COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: CHRISTOPHER SOLOP LYNN PATTON THOMPSON ATTORNEY FOR APPELLEE: CURTIS D. BOSCHERT NATURE OF THE CASE: CIVIL - OTHER DISPOSITION: REVERSED AND REMANDED - 08/16/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC. RANDOLPH, PRESIDING JUSTICE, FOR THE COURT: ¶1. The City of Clarksdale ( “City ”) solicited sealed bids f or a public construction project. The City r eceived sealed bids f rom Landm ark Construction Com p any , GCI (“Landm ark”),

a n d Hem phill Construction Com

pany , Inc. (“Hem

phill”). W hen u nsealed, both bid s exceeded the project’s allocated f unds by m ore than ten percent. R ather t han r ebidding the contract, the City conditionally awarded a contract to Landm ark, dependent upon the City ’s obtaining a d ditional public f unds to m atch Landm a rk’s bid. The City ’s a ctions were notprovided f

or in the public b i d d i n g l a ws. Accordingly , we reverse the judgm ent of the Coahom a County

Circuit Court and rem and the case to the trial court.
FACTS AND PROCEDURAL HISTORY ¶2. In February 2015, the City issued an Advertisem ent f or Bids f or the 2014 Com m

unity Developm ent Block G rant (“CDBG”) W a stewater Im provem ents – Contract # 1 ( Equipm ent and Controls). The Advertisem ent called f or the City to receive written, s ealed bids at the Clarksdale Public Utilities Com m ission (“CPU”) up to and until 1:30 p.m . on May 27, 2015,

at which tim e any bids would be opened publicly and would be c onsidered by the City at the

next m eeting of the Board of May or and Com m issioners of the City

. ¶3. The sealed bids were opened on May 2 7, 2 015, and the Certif ied Tabulation of

Bids revealed L andm ark ’ s lum p-sum bid was $924,527 and Hem phill’s lum

p-sum bid was $953,800. ¶4. Twelve day s l ater, the City held a m eeting. The June 8, 2015, mi n u t e s o f the City ref lect that Bill Coker, the C ity ’s g r a n t c o nsultant on the project, presented the Certif ied Tabulation of Bids, which showed that Landm ark ’ s b i d , com bined with the lowest bid on Contract 2: Solid W a ste–Denali W ater Solutions, LLC– exceeded the p roject budget by m ore than ten p ercent, specif

ically , $216,182. 1 Coker advised the City that t he Mississippi Developm ent Aut h o r i t y would consider increasing CDBG f unds by $75,000, and that the Clarksdale P ublic Utilities Com m ission ( “CPU”) would increase i ts ma t c h i n g f unds by an

1 T h e C D B G Wastew ater T reatm en t Im p ro v em en ts P ro

j ect w a s b r o k en in to t w o co n tracts: C o n tract # 1 : E q u ip m en t an d C o n tro ls, an d C o n t ra c t # 2 : S o lid Waste. T h is ap p eal co n cern s C o n t ract # 1 o n ly

. 2additional $141,182. Coker r e c o mme n ded that the City accept the l owest bids f or each Contract, contingent upon the f unding increase. The City t h e n a ccepted Coker’s

recom m endation and decided to award Contract # 1 conditionally to Landm ark, d ependent upon the af

orem entioned increased f unding. The m i nutes of

the City ref lect that there had been no consideration of

the City ’s statutory

authority to accept either bid. ¶5. O n J u n e 1 9 , H e mp h i l l protested the award to Landm ark. T he City responded t o Hem phill on July 9, stating that the City dispute d H e m phill’s c laim s , a nd advised that the contract had been awarded to Landm ark. ¶6. On July 13, Coker inf o r m ed the City that the a d ditional CDBG a nd C P U f unding had been acquired. The City then granted the May or perm ission to execute the M issis s i p pi Developm ent Authority Modif ication on W astewater Treatm ent P lant Contract, which

