If a Mississippi county orders road equipment before the supervisors' last six months in office but the equipment doesn't arrive until after the cutoff, does that violate the six-month rule?
Plain-English summary
Mississippi has a long-standing "six-month rule" preventing outgoing boards of supervisors from binding their successors with last-minute road equipment purchases. Section 19-11-27 prohibits a county board from buying "any machinery or equipment in the last six (6) months of their or his term unless or until he has been elected at the general election of that year."
The Union County Board attorney asked: if the County issues a purchase order for road equipment well before the six-month window starts, but the equipment is not delivered until after the window starts (i.e., during the last six months of the term), does that violate the rule?
The AG said no. The "buy" happens at the purchase order, not at delivery. Once a purchase requisition is processed by the county purchasing clerk and a purchase order is issued, county funds are obligated and the price is agreed. That's the contractual moment.
The AG anchored the reasoning in:
- Black's Law Dictionary's definition of "purchase" ("the acquisition of an interest in real or personal property by sale, discount, negotiation, mortgage, pledge, lien, issue, reissue, gift, or any other voluntary transaction").
- Black's definition of "sale" (the agreement transferring property for a price, with elements including "a price in money paid or promised").
- The county purchasing process, where the purchase order is the written agreement evidencing the sale.
The AG modified two prior opinions (Nowak 2011, Holleman 2019) that had reached different conclusions, expressly bringing them into line with this analysis going forward.
Section 19-11-27 also has a longer list of exceptions (for ARPA, deficient bridges, certain federal programs, contracts approved by unanimous board vote pursuant to § 31-7-13 bidding requirements, etc.). The opinion noted these but did not need to apply them.
What this means for you
If you're a Mississippi county supervisor in the last year of your term
When your term enters its last year, you can still purchase equipment by getting purchase orders issued before the six-month cutoff, even if delivery slips into the last six months. The legal "buy" happens at the purchase order. To stay safe:
- Document the purchase requisition date carefully.
- Document the purchase order issuance date.
- If delivery slips, the documentation of pre-cutoff purchase order suffices.
- Avoid issuing new purchase orders within the last six months.
If you're a county purchase clerk
When processing a purchase requisition for road equipment in the months before the six-month cutoff, complete the purchase order promptly. The legal effect attaches to the order issuance, not to delivery. Late delivery does not create a new "buy" event.
If the requisition arrives within the last six months, do not issue the purchase order without confirming an exception applies (ARPA funding, deficient bridge program, unanimous-board-vote exception, etc.).
If you're a vendor selling to Mississippi counties
Late delivery of equipment ordered before the six-month cutoff does not invalidate the contract or expose the county to violation. Counties may push for delivery before the cutoff to avoid uncertainty, but you don't need to scramble shipping to beat any specific date.
If you're a state auditor field examiner
The compliance question is when the purchase order issued, not when the equipment arrived. Audit purchase orders dated within the last six months for whether an exception applies. Purchase orders dated before the cutoff are clean even if delivery is later.
If you're a county board attorney
When advising on year-of-term purchases, document the timing carefully. Use the AG's framework: the purchase order is the contractual moment. Counter-arguments based on delivery timing should now fail given this opinion (and the modification of Nowak/Holleman).
Common questions
Q: What's the policy reason for the six-month rule?
A: To prevent outgoing boards from saddling successors with last-minute equipment commitments. It's an anti-lame-duck protection.
Q: Can a re-elected supervisor escape the rule?
A: Yes. Section 19-11-27 specifically allows last-six-months purchases by supervisors who have been elected at the general election of that year.
Q: What about emergency purchases?
A: Section 19-11-27 has an emergency exception for road and bridge construction/maintenance/equipment in the budget estimates: spending in excess of one-fourth of the item is allowed in cases of emergency.
Q: What's the unanimous-vote exception?
A: A 2023 amendment (SB 2734) added an exception for contracts approved by unanimous board vote pursuant to § 31-7-13 bidding requirements, with the unanimous vote including a "proclamation that the award of the contract is essential to the efficiency and economy of the operation of the county government."
Q: What about ARPA funds?
