HB168INTRODUCED
Page 0
KJ7EUA-1
By Representatives Underwood, Pettus, Rigsby, Lomax, Woods
RFD: State Government
First Read: 21-Mar-23
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5 KJ7EUA-1 03/20/2023 CMH (L) bm 2023-945
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SYNOPSIS:
Under existing law, with the exception of
contracts for public works, all expenditure of funds of
whatever nature for labor, services, work, or for the
purchase or lease of materials, equipment, supplies, or
other personal property involving $15,000 or more made
by or on behalf of certain state and local public
awarding authorities are required to be made by
contractual agreement entered into by free and open
competitive bidding, on sealed bids, to the lowest
responsible bidder.
Also under existing law, before an awarding
authority may enter into any contract for a public
works involving an amount in excess of $50,000, the
awarding authority is required to advertise the
contract and award the contract to the lowest
responsible bidder.
This bill would increase various threshold
dollar amounts for which competitive bidding is
generally required and would authorize those dollar
amounts to be further increased based on increases in
the Consumer Price Index.
Section 111.05 of the Constitution of Alabama of
2022, prohibits a general law whose purpose or effect
would be to require a new or increased expenditure of
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local funds from becoming effective with regard to a
local governmental entity without enactment by a 2/3
vote unless: it comes within one of a number of
specified exceptions; it is approved by the affected
entity; or the Legislature appropriates funds, or
provides a local source of revenue, to the entity for
the purpose.
The purpose or effect of this bill would be to
require a new or increased expenditure of local funds
within the meaning of the amendment. However, the bill
does not require approval of a local governmental
entity or enactment by a 2/3 vote to become effective
because it comes within one of the specified exceptions
contained in the amendment.
A BILL
TO BE ENTITLED
AN ACT
Relating to public contracts; to amend Sections
41-16-50, 41-16-51, 41-16-52, 41-16-53, 41-16-54, and
41-16-55, Code of Alabama 1975, to increase the threshold
dollar amount for which competitive bidding is generally
required for certain state and local public awarding
authorities, with exceptions; to amend Sections 39-2-2 and
39-2-4, Code of Alabama 1975, to increase the threshold dollar
amount for which competitive bidding is generally required for
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public works contracts; to provide a legislative method for
the increase of the threshold dollar amounts; and in
connection therewith would have as its purpose or effect the
requirement of a new or increased expenditure of local funds
within the meaning of Section 111.05 of the Constitution of
Alabama of 2022.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. Sections 41-16-50, 41-16-51, 41-16-52,
41-16-53, 41-16-54, and 41-16-55, Code of Alabama 1975, are
amended to read as follows:
"§41-16-50
(a) With the exception of contracts for public works
whose competitive bidding requirements are governed
exclusively by Title 39, all expenditure of funds of whatever
nature for labor, services, work, or for the purchase of
materials, equipment, supplies, or other personal property
involving fifteen thousand dollars ($15,000) thirty thousand
dollars ($30,000) or more, and the lease of materials,
equipment, supplies, or other personal property where the
lessee is, or becomes legally and contractually , bound under
the terms of the lease , to pay a total amount of fifteen
thousand dollars ($15,000) thirty thousand dollars ($30,000)
or more, made by or on behalf of the Alabama Fire College, the
district boards of education of independent school districts,
the county commissions, the governing bodies of the
municipalities of the state, and the governing boards of
instrumentalities of counties and municipalities, including
waterworks boards, sewer boards, gas boards, and other like
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utility boards and commissions, except as hereinafter
otherwise provided in this article , shall be made under
contractual agreement entered into by free and open
competitive bidding, on sealed bids, to the lowest responsible
and responsive bidder.
(b)(1) Prior to advertising for bids for an item of
personal property or services, where a county, a municipality,
or an instrumentality thereof is the awarding authority, the
awarding authority may establish a local preference zone
consisting of eitherany of the following:
a. The the legal boundaries or jurisdiction of the
awarding authority , or the.
b. The boundaries of the county in which the awarding
authority is located , or the.
c. The boundaries of the Core Based Statistical Area in
which the awarding authority is located.
(2) If no such action is taken by the awarding authority
under subdivision (1) , the boundaries of the local preference
zone shall be deemed to be the same as the legal boundaries or
jurisdiction of the awarding authority.
