If a Mississippi town's competitive bid notice for a construction project gets no response, can the design consultant just call up contractors privately and pick one?
Plain-English summary
The Town of Tutwiler is building a park expected to cost more than $75,000. The town clerk advertised for bids under § 31-7-13(c). No bids came in. The town's design consultant proposed a workaround: he would extend "private invitations" to qualified contractors he knew about, gather their bids, then pick the top three and recommend one to the Board of Aldermen.
The town's attorney asked the AG whether that workaround was allowed. The AG said no.
§ 31-7-13(c) sets the mandatory bidding procedure for public purchases over $75,000. The statute requires: advertising for competitive bids once each week for two consecutive weeks in a regular newspaper published in the county or municipality, with the bid opening at least seven working days after the last published notice (15 working days for construction projects over $75,000), and the notice must state the time and place for bid receipt and the project specifications.
§ 31-7-13(d)(i) sets the framework for "lowest and best bid" determination. If the governing authority accepts a bid other than the lowest, it must put detailed calculations and a narrative summary on the minutes showing how the accepted bid was determined to be the lowest and best, including dollar amounts.
The statute is mandatory, not optional. The Mississippi Supreme Court has held that county supervisors "may act and authorize bids and contracts only by orders and resolves formally adopted and entered on the minutes" (Richardson v. Canton Farm Equipment, Inc., 608 So. 2d 1240, 1246 (Miss. 1992)). The AG extended the same rule to municipal boards of aldermen. The 1995 MS AG Op., Evans, said it directly: there is "no authority which would permit the board to consider a bid for which there was no authorized advertisement."
Two separate problems with the consultant's workaround:
First, private invitations bypass the statutory advertisement. § 31-7-13 doesn't say "you can call contractors directly if no one responds." It says you advertise. Period.
Second, the design consultant cannot select the contractor for the town. The board of aldermen is the awarding authority. A third party making the selection (even subject to board "approval") undermines the lowest-and-best-bid framework, which has to be done by the governing authority on the minutes.
What the town can do: the design consultant or the town can contact potential contractors as outreach to let them know about the project. But that contact has to be in addition to the statutory advertisement, not in lieu of it. If the publication and notice deadlines have passed and no bids came in, the procedure starts over with a fresh advertisement.
What this means for you
If you are a Mississippi town clerk or city attorney facing a no-bids result
Re-advertise. § 31-7-13(c) is mandatory; you can't substitute private invitations for the statutory notice. Run the publication and notice process again. Look at why no bids came in and address that:
- Were the specifications too vague or too specific?
- Were the dates inconvenient?
- Was the project published in a paper local contractors don't read?
- Were the bonding or insurance requirements too steep for the local market?
You can supplement re-advertisement with direct outreach to specific contractors. Calls, emails, and project announcement to the local builders' association are fine, as long as the public advertisement runs concurrently and the bid receipt and opening follow the statutory process.
If repeated re-advertisements get no response, consider whether the project scope or budget needs revision. There may be a market reality (no contractors interested at the budgeted price) that statutory bidding cannot fix. Engage with the design consultant on alternative project structures.
If you are a design consultant working with a Mississippi municipality
Your role is to design and provide professional services. You are not the contractor selector. The board of aldermen (or board of supervisors) is the awarding authority by statute. Your recommendation on the lowest and best bid is welcome, but the formal selection has to happen on the board's minutes through a documented process.
Avoid structuring proposals where you "select" a contractor and "recommend" the choice to the board. Even when the board ratifies, the structure looks like you made the selection, which is a procedural problem.
When no bids come in, your job is to help the town understand why and re-position the project for a successful re-advertisement. Calling contractors directly to invite private bids is not a path the statute supports.
If you are a contractor who wants to bid on Mississippi public projects
Watch the public notices in the county or municipality where you want to work. The statutory advertisement is your only legitimate channel. Contractors invited "privately" outside the statutory process are not bidding on a valid procurement.
If a town clerk calls you to say "we're re-advertising next week," that is fine. If a town's design consultant calls and says "we'll take three private invitations and pick the best, you in?" you should ask whether the project has been advertised and whether your bid will go through the statutory process. A workaround procurement may not survive challenge, leaving you holding a project the town can't legally award.
If you are on a Mississippi board of aldermen voting on a contract award
The advertisement, the bid receipt, the opening, the lowest-and-best-bid analysis, and the award decision all have to be on the minutes. § 31-7-13(d)(i) specifically requires detailed calculations and narrative summary if you take other than the lowest bid.
Do not rubber-stamp a "consultant recommendation" without your own deliberation on the record. The board is the awarding authority. The consultant's recommendation is just input.
If you are a State Auditor field examiner reviewing municipal contracts
The Frieson opinion confirms that private invitations are not a valid substitute for advertised bidding when § 31-7-13 applies. Look for procurements that were advertised, got no bids, and then were awarded through some workaround. Those awards are problematic.