A: ARPA-funded projects (including matching funds) are excepted from the six-month rule.
Q: Was there a prior conflicting opinion?
A: Yes. The AG modified two prior opinions (Nowak July 8, 2011; Holleman June 28, 2019) that had reached different conclusions. The 2023 opinion is the controlling interpretation going forward.
Background and statutory framework
Section 19-11-27 has two compliance prongs:
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Last-year-quarterly limit: Between October 1 and the following January, the board cannot expend or contract more than one-fourth of road and bridge construction/maintenance/equipment budget items, except in emergencies.
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Last-six-months equipment ban: No board or supervisor can buy machinery or equipment in the last six months of the term unless re-elected.
Mississippi's county purchasing system, codified in Title 31 Chapter 7, requires central purchasing departments. For purchases over $2,000, a requisition request, purchase order, and receiving report are required. The purchase order is the contractual instrument: it incorporates the agreed price, quantity, and item description.
The AG's 2023 opinion clarifies that the six-month rule's "buy" event is the purchase order issuance. This aligns with how the rest of the purchasing system understands the moment of obligation. Funds are committed at the purchase order; the receiving report just acknowledges delivery.
The exceptions added over time (ARPA, deficient bridge programs, unanimous-vote with bidding requirement) reflect legislative recognition that strict application would prevent useful purchases. The 2023 SB 2734 amendment is the most recent narrowing.
Citations and references
Statutes:
- Miss. Code Ann. § 19-11-27 (six-month rule on equipment purchases by lame-duck boards)
- Miss. Code Ann. § 31-7-13 (competitive bidding requirements)
- Miss. Code Ann. § 31-7-101 (county central purchasing requirement)
- Miss. Code Ann. § 31-7-103 (purchasing system requirements)
Legislation:
- Laws 2023, SB 2734 § 1 (eff. Mar. 14, 2023), adding unanimous-vote exception
- HB 1734 § 1 (eff. July 1, 2023), further amending § 19-11-27 (not affecting this opinion)
Prior AG opinions:
- MS AG Op., Bryant (May 1, 2001), purchasing process
- MS AG Op., Nowak (Mar. 1, 2013), central purchasing requirements
- MS AG Op., Nowak (July 8, 2011), modified prospectively by this 2023 opinion
- MS AG Op., Holleman (June 28, 2019), modified prospectively by this 2023 opinion
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/05/L.N.Rogers-May-22-2023-Delayed-Receipt-of-Equipment-During-Last-Six-Months-of-Term.pdf
Original opinion text
May 22, 2023
L.N. Chandler Rogers, Esq.
Attorney, Union County Board of Supervisors
Post Office Box 1771
New Albany, Mississippi 38652
Re: Delayed Receipt of Equipment During Last Six Months of Term
Dear Mr. Rogers:
The Office of the Attorney General has received your request for an official opinion.
Question Presented
If Union County issues a purchase order to purchase road equipment, but said equipment is not received until the next year during the last six months of the Board of Supervisors' term, is the Board of Supervisors in violation of the six month rule under Mississippi Code Annotated Section 19-11-27?
Brief Response
Once a purchase requisition request is received by the county purchasing clerk, and a subsequent purchase order is issued for equipment, the county funds are obligated and a purchase is made. Thereafter, even if the equipment is not received until the last six months of the Board of Supervisors' term, it would not be a violation of Section 19-11-27.
Applicable Law and Discussion
Section 19-11-27 provides:
No board of supervisors of any county shall expend from, or contract an obligation against, the budget estimates for road and bridge construction, maintenance and equipment, made and published by it during the last year of the term of office of such board, between the first day of October and the first day of the following January, a sum exceeding one-fourth ( ¼ ) of such item of the budget made and published by it, except in cases of emergency. The clerk of any county is prohibited from issuing any warrant contrary to the provisions of this section. No board of supervisors nor any member thereof shall buy any machinery or equipment in the last six (6) months of their or his term unless or until he has been elected at the general election of that year. The provisions of this section shall not apply to (i) projects of any type that receive monies from the Local System Bridge Replacement and Rehabilitation Program, the Emergency Road and Bridge Repair Fund, the 2018 Transportation and Infrastructure Improvement Fund or the Gulf Coast Restoration Fund; (ii) to expenditures on deficient bridges in the State Aid Road System or the Local System Road Program that have been deemed to be a deficient bridge as defined in Section 65-37-3; (iii) projects funded by the American Rescue Plan Act (ARPA) as well as any matching funds required under ARPA; or (iv) to a contract, lease or lease-purchase contract approved by a unanimous vote of the board and executed pursuant to the bidding requirements in Section 31-7-13. Such unanimous vote shall include a statement indicating the board's proclamation that the award of the contract is essential to the efficiency and economy of the operation of the county government.