(3) In the event a bid is received for an item of
personal property or services to be purchased or contracted
for from a person, firm, or corporation deemed to be a
responsible bidder, having a place of business within the
local preference zone where the county, a municipality, or an
instrumentality thereof is the awarding authority, and the bid
is no more than five percent greater than the bid of the
lowest responsible bidder, the awarding authority may award
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the contract to the resident responsible bidder.
(4)If no bids or only one bid is received at the time
stated in the advertisement for bids, the awarding authority
may advertise for and seek other competitive bids, or the
awarding authority may negotiate through the receipt of
informal bids not subject to the requirements of this article.
Where only one responsible and responsive bid has been
received, any negotiation for the work shall be for a price
lower than that bid. In the event only one bidder responds to
the invitation to bid, the awarding authority may reject the
bid and negotiate the purchase or contract, providing the
negotiated price is lower than the bid price.
(5) In the event both or all bids exceed the awarding
authority's anticipated budget, the awarding authority may
negotiate with the lowest responsible and responsive bidder,
provided the negotiated price is lower than the bid price.
(b)(c) The governing bodies of two or more contracting
agencies, as enumerated in subsection (a), or the governing
bodies of two or more counties, or the governing bodies of two
or more city or county boards of education, may provide, by
joint agreement, for the purchase of labor, services, or work,
or for the purchase or lease of materials, equipment,
supplies, or other personal property for use by their
respective agencies. The agreement shall be entered into by
similar ordinances, in the case of municipalities, or
resolutions, in the case of other contracting agencies,
adopted by each of the participating governing bodies, which
shall set forth the categories of labor, services, or work, or
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for the purchase or lease of materials, equipment, supplies,
or other personal property to be purchased, the manner of
advertising for bids and the awarding of contracts, the method
of payment by each participating contracting agency, and other
matters deemed necessary to carry out the purposes of the
agreement. Each contracting agency's share of expenditures for
purchases under any agreement shall be appropriated and paid
in the manner set forth in the agreement and in the same
manner as for other expenses of the contracting agency. The
contracting agencies entering into a joint agreement, as
herein permitted by this section , may designate a joint
purchasing or bidding agent, and the agent shall comply with
this article. Purchases, contracts, or agreements made
pursuant to a joint purchasing or bidding agreement shall be
subject to all terms and conditions of this article.
In the event that utility services are no longer exempt
from competitive bidding under this article, non-adjoining
counties may not purchase utility services by joint agreement
under authority granted by this subsection.
(c)(d) The awarding authority may require bidders to
furnish a bid bond for a particular bid solicitation if the
bonding requirement applies to all bidders, is included in the
written bid specifications, and if bonding is available for
the services, equipment, or materials.
(d)(e) Notwithstanding subsection (a), in the event the
lowest bid for an item of personal property or services to be
purchased or contracted for is received from a foreign entity,
where the county, a municipality, or an instrumentality
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thereof is the awarding authority, the awarding authority may
award the contract to a responsible bidder whose bid is no
more than 10 percent greater than the foreign entity if the
bidder has a place of business within the local preference
zone or is a responsible bidder from a business within the
state that is a woman-owned enterprise, an enterprise of small
business, as defined in Section 25-10-3, a minority-owned
business enterprise, a veteran-owned business enterprise, or a
disadvantaged-owned business enterprise. For the purposes of
this subsection, foreign entity means a business entity that
does not have a place of business within the state.
(f)(1) No expenditure involving thirty thousand dollars
($30,000) or more may be split into parts involving sums of
less than thirty thousand dollars ($30,000) for the purpose of
evading the requirements of this article.
(2) If an awarding authority documents its reasonable
belief, based on expenditures in previous years, that an
expenditure will not meet the dollar threshold and, based upon
that reasonable belief, makes the expenditure without bidding,
but then circumstances arise that necessitate making a
subsequent expenditure of like items or services that would
increase the total to or above the dollar threshold, then the
subsequent expenditure shall be bid pursuant to this article.
The awarding authority shall not be deemed to have violated
this article for the prior expenditure that was not bid,
provided that the awarding authority documented its reasonable
belief, based on expenditures in previous years, that the
total amount would be below the dollar threshold and that the
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subsequent expenditure was bid.