Look also for design consultants effectively running the procurement instead of advising on it. The Richardson (1992) and Evans (1995) authorities are clear that the governing authority itself has to do the work and put the analysis on the minutes.
If you are a citizen of a Mississippi town watching the local park project
The board of aldermen has to follow § 31-7-13's bidding rules. Public records (the published notices, the board's minutes) tell you whether the process was followed. If you see contracts being awarded without advertised bids, raise it with the State Auditor.
Common questions
Q: What is the dollar threshold for required public bidding in Mississippi?
A: $75,000 for purchases of equipment, supplies, or services. § 31-7-13(c). Smaller purchases have lighter procedural requirements (often two written quotes between $5,000 and $75,000; full discretion below $5,000, with documentation).
Q: How many days does the bid opening have to be after the last published notice?
A: Generally 7 working days for purchases. For construction projects with estimated costs over $75,000, 15 working days.
Q: Where must the advertisement be published?
A: A regular newspaper published in the county or municipality where the governing authority is located. If there is no newspaper published locally, posting at the courthouse (or city hall) and two other public places, plus publication in some newspaper having general circulation.
Q: Can the town reject all bids received and re-advertise?
A: Yes, generally, with proper basis (bids over budget, all bids non-responsive, defects in specifications). The board has authority to reject all bids, but the rejection must be documented.
Q: Can the consultant prepare the bid specifications and the bid evaluation criteria?
A: Yes, that is the consultant's professional service. The board adopts the specifications by board action. The consultant may evaluate bids and recommend; the board makes the actual award.
Q: What if only one bid is received?
A: A single bid is generally enough to award if the bid is responsive and the price is reasonable. The lowest-and-best analysis still has to happen on the minutes.
Q: What about emergency procurement?
A: § 31-7-13(k) and similar provisions allow streamlined procurement in genuine emergencies (immediate threat to public safety, urgent infrastructure failure). The procedural requirements differ. The Tutwiler park is not an emergency, so the standard process applies.
Q: Can the town hire a contractor through a state contract or cooperative purchasing program?
A: § 31-7-13 has provisions for cooperative purchasing through state contracts. If the project fits a state-master-contract category (some IT, some equipment, some construction services), the town may piggyback on the state contract. Check the specific cooperative purchasing program rules.
Q: What happens if the town awards a contract through an improper process?
A: The contract may be void or voidable. The State Auditor can pursue recovery. Bidders excluded from the process may have standing to sue. The board members who voted for the award may face personal liability for unauthorized expenditures.
Background and statutory framework
§ 31-7-13 is Mississippi's public purchasing statute. It governs purchases by all governing authorities (counties, municipalities, school districts, state agencies) of equipment, supplies, and services.
Subsection (c) sets the mandatory bidding procedure for purchases over $75,000:
- (c)(i): advertising for competitive bids once each week for two consecutive weeks in a regular newspaper, with bid opening at least 7 working days (15 for construction projects over $75,000) after the last notice.
Subsection (d)(i) governs lowest-and-best-bid determination:
- If the governing authority accepts a bid other than the lowest, detailed calculations and narrative summary go on the minutes, including dollar amounts.
- No agency or governing authority may accept a bid based on items not in the specifications.
The Mississippi Supreme Court in Richardson v. Canton Farm Equipment, Inc., 608 So. 2d 1240, 1246 (Miss. 1992), held that county supervisors act on bids and contracts only by orders and resolves formally adopted and entered on the minutes. The same minute-rule applies to municipal boards of aldermen and other public bodies.
The AG opinion line: Evans (1995) (no authority to consider a bid for which there was no authorized advertisement); Frieson (2023) (private invitations cannot substitute for advertisement; consultant cannot select the contractor).
§ 7-5-25 limits the AG to prospective state-law questions. The AG cannot validate or invalidate past actions, so the opinion is forward-looking only.
Citations
- Miss. Code Ann. § 7-5-25 (limits on AG opinion authority)
- Miss. Code Ann. § 31-7-13(c) (mandatory bidding procedure for purchases over $75,000)
- Miss. Code Ann. § 31-7-13(c)(i) (advertisement requirements)
- Miss. Code Ann. § 31-7-13(d)(i) (lowest and best bid determination)
- Richardson v. Canton Farm Equipment, Inc., 608 So. 2d 1240 (Miss. 1992) (board action on bids and contracts must be by orders and resolves formally adopted on minutes)
- MS AG Op., Evans (Aug. 16, 1995) (no authority to consider bid without authorized advertisement)
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/01/R.Frieson-January-24-2023-Consultant-Selecting-Contractor-for-Town-Construction-Project.pdf
Original opinion text
January 24, 2023
Renetha L. Frieson, Esq.
Attorney, Town of Tutwiler
Post Office Box 1811
Greenville, Mississippi 39702-1811
Re:
Consultant Selecting Contractor for Town Construction Project
Dear Ms. Frieson:
The Office of the Attorney General has received your request for an official opinion.