m odif ied t he budget by in c r e a s i ng it to $216,182. T hat sam e day , the City authorized the May o r to execute a Notice of Award to Landm ark. ¶7. Hem

p hill f iled a Bill o f Exceptions in the Circuit Court of Coahom a C ounty pursuant
to Mississippi Code Section 11-51-75 (Rev. 2012), appealing t he City ’s July 13 decision to award the contract to Landm ark. Hem phil l a r g ued, inter alia , 2 that the City had violated Mississippi Code Section 31-7-13 by awarding the contract to Landm a rk, because the bids subm itted exceeded the allocated f unds by m o re than ten percent. Mississippi Code Section 31-7-13(d)(iv) provides that:

2 Hem p hill also a rgued that it m et the requirem ents f or pref erence under Section 3 of the Housing and Urban Developm ent Act of 1968; theref ore, the City was required to award Hem phill the contract. The circuit court f o und that Hem

phill was not entitled to Section 3 pref erence. Hem

phill does not appeal th a t d eterm in atio n . 3if the lowest and best bid is not m ore than ten p ercent (10%) above the am ount

of f unds allocated f

or a public construction or renovation p r o j ect, then the agency or governing a

uthority shall be perm itted to n egotiate with the lowest bidder i n order to enter into a contract f or a n am o unt not to exceed the f unds allocated

. Miss. C ode Ann. § 31-7-13(d)(iv) (Supp. 2017) (em phasis added). Hem

phill argued that the City had violated this statute b y secur i n g a d d itional f unding af ter the bids were opened because the bids were m ore than ten percent of the total budget, and, theref ore, the City could

not negotiate or e nter into a contract with Landm a rk. H em phill also argued that, even though there is no precise caselaw addressing Section 31-7-13, there are AttorneyGeneral publicbidding opinions advi s i ng m u nicipalities that they are prohibited f rom securing additional
f unds af ter bids have been opened to negotiate o r enter i nto a contract w ith a bidder whose bid exceeds the project f unds by m ore than ten percent. S ee O p. M iss. Att’y Gen. 2012-
00195 ( April 20, 2 0 12); Op. Mi s s . A t t ’ y Gen. 98-0764 (Dec. 23, 1 998). Finally , H em phill argued that the City ’s decision to award the contract to La n d ma r k was arbitrary and capricious. ¶8. Af ter a h e aring, the circuit court held t hat the City ’ s award of the project to Landm ark did not violate state law, f inding that: [ t ] he purpose of [ M i ssissippi Code Section] 31-7-13(d)(iv) is to allow a governm e ntal entity to negotiate with the l owest bidder to bring the b id within the am ount o f f

unds allocated. In this case Clarksdale did not negotiate with Landm ark. Clarksdale obtained additional f unds f r om the MDA a n d the CPUC to m eet the lowest b id. The bid laws do n ot prohibit this, accordingly , Clarksdale’s actions were not im proper.

. . .

4From a policy perspective, the State L egislature has lef t the d ecision on when to rebid construction projects w i t h t h e l o cal governing authorities. [ Mississippi Code Section] 31-7-13 does not prohibit C larksdale f rom obtaining or allocating addit i o nal f

u n ds to m eet the lowest bid and since it does not, Clarksdale’s award of

the Contract to Landm ark was not im proper. ¶9. It is f

rom this O rder that H em

phill appeals. Hem

phill requests that this Court reverse and rem and f

or a trial on dam a ges. ISSUES ¶10. Hem

p hill f ram es the issue on appeal as f o llows:
W h ether the circuit court erred in not f i nding t hat Clarksdale violated Mis sissippi Code A nnotated Section 31-7-13 when the b ids subm itted by Landm ark and Hem

phill i n response to its Advertise me n t f or Bids exceeded the allocated/budgeted f

unds by m ore than ten percent (10%) a n d rather t han rejecting these bids and re-advertising, Clarksdale e l ected to secure additional f unding and awarded the contract to Landm ark. ¶11. Hem

p hill also argues that the City ’s decision to award the contract to Landm ark was arbitrary and capricious. The f

irst issue is case-dispositive.
STANDARD OF REVIEW ¶12. “Our analy sis begins with a determ ination o f the scope of review. Municipalities have only such powers as are e xpressly granted or necessarily im p lied by statutes. Such powers

are to be construed m ost strongly against an asserted right, if the r ight is not clearly given.”
Hem phill Constr. Co., Inc. v