(g) Beginning October 1, 2027, and every three years
thereafter, all dollar amounts used in this article shall be
subject to a cost adjustment based on the following procedure:
The Chief Examiner of the Department of Examiners of Public
Accounts may submit to the Chair of the Legislative Council a
recommendation that the amount be increased based on the
percentage increase in the Consumer Price Index for the
immediately preceding three-year period, rounded to the
nearest thousand dollars. The recommendation shall be subject
to the approval of the Legislative Council. In the event the
recommendation is not disapproved by the Legislative Council
by the end of April following the submission of the
recommendation, the recommendation shall be deemed to be
approved. Upon approval, the Department of Examiners of Public
Accounts shall notify the public of the adjusted dollar
amounts by July 1 before the fiscal year in which the changes
will take effect. "
"§41-16-51
(a) Competitive bids for entities subject to this
article shall not be required for utility services, the rates
for which are fixed by law, regulation, or ordinance, and the
competitive bidding requirements of this article shall not
apply to any of the following :
(1) The purchase of insurance.
(2) The purchase of ballots and supplies for conducting
any primary, general, special, or municipal election.
(3) Contracts for securing services of attorneys,
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physicians, architects, teachers, superintendents of
construction, artists, appraisers, engineers, consultants,
certified public accountants, public accountants, or other
individuals possessing a high degree of professional skill
where the personality of the individual plays a decisive part.
(4) Contracts of employment in the regular civil
service.
(5) Contracts for fiscal or financial advice or
services.
(6) Purchases of products made or manufactured by blind
or visually impaired individuals under the direction or
supervision of the Alabama Institute for Deaf and Blind in
accordance with Sections 21-2-1 to 21-2-4, inclusive Chapter 2
of Title 21.
(7) Purchases of maps or photographs from any federal
agency.
(8) Purchases of manuscripts, books, maps, pamphlets,
periodicals, and library/research electronic data bases of
manuscripts, books, maps, pamphlets, or periodicals.
(9) The selection of paying agents and trustees for any
security issued by a public body.
(10) Existing contracts up for renewal for sanitation or
solid waste collection, recycling, and disposal between
municipalities or counties, or both, and those providing the
service.
(11) Purchases of computer and word processing hardware
when the hardware is the only type that is compatible with
hardware already owned by the entity taking bids and custom
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software.
(12) Professional services contracts for codification
and publication of the laws and ordinances of municipalities
and counties.
(13) Contractual services and purchases of commodities
for which there is only one vendor or supplier and contractual
services and purchases of personal property which by their
very nature are impossible to award by competitive bidding.
(14) Purchases of dirt, sand, or gravel by a county
governing body from in-county property owners in order to
supply a county road or bridge project in which the materials
will be used. The material shall be delivered to the project
site by county employees and equipment used only on projects
project components conducted exclusively by county employees.
(15) Contractual services and purchases of products
related to, or having an impact upon, security plans,
procedures, assessments, measures, or systems, or the security
or safety of persons, structures, facilities, or
infrastructures.
(16) Subject to the limitations in this subdivision,
purchases, leases, or lease/purchases of goods or services,
other than voice or data wireless communication services, made
as a part of the purchasing cooperative sponsored by the
National Association of Counties, its successor organization,
or any other national or regional governmental cooperative
purchasing program. The purchases, leases, or lease/purchases
may only be made if all of the following occur:
a. The goods or services being purchased, including
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those purchased through a lease/purchase agreement, or leased
are available as a result of a competitive bid process
conducted by a governmental entity and approved by the Alabama
Department of Examiners of Public Accounts for each bid.
b. The goods or services are either not at the time
available to counties on the state purchasing program or are
available at a price equal to or less than that on the state
purchasing program.
c. The purchase, lease, or lease/purchase is made
through a participating Alabama vendor holding an Alabama
business license if such a vendor exists.
d. The entity purchasing, leasing, or lease/purchasing
goods or services under this subdivision has been notified by
the Department of Examiners of Public Accounts that the
competitive bid process utilized by the cooperative program
offering the goods complies with this subdivision. In
addition, upon request, a vendor shall provide the entity
purchasing, leasing, or lease/purchasing items that exceed
fifteen thousand dollars ($15,000) goods or services equaling
thirty thousand dollars ($30,000) or more which are made under
this exception subdivision during the previous 12 months a
report of the sales, leases, and lease/purchases .which
includes The report shall include a general description of the
goods or services; the number of units sold, leased, and
leased/purchased per entity; and the price of units purchased,
leased, or leased/purchased.
(17) Purchase Purchases of goods or services, other than
wireless communication services, whether voice or data, from
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vendors that have been awarded a current and valid Government
Services Administration contract. Any purchase made pursuant
to this subdivision shall be under the same terms and
conditions as provided in the Government Services
Administration contract. Prices paid for such goods and
services, other than wireless communication services, whether
voice or data, may not exceed the amount provided in the
Government Services Administration contract.
