A "state of emergency" or "local emergency" as defined in
Miss. Code Ann. §
33-15-5(f) and
(g), must exist for such a procurement to be
considered an emergency purchase by the Commission. In accordance with Miss.
Code Ann. §
33-15-17(b)
(1972), as interpreted by the Mississippi
Attorney General (Op. No. 2002-0393, August 9, 2002), when any disaster occurs
and has been declared in accordance with law, local governments have the power
to enter into contracts and incur obligations "necessary to combat such
disaster, protecting the health and safety of persons and property, and
providing emergency assistance to the victims of such disaster." This power
extends to the purchase and rental of equipment as well as the purchase of
supplies and materials "without regard to time-consuming procedures and
formalities prescribed by law" pertaining to such procurement.
1.
Emergency Procurements
by Local Governments: The Commission recognizes that the
emergency management law, Miss. Code Ann. §
33-15-17(b)
(1972), is the controlling authority and
governs wireless communication purchases by local governments during declared
emergencies under §
33-15-1 et
seq. so long as emergency conditions giving rise to the need for the purchase
(combat of the disaster, protection of health and safety of persons and
property, and providing emergency assistance to disaster victims) remain in
place. When such emergency needs for wireless communication procurement no
longer exist, the emergency authority to procure such equipment without
compliance with other applicable state law ends as well.
2.
Emergency Procurements
by State Agencies: With regard to state agency emergency
procurement, the Emergency Management Law, Miss. Code Ann. Section
33-15-1
l(b)(17)(l) (1972), requires that the Governor suspend provisions of state
laws, rules or regulations prescribing procedures for the conduct of state
business before such procedures may be dispensed with. He may do this if strict
compliance with the provisions of such procurement statutes, orders, rules or
regulation would "in any way" prevent, hinder or delay necessary action in
coping with a disaster. When the Governor exercises this authority to suspend
public procurement laws for state agencies, the Commission recognizes that the
Governor's Order regarding such suspension is the controlling authority and
governs wireless communication purchases for the duration of his order. When
the Governor lifts the suspension of these rules, the emergency authority to
procure such equipment without compliance with other applicable state law ends
as well.
3.
Reporting Requirements for Emergency
Procurements: The Commission requires that any state agency
or local government procuring wireless communication technology, as defined
herein, under the authority of Miss. Code Ann. §
33-15-17(b)
or the exercise of the Governor's authority under 33-15-1 l(b)(17)(l) (1972),
follow the state and federal laws otherwise applicable. The Commission directs
the purchasing entity to strongly consider a temporary solution to the
emergency need for wireless communication, to be followed by a competitive
process for the selection of a permanent solution in accordance with all
applicable statutes and the Commission's rules. For emergency purchases of
wireless technology costing more than $100,000, the purchasing entity also
shall, within thirty days of the acquisition, inform the Commission of such
emergency purchase or rental, the precise nature of the emergency necessitating
the purchase or rental, the exact equipment purchased or rented and its cost.
