Can a Mississippi city and county jointly pave roads using the county's existing paving contractor without violating purchasing laws?
Plain-English summary
Harrison County's attorney pointed to a 2001 AG opinion (Baker) that prohibits a city from "piggybacking" on a county's purchasing contract for commodities. He asked whether that prohibition stops a city and county from entering an interlocal agreement under which the county uses its existing paving contractor to pave roads, with the city reimbursing the county for its share.
The AG drew the distinction. Piggybacking (a city adopting a county's purchasing contract for the city's own purchases) is prohibited because the city has its own purchasing-laws obligations under §§ 31-7-12 and 31-7-13. An interlocal agreement, where two governmental units act jointly under a shared project, is not the same thing. The Interlocal Cooperation Act (§§ 17-13-1 et seq.) expressly authorizes cooperative contracts between governmental units. As long as each unit has independent statutory authority for the proposed action (paving roads, in this case), they can agree to act jointly.
The AG made the additional point that public purchasing laws still apply to the underlying procurement; the interlocal agreement is a vehicle for joint action, not a workaround for those laws. The county's existing paving contractor was presumably selected through a proper procurement, and the joint paving project rides on that procurement under an interlocal arrangement.
What this means for you
If you are a county attorney structuring road work that includes a city
The interlocal agreement route is open to you. A clean structure:
- Confirm both units have statutory authority for the work itself. Counties and cities both have road-paving authority within their respective jurisdictions, and an interlocal can address shared boundaries or roads serving both.
- Reference the existing county contract that was procured under § 31-7-12 or § 31-7-13. The interlocal puts the city's share into that contract by joint action, not by city-side piggybacking.
- Allocate cost-sharing in the interlocal. The city reimburses the county for its share, on a cost basis or other reasonable allocation.
- Get both governing bodies' approval of the interlocal in formal action recorded in minutes.
- File the interlocal with the Secretary of State as required by the Interlocal Cooperation Act.
If you are a city attorney being asked to ride on a county contract
You cannot adopt the county's contract for the city's own purchases. That is the prohibition the Baker opinion enforces. But you can enter a joint interlocal agreement with the county to perform a project together, which is a different legal posture.
In the joint posture:
- The action is "ours" (city + county acting together), not "ours through the county's contract."
- Each unit contributes funding, manpower, or both.
- The legal authority comes from the interlocal statute and from each unit's substantive authority over the work.
- The procurement is still subject to public purchasing laws, but those laws are applied to the joint project, not to the city's separate purchase.
If you are a board of supervisors or city council reviewing a paving project
Two-jurisdiction roads (especially those that mark a boundary or run between municipalities) almost always benefit from interlocal arrangements. Look for:
- Road segments where county and city responsibilities overlap or where neither has clear authority.
- Cost savings from a single mobilization rather than separate contracts.
- Coordinated quality and timing.
Have your attorney structure the agreement before any work begins.
If you are a road contractor working for a Mississippi county
If the county is using your contract to participate in joint paving with a city under an interlocal agreement, expect the work to be expanded under that arrangement, not under a new direct contract from the city. The contract scope should be adequate to cover the joint work, and the funding flow should be county-side with city reimbursement.
If you live on a road that straddles a city and county boundary
Interlocal agreements are designed for exactly this situation. Two governments acting separately would have to coordinate procurement, mobilize separately, and patch their respective shares. An interlocal lets them do the work as one job. If your road has potholes that nobody seems to claim responsibility for, ask your local supervisor or alderman whether an interlocal arrangement is on the table.
Common questions
Q: What is "piggybacking" and why is it prohibited?
A: Piggybacking is when one government adopts another government's existing purchasing contract for its own purchases, thereby skipping its own competitive procurement requirements. Mississippi's purchasing statutes (§§ 31-7-12 and 31-7-13) require each entity to follow the proper procurement procedures. The 2001 Baker opinion confirmed that a city cannot bypass those requirements by adopting a county's contract.
Q: How is an interlocal different?
A: An interlocal agreement under §§ 17-13-1 et seq. is a joint exercise of authority. Two governments contract with each other to do a project together, each contributing what they have authority to contribute. The procurement is for the joint project, executed by one of the parties (typically the lead one), and it complies with that party's purchasing laws.
Q: What does § 17-13-3 say about purpose?
A: It says the chapter exists "to permit local governmental units to make the most efficient use of their powers by enabling them to cooperate and to contract with other local governmental units on a basis of mutual advantage." The statute is meant to facilitate cooperation, not to be a loophole around procurement.
Q: Do both units have to have independent authority for the activity?
A: Yes. The AG made this clear: each governmental unit must have independent statutory authority for the proposed action. An interlocal cannot grant authority that neither party would have on its own.
Q: Can the city pay the county more than the city's actual share?
A: The reimbursement should reflect the city's actual cost share on the joint project. Paying more than the city's share could raise donation concerns under § 21-17-5(2)(g) and similar restrictions on county donations. Document the cost allocation methodology.