As amended by Laws 2023, S.B. 2734 § 1, eff. Mar. 14, 2023 (emphasis added). We note for informational purposes that Section 19-11-27 does provide exceptions to the six-month prohibition, including projects that receive monies from specific listed funds (including ARPA) and contracts executed pursuant to Section 31-7-13.
Counties must operate a Central Purchasing department, and it is the responsibility of that department to "purchase all equipment, heavy equipment, machinery, supplies, commodities, materials and services used by any office or department of the county except for those offices or departments whose expenditures are not required by law to be approved by the board of supervisors." Miss. Code Ann. § 31-7-101. The "system shall comply with the requirements prescribed by the State Department of Audit. . . ." Miss. Code Ann. § 31-7-103. Accordingly, for any purchase over $2,000.00, a requisition request, a purchase order, and a receiving report is required. Miss. Code Ann. § 31-7-103. See MS AG Op., Nowak at *3 (Mar. 1, 2013) ("Any office or department of the county whose expenditures are required by law to be approved by the board of supervisors, must be made by the purchase clerk to ensure that the purchase is in compliance with the purchasing laws.")
Under the process mandated by the Office of the State Auditor, a purchase requisition request must be signed by one with authority in the particular department making the request. The purchase requisition obligates the funds of that department. Thereafter, the purchase clerk prepares a purchase order based upon the purchase requisition. The purchase order must contain a description of the commodity or service, the quantity of commodity ordered, the unit price of the commodity, and total amount of the purchase order. See Professional Education Curriculum for County Purchase Clerks, https://www.osa.state.ms.us/downloads/purchase-manual.pdf. This office has previously opined that a supervisor must "submit[] a requisition form to the county purchasing clerk." MS AG Op., Bryant at 3 (May 1, 2001). "The purchasing clerk determines how the item will be purchased, e.g., by bid, state contract, etc., and if there are sufficient funds in the budget for that budget item, as approved and amended by the board of supervisors, to make the purchase." Bryant at 3. "If the request is within the budget and otherwise proper, the purchasing clerk may then initiate a purchase order and notify the vendor of the purchase order number." Id. An item may not be ordered if it "would exceed the approved budget then in place." Id. at *4. This further evidences the obligation of county funds at the time of the purchase requisition and purchase order.
Section 19-11-27 states that the board of supervisors may not "buy" machinery or equipment in the last six months of their term. The statute does not define "buy." Black's Law Dictionary does not define "buy" but refers users to the word "purchase," which is "[t]he acquisition of an interest in real or personal property by sale, discount, negotiation, mortgage, pledge, lien, issue, reissue, gift, or any other voluntary transaction." Purchase, BLACK'S LAW DICTIONARY (11th ed. 2019) (emphasis added). "Sale" is defined as "[t]he agreement by which such a transfer [of property for a price] takes place," with one of the four elements being "a price in money paid or promised." Sale, BLACK'S LAW DICTIONARY (11th ed. 2019) (emphasis added). The purchase order is the written agreement evidencing the sale of property between a vendor and the county.
It is therefore the opinion of this office that equipment and machinery are "bought" or "purchased" at the time the purchase order is issued because it is at that point that a price is mutually agreed-upon, and the county funds are encumbered. The following opinions to the contrary are modified prospectively to conform herewith: MS AG Op., Nowak (July 8, 2011) and MS AG Op., Holleman (June 28, 2019).
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/ Gregory Alston
Gregory Alston
Special Assistant Attorney General