001-070 Index to Attorney General Opinions

001-070 Index to Attorney General Opinions Opinion Date AG DOC Number Requestor, if other than ITS Subject Opinion February 9, 2011 2011-00001 September 9, 1980 1980-00001802 Federal law takes precedent over State Law 2/9/11: The court concluded that, if a conflict exists between a federal regulation and a provision of state law, then the conflict must be resolved in favor of the federal regulation. 9/9/80: The court concluded that where a state participates in federal programs, it is bound by those regulations even though state law, with regard to a particular matter, may be to the contrary. August 20, 2010 2010- ITS Responsibilities in purchase of GIS by local governments ITS' role under 25-58-1 (4) is NOT formal proposal evaluation and recommendation of lowest & best proposal. ITS is responsible for reviewing proposed solutions with the view of leveraging previous expenditures. May 15, 2009 2009- Local zoning ordinances and Towers for MSWIN Government entities are subject to municipal and/or county zoning ordinances aimed at public safety; A municipality or county may not enact an ordinance that would prohibit the WCC from fulfilling its statutory obligations; A municipality or county has an obligation to grant such exceptions to their ordinances as necessary to permit the WCC to fulfill its statutory obligation of implementing a statewide wireless communication system. September 22, 2006 2006-0457 Cooperative Purchasing Agreements ITS may adopt rules and procedures for submitting cooperative purchasing agreements for approval by DFA to be utilized by ITS on behalf of agencies and institutions of the state. May 5, 2006 2006-00159 DFA Cooperative Purchasing Agreements DFA may adopt as its own purchase agreements the cooperative agreements developed by other states and local governments April 14, 2006 2006-00125 ITS Board: Holdover in office ITS code does not provide any authority for an ITS board member to hold over in office until a successor is appointed. (Note: ITS Statute Opinion Date AG DOC Number Requestor, if other than ITS Subject Opinion amended to allow a Board member to continue to serve until a successor has been appointed.) January 25, 2006 2006-0030 DFA Contract Clauses: Indemnity and related matters Absent express or implied authority, an agency cannot indemnify or hold harmless a contractor for liability arising from the contractor's performance or negligence; State may affirmatively acknowledge its potential liability under the Tort Claims Act; Limitation of liability provisions are unenforceable except in one instance in which Legislature has provided express authority to ITS Executive Director. November 30, 2004 2004-0572 Cooperative Purchasing Agreements ITS has the authority to establish reasonable rules, regulations, and procedures to effect the utilization of cooperative purchasing agreements as provided in Section 31-7-13 (m) (xxix) for information technology purchases. August 22, 2003 2003-0411 Tunica County School District Unsealed Bids and Other Irregularities or Technical Deficiencies Irregularities that can be waved generally have the following characteristics: 1. Mandatory statutory provisions are not violated. 2. Irregularity does not in any way destroy the competitive character of the bid. 3. Irregularity has no effect as to the amount of the bid. 4. Irregularity does not give one bidder an advantage or benefit over other bidders. Sealed bid requirement is statutory and cannot be waived. A domestic corporation must be duly incorporated and in good standing with the Secretary of State’s office to be awarded a bid. May 16, 2003 2003-0203 Purchase of MS EdNet Services by State Agencies ITS can include EdNet services in the category "“technology services furnished to state entities by other governmental entities," thus exempting these acquisitions from the requirement for competitive bids (MS Code Section 31-7-13(m)(vi)) and from ITS approval (ITS Procurement Handbook) Opinion Date AG DOC Number Requestor, if other than ITS Subject Opinion October 4, 2002 2002-0534 April 12, 2002 2002-0153 March 16, 2001 2001-0139 ITS Purview over Community Colleges 10/4/02: Only IT equipment purchased by Community Colleges using funds from local tax levies are under ITS purview; 4/12/02: Expenditures of tax proceeds by Community Colleges for IT purchases are under ITS purview; 3/16/01: Community Colleges, as agencies of local government, are not under ITS purview. December 15, 2000 2000-0684 Insurance Requirement for Public Works Contracts $1 million insurance requirement does not apply generically to IT projects, but could apply to specific contracts, such as outside cabling plants August 25, 2000 2000-0442 E-Government Business Models and Bid Requirements 1. ITS can establish infrastructure standards that must be utilized by all agencies. 2. ITS can require competitive award for e-government services, regardless of the dollar amount. 3. The selling of advertising on the state’s websites is not permitted without specific statutory authority; ITS can approve contracts funded by commercial ads on a vendor’s web site. 4. ITS cannot approve fee-added internet services as the ONLY way in which citizens can conduct business with a state agency. 5. An agency cannot sell its records for a profit; an agency cannot authorize any entity to be the exclusive recipient or provider of public data. June 20, 2000 2000-0270 Hinds County Online Services for County Governments The AG’s office strongly encourages competitive bids for acquisition of web-based e-government services by counties, although advertising for bids is not required; Counties are authorized to charge consumers a user fee for e-government services; September 3, 2010 2010-00123 IT Services for Governing Authorities The AG’s office recommends soliciting competitive bids or proposals for the Opinion Date AG DOC Number Requestor, if other than ITS Subject Opinion acquisition of IT services by governing authorities, even though there are no competitive requirements in law. December 10, 1999 1999-0573 Library Commission Grants of Obsolete Computer Equipment to Nonprofit Organizations Library Commission cannot loan or assign computer equipment except to governmental entities but may loan or assign equipment to such nonprofit community centers as may qualify as libraries. Commission can define as a library any Mississippi organization providing a service to the public that is being provided by a significant number of recognized libraries in the US, including providing computers for public access for research and Internet access. June 12, 1998 1998-0342 Dollar Threshold for Competitive, Advertised Bids Narrow interpretation of MS Code Section 25-53-5(p), ITS use of law/regulations governing DFA- OPTFM (public purchasing); ITS cannot use DFA-OPTFM bid limit of $10,000; (Note: ITS statute amended in 1999 Legislative Session to tie bid limit directly to limit in public purchasing law.) May 29, 1998 1998-0288 Disclaimer of Implied Warranties Vendors can limit or disclaim implied warranties in offering computer hardware and software to the State through ITS; ITS can, however, require implied warranties of merchantability and fitness for a particular purpose in any RFP. June 20, 1997 1997-0362 ITS and State Board of Community and Junior Colleges Use of State Information Technology Services by Private Entity Is it legal for a non-public entity to connect to the compressed video backbone network and deliver educational and training services to their constituents? Opinion reiterates 5/10/96 opinion below. May 10, 1996 (not online) Access to State-Provided Technology Resources (Internet access via an IHL’s frame relay connection) by Parochial School State owned technology services can be used by a private entity only when (1) such services are not readily available otherwise in the state; and (2) the nonstate entity pays a charge not less than the prevailing rate for similar services charged by private enterprise. September 13, 1994 1994-0588 State Agency’s Right to Transfer Ownership of Sale is permissible in exchange for fair value. Contract must determine ownership of the Opinion Date AG DOC Number Requestor, if other than ITS Subject Opinion Developed Software to Vendor software. Software belongs to the developer in the absence of contract language to the contrary. June 6, 1994 1994-0305 Certificate of Responsibility Requirement for Vendors Installing or Maintaining Telecommunications and Computer Equipment and Cabling A contract primarily focused on the purchase of telecommunications or computer equipment that will merely be installed or subjected to routine maintenance probably does not fall within the public projects category necessitating a Certificate of Responsibility. June 6, 1994 1994-0281 Management and Distribution of Pay Telephone Commissions by ITS ITS is the sole centralized customer for the acquisition, billing, and record keeping of all telecommunications systems or services provided to state agencies. The law does not mandate that payment of telephone commissions for the Department of Corrections be made directly to the Inmate Welfare Fund, rather than be distributed by ITS to the Department of Corrections, less ITS’ costs. July 2, 1993 1993-0440 Sole-Source Acquisitions Sole source acquisitions of software can be made under ITS’ statutory authority to defer to state purchasing laws for telecommunications acquisitions. (Note: ITS statute later amended to add language re access to public purchasing laws in the “data processing” portion of ITS code.) March 24, 1993 1993-0229 Community College Purchase Using Federal Funds The purchase of computer equipment by community colleges using federal funds administered through the State Vocational Education Board are exempt from ITS purview under Section 25-53-25 (3). The administration of the funds by a state board does not negate this exemption. March 3, 1993 1992-1023 Municipal Energy Agency of MS Limitation of Liability Limitation of liability clauses in contracts (prior to ITS statute allowing limitation) April 3, 1992 1991-0922 Software Developed by the State as Public Record Software is not data but a tool to collect information. Programs developed by the State are its intellectual property. To the extent that software contains confidential file access Opinion Date AG DOC Number Requestor, if other than ITS Subject Opinion information, software is not subject to disclosure under public records statute. July 5, 1990 1990-0485 Mississippi Gulf Coast Community College Telephone Service in Student Dorms Community College cannot allow vendor to contract directly with and supply services to students in dorms on college-owned lines. Per MS Code, ITS must approve or provide telephone services to students at state community colleges on a reimbursable basis. There is no requirement that ITS approve or provide telephone services to college employees, who can contract directly with vendor for telephone service in college-owned housing. March 30, 1990 1990-0187 Purchase of software from a state employee by a state entity via an ITS RFP Allows a state employee to contract with any entity other than the one at which he is employed, as long as proposal is lowest and best. March 7, 1989 1989-076 Bids as Public Records To the extent proposals contain trade secrets or confidential commercial or financial information, they are protected and are not subject to release until the provisions of the Public Records Act requiring notice to 3rd parties and opportunity for a protective court order are complied with. Otherwise, nothing prohibits access to bid information, either during the evaluation process or after the award. November 11, 1988 In re Miss. Jud. Information Sys., 533 So. 2d 1110, 1111 (Miss. 1988) Supreme Court Declared Not Under ITS Purview “The judicial department of the government of this state is not subject to the authority or regulations of [ITS].”