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

County and city attorneys

The opinion holds that the Baker prohibition on a city piggybacking on a county's purchasing contract does not bar a city and county from entering "an otherwise lawful interlocal agreement" for the paving of roads, with the county using its contractor and the city reimbursing the county. It grounds this in the Interlocal Cooperation Act of 1974 (§§ 17-13-1 et seq.), which "expressly authorizes cooperative contracts between governmental units." The opinion sets one condition: each governmental unit must have "independent statutory authority for the proposed action" (which both the city and county had here for paving), and it stresses that "the public purchasing laws still apply."

Boards of supervisors and city councils

The distinction the opinion draws is between a city adopting the county's contract for the city's own purchases (prohibited under Baker and §§ 31-7-12 / 31-7-13) and two units acting jointly under an interlocal agreement (permitted, where each has independent authority for the work). The opinion does not prescribe how to structure or approve a particular agreement.

Road contractors working for a Mississippi county

The opinion describes a structure in which the county uses its existing contractor to do the paving and the city reimburses the county for its share under the interlocal agreement, rather than the city adopting the county's contract directly. The opinion notes public purchasing laws continue to apply to the underlying procurement.

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: Does using an interlocal agreement avoid the public purchasing laws?
A: No. The opinion is explicit that "the public purchasing laws still apply." The interlocal agreement is a vehicle for joint action; it does not displace the procurement requirements that govern the underlying work.

Q: Does this opinion address commodity purchases or only road paving?
A: The question presented and the holding are about paving roads through an interlocal agreement. The opinion does not separately analyze joint commodity purchases.

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.

As the opinion quotes, the Act 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 opinion does not detail the Act's procedural mechanics.

Public purchasing law operates alongside it. The opinion identifies §§ 31-7-12 and 31-7-13 as the procurement statutes that, under the Baker opinion, a city cannot bypass by adopting a county's purchasing contract. The line the opinion draws is between that prohibited piggybacking and a genuine interlocal agreement under which the units act jointly: the former is barred, the latter is permitted so long as each unit has independent statutory authority for the work and the public purchasing laws are still followed.

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