Background
Your request provides the facts as follows: The town of Tutwiler is in the process of constructing
a park that is anticipated to cost more than $75,000.00. In accordance with Section 31-7-13(c) of
the Mississippi Code, the town clerk advertised for competitive bids; however, no bids were
received in response to the advertisement. The design consultant for the project requested
permission to extend "private invitations" to potential qualified contractors, to select a contractor
from the top three bidders of the potential qualified contractors, and to recommend the contractor
he selects to the Board of Supervisors for approval.
Questions Presented
- Can the Board of Aldermen authorize a design consultant to extend "private invitations" to
potential qualified contractors for competitive bids when no bids were received after
publishing for competitive bids in the local newspaper under Section 31-7-13(c)? - Would allowing the design consultant to extend "private invitations" for competitive bids
violate Section 31-7-13(c) when no bids were received after publishing for competitive
bids in the local newspaper under Section 31-7-13(c)? - If the Board of Aldermen is permitted to authorize the design consultant to extend "private
invitations" to potential qualified contractors, can the Board of Aldermen allow the design
consultant to select and recommend a contractor from the top three bidders resulting from
the design consultant's private invitation?
Brief Response
1. No. Issuing private invitations to select contractors does not comply with the publication
or notice requirements in Section 31-7-13(c) for purchases over $75,000. If the publication
and notice deadlines have passed, and no bids were received, the procedure set out in
Section 31-7-13 must start anew.
2. Our response to your first question renders this question moot.
3. Our response to your first question renders this question moot.
Applicable Law and Discussion
As an initial matter, the Office of the Attorney General is authorized to issue official opinions for
prospective use only and cannot validate or invalidate past actions. See Miss. Code Ann. § 7-5-25.
In response to your first question, Section 31-7-13(c)(i), which outlines the mandatory bidding
procedure for purchases over $75,000.00 provides, in relevant part:
Purchases which involve an expenditure of more than Seventy-five Thousand
Dollars ($75,000.00), exclusive of freight and shipping charges, may be made from
the lowest and best bidder after advertising for competitive bids once each week
for two (2) consecutive weeks in a regular newspaper published in the county or
municipality in which such agency or governing authority is located.
*
*
*
*
*
The date as published for the bid opening shall not be less than seven (7) working
days after the last published notice; however, if the purchase involves a construction
project in which the estimated cost is in excess of Seventy-five Thousand Dollars
($75,000.00), such bids shall not be opened in less than fifteen (15) working days
after the last notice is published and the notice for the purchase of such construction
shall be published once each week for two (2) consecutive weeks. . . . The notice
of intention to let contracts or purchase equipment shall state the time and place at
which bids shall be received, list the contracts to be made or types of equipment or
supplies to be purchased, and, if all plans and/or specifications are not published,
refer to the plans and/or specifications on file. If there is no newspaper published
in the county or municipality, then such notice shall be given by posting same at
the courthouse, or for municipalities at the city hall, and at two (2) other public
places in the county or municipality, and also by publication once each week for
two (2) consecutive weeks in some newspaper having a general circulation in the
county or municipality in the above-provided manner. . . .
Miss. Code Ann. § 31-7-13(c)(i)1, 3.
The municipality must also comply with the requirements for determining the lowest and best bid
in Section 31-7-13(d)(i), which specifically provides:
If any governing authority accepts a bid other than the lowest bid actually
submitted, it shall place on its minutes detailed calculations and narrative summary
showing that the accepted bid was determined to be the lowest and best bid,
including the dollar amount of the accepted bid and the dollar amount of the lowest
bid. No agency or governing authority shall accept a bid based on items not
included in the specifications.
The above quoted sections do not provide for issuing private invitations for bids in lieu of the
mandatory publication and notice procedures as described in your request. Further, allowing a third
party to select and recommend a contractor from a limited pool of bidders who respond to the
private invitation does not comply with the procedure for selecting the lowest and best bid. The
Mississippi Supreme Court has held that county supervisors "may act and authorize bids and
contracts only by orders and resolves formally adopted and entered on the minutes." Richardson
v. Canton Farm Equipment, Inc., 608 So. 2d 1240, 1246 (Miss. 1992). This is true for a municipal
board of aldermen as well. Interpreting Section 31-7-13, this office has previously opined that
there is "no authority which would permit the board to consider a bid for which there was no
authorized advertisement." MS AG Op., Evans at *1 (Aug. 16, 1995). While the town could
contact potential contractors in addition to publication to let them know about the project so that
they may submit bids in accordance with the procedure set forth in Section 31-7-13, doing such in
lieu of the statutory bidding procedure is not authorized by the statute. Accordingly, it is the
opinion of this office that Tutwiler must comply with the publication and notice deadlines and the
procedure for selecting the lowest and best bid in Section 31-7-13(d)(i), which does not
contemplate or allow for private invitations for bids in lieu of the competitive bid procedure. If the
publication and notice deadlines have passed, and no bids were received, the procedure set out in
Section 31-7-13 must start anew.
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