Q: What about commodity purchases like office supplies, can cities and counties share through an interlocal?
A: An interlocal can support joint procurement if both units have independent authority for the underlying purchase and the procurement complies with both units' purchasing laws. State purchasing law (§§ 31-7-12, 31-7-13) and possibly the Mississippi Department of Finance and Administration's procurement program may also be relevant.
Q: Does this opinion supersede the Baker opinion?
A: No. Baker still stands for the proposition that a city cannot piggyback on a county's contract. This opinion clarifies that Baker doesn't bar interlocal joint action, which is a different legal mechanism.
Background and statutory framework
Mississippi's Interlocal Cooperation Act is a foundational tool of local government collaboration. § 17-13-3 frames the purpose: efficient use of powers, cooperation, mutual advantage, and service delivery that fits the geography and population of the communities involved.
The Act allows local governmental units to "make the most efficient use of their powers by enabling them to cooperate and to contract with other local governmental units." The mechanics are detailed in subsequent sections of Chapter 13: form of agreement, governing-body approval, filing with the Secretary of State, and other procedural requirements.
Public purchasing law operates in parallel. §§ 31-7-12 (commodities under $50,000 with informal procedures) and 31-7-13 (commodities over the threshold with formal bidding) govern how counties and cities buy goods and services. The 2001 Baker opinion held that a city cannot duck those requirements by adopting a county's contract. But the AG drew the line carefully: Baker is about a city's separate purchases, not about joint projects.
In a joint paving project, the procurement decision was already made when the county selected its paving contractor. The interlocal agreement adds joint scope (more roads, more area, more work) and brings in city money. The contractor performs under the existing contract. The city's contribution is reimbursement for joint work, not adoption of the contract.
This distinction matters because it lets local governments coordinate without setting up duplicate procurement. A poorly drafted "interlocal" that is really piggybacking in disguise still violates Baker. A genuine joint project with a real interlocal agreement is fine.
Citations and references
Statutes:
- Miss. Code Ann. §§ 17-13-1 et seq. (Interlocal Cooperation Act of 1974)
- Miss. Code Ann. § 17-13-3 (purpose: cooperation among local governmental units on basis of mutual advantage)
- Miss. Code Ann. § 31-7-12 (informal purchasing procedures)
- Miss. Code Ann. § 31-7-13 (formal bidding procedures for larger commodity purchases)
Prior AG opinion referenced:
- MS AG Op., Baker (July 20, 2001): a city is prohibited from piggybacking on a county's purchasing contract; city purchases for commodities must be made in accordance with §§ 31-7-12 or 31-7-13.
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/09/T.Holleman-September-14-2023-Interlocal-Agreements-and-Public-Purchasing-Laws.pdf
Original opinion text
September 14, 2023
Tim C. Holleman, Esq.
Attorney, Harrison County Board of Supervisors
1720 23rd Avenue/Boyce Holleman Boulevard
Gulfport, Mississippi 39501
Re: Interlocal Agreements and Public Purchasing Laws
Dear Mr. Holleman:
The Office of the Attorney General has received your request for an official opinion.
Question Presented
In your request, you reference MS AG Op., Baker (July 20, 2001), which provides that a city may not adopt a county's contract regarding the purchase of commodities. You ask if this prohibits a city and county from entering into an otherwise lawful interlocal agreement for the paving of roads whereby the county uses the county's contractor for the work, and the city reimburses the county for its assistance.
Brief Response
The prohibition against a city adopting a county's purchasing contract does not prevent a city from acting jointly with a county, by way of an otherwise lawful interlocal agreement, for the paving of roads.
Applicable Law and Discussion
The Baker opinion you reference correctly provides that a city is prohibited from piggybacking on a county's purchasing contract and that purchases for commodities shall be made in accordance with Mississippi Code Annotated Sections 31-7-12 or 31-7-13. Baker at *1. A local governmental unit's authority to enter into an interlocal agreement for paving is distinguishable from this prohibition. The Interlocal Cooperation Act of 1974 found in Sections 17-13-1 et seq., expressly authorizes cooperative contracts between governmental units:
It is the purpose of this chapter to permit local governmental units to make the most efficient use of their powers by enabling them to cooperate and to contract with other local governmental units on a basis of mutual advantage and thereby provide services and facilities in a manner pursuant to forms of governmental organization that will accord best with geographic, economic, population and other factors influencing the needs and development of local communities.
Miss. Code Ann. § 17-13-3.
Accordingly, an interlocal agreement allows two local governmental units to act jointly as long as each governmental unit has independent statutory authority for the proposed action, which both the city and county do under the set of facts presented here. However, the public purchasing laws still apply. It is the opinion of this office that the prohibition against a city adopting a county's purchasing contract does not prevent a city from entering into an otherwise lawful interlocal agreement with a county for the paving of roads.
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/ Abigail C. Overby
Abigail C. Overby
Special Assistant Attorney General