Mississippi Administrative Code › Title 36 - Technology › Part 2 - Information Systems Services › Chapter 1 - ITS Roles in IT Procurement › Rule 36-2-1-201.7 - 001-070 Index to Attorney General Opinions

Current through June 25, 2024
Opinion Date AG DOC Number Requestor, if other
							 than ITS
Subject
Opinion
February 9, 2011
2011-00001
September 9, 1980
1980-00001802
Federal law takes precedent over State
							 Law
2/9/11: The court concluded that, if a conflict
							 exists between a federal regulation and a provision of state law, then the
							 conflict must be resolved in favor of the federal regulation.
9/9/80: The court concluded that where a state
							 participates in federal programs, it is bound by those regulations even though
							 state law, with regard to a particular matter, may be to the
							 contrary.
August 20, 2010
2010-
ITS Responsibilities in purchase of GIS by local
							 governments
ITS' role under 25-58-1 (4) is NOT formal proposal
							 evaluation and recommendation of lowest & best proposal. ITS is responsible
							 for reviewing proposed solutions with the view of leveraging previous
							 expenditures.
May 15, 2009
2009-
Local zoning ordinances and Towers for
							 MSWIN
Government entities are subject to municipal and/or
							 county zoning ordinances aimed at public safety;
A municipality or county may not enact an ordinance
							 that would prohibit the WCC from fulfilling its statutory obligations;
A municipality or county has an obligation to grant
							 such exceptions to their ordinances as necessary to permit the WCC to fulfill
							 its statutory obligation of implementing a statewide wireless communication
							 system.
September 22, 2006
2006-0457
Cooperative Purchasing Agreements
ITS may adopt rules and procedures for submitting
							 cooperative purchasing agreements for approval by DFA to be utilized by ITS on
							 behalf of agencies and institutions of the state.
May 5, 2006
2006-00159
DFA
Cooperative Purchasing Agreements
DFA may adopt as its own purchase agreements the
							 cooperative agreements developed by other states and local
							 governments
April 14, 2006
2006-00125
ITS Board: Holdover in office
ITS code does not provide any authority for an ITS
							 board member to hold over in office until a successor is appointed. (Note: ITS
							 Statute amended to allow a Board member to continue to serve until a successor
							 has been appointed.)
January 25, 2006
2006-0030
DFA
Contract Clauses: Indemnity and related
							 matters
Absent express or implied authority, an agency
							 cannot indemnify or hold harmless a contractor for liability arising from the
							 contractor's performance or negligence; State may affirmatively acknowledge its
							 potential liability under the Tort Claims Act; Limitation of liability
							 provisions are unenforceable except in one instance in which Legislature has
							 provided express authority to ITS Executive Director.
November 30, 2004
2004-0572
Cooperative Purchasing Agreements
ITS has the authority to establish reasonable rules,
							 regulations, and procedures to effect the utilization of cooperative purchasing
							 agreements as provided in Section
							 31-7-13(m)
							 (xxix) for information technology
							 purchases.
August 22, 2003
2003-0411
Tunica County School District
Unsealed Bids and Other Irregularities or Technical
							 Deficiencies
Irregularities that can be waved generally have the
							 following characteristics:
1. Mandatory statutory provisions are not
							 violated.
2. Irregularity does not in any way destroy the
							 competitive character of the bid.
3. Irregularity has no effect as to the amount of
							 the bid.
4. Irregularity does not give one bidder an
							 advantage or benefit over other bidders.
Sealed bid requirement is statutory and cannot be
							 waived.
A domestic corporation must be duly incorporated and
							 in good standing with the Secretary of State's office to be awarded a
							 bid.
May 16, 2003
2003-0203
Purchase of MS EdNet Services by State
							 Agencies
ITS can include EdNet services in the category
							 ""technology services furnished to state entities by other governmental
							 entities," thus exempting these acquisitions from the requirement for
							 competitive bids (MS Code Section
							 31-7-13(m)(vi))
							 and from ITS approval (ITS Procurement Handbook)
October 4, 2002 2002-0534
April 12, 2002 2002-0153
March 16, 2001 2001-0139
ITS Purview over Community Colleges
10/4/02: Only IT equipment purchased by Community
							 Colleges using funds from local tax levies are under ITS purview;
4/12/02: Expenditures of tax proceeds by Community
							 Colleges for IT purchases are under ITS purview;
3/16/01: Community Colleges, as agencies of local
							 government, are not under ITS purview.
December 15, 2000 2000-0684
Insurance Requirement for Public Works
							 Contracts
$1 million insurance requirement does not apply
							 generically to IT projects, but could apply to specific contracts, such as
							 outside cabling plants
August 25, 2000 2000-0442
E-Government Business Models and Bid
							 Requirements
1. ITS can establish infrastructure standards that
							 must be utilized by all agencies.
2. ITS can require competitive award for
							 e-government services, regardless of the dollar amount.
3. The selling of advertising on the state's
							 websites is not permitted without specific statutory authority; ITS can approve
							 contracts funded by commercial ads on a vendor's web site.
4. ITS cannot approve fee-added internet services as
							 the ONLY way in which citizens can conduct business with a state agency.
5. An agency cannot sell its records for a profit;
							 an agency cannot authorize any entity to be the exclusive recipient or provider
							 of public data.
June 20, 2000
2000-0270
Hinds County
Online Services for County Governments
The AG's office strongly encourages competitive bids
							 for acquisition of web-based e-government services by
counties
, although advertising for bids is not
							 required; Counties are authorized to charge consumers a user fee for
							 e-government services;
September 3, 2010 2010-00123
IT Services for Governing Authorities
The AG's office recommends soliciting competitive
							 bids or proposals for the acquisition of IT services by governing authorities,
							 even though there are no competitive requirements in law.