(18) Purchases of goods or services from vendors that
have been awarded a current and valid statewide contract
listed on the Alabama Buys e-procurement system. Any purchase
made pursuant to this subdivision shall be under the same
terms and conditions as provided in the statewide contract.
Prices paid for such goods and services may not exceed the
amount provided in the statewide contract.
(19) Purchases of goods or services between governmental
entities of the state, as authorized by Section 11-1-10.
(b) This article shall not apply to:
(1) Any purchases of products where the price of the
products is already regulated and established by state law.
(2) Purchases made by individual schools of the county
or municipal public school systems from monies other than
those raised by taxation or received through appropriations
from state or county sources.
(3) The purchase, lease, sale, construction,
installation, acquisition, improvement, enlargement, or
expansion of any building or structure or other facility
designed or intended for lease or sale by a medical clinic
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board organized under Sections 11-58-1 to 11-58-14, inclusive
Chapter 58 of Title 11 .
(4) The purchase, lease, or other acquisition of
machinery, equipment, supplies, and other personal property or
services by a medical clinic board organized under Sections
11-58-1 to 11-58-14, inclusive Chapter 58 of Title 11 .
(5) Purchases for public hospitals and nursing homes
operated by the governing boards of instrumentalities of the
state, counties, and municipalities.
(6) Contracts for the purchase, lease, sale,
construction, installation, acquisition, improvement,
enlargement, or extension of any plant, building, structure,
or other facility or any machinery, equipment, furniture, or
furnishings therefor designed or intended for lease or sale
for industrial development, other than public utilities, under
Sections 11-54-80 to 11-54-99, inclusive Division 1 of Article
4 of Chapter 54 of Title 11 , or Sections 11-54-20 to 11-54-28,
inclusive Article 2 of Chapter 54 of Title 11 , or any other
law or amendment to the Constitution of Alabama of 2022
authorizing the construction of plants or other facilities for
industrial development or for the construction and equipment
of buildings for public building authorities under Sections
11-56-1 to 11-56-22, inclusive Chapter 56 of Title 11 .
(7) The purchase of equipment, supplies, or materials
needed, used, and consumed in the normal and routine operation
of any waterworks system, sanitary sewer system, gas system,
or electric system, or any two or more thereof, that are owned
by municipalities, counties, or public corporations, boards,
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or authorities that are agencies, departments, or
instrumentalities of municipalities or counties and no part of
the operating expenses of which system or systems, during the
then current fiscal year, have been paid from revenues derived
from taxes or from appropriations of the state, a county, or a
municipality.
(8) Purchases made by local housing authorities,
organized and existing under Chapter 1 of Title 24, from
monies other than those raised by state, county, or city
taxation or received through appropriations from state,
county, or city sources.
(c) The state trade schools, state junior colleges,
state colleges, and universities under the supervision and
control of the State Board of Education, the district boards
of education of independent school districts, the county
commissions, and the governing bodies of the municipalities of
the state shall establish and maintain such purchasing
facilities and procedures as may be necessary to carry out the
intent and purpose of this article by complying with the
requirements for competitive bidding in the operation and
management of each state trade school, state junior college,
state college, or university under the supervision and control
of the State Board of Education, the district boards of
education of independent school districts, the county
commissions, and the governing bodies of the municipalities of
the state and the governing boards of instrumentalities of
counties and municipalities, including waterworks boards,
sewer boards, gas boards, and other like utility boards and
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commissions.
(d) Contracts entered into in violation of this article
shall be void and any person who violates the provisions of
this article shall be guilty of a Class C felony."
"§41-16-52
(a) All expenditures of funds of whatever nature for
repair parts and the repair of heavy duty off-highway
construction equipment or of any vehicles with a gross vehicle
weight rating of 25,000 pounds or greater, including machinery
used for grading, drainage, road construction, and compaction
for the exclusive use of county and municipal highway, street,
and sanitation departments, involving not more than twenty-two
thousand five hundred dollars ($22,500) forty thousand dollars
($40,000) made by or on behalf of any county commissions and
the governing bodies of the municipalities of the state, and
the governing bodies of instrumentalities, including
waterworks boards, sewer boards, gas boards, and other like
utility boards and commissions, shall be made, at the option
of the governing boards, bodies, instrumentalities, and
commissions, without regard to this article. The foregoing
exemption from this article shall apply to each incident of
repair as to any repair parts, equipment, vehicles, or
machinery. The amount of the exempted expenditure shall not be
construed to be an aggregate of all the expenditures per
fiscal year as to any individual vehicle or piece of equipment
or machinery.
