How does a Mississippi county board buy emergency E-911 equipment without competitive bidding, and can it sign a 7-year contract?

Plain-English summary

Madison County's E-911 system was failing. Equipment was inoperable, replacement parts were unavailable, and standard procurement attempts had been unsuccessful. Citizens' ability to reach emergency services was at risk. The Board's attorney asked the AG how the Board could move forward.

The AG broke the answer into the requested questions:

1. What steps for emergency purchase? Once the Board declares an emergency under § 31-7-1(f), the procedures of § 31-7-13(k) apply. The Board's designated officer or agent makes the purchase or repair, certifies in writing from whom and the nature of the purchase, and at the next board meeting documentation including a description of the commodity, the price, and the nature of the emergency must be presented and placed on the minutes. Competitive bidding does not apply.

2. Can the County purchase equipment with a 7-year life? Yes, with a caveat. Equipment that lasts seven years is fine. But the request seemed to contemplate not just buying equipment but also entering a long-term service and maintenance agreement. Such an agreement, if it extends past the current Board's term, would bind successor boards without specific statutory authority. That makes the contract voidable by the next Board.

3. Are new quotes required? No. Section 31-7-13(k) waives competitive bidding for emergency purchases, so a county doesn't need to refresh a year-old quote to qualify.

The AG also flagged a structural reminder: the AG cannot decide whether the situation actually constitutes an "emergency" under § 31-7-1(f). That is a factual finding the Board has to make, subject to State Auditor review and ultimately court review. The AG provides legal guidance based on an assumed valid emergency declaration.

The opinion notes a useful distinction in the statute: § 31-7-13(j) (state agencies) caps emergency contracts at one year, but § 31-7-13(k) (governing authorities like counties) has no such cap. Counties have more flexibility on emergency contract length. The successor-board doctrine is the more significant constraint.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Mississippi public procurement is governed by Title 31, Chapter 7 of the Code. Section 31-7-13 is the core: it requires competitive bidding for purchases above specified thresholds, with several exceptions. Subsection (k) is the emergency exception for governing authorities (counties, municipalities, special districts):

If the governing authority, or the governing authority acting through its designee, shall determine that an emergency exists in regard to the purchase of any commodities or repair contracts, so that the delay incident to giving opportunity for competitive bidding would be detrimental to the interest of the governing authority, then the provisions herein for competitive bidding shall not apply and any officer or agent of such governing authority having general or special authority therefor in making such purchase or repair shall approve the bill presented therefor, and he shall certify in writing thereon from whom such purchase was made, or with whom such a repair contract was made. At the board meeting next following the emergency purchase or repair contract, documentation of the purchase or repair contract, including a description of the commodity purchased, the price thereof and the nature of the emergency shall be presented to the board and shall be placed on the minutes of the board of such governing authority.

The procedural picture is: emergency declaration, designated officer purchases or contracts, written certification of from whom and what, documentation presented at next Board meeting and placed on minutes.

Section 31-7-1(f) defines "emergency" broadly:

"Emergency" means any circumstances caused by fire, flood, explosion, storm, earthquake, epidemic, riot, insurrection or caused by any inherent defect due to defective construction, or when the immediate preservation of order or of public health is necessary by reason of unforeseen emergency, or when the immediate restoration of a condition of usefulness of any public building, equipment, road or bridge appears advisable, or in the case of a public utility when there is a failure of any machine or other thing used and useful in the generation, production or distribution of electricity, water or natural gas, or in the transportation or treatment of sewage; or when the delay incident to obtaining competitive bids could cause adverse impact upon the governing authorities or agency, its employees or its citizens . . . .

The "delay incident to obtaining competitive bids could cause adverse impact" prong is the most flexible and fits a failing E-911 system fact pattern.

The successor-board doctrine is a separate constraint. The Mississippi Supreme Court has long held that a board of supervisors cannot bind successor boards to a contract beyond the current term without specific statutory authority. The AG cites Carnathan (Nov. 29, 2005) for the rule. So an emergency-procurement multi-year service contract, even if validly entered without competitive bidding, may be voidable by the next Board if it extends past the current term.

The state-vs.-county distinction in subsections (j) and (k) is worth flagging. Section 31-7-13(j) limits state-agency emergency contracts to one year. Section 31-7-13(k) (counties and other governing authorities) has no equivalent cap. So the term-length problem for counties is the successor-board doctrine, not a statutory cap.

The AG declined to make any factual determination about whether the situation actually constitutes an "emergency." That call belongs to the Board, subject to State Auditor review and ultimate judicial scrutiny. The AG cites Chiles (Aug. 31, 2018) for this allocation of decision-making.

The AG also notes it "contacted the Mississippi Wireless Communications Commission and confirmed that E911 equipment and services do not fall under its purview." This avoids the alternative argument that emergency E-911 procurement should go through a different state regulatory channel.