December 10, 1999
1999-0573
Library Commission
Grants of Obsolete Computer Equipment to Nonprofit
							 Organizations
Library Commission cannot loan or assign computer
							 equipment except to governmental entities but may loan or assign equipment to
							 such nonprofit community centers as may qualify as libraries. Commission can
							 define as a library any Mississippi organization providing a service to the
							 public that is being provided by a significant number of recognized libraries
							 in the US, including providing computers for public access for research and
							 Internet access.
June 12, 1998
1998-0342
Dollar Threshold for Competitive, Advertised
							 Bids
Narrow
interpretation of MS
							 Code Section
							 25-53-5(p),
							 ITS use of law/regulations governing DFA-OPTFM (public purchasing); ITS cannot
							 use DFA-OPTFM bid limit of $10,000; (Note: ITS statute amended in 1999
							 Legislative Session to tie bid limit directly to limit in public purchasing
							 law.)
May 29, 1998 1998-0288
Disclaimer of Implied Warranties
Vendors can limit or disclaim implied warranties in
							 offering computer hardware and software to the State through ITS; ITS can,
							 however, require implied warranties of merchantability and fitness for a
							 particular purpose in any RFP.
June 20, 1997
1997-0362
ITS and State Board of Community and
Junior Colleges
Use of State Information Technology Services by
							 Private Entity
Is it legal for a non-public entity to connect to
							 the compressed video backbone network and deliver educational and training
							 services to their constituents? Opinion reiterates 5/10/96 opinion
							 below.
May 10, 1996 (not online)
Access to State-Provided Technology Resources
							 (Internet access via an IHL's frame relay connection) by Parochial
							 School
State owned technology services can be used by a
							 private entity only when (1) such services are not readily available otherwise
							 in the state; and (2) the nonstate entity pays a charge not less than the
							 prevailing rate for similar services charged by private enterprise.
September 13, 1994
1994-0588
State Agency's Right to Transfer Ownership of
							 Developed Software to Vendor
Sale is permissible in exchange for fair value.
							 Contract must determine ownership of the software. Software belongs to the
							 developer in the absence of contract language to the contrary.
June 6, 1994
1994-0305
Certificate of Responsibility Requirement for
							 Vendors Installing or Maintaining Telecommunications and Computer Equipment and
							 Cabling
A contract primarily focused on the purchase of
							 telecommunications or computer equipment that will merely be installed or
							 subjected to routine maintenance probably does not fall within the public
							 projects category necessitating a Certificate of Responsibility.
June 6, 1994
1994-0281
Management and Distribution of Pay Telephone
							 Commissions by ITS
ITS is the sole centralized customer for the
							 acquisition, billing, and record keeping of all telecommunications systems or
							 services provided to state agencies. The law does
not
mandate that
							 payment of telephone commissions for the Department of Corrections be made
							 directly to the Inmate Welfare Fund, rather than be distributed by ITS to the
							 Department of Corrections, less ITS' costs.
July 2, 1993
1993-0440
Sole-Source Acquisitions
Sole source acquisitions of software can be made
							 under ITS' statutory authority to defer to state purchasing laws for
							 telecommunications acquisitions. (Note: ITS statute later amended to add
							 language re access to public purchasing laws in the "data processing" portion
							 of ITS code.)
March 24, 1993
1993-0229
Community College Purchase Using Federal
							 Funds
The purchase of computer equipment by community
							 colleges using federal funds administered through the State Vocational
							 Education Board are exempt from ITS purview under Section
							 25-53-25(3).
							 The administration of the funds by a state board does not negate this
							 exemption.
March 3, 1993
1992-1023
Municipal Energy Agency of MS
Limitation of Liability
Limitation of liability clauses in contracts (prior
							 to ITS statute allowing limitation)
April 3, 1992
1991-0922
Software Developed by the State as Public
							 Record
Software is not data but a tool to collect
							 information. Programs developed by the State are its intellectual property. To
							 the extent that software contains confidential file access information,
							 software is not subject to disclosure under public records statute.
July 5, 1990
1990-0485
Mississippi Gulf Coast Community College
Telephone Service in Student Dorms
Community College cannot allow vendor to contract
							 directly with and supply services to students in dorms on college-owned lines.
							 Per MS Code, ITS must approve or provide telephone services to students at
							 state community colleges on a reimbursable basis. There is no requirement that
							 ITS approve or provide telephone services to college employees, who can
							 contract directly with vendor for telephone service in college-owned
							 housing.
March 30, 1990
1990-0187
Purchase of software from a state employee by a
							 state entity via an ITS RFP
Allows a state employee to contract with any entity
							 other than the one at which he is employed, as long as proposal is lowest and
							 best.
March 7, 1989
1989-076
Bids as Public Records
To the extent proposals contain trade secrets or
							 confidential commercial or financial information, they are protected and are
							 not subject to release until the provisions of the Public Records Act requiring
							 notice to 3rd parties and opportunity for a protective court order are complied
							 with. Otherwise, nothing prohibits access to bid information, either during the
							 evaluation process or after the award.
November 11, 1988
In re Miss. Jud. Information
							 Sys
., 533 So. 2d 1110, 1111 (Miss. 1988)
Supreme Court Declared Not Under ITS
							 Purview
"The judicial department of the government of this
							 state is not subject to the authority or regulations of [ITS]."
25-53-1, et
				  seq