(b) The option provided by subsection (a) may be
exercised by the governing boards, bodies, instrumentalities,
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and commissions by specific reference to this section on any
and all purchase orders and purchase commitments executed by
the governing boards, bodies, instrumentalities, and
commissions; provided, however . However, the option shall not
be exercised by any employee, agent, or servant unless done so
after having received official prior approval of the
respective governing board, body, instrumentality, or
commission or unless exercised pursuant to a formal policy
adopted by the governing board, body, instrumentality, or
commission setting out conditions and restrictions under which
the option shall be exercised.
(c) All expenditures of funds of whatever nature for the
leasing of heavy duty off-highway construction equipment and
all vehicles with a gross vehicle weight rating of 25,000
pounds or greater, including machinery for grading, drainage,
road construction, and compaction for exclusive use of county
and municipal highway, street, and sanitation departments,
involving a monthly rental of not more than five thousand
dollars ($5,000) ten thousand dollars ($10,000) per month per
vehicle or piece of equipment or machinery but not to exceed
fifteen thousand dollars ($15,000) thirty thousand dollars
($30,000) per month for all such vehicles and pieces of
equipment made by or on behalf of any county commissions and
the governing boards of municipalities of the state and the
governing bodies of instrumentalities, including waterworks
boards, sewer boards, gas boards, and other like utility
boards and commissions shall be made, at the option of the
governing boards, bodies, instrumentalities, and commissions,
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without regard to the provisions of this article."
"§41-16-53
In case of emergency affecting public health, safety or
convenience, so declared in writing by the awarding authority,
setting forth the nature of the danger to public health,
safety or convenience involved in delay, contracts may be let
to the extent necessary to meet the emergency without public
advertisement. Such action and the reasons therefor shall
immediately be made public by the awarding
authority.Notwithstanding any law to the contrary, in the
event circumstances arise for which a delay in remedying or
otherwise addressing would likely cause harm to an individual
or public property, a contract may be let to the extent
necessary to mitigate the harm without regard to the
requirements of this article, provided the awarding authority
does both of the following:
(1) Documents two or more price quotations or price
estimates before letting the contract.
(2) Adopts a resolution declaring the nature of the
circumstances, the action to be taken, and the reasons for
taking the action. "
"§41-16-54
(a)(1) All proposed purchases in excess of fifteen
thousand dollars ($15,000) thirty thousand dollars ($30,000)
shall be advertised by posting notice thereof on a bulletin
board maintained outside the purchasing office and in any
other manner and for any length of time as may be determined.
Sealed bids or bids to be submitted by a reverse auction
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procedure shall also be solicited by sending notice by mail or
other electronic means to all persons, firms, or corporations
who have filed a request in writing that they be listed for
solicitation on bids for the particular items that are set
forth in the request. If any person, firm, or corporation
whose name is listed fails to respond to any solicitation for
bids after the receipt of three solicitations, the listing may
be cancelled.
(2) If a governing body mandates that advertisement for
bids shall be published in a newspaper, the contract for
purchase shall be awarded if the newspaper to which the
advertisement was submitted did not publish the advertisement
if the governing body can provide proof that it in good faith
submitted the advertisement to the newspaper with instructions
to publish the notice in accordance with this section.
(b) Except as provided in subsection (d), all bids shall
be sealed when received and shall be opened in public at the
hour stated in the notice.
(c) If the purchase or contract will involve an amount
of fifteen thousand dollars ($15,000) or less less than thirty
thousand dollars ($30,000) , the purchases or contracts may be
made upon the basis of sealed bids, a joint purchasing
agreement, a reverse auction procedure, or in the open market.
(d) Beginning January 1, 2009, the awarding authority
may make purchases or contracts involving an amount of fifteen
thousand dollars ($15,000) thirty thousand dollars ($30,000)
or more through a reverse auction procedure ; provided,
however, that. However, a reverse auction shall only be
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allowed where the item to be purchased at a reverse auction is
either not at the time available on the state purchasing
program under the same terms and conditions or, if available,
the lowest price offered in the reverse auction is equal to or
less than the price for which the item is available on the
state purchasing program under the same terms and conditions.