. City of Laurel , 760 So. 2d 720, 723 ( Miss. 2 000) ( citing City of Jackson v. McMurry , 288 So. 2d 23 (Miss. 1974)). W hen the public bid laws do not expressly provide f

or the action taken by the m unici p a l i t y , the question becom es whether such action is “necessarily im plied.” Id. Only if the m unicipality ’s action was necessarily
im p lied by the statute is the m

unicipality ’ s action entitled to def e rence. Id.

5¶13. F o r q uestions of law, a m unicipal board’s decision is reviewed de novo. N e l s o n v . City of Horn Lake ex rel. Bd. of Alderm en , 968 So. 2d 938, 942 (Miss. 2007) (citing A &
F P rops., LLC v. Madison Cty. B d. of Supervisors , 9 3 3 So. 2d 2 96, 3 00 (Miss. 2006)). “Likewise, t his Court ap p l i e s a d e novo standard of review t o m atters r egarding statutory interpretation.” Weiner v. Meredith , 943 So. 2d 692, 694 (Miss. 2006).
DISCUSSION ¶14. The public-purchase laws concerning bidding requirem ents neither expressly grant,

nor clearly g i v e , a ny m

unicipality the power to award a contract, post-bid-opening, to a bidde r w h o s e b i d exceeded the allocated 3 project f u nds by m o re than ten p ercent, nor the
power to p rocure additional public f unds, pos t

- b i d

- o p e n ing, to award the contract to such bidder. Since there is no express grant or clearly given authority , the City

is lef t only with the dubious argum ent that its ultra vires acts were necessarily im plied by statute. The t erm “necessarily im

p lied” is som ewhat restrictiv e . “ N ecessarily im plied” ref ers to a l ogical n e cessity and m eans that no other i nterpretation is perm itted by the words of the instrum ent construed, and it h as been def ined a s an im p lication which y ields so strong a probability of intent that a ny intention to the contrary

cannot be supposed leaving no room f or doubt.
Miss. Pub. Serv. Com m ’n v. Colum bus & Greenville Ry. Co. , 573 So. 2d 1343, 1346 (Miss. 1990) (citing Strong v. Bostick , 420 So. 2d 1 356, 1361 (Miss. 1 982)). Such an argum ent is untenable, f

or it cannot be argued f

airly that its acts necessarily were im plied by statute. ¶15. The C ity a llocated public f unds to f inance a public construction project. The City then solicited sealed bids f

or the project. Landm ark and Hem p hill subm i tted seal e d bids. It is

3 A llo ca te : “1

. T o set asid e f o r a sp ecial p u r

p o se. 2

. T o d istrib u te acco r d in g to p l an : A L L O T .” Web ster’s II N ew C o lleg e D ictio n a ry 3 0 (2 0 0 1 ). 6undisputed that, af ter the bids were unsealed, both bids exceeded the original allocated f unds by m ore t han ten percent. Theref o re, the City was without statutory authority under Section
31-7-13 to award either bid. Notwithstanding, t h e City sought and procured additional public
f u n d s f o r the project, requiring Landm ark to hold its bid open, contingent upon the City ’s receipt of additional f

unding. The City t hen allotted the original allocated f unds, plus the newly procured public f

unds, to the project and accepted L andm ark’s b id. These s teps, taken af ter t he bids were opened, f rustr a t e t h e powers expressly granted, clearly given, or necessarily

