Jeffrey T. Hollimon

Office of the Attorney GeneralSeptember 16, 2002

2002 WL 31663409 (Miss.A.G.)
Office of the Attorney General
State of Mississippi
*1 Opinion No. 2002-0500
*1 September 16, 2002

Re: Garbage Collection and Disposal

*1 Jeffrey T. Hollimon
*1 Board Attorney
*1 Forrest County Board of Supervisors
*1 Post Office Box 1310
*1 Hattiesburg, Mississippi 39403-1310
Dear Mr. Hollimon:
*1 Attorney General Mike Moore has received your request for an official opinion and has assigned it to me for research and response. On behalf of the Board of Supervisors of Forrest County, your inquiry is related to the effect of Section 17-7-(2) under the following circumstances:
*1 Forrest county currently has a Garbage Collection and Disposal Contract in effect with BFI which will expire on January 31, 2003. The City of Petal has annexed territory in Forrest County containing 800-1000 residences which are being served by the County's BFI Contract. The annexation is currently on appeal to the Mississippi Supreme Court, and the decision of the Supreme Court may or may not be rendered by January 31, 2003. The County has requested proposals from service providers pursuant to law and which includes the residences in the “annexed territory, ” in preparation of the January 31, 2003, termination date of the BFI Contract. Forrest County has been advised that the City may take the position that if the Supreme Court rules in favor of the annexation before January 31, 2003, then Section 17-7-(2) will not apply since the beginning of the service date for the new Contractor will be February 1, 2003, and the City may determine that it wants to take over the service to the exclusion of the County's Contractor.
*1 We need to know your official opinion concerning whether Section 17-7-(2) will be applicable to a County contract for services which will be executed before the Supreme Court rules in the annexation suit even if the collection services have not actually begun as of the date of the Judgment.
*1 Another issue concerns the County's ability or inability to negotiate changes to the requirements as stated in the Request for Proposals for Garbage Collection and Disposal Services. The RFP provided that the Contractor must provide a Performance Bond for 100% of the Contract amount for a 5 year contract, and that bond amount commands a significant bond premium, which causes the monthly fee per customer to be more. Since this requirement is in the RFP, can the County now negotiate with the bidders for a reduction or elimination of the performance bond requirement in exchange for a reduction in the quoted service rate? Or must the RFP be changed and re-dvertised per Section 31--3(r)? Also, if the proposed contract provides for the contractor to handle all billing and the collection of all fees, including enforcement efforts on delinquent accounts, would Section 31-7-3(r) be applicable at all since they County would not be paying the contractor anything over the term of the contract, thereby putting the contract under the $50,000.00 threshold in the statute?
* * * * *
*1 By way of telephone conversation, you advised that the Request for Proposals has already been advertised, and four proposals have been received by Forrest County to provide for garbage collection and disposal services.
*2 Section 17-17-5(2) provides as follows:
*2 In the event an unincorporated area which is annexed by a municipality is being provided collection and disposal of garbage and rubbish under contract with private or other controlling agencies, the municipality shall annex the area subject to the contract for the remainder of the term of the contract, but not to exceed five (5) years.
*2 The language is clear and unambiguous. If the annexation becomes final and is approved by the U.S. Justice Department after the date of February 1, 2003, it is clear that the City takes the area subject to the County's new contract for garbage collection and disposal. However, if the annexation is final and precleared by Justice prior to the beginning date of the new contract, this office is of the opinion that Section 17-7-(2) does not require the City to honor the contract between the County and the contractor. The contract between the County and the contractor should contain provisions addressing this eventuality.
*2 With regard to your second line of inquiry, garbage, solid waste and sewage contracts are exempt from public bid requirements. Mississippi Code Section (317-3(m)(xxii). However, 31-7-13(r) requires public entities to publicly issue requests for proposals for garbage collection or disposal which will involve an expenditure of greater than fifty thousand dollars ($50,000.00), stating:
*2 Before entering into any contract for garbage collection or disposal, contract for solid waste collection or disposal or contract for sewage collection or disposal, which involves an expenditure of more than Fifty Thousand Dollars ($50,000.00), a governing authority or agency shall issue publicly a request for proposals concerning the specifications for such services which shall be advertised for in the same manner as provided in this section for seeking bids for purchases which involve an expenditure of more than Ten Thousand Dollars ($10,000.00). Any request for proposals when issued shall contain terms and conditions relating to price, financial responsibility, technology, legal responsibilities and other relevant factors as are determined by the governing authority or agency to be appropriate for inclusion; all factors determined relevant by the governing authority or agency or required by this paragraph (r) shall be duly included in the advertisement to elicit proposals. After responses to the request for proposals have been duly received, the governing authority or agency shall select the most qualified proposal or proposals on the basis of price, technology and other relevant factors and from such proposals, but not limited to the terms thereof, negotiate and enter contracts with one or more of the persons or firms submitting proposals. If the governing authority or agency deems none of the proposals to be qualified or otherwise acceptable, the request for proposals process may be reinitiated.
*2 Under these facts, where the specifications in the RFP required a bond, the county must either keep that as a requirement, or re-dvertise for proposals. Once responses are received, the governing authorities may select from the most qualified proposal or proposals and negotiate and enter into contracts with one or more of the persons submitting proposals. There is nothing in state law which mandates garbage service contractors to post a bond. Additionally, we are of the opinion that the County may at this time negotiate for a second contract price which would take into account fewer customers, to become effective in the event the annexation is finally approved, and, as stated above, may adopt as a contract term that which rate will be applicable is contingent upon the annexation becoming final either before or after the beginning date of the new contract.
*3 You also ask whether subsection (r) is applicable, since the contractor will be handling all billing, resulting in no direct expenditures by the county, and none in excess of $50,000.00. It is the opinion of this office that the intent behind this provision is to ensure that if the value of the contract will exceed $50,000.00, regardless of whether the county is responsible for billing or the contractor assumes that responsibility, the public entity is required to advertise for proposals. Therefore, subsection (r) would be applicable to this situation.
*3 If our office may be of further assistance, please advise.
*3 Mike Moore
*3 Attorney General
*3 By: Heather P. Wagner
*3 Assistant Attorney General
2002 WL 31663409 (Miss.A.G.)
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