All of the purchases shall be subject to audit by the
Examiners of Public Accounts. For purposes of this article, a
reverse auction procedure includes either of the following:
(1) A real-time bidding process usually lasting less
than one hour and taking place at a previously scheduled time
and Internet location, in which multiple anonymous suppliers
submit bids to provide the designated goods or services.
(2) a. A bidding process usually lasting less than two
weeks and taking place during a previously scheduled period
and at a previously scheduled Internet location, in which
multiple anonymous suppliers submit bids to provide the
designated goods or services.
b. No later than November 30, 2008, the Department of
Examiners of Public Accounts shall establish procedures for
the use of reverse auction, which shall be distributed to all
contracting agencies and shall be used in conducting any
audits of the purchasing agency.
(e) All original bids together with all documents
pertaining to the award of the contract shall be retained in
accordance with a retention period of at least seven years
established by the Local Government Records Commission and
shall be open to public inspection.
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(f) No purchase or contract involving professional
services shall be subject to the requirements of this article
and no purchase or contract involving an amount in excess of
fifteen thousand dollars ($15,000) shall be divided into parts
involving amounts of fifteen thousand dollars ($15,000) or
less for the purpose of avoiding the requirements of this
article. All such partial contracts involving fifteen thousand
dollars ($15,000) or less shall be void .
(g) This section shall be applicable to education
purchases made pursuant to Chapter 13B of Title 16."
"§41-16-55
(a) Any agreement or collusion among bidders or
prospective bidders in restraint of freedom of competition, by
agreement, to bid at a fixed price or to refrain from bidding
or otherwise shall render the bids of such the bidders void
and shall cause such the bidders to be disqualified from
submitting further bids to the awarding authority on future
purchases.
(b) Whoever knowingly participates in a collusive
agreement in violation of this section involving a bid or bids
of fifteen thousand dollars ($15,000) less than thirty
thousand dollars ($30,000) and under shall be guilty of a
Class A misdemeanor and, upon conviction, shall be punished as
prescribed by law.
(c) Whoever knowingly and intentionally participates in
a collusive agreement in violation of this section involving a
bid or bids of over fifteen thousand dollars ($15,000) thirty
thousand dollars ($30,000) or more shall be guilty of a Class
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C felony, and upon conviction shall be punished as prescribed
by law."
Section 2. Sections 39-2-2 and 39-2-4, Code of Alabama
1975, are amended to read as follows:
"§39-2-2
(a)(1) Before entering into any contract for a public
works involving an amount in excess of fifty thousand dollars
($50,000) one hundred thousand dollars ($100,000) , the
awarding authority shall advertise for sealed bids, except as
provided in subsection (j).
(2)a. If the awarding authority is the state or a
county, or an instrumentality thereof, it shall advertise for
sealed bids at least once each week for three consecutive
weeks in a newspaper of general circulation in the county or
counties in which the improvement, or some part thereof, is to
be made.
b. If the awarding authority is a municipality, or an
instrumentality thereof, it shall advertise for sealed bids at
least once in a newspaper of general circulation published in
the municipality where the awarding authority is located. If
no newspaper is published in the municipality, the awarding
authority shall advertise by posting notice thereof on a
bulletin board maintained outside the purchasing office and in
any other manner and for the length of time as may be
determined. In addition to bulletin board notice, sealed bids
shall also be solicited by sending notice by mail to all
persons who have filed a request in writing with the official
designated by the awarding authority that they be listed for
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solicitation on bids for the public works contracts indicated
in the request. If any person whose name is listed fails to
respond to any solicitation for bids after the receipt of
three such solicitations, the listing may be canceled.
(3) With the exception of the Department of
Transportation, for all public works contracts involving an
estimated amount in excess of five hundred thousand dollars
($500,000), awarding authorities shall also advertise for
sealed bids at least once in three newspapers of general
circulation throughout the state.
(4) The advertisements shall briefly describe the
improvement, state that plans and specifications for the
improvement are on file for examination in a designated office
of the awarding authority, state the procedure for obtaining
plans and specifications, state the time and place in which
bids shall be received and opened, and identify whether
prequalification is required and where all written
prequalification information is available for review.
(5) All bids shall be opened publicly at the advertised
time and place.
(6) No public work, as defined in this chapter,
involving a sum in excess of fifty thousand dollars ($50,000)
one hundred thousand dollars ($100,000) shall be split into
parts involving sums of fifty thousand dollars ($50,000) one
hundred thousand dollars ($100,000) or less for the purpose of
evading the requirements of this section.
