Can a Mississippi school district buy a Bluebird bus from a vendor that didn't bid in the state contract process if the price matches the state contract?

Plain-English summary

Jones County School District has standardized on Bluebird school buses. Its mechanics are trained on Bluebirds and its parts inventory is Bluebird-specific. After a 2019 change in the state contract bidding process, the only Mississippi vendor that sells Bluebird buses skipped the state bidding cycle, so Bluebird disappeared from the Mississippi Department of Education's approved-vendor list. The district's lawyer asked the AG whether the district could nevertheless keep buying Bluebird buses by using one of three workarounds:

1. The "identical commodities" rule under Section 31-7-12 (matching a state contract price for the same item).
2. The "single source item" rule under Section 31-7-13(m)(viii).
3. The general bidding procedure under Section 31-7-13(c).

The AG split the answer cleanly. The first two were no, the third was yes (with conditions), and there was a fourth option for used buses.

The reasoning anchored on Section 37-41-85: "[n]o school board shall purchase any school bus or pupil transportation service vehicle as authorized by Section 37-41-81 except in the manner prescribed in Section 37-41-101." That prohibition forecloses the more general purchasing routes in Sections 31-7-12 and 31-7-13(m)(viii). The Mississippi Supreme Court's specific-controls-the-general canon (Benoit v. United Cos. Mortg. of Miss., Inc., 504 So. 2d 196 (Miss. 1987)) reinforces the conclusion: the school-bus statute is the special one, so it controls.

Section 37-41-101 lays out three permissible paths:

• Subsection (1) and (2): the approved-vendor path. Buy from a vendor on the State Board of Education's approved list. No additional advertising required.
• Subsection (3): the district-run advertised bid path. The school board may itself "advertise for and accept the lowest and best bid received for the purchase of school bus chassis and/or pupil transportation service vehicles." The purchase must comply with statutory bidding and licensing rules and is subject to State Department of Education approval, which verifies compliance with applicable specifications, rules, and regulations.
• Subsections (4) and (5): used-bus path. The district may buy used buses for fair market value, with prior approval of the Department, and without requiring the vendor to be on the approved list. Specifications and rules of the State Board still apply.

So Jones County's path forward was to use the Section 37-41-101(3) advertised-bid procedure and fold the standard general-bidding mechanics of Section 31-7-13(c) into that process. Used Bluebirds were also available under subsections (4) and (5).

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.

Common questions

Why doesn't the "identical commodities" workaround apply to school buses?

Because Section 37-41-85 forecloses any school-bus purchase outside the methods in Section 37-41-101. The identical-commodities path in Section 31-7-12 is a general procurement tool. The school-bus statute is more specific, so it controls. The AG cites Benoit v. United Cos. Mortg. of Miss., Inc. and Lincoln Cnty v. Entrican for the rule that "where a special and particular statute deals with a special and particular subject its particular terms as to that special subject control over general statutes dealing with the subject generally."

What about "single source item"?

Same answer. Section 31-7-13(m)(viii) is part of the general procurement framework, not the school-bus-specific framework. Section 37-41-85 channels school-bus purchases into Section 37-41-101 only.

Can the district run its own bid for Bluebird-spec buses?

Yes. Section 37-41-101(3) explicitly authorizes the district to "advertise for and accept the lowest and best bid received for the purchase of school bus chassis and/or pupil transportation service vehicles." The procedure must follow statutory bidding and licensing requirements (the general rules in Section 31-7-13(c) plug in here) and must be approved by the State Department of Education, which verifies compliance with applicable specifications and rules.

What about used buses?

Subsections (4) and (5) of Section 37-41-101 allow used-bus purchases at fair market value. The vendor does not have to be on the State Board's approved list, but the purchase still has to follow State Board specifications, rules, and regulations and needs prior approval from the Department.

Are road manager and county finance rules involved here?

No. School bus procurement is a school-district function, not a county function. The road department exception in some other Mississippi opinions does not apply here.

Background and statutory framework

The opinion turns on three layers of statute:

Section 37-41-85 is the lockout: school boards may not buy school buses or pupil transportation vehicles except in the manner prescribed in Section 37-41-101.

Section 37-41-101 is the gateway. Three paths:

• Subsections (1) and (2): purchase from a State Board approved vendor without additional advertisement.
• Subsection (3): district-run advertised bid, subject to State Department of Education approval.
• Subsections (4) and (5): used buses at fair market value, subject to Department approval and Board specifications, with no approved-vendor requirement.

Sections 31-7-12 and 31-7-13 are the general procurement statutes. Section 31-7-12 covers identical-commodities purchases at or below state contract price. Section 31-7-13(m)(viii) covers single-source items. Section 31-7-13(c) covers general advertised bidding. Of these, only 31-7-13(c) is compatible with school-bus purchases, and only as the procedural backbone for a Section 37-41-101(3) advertised bid.

The Mississippi Supreme Court's specific-over-general canon (Benoit, Lincoln County v. Entrican) explains why the special school-bus statute trumps the general procurement framework when the two collide.

The opinion is signed by Special Assistant Attorney General Beebe Garrard on behalf of Attorney General Lynn Fitch.

Citations

• Miss. Code Ann. Section 37-41-85 (school-bus purchase channeling)
• Miss. Code Ann. Section 37-41-81 (pupil transportation authority)
• Miss. Code Ann. Section 37-41-101 (school-bus procurement methods)
• Miss. Code Ann. Section 31-7-12 (identical commodities, general)
• Miss. Code Ann. Section 31-7-13(c) (general advertised bidding)
• Miss. Code Ann. Section 31-7-13(m)(viii) (single source items, general)
• Benoit v. United Cos. Mortg. of Miss., Inc., 504 So. 2d 196, 198 (Miss. 1987)
• Lincoln Cnty v. Entrican, 230 So. 2d 801, 804 (Miss. 1970)
• MS AG Op., Thompson at *1 (Apr. 23, 2001)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2020/09/R.Caves_August-31-2020-Authority-to-Purchase-New-and-Used-School-Buses-under-Sections-31-7-12-and-37-41-101-of-the-Mississipp.pdf

Original opinion text

August 31, 2020

Risher G. Caves, Esq.
Board Attorney, Jones County School District
Post Office Drawer 167
Laurel, Mississippi 39441

Re: Authority to Purchase New and Used School Buses under Sections 31-7-12 and 37-41-101 of the Mississippi Code

Dear Mr. Caves:

The Office of the Attorney General is in receipt of your request for the issuance of an official opinion.

Questions Presented

In your request, you ask four questions regarding a school district's authority to purchase new and used school buses:

1. Although a vendor did not participate in the state contract bidding process and was not awarded a contract under Mississippi Code Annotated Section 37-41-101, may the district nevertheless purchase Bluebird school buses from said vendor as an "identical commodity" under Section 31-7-12 for a price at or below the state approved contract price, as long as the bus meets the required specifications set by the district and the minimum standards set by the state of Mississippi?

2. If Mississippi Code Annotated Section 37-4-101(1) prohibits the district from purchasing a school bus from a vendor who did not participate in the state contract bidding process and was not awarded a contract under Section 37-4-101, could the district nevertheless lawfully purchase Bluebird buses from said vendor as a "single source item" under Section 31-7-13(m)(viii)?

3. If Mississippi Code Annotated Section 37-4-101(1) prohibits the district from purchasing a school bus from a vendor who did not participate in the state contract bidding process and was not awarded a contract under Section 37-4-101, could the district nevertheless lawfully purchase school buses from said vendor according to the purchasing procedure set forth in Section 31-7-13(c)?

4. If Mississippi Code Annotated Section 37-41-101(1) prohibits the district from purchasing a school bus sold "as a complete unit" from a vendor who did not submit a bid for consideration by the Mississippi State Board of Education (the "Board"), does the term "a complete unit" encompass both new school buses and used school buses? Stated otherwise, in light of the procedure set forth in Section 37-41-101(4), may the district nevertheless purchase a used school bus from a vendor who did not submit a bid for consideration by the Board?

Background

Every year, the Mississippi Department of Education (the "Department") solicits bids from school bus vendors to determine a price for school buses for every model and capacity. The bids received are then used to determine the state contract price for every school bus model and capacity. Although different categories exist for model and capacity, there is no separate category for different brands of school buses.

Subsequently, the Department composes a list of approved vendors, comprised solely of vendors that participated in the state contract bidding process. The Department then issues the approved list of vendors to all school districts throughout the state.

The district primarily uses Bluebird buses for its school buses, and consequently, the district's mechanics are trained to repair Bluebird buses and its parts inventory is made up of Bluebird bus parts. Due to changes in the state contract bidding process in 2019, the only vendor in the state of Mississippi that sells Bluebird buses did not participate in the bidding process and is not listed on the Department's approved vendor list.

Brief Response

1. No. A school district may only purchase school buses using one of the three procurement methods specified in Section 37-41-101. The procedure for purchasing identical commodities in Section 31-7-12 conflicts with Section 37-41-101 and, thus, cannot be used for the purchase of school buses.

2. No. A school district may only purchase school buses using one of the three procurement methods specified in Section 37-41-101. The procedure for purchasing single source items in Section 31-7-13(m)(viii) conflicts with Section 37-41-101 and, thus, cannot be used for the purchase of school buses.

3. Yes. A school district may use the general bidding procedure in Section 31-7-13(c) for purchases made in accordance with Section 37-41-101(3), which authorizes school boards "to advertise for and accept the lowest and best bid received for the purchase of school bus chassis and/or pupil transportation service vehicles." Miss. Code Ann. § 37-41-101(3). Section 37-41-101(3) further requires that such purchases be "made in accordance to statutory bidding and licensing requirements" and are "subject to the approval of the State Department of Education which shall verify compliance with the applicable specifications, rules and regulations promulgated by the State Board of Education." Id.

4. A school district may purchase used school buses in accordance with Section 37-41-101(4) and (5), which does not require the vendor to be approved by the Board. However, such purchases must be made in accordance with specifications, rules, and regulations of the Board and are subject to the prior approval of the Department.

Applicable Law and Discussion

The Mississippi Supreme Court has stated that "where a special and particular statute deals with a special and particular subject its particular terms as to that special subject control over general statutes dealing with the subject generally." Benoit v. United Cos. Mortg. of Miss., Inc., 504 So. 2d 196, 198 (Miss. 1987) (quoting Lincoln Cnty v. Entrican, 230 So. 2d 801, 804 (Miss. 1970)).

According to Section 37-41-85, "[n]o school board shall purchase any school bus or pupil transportation service vehicle as authorized by Section 37-41-81 except in the manner prescribed in Section 37-41-101." Thus, a school district does not have authority to purchase school buses using the procedures outlined in Sections 31-7-12 or 31-7-13(m)(viii) for purchasing identical commodities or single source items as described in your request.

Section 37-41-101 specifies three ways in which a school board may purchase school buses: (1) the school district may purchase school buses from a vendor approved by the Board without additional advertisement of bids; (2) the school district may, itself, advertise for bids; or (3) the school district may, with the Department's approval, purchase used school buses for fair market value. MS AG Op., Thompson at *1 (Apr. 23, 2001). Notably, only the first method, which is outlined in Section 37-41-101(1) and (2), requires the school district to purchase school buses from vendors approved by the Board.

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