Common questions

Q: How long can an emergency purchase contract last for a county?
A: There is no statutory cap in § 31-7-13(k). The constraint is the successor-board doctrine: contracts extending past the current Board's term may be voidable. So practical maximum is the current Board's term, unless specific statutory authority allows longer.

Q: What if the Board's term ends in two years and the equipment has a seven-year life?
A: Buying equipment outright is fine; the equipment becomes county property. The problem is service or maintenance contracts that purport to bind successor boards. A successor Board can void those.

Q: Can the Board structure the contract differently to avoid the successor-board problem?
A: Possibly. Annual renewal options, separable service agreements, or termination-for-convenience clauses can give successor boards a clean exit. The opinion does not prescribe a structure; legal counsel can design one.

Q: What evidence supports an "emergency" determination?
A: Documentation that delay would harm public welfare. For E-911: outage records, parts unavailability, failed procurement attempts, public-safety risk assessments. Spread the determination on the Board's minutes with this evidence.

Q: Does the State Auditor review every emergency purchase?
A: Not in real time, but emergency purchases attract audit attention. A well-documented determination is the defense against audit findings.

Q: Does this analysis apply to municipalities?
A: Yes, § 31-7-13(k) covers "governing authorities" generally, which includes municipalities. The same emergency framework applies.

What this means for you

For county supervisors facing an emergency purchase:
1. Spread the emergency determination on your minutes, with specific facts (failure, risk, urgency)
2. Designate an officer or agent to make the purchase or contract
3. Get written certification of from whom and what nature
4. Present documentation at the next Board meeting and place it on minutes
5. Limit any service or maintenance contract to your current term, or build in successor-board exit options

For county attorneys: Build a template emergency-purchase resolution that captures the § 31-7-1(f) factual basis, the § 31-7-13(k) procedural commitments, and successor-board protective language. Your client supervisors will need this in real time when the next emergency hits.

For emergency services directors: Document failure modes, parts unavailability, and procurement-attempt records as you go. When you need to invoke § 31-7-13(k), having the facts ready saves time and strengthens the legal basis.

For State Auditor staff: Review emergency-purchase records for the four pieces (determination, designation, certification, post-meeting documentation). Successor-board overreach (multi-year service contracts beyond current term) is a separate flag.

For E-911 vendors: Understand that long-term service contracts with Mississippi counties may be voidable by successor boards. Build flexibility into your contracts (annual renewals, termination-for-convenience clauses) so customers know what they are signing.

Citations and references

Statutes:
- Miss. Code Ann. § 7-5-25 (AG opinions for future guidance, not factual determinations)
- Miss. Code Ann. § 31-7-1(f) (definition of "emergency")
- Miss. Code Ann. § 31-7-13(d)(I) (life-cycle costs may be considered in lowest-and-best bid)
- Miss. Code Ann. § 31-7-13(j) (state agency emergency contracts capped at one year)
- Miss. Code Ann. § 31-7-13(k) (governing authority emergency procurement procedure, no statutory term cap)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2020/07/M.Espy_January-31-2020-Emergency-Purchase-by-Board-of-Supervisors.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Lynn Fitch
ATTORNEY GENERAL
OPINIONS DIVISION

January 31, 2020

Mike Espy, Esquire
Attorney, Board of Supervisors of Madison County
Post Office Box 608
Canton, Mississippi 39046

Re: Emergency Purchase by Board of Supervisors

Dear Mr. Espy:

Attorney General Lynn Fitch has received the opinion request of your predecessor, the Hon. Katie Bryant Snell, which was assigned to me for research and reply. By email dated January 28, 2020, you provided our office with formal notice to proceed with the issuance of our opinion in response to that previous request.

Questions Presented

By request dated December 16, 2019, the Hon. Katie Bryant Snell, in her capacity as counsel for the Madison County Board of Supervisors, inquired regarding the process by which the Madison County Board of Supervisors may purchase a replacement E-911 system. Citing to inoperable equipment, the unavailability of parts and replacement equipment and previous unsuccessful attempt(s) to complete a standard procurement of a replacement E-911 system, all of which could impair the county's ability to respond to emergency calls from its citizens and visitors, the request indicated a declaration of emergency was warranted, stating "we believe that this situation constitutes an emergency." Accordingly, our opinion is predicated upon an existing declaration of emergency by the Board of Supervisors pursuant to Section 31-7-1(f) of the Miss. Code Ann.

Specifically, your request poses the following questions:

1. If we declare an emergency, what steps do we have to follow in our purchase of this equipment?

2. If we declare an emergency, may we purchase the equipment with the 7-year life? The purchase law provides that life-cycle costs may be included in the determination of lowest and best bid. Miss. Code Ann. Section 31-7-13(d)(I).

3. If we declare an emergency, would we have to request new quotes since the original quotes are now more than one year old?