(b)(1) An awarding authority may let contracts for
public works involving fifty thousand dollars ($50,000) one
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hundred thousand dollars ($100,000) or less with or without
advertising or sealed bids.
(2) An awarding authority may enter into a contract for
public works if an advertisement for sealed bids for the
contract was submitted by the awarding authority to a
newspaper and the newspaper only published the advertisement
for two weeks if the authority can provide proof that it, in
good faith, submitted the advertisement to the newspaper with
instructions to publish the notice in accordance with the
provisions of this section.
(c) All contracts for public works entered into in
violation of this title shall be void and violative of public
policy. Anyone who willfully violates this article concerning
public works shall be guilty of a Class C felony.
(d)(1) Excluded from the operation of this title shall
be contracts with persons who shall perform only
architectural, engineering, construction management, program
management, or project management services in support of the
public works and who shall not engage in actual construction,
repair, renovation, or maintenance of the public works with
their own forces, by contract, subcontract, purchase order,
lease, or otherwise.
(2) Excluded from operation of the bidding requirements
in this title are contracts for the purchase of any heating or
air conditioning units or systems by any awarding authority
subject to Chapter 13B of Title 16, or Article 3, commencing
with Section 41-16-50, of Chapter 16 of Title 41, provided the
contract is entered into with an Alabama vendor who has been
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granted approved vendor status for the sale of heating or air
conditioning units or systems as a part of a purchasing
cooperative, and each of the following occur:
a. The heating or air conditioning unit or system being
purchased is available as a result of a competitive bid
process conducted by a governmental entity which has been
approved by the Department of Examiners of Public Accounts.
b. The purchase of the heating or air conditioning unit
or system is not available on the state purchasing program at
the time or the purchase under the purchasing cooperative is
available at a price that is equal to or less than that
available through the state purchasing program.
c. The entity entering into the contract for the
purchase of the heating or air conditioning unit or system has
been notified by the Department of Examiners of Public
Accounts that the competitive bid process utilized by the
cooperative program offering the goods complies with this
subdivision.
d. Upon request, the vendor has provided the purchasing
entity with a report of sales made under this subdivision
during the previous 12-month period, to include a general
description of the heating or air conditioning units and
systems sold, the number of units sold per entity, and the
purchase price of the units.
e. The exemption from the requirement to utilize sealed
bids for the purchase of heating or air conditioning units or
systems authorized by this section shall not serve to exempt
any public works project from the remaining provisions of this
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article, including, but not limited to, design, installation,
and review requirements, compliance with all applicable codes,
laws, specifications, and standards, and the compensation of
engineers, architects, or others as mandated by state law or
rule.
(e) In case of an emergency affecting public health,
safety, or convenience, as declared in writing by the awarding
authority, setting forth the nature of the danger to the
public health, safety, or convenience which would result from
delay, contracts may be let to the extent necessary to meet
the emergency without public advertisement. The action and the
reasons for the action taken shall immediately be made public
by the awarding authority upon request.
(f) No awarding authority may specify in the plans and
specifications for the improvement the use of materials,
products, systems, or services by a sole source unless all of
the following requirements are met:
(1) Except for contracts involving the construction,
reconstruction, renovation, or replacement of public roads,
bridges, and water and sewer facilities, the awarding
authority can document to the satisfaction of the Division of
Construction Management that the sole source product,
material, system, or service is of an indispensable nature for
the improvement, that there are no other viable alternatives,
and that only this particular product, material, system, or
service fulfills the function for which it is needed.
(2) The sole source specification has been recommended
by the architect or engineer of record as an indispensable
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item for which there is no other viable alternative.
(3) All information substantiating the use of a sole
source specification, including the recommendation of the
architect or engineer of record, shall be documented and made
available for examination in the office of the awarding
authority at the time of advertisement for sealed bids.
(g) In the event of a proposed public works project,
acknowledged in writing by the Alabama Homeland Security
Department as: (1) having a direct impact on the security or
safety of persons or facilities; and (2) requiring
confidential handling for the protection of such persons or
facilities, contracts may be let without public advertisement
but with the taking of informal bids otherwise consistent with
the requirements of this title and the requirements of
maintaining confidentiality. Records of bidding and award
shall not be disclosed to the public and shall remain
confidential.
(h) If a pre-bid meeting is held, the pre-bid meeting
shall be held at least seven days prior to the bid opening
except when the project has been declared an emergency in
accordance with subsection (e).
(i) The awarding authority may not offer a contract for
bidding unless confirmation of any applicable grant has been
received and any required matching funds have been secured by
or are available to the awarding authority.
(j) Notwithstanding subsection (a), the Department of
Transportation may enter into contracts for road construction
or road maintenance projects that do not involve more than two
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hundred fifty thousand dollars ($250,000) without advertising
for sealed bids, provided the project is listed on the
department website for at least seven calendar days before
entering into the contract. The total cost of all projects not
subject to advertising and sealed bids pursuant to this
subsection may not exceed one million dollars ($1,000,000) in
the aggregate per year.
(k) Beginning October 1, 2027, and every three years
thereafter, all dollar amounts used in this section shall be
subject to a cost adjustment based on the following procedure:
The Chief Examiner of the Department of Examiners of Public
Accounts may submit to the Chair of the Legislative Council a
recommendation that the amount be increased based on the
percentage increase in the Consumer Price Index for the
immediately preceding three-year period, rounded to the
nearest thousand dollars. The recommendation shall be subject
to the approval of the Legislative Council. In the event the
recommendation is not disapproved by the Legislative Council
by the end of April following the submission of the
recommendation, the recommendation shall be deemed to be
approved. Upon approval, the Department of Examiners of Public
Accounts shall notify the public of the adjusted dollar
amounts by July 1 before the fiscal year in which the changes
will take effect. "
"§39-2-4
(a) The bidder shall be required to file with his or
her bid either a cashier's check drawn on an Alabama bank or a
bid bond executed by a surety company duly authorized and
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qualified to make such bonds in the State of Alabama, payable
to the awarding authority for an amount not less than five
percent of the awarding authority's estimated cost or of the
contractor's bid, but in no event more than ten thousand
dollars ($10,000) twenty thousand dollars ($20,000) , except if
the awarding authority is the Department of Transportation,
then the bid guarantee shall not be more than fifty thousand
dollars ($50,000). The bid guaranties as provided in this
section shall constitute all of the qualifications or guaranty
to be required of contractors as prerequisites to bidding for
public works, except as required by the State Licensing Board
for General Contractors and the prequalification as required
by the Department of Transportation, the Building Commission,
or any other awarding authority.
(b) With the exception of the Department of
Transportation which has prequalification procedures and
criteria set forth by statute, any awarding authority that
proposes to prequalify bidders shall establish written
prequalification procedures and criteria that: (1) are
published sufficiently in advance of any affected contract so
that a bona fide bidder may seek and obtain prequalification
prior to preparing a bid for that contract, such publication
to be accomplished by the methods specified in subsection (a)
of Section 39-2-2; (2) are related to the purpose of the
contract or contracts affected; (3) are related to contract
requirements or the quality of the product or service in
question; (4) are related to the responsibility, including the
competency, experience, and financial ability, of a bidder;
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and (5) will permit reasonable competition at a level that
serves the public interest. The prequalification publication
may run concurrently with the publication required under
subsection (a) of Section 39-2-2, provided it produces the
above required advance notice.
(c) Within the bounds of good faith, the awarding
authority retains the right to determine whether a contractor
has met prequalification procedures and criteria.
(d) Any bidder who has prequalified pursuant to the
requirements in subsection (b) shall be deemed responsible for
purposes of award unless the prequalification is revoked by
the awarding authority under the following procedures:
(1) No later than five working days or the next regular
meeting after the opening of bids, the awarding authority
issues written notice to the bidder of its intent to revoke
prequalification and the grounds therefor ;.
(2) theThe bidder is then provided an opportunity to be
heard before the awarding authority on the intended
revocation;.
(3) theThe awarding authority makes a good faith
showing of a material inaccuracy in the prequalification
application of a bidder or of a material change in the
responsibility of the bidder since submitting its
prequalification application ; and.
(4) theThe revocation of prequalification is determined
no later than 10 days after written notice of intent to
revoke, unless the bidder whose qualification is in question
agrees in writing to an extension in time.
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(e) Nothing in this section shall preclude the
rejection of a bidder determined not responsible nor the
inclusion of criteria in the bid documents which would limit
contract awards to responsible bidders where no
prequalification procedure is employed by the awarding
authority."
Section 3. Although this bill would have as its purpose
or effect the requirement of a new or increased expenditure of
local funds, the bill is excluded from further requirements
and application under Section 111.05 of the Constitution of
Alabama of 2022, because the bill defines a new crime or
amends the definition of an existing crime.
Section 4. This act shall become effective on the first
day of the third month following its passage and approval by
the Governor, or its otherwise becