The Mississippi Department of Education’s emergency declaration for six technology projects wasn’t required to protect lives or property, but MDE acted within the bounds of state procurement law, according to the Legislature’s watchdog committee.
The Joint Legislative Committee on Performance Evaluation and Expenditure Review (PEER) is required by law biennially to review state procurement processes and its December 20 report covered emergency contracts.
According to PEER, state agencies have issued 314 emergency contracts worth $469.6 million from July 1, 2018 to September 16, 2021. The largest user of emergency contracts in terms of dollar value was the Mississippi Emergency Management Agency with 21 contracts worth $173 million, followed by the Department of Corrections (20 contracts worth $110 million) and the Department of Health (29 contracts worth $54 million).
The report took aim at the $89 million emergency procurement with federal Elementary and Secondary School Emergency Relief (ESSER) funds by MDE.
The projects that need to be approved by February 2022 (to meet federal deadlines) include $9.3 million for the educator career continuum system, $14 million for a new school safety system, $14.6 million for the replacement of the Mississippi Student Information System and $49.5 million in learning aids for students.
Federal regulations require contracts to be awarded by January 2022 for the first round of funds and March 2022 for the second round. The department also must show federal officials that the funds are obligated through September 30, 2023 (first batch) and September 30, 2024 (second batch), which requires an extended contract.
These federal funds are a 9.5 percent holdback by the MDE from $2.5 billion from the ESSER Fund, disbursed to school districts for COVID-related expenses such as distance learning. Most of these funds were issued directly to districts.
At its December meeting, the state Board of Education approved a contract with World Wide Technology of St. Louis, Missouri to build a new Mississippi Student Information System (MSIS) to replace the existing system, which is now nearly 21 years old. The contract amount is for $10.79 million, with the contract extending from December 16, 2021 to September 30, 2024.
The PEER report said the characterization of an emergency when applied to MSIS was questionable because the definition of an emergency under state procurement law is an unexpected circumstance that creates a threat to health, safety or the preservation and protection of public property. PEER noted that the MDE has requested funds for several years to upgrade the MSIS system, which lawmakers appropriated $7.6 million in fiscal 2021. That spending wasn’t included in the emergency declaration.
The state Board of Education also approved a $1.8 million, three-year contract for TempStaff LLC. to staff a call center that would respond to calls from prospective and licensed educators regarding licensure requirements.
MDE wanted an exemption to the regulatory one-year limitation on emergency contracts because the Tempstaff contract is for two years and nine months.
The PEER report says the Mississippi Department of Finance and Administration’s Office of Personal Service Contract Review (OPSCR) determined that the MDE evaluated cost factors openly without prior approval from the state Public Procurement Review Board (PRRB). The PRRB approved the exemption on December 3, despite having a protest on the contract.
According to regulations, MDE would have been required to cancel the request for procurement and restart the bidding process, something that the MDE denied in its response to the report. State Superintendent of Education Carey Wright said in her response letter included in the PEER report that the agency had sought approval from OPSCR staff and the PRRB before issuing the request for procurement.
PEER had several recommendations for procurement reform.
It first recommended that the state auditor’s office conduct random samples and audits of procurements made by either the executive director or governing boards at state agencies without approval from the Department of Finance and Administration or the Mississippi Department of Information Technology Services (ITS) Board to determine if emergencies in the sample presented a threat to lives or property.
PEER also said that it recommends that lawmakers amend the state’s procurement laws to ensure that any emergency-based IT procurement or personal service contracts be limited to a one-year term.
The report also said lawmakers should mandate that the PPRB and ITS should jointly evaluate the procurement process utilized by state agencies.
PEER also recommended that the state develop a detailed emergency procurement plan to ensure the continuity of state operations. That would require better documentation of the emergency procurement process, increase accountability and transparency and allow state oversight authorities to track the procurement in real time rather than relying on a post-audit process and unclear chain of documentation.
