47-5-1219 - Prerequisites for contracting for correctional services; defense of suits or claims.
§ 47-5-1219. Prerequisites for contracting for correctional services; defense of suits or claims.
A contract for correctional services shall not be entered into unless the following requirements are met:
(a) In addition to fire and casualty insurance, the contractor provides at least Ten Million Dollars ($10,000,000.00) of liability insurance, specifically including insurance for civil rights claims. The liability insurance shall be issued by an insurance company with a rating of at least an A- according to A.M. Best standards. In determining the adequacy of such insurance, the Department of Finance and Administration shall determine whether:
(i) The insurance is adequate to protect the state from any and all actions by a third party against the contractor or the state as a result of the contract;
(ii) The insurance is adequate to protect the state against any and all claims arising as a result of any occurrence during the term of the contract;
(iii) The insurance is adequate to assure the contractor's ability to fulfill its contract with the state in all respects, and to assure that the contractor is not limited in this ability because of financial liability which results from judgments; and
(iv) The insurance is adequate to satisfy such other requirements specified by the independent risk management/actuarial firm.
(b) The sovereign immunity of the state shall not apply to the contractor. Neither the contractor nor the insurer of the contractor may plead the defense of sovereign immunity in any action arising out of the performance of the contract.
(c) The contractor shall post a performance bond to assure the contractor's faithful performance of the specifications and conditions of the contract. The bond is required throughout the term of the contract. The terms and conditions must be approved by the Department of Corrections and the Department of Finance and Administration and such approval is a condition precedent to the contract taking effect.
(d) The contractor shall defend any suit or claim brought against the State of Mississippi arising out of any act or omission in the operation of a private facility, and shall hold the State of Mississippi harmless from such claim or suit. The contractor shall be solely responsible for the payment of any legal or other costs relative to any such claim or suit. The contractor shall reimburse the State of Mississippi for any costs that it may incur as a result of such claim or suit immediately upon being submitted a statement therefor by the Attorney General.
The duties and obligations of the contractor pursuant to this subsection shall include, but not be limited to, any claim or suit brought under any federal or state civil rights or prisoners rights statutes or pursuant to any such rights recognized by common law or case law, or federal or state constitutions.
Any suit brought or claim made arising out of any act or omission in the operation of a private facility shall be made or brought against the contractor and not the State of Mississippi.
The Attorney General retains all rights and emoluments of his office which include direction and control over any litigation or claim involving the State of Mississippi.
Sources: Laws, 1994 Ex Sess, ch. 26, § 11, eff from and after passage (approved August 23, 1994).