Response

Pursuant to the authority granted to this office in Section 7-5-25 of the Mississippi Code, official opinions of the Attorney General are limited to questions of law for future guidance. Furthermore, opinions of this office may not be issued which require our office to make factual determinations. Therefore, to the extent that your inquiries require this office to make determinations which exceed the limitations established in Section 7-5-25, we decline to respond to your inquiry by way of official opinion and provide the following for your future guidance.

1. Pursuant to Section 31-7-13(k) of the Miss. Code Ann.,

If the governing authority, or the governing authority acting through its designee, shall determine that an emergency exists in regard to the purchase of any commodities or repair contracts, so that the delay incident to giving opportunity for competitive bidding would be detrimental to the interest of the governing authority, then the provisions herein for competitive bidding shall not apply and any officer or agent of such governing authority having general or special authority therefor in making such purchase or repair shall approve the bill presented therefor, and he shall certify in writing thereon from whom such purchase was made, or with whom such a repair contract was made. At the board meeting next following the emergency purchase or repair contract, documentation of the purchase or repair contract, including a description of the commodity purchased, the price thereof and the nature of the emergency shall be presented to the board and shall be placed on the minutes of the board of such governing authority.

2. Yes, provided the Board makes the requisite finding and abides by the emergency procedures set forth in Section 31-7-13(k), the County may purchase equipment with a seven (7) year life. However, based on your submissions to this office it appears that the County is not simply purchasing equipment with an expected life of seven (7) years, but also wishes to enter into a long-term agreement for the maintenance and service of an E-911 system that would bind successor boards without specific statutory authority. As a result, any such agreement would be voidable by successor boards.

3. No, new quotes would not be required by law as requirements for competitive bidding do not apply to emergency purchases under Miss. Code Ann. Section 31-7-13(k).

Applicable Law and Discussion

"Emergency" is defined in Section 31-7-1 as:

(f) "Emergency" means any circumstances caused by fire, flood, explosion, storm, earthquake, epidemic, riot, insurrection or caused by any inherent defect due to defective construction, or when the immediate preservation of order or of public health is necessary by reason of unforeseen emergency, or when the immediate restoration of a condition of usefulness of any public building, equipment, road or bridge appears advisable, or in the case of a public utility when there is a failure of any machine or other thing used and useful in the generation, production or distribution of electricity, water or natural gas, or in the transportation or treatment of sewage; or when the delay incident to obtaining competitive bids could cause adverse impact upon the governing authorities or agency, its employees or its citizens; or in the case of a public airport, when the delay incident to publishing an advertisement for competitive bids would endanger public safety in a specific (not general) manner, result in or perpetuate a specific breach of airport security, or prevent the airport from providing specific air transportation services.

From your request, we assume for the purpose of providing this opinion that the Board has made, or will soon make, a finding, consistent with fact and spread across its minutes, that the situation constitutes an "emergency" as defined by Miss. Code Ann. Section 31-7-1(f). This office cannot make the factual determinations that would either justify or call into question the county's determination that the situation described constitutes an "emergency" as defined by Section 31-7-1(f). Such a determination must be made by the Board subject to the review by the Office of the State Auditor and ultimately, a court of competent jurisdiction. See MS AG Op., Chiles (August 31, 2018).

As for your first question regarding the steps required to make an emergency purchase of a replacement E-911 system, provided the Board has made or will soon make the required finding that an "emergency" exists as defined in Section 31-7-1(f), the Board must follow the procedures for emergency purchases as set forth in Section 31-7-13(k).

(Footnote: This office contacted the Mississippi Wireless Communications Commission and confirmed that E911 equipment and services do not fall under its purview.)

As for your second question, provided the Board has made or will soon make the required finding that an "emergency" exists as defined in Section 31-7-1(f) and abides by the emergency procedures set forth in Section 31-7-13(k), the County may purchase equipment with a seven (7) year life. However, based on your submissions to this office it appears that the County is not simply purchasing equipment with an expected life of seven (7) years, but also wishes to enter into a long-term agreement for the maintenance and service of an E-911 system that would bind successor boards without specific statutory authority. As a result, any such agreement would be voidable by a successor board. See MS AG Op., Carnathan, (November 29, 2005) ("We note that the general prohibition against binding successor boards without specific statutory authority may render voidable any contract entered into for a period of time extending beyond the current term of office.")

Regarding your third question, new quotes would not be required by law as requirements for competitive bidding do not apply to emergency purchases under Section 31-7-13(k).

(Footnote: It should be noted that Section 31-7-13(j), which applies to emergency purchases by state agencies, prohibits emergency contracts from exceeding a term of one (1) year, but Section 31-7-13(k), which applies to governing authorities, contains no such limitation.)

If we may be of further service, please let us know.

Very truly yours,

LYNN FITCH, ATTORNEY GENERAL

Tommy D. Goodwin
Special Assistant Attorney General