im plied in the public-purchasing laws and r ender the ten-percent lim itation not only s uperf

luous, but m eaningless. “A construction which w ill render any p art of a statute inoperative, superf

luous, or m e aningless is to be avoided.” McCaffrey’s Food Market, Inc. v. Miss. Milk Com m ’

n , 227 So. 2d 459, 463 (Miss. 1969). ¶16. Mississippi Code Section 31-7-13(d)(iv) s p ecif ically provides that, i f the lowest and best bid is not m ore than ten p ercent above the am ount of f u nds a llocated f

o r a public construction project, then governing authority shall be perm itted to negotiate with the lowest bidder in order to enter into a contract f or an am o unt not to exceed the f unds allocated

. ¶17. In considering a statute passed by the Legislature, the f irst question a c ourt s hould decide is whether the statute i s am b iguous. If it is n ot am

biguous, the court should s im ply apply the statute according to its plain m eaning and should not use principles of statutory c onstruction. Wh ether the statute is a m b iguous or not, the ultim ate goal o f this Court is t o discern and give ef

f ect to the legislative intent.

7Miss. Ins. Guar. Ass’n v. Cole e x rel. Dillon , 954 So. 2d 407, 412-13 (Miss. 2007) (quoting
Miss. D ep’t of Transp. v. Allred , 928 So. 2 d 1 5 2 , 154 (Miss. 2 006)) (internal alterations

om itted). ¶18. Mississippi Code Section 31-7-13 (d)(iv) is unam biguous. I n its plainest term s, the

statute provides that an agency or governing a uthority ( here, the City ) shall be p erm itted to

“ negotiate

. . . to e nter into a contract ” if the “bid i s not m o re than t en percent (10%) above the am ount of

f u nds allocated

” f or the project. (Em

phasis added.) Three words/phrases in this statute ar e e x a mi n ed: ( 1) “f unds allocated,” (2) “negotiate,” and (3) “ enter into a contract.” Each word and phrase m ust b e read t o g e t h e r a n d given ef f ect. S ee Morgan v. State ex r el. Dist. Attorney , 44 So. 2d 45, 49 (Miss. 1950) (“[ E ] very word, sentence, phrase,

or clause in a statute m

ust b e given a m eaning, if possible, a nd t his rule is not avoided by the

use of t he aid to statuto r y c o n struction, ‘ ejusdem generis.’”). See a lso M cCaffrey’s Food Market, Inc. , 227 So. 2d at 463 (statutes “m ust be viewed or read a s an integrated whole, and the task of

the court is to f

i t, if possible, all parts of

a statute into a harm o nious whole.”) ¶19. The f

irst phrase, “f

u nds allocated,” is included twice in the statute. The term “f unds allocated” is in t he past te n s e and can o nly ref e r t o f unds that already have been allocated,

not f u nds to allot in the f

uture. The City ’s authority to “negotiate

. . . to enter into a contract”

was lim ited b y t h e a mo u n ts o riginally allocated f or the project, i.e. , b ef

ore the bids were opened. Based on the p l ain and precise langua g e o f t h e s t a t ute, the City was without

sta t u t o r y a uthority to negotiate, c onditionally a c cept, or enter into a contract with either Landm ark or Hem

phill based on the am ount of f unds that the C i t y h a d allocat ed when the

8bids were opened. B oth bids exceeded the f unds allocat ed f

or the p roject by m ore than ten percent, both when the bids were m ade and later opened. ¶20. Hem

p hill subm itted to the trial court a n Attorney General public-bidding opinion that recognized t his principle. W hile Attorney G eneral opinions are not binding on this Court, “they certainly are usef

ul in of f ering guidance to the C ourt.” Jones Cty. S ch. Dist. v. Dep’t of Revenue , 111 So. 3d 588, 602 (Miss. 2013) (citing S helter Mut. Ins. Co. v. Dale , 914 So. 2d 6 98, 703 (Miss. 2005)) (citations om itted). In 2012 , t h e A t torney General w as asked whether the am o unt of f

unds allocated f

or a project m a y be determ ined af ter bids have been received. The Attorney

General opined that:

a de t e r m i nation a s to the am ount of the f unds allocated, a s c ontem plated in Section 3 1-7-13(d)(iv), is a f actual determ ination to be m a de by the p ublic entity seeking to procure the construction contract. W h ile there is no specif ic statutory provision directing a public entity as to whether the determ ination is to be m ade prior to t he solicitation of bids or m ay b e m ade af ter bids are received, s u c h determ ination as to the am ount o f f unds available f

or the procurem ent of the p roposed construction contract should be m ade prior t o the solicitation o f bids. In f ac t , t h e t e r m “allocated” i s i n the past tense and presum es that the allocation has already been com

pleted. Op. Miss. Att’y G en. 2012-00195 (April 20, 2012) ( em phasis added). The Attorney General
f urther opined that o n ly the f unds that the public entity c ontem plated using f

or the
procurem e nt of the construction contract m ay be c onsidered to trigg e r its authority to negotiate with the lowest and best bidder under Mississippi Code Section 31-7-13(d)(iv). ¶21. The City unconvincingly counters t hat Mississippi Code Section 31-7-13 applies only when t he governing authority “negotiates” w ith the lowest bidder. The City a r g ues that Mississippi Code Section 31-7-13(d)(iv) does not a pply i n this case because i t “did not

9n egotiate with L andm ark nor did it change the plans and specif i cations s et f

o rth in t h e Advertisem e nt to allow f

or negotiations.” The City ’s actions belie its words. ¶22. Clarksdale conditionally accepted Landm ark’s b i d b e f o re awarding Landm ark the

contrac t

. Clarksdale’s a ction required Landm ark t o keep its b id open if a nd until (1) Clarksdale c ould acquire additi onal CDBG m atch f unds, ( 2) Clarksdale could acquire

a dditional CPU m atch f

unds, (3) approval was given by the Mississippi De v e l o p me n t Authority , and (4) the City a ttorney reviewed and approved the transaction. Despite the delay created by the City ’s c onditional acceptance, Landm a rk reciprocated by leaving its bid open f or an uncertain tim e . Wh i l e t h e C ity argues that it did not negotiate with Landm ark, one need n ot m odif

y a construction plan or change advertisem ent specif ications to “ negotiate.” Indeed, “negotiate” is d e f ined as f ollows: “to transact business,” “to conf er with another so

as to com e to term s or reach an agreem e n t , ” or “to s ettle o r arrange b y conf erring or discussing.” Negotiate , W ebster’s II New College Dictionary 732 (2001). ¶23. Assum ing arguendo t hat t he City did not negotiate w i t h L a n d ma r k , the applicable

statute states that a gover n i n g a u t hority “shall be perm itted to negotiate with the lowest bidder in o rd

e r t o e n t e r i n to a c ontract for an amount not to exceed the funds allocated .” Miss. C ode Ann. § 3 1-7-13(d)(iv) (em phasis added). I n reading the statute “as an integrated whole,” 4 a s we m

ust, i t is abundantly clear that the statute does not apply e x c l u s i v ely to negotiation authority , f

or the a uthority to “negotiate” is predicated on the author i t y a l so to “enter into a contract.” Miss. Code Ann. § 3 1-17-3(d)(iv). Because both b ids exceeded ten

4 M cC a ffrey’s F o o d M a r k et, In c. , 2 2 7 S o . 2 d at 4 6 3

.

1 0p e r c e n t o f t h e f unds allocated, the City had no authority to “negotiate

. . . to enter into a contract” with either bidder. ¶24. Next, the C ity argues that, “if the Legislature did not want a m unicipality to have the option to obtain additional f unding, it would have prohibited it.” The City then asserts that “it is r easonable to infer ” that it had such statutory a uthority

. Such an argum ent e xposes the invalidity of the actions taken by the City

. The City d id no t have authority to procure additional f

unds post-bid-opening, f

or m unicipal p owers “are to be construed m ost strongly against an asserted right, if the right is n ot clearly given .” Hem phill Constr. Co., Inc , 760
So. 2d at 723. The C ity unconvincingly u rges this Court t o hold the opposite, arguing that, because t he right to p rocure additional f unds post-bid-ope n i n g w a s n o t clearly given, it is

r e asonable t o inf

er it had such authority

. Such a conclusion directly conf licts wi t h t h i s Court’s precedent and the body of statutory law that grants m

unicipal entities their publicpurchasing authority

. ¶25. Finally , the C ity a rgues that its ultra vires acts were consistent with t h e p r inciples behind the public-purchasing l aws because it awarded the public contract “to t he lowest and best bidde r . ” T h i s Court previously has rejected this very sam e a rgum ent. In Hem phill
Construction Co. Inc. , Harold W e st Contractors, Inc., (“W est”) subm i tted t he lowest bid f or

a construction project and l ater was allowed to am e nd its bid price af ter the bids already had been opened. Hem

phill , 760 S o. 2d at 7 22. W est was t he lowest bidder bef ore and af ter the bid am endm ent, so the City o f Laurel chose t o award the contract to W est. Id. at 7 23. The losing bidder (Hem

p hill) appealed, arguing that Laurel was not authorized by statute to allow

1 1a bid to be am ended post-opening. Id. Laurel responded t hat, because t he contract recipient

ultim ately was the lowest bidder both bef ore and af ter the b id correction, the overall purpose ( i.e. , “spirit”) of

the public-bidding laws was m et in those circum stances. Id. at 724. This
Court r ejected Laurel’s argum ent, holding that i ts “decision [ was] not intended to im pute any culpable wrongdoing by the City of Laurel o r W est.” Id. “W hile the City m ay be

com f o rt a b l e w i th its decision in this instance, however, the broader public w ill l ose in the long run if

the public purchase laws are circum vented.” Id. ¶26. The f

oundational principles underly ing the s t atutory re q u i r e me n t s o f c o m petitive bidding n e gate a ny inf

erence that the City could obtain additional public f u nds post-bid opening. S uch a c oncocted procedure does not “protect the public f rom collusive contracts,”

or “prevent f

avoritism , f

raud, extravagance, and im providence.” Id. Furtherm o re, i t d o e s
not “prom ote actual, honest, a n d ef f ective com

petition” a nd it certainly does not allow

contracts t o “be secured at the lowest cost to taxpay ers.” Id. Indeed, the City increased the expenditure of public f

unds by m ore than $200,000. The City ’s argum ent t hat “the public’s interests w ere p r otected because the contract was awarded to the lowest b i d der,” is unavailing. As this Court stated in Hem phill C onstruction Co., Inc. , “the broader public will lose in the long run if the public purchase laws are circum vented.” Id. at 724.

CONCLUSION ¶27. The C ity was without statutory authority to procure additional p ublic funds post-bidopening to award the con t r a c t t o Landm ark, f or i ts bid e x ceeded ten percent of the public
f unds allocated f

or the project. W e hold that the circuit court erred in af f i rm ing the City ’s

1 2decision to award the contract to Landm ark. Accordingly , the Court reverses the j udgm ent

of t he Coahom a County C ircuit Court and rem ands the case f or proceedings c o nsistent with this opinion. ¶28. REVERSED AND REMANDED. WALLER, C.J., COLEMAN, MAX WELL, BEAM AND C HAMBERLIN, JJ., CONCUR. ISHEE, J . , D I S S E N T S W I T H S E P A R A T E W R I T T E N O P I N ION JOINED BY KITCHENS, P.J., AND KING, J. ISHEE, JUSTICE, DISSENTING: ¶29. The m ajority holds that Mississippi Code Section 31- 7

- 1 3(d)(iv) precludes a governing authority f

r om procuring additional f unding f or a public-construction project af ter the opening of sealed bids. (Maj. Op. ¶ 27). I would f ind there to be no such preclusion. Accordingly , I m

ust respectf

ully dissent. ¶30. Section 31-7-13, Hem phill argues ( and the m ajority agrees) required the City to reject both bids because they b o th were ten percent m ore than the original am ount allocated f or the project. But Clar ksdale argues that, w hile t he text of Section 31-7-13(d)(iv) grants a

m unicipality t he d iscretion to negotiate unde r c e r t a in circum stances, it does nothing to prevent a governing authority f r o m securing additional f

unding. Af

t er exam ining the text of the statute, I agree. ¶31. My agreem ent with Clarksdale’s position is based on the text of the p rovision, which provides that i f the bid is n ot m or e than ten percent higher than the am ount (originally ) allocated, a governing a

uthority “ shall b e permitted to negotiate wi t h t h e lowest bidder in order to enter i nto a contract f or an am o unt not to exceed the f unds allocated.” Miss. Code

1 3Ann. § 31-7-13(d)(iv) (Supp. 2017) ( em phasis a dded). A plain reading of the t ext conf i rm s that this statute a

pplies only when the governing authority negotiates with the lowest bidder.
To negoti a t e me ans “ [ t]o com m unicate with another party f or the purpose of reaching an

u n d e rstanding[ ,]” or “[ t]o bring about by discussion or bargaining[ .]” Negotiate , Black’s
Law D ictionar y ( 1 0 th e d. 2014). Here, nothing i n the record indicates that the governing authority (the C ity ) undertook any action which r esem bled “negotiations” w ith H em phill or Landm ark. Neither discussions n or bargaining took place with e ither party post-bid; the City sim ply obtained f

u n ding to m eet the lowest bid. ¶32. Absent f

rom the text o f the statu t e , h o w e v e r , i s any language which prohibits a governing authority f

rom obtaining additional f u n d i n g t o pay f

or a public p roject. To be

sure, when reading the t ext of Section 31-7-13(d)(iv), i t is reasonable t o inf e r that i f all of the sub mi t t ed bids exceed the f unding a governing authority possesses f or a p roject, the governing authority in that instance has no choice but to reject all bids, as it sim ply could not
pay the price of the bid. However, if all bids exceed the b udgeted am o unt f or a project, but the governing authority can procure additional f unding, there i s s im

ply nothing in the text of the statute that prohibits it f rom doing so. ¶33. In support o f its f inding that Section 3 1

- 7

- 1 3 ( d ) ( i v ) p r e c l u d e d Clarksdale f rom obtaining additional f

unding, the m ajority re asons that t he allocated a m ount is to be determ ined bef

ore b i d solicitation. (Maj. Op. ¶ 20). In d oing so, the m ajority cites an opinion o f the A ttorney General that—ironically e n o u g h

— states that, while the f unding determ ination should be m ade bef ore bids are solicited, “ there is no spe c i f i c s t a tutory

1 4provision directing a public entity as to whether the determ ination i s to be m ade prior to the

solicitation of bids or m ay be m ade af ter b ids a r e r e c e i v e d .” Op. Miss. Att’y Gen. 2012-
00195 (April 20, 2012) (em phasis added). So, w hile that Attorney Genera l ’ s o p inion suggests that it m ay be a w i s e and pref erable policy to require such d eterm ination bef ore solicitation, it also sim

ultaneously

reinf orces m y position that no statute dem ands such. ¶34. For t he reasons stated a b o v e , i n t h e end, I w o uld af f irm the City ’s award of

the contract to Landm ark. I respectf ully dissent. KITCHENS, P.J., AND KING, J., JOIN THIS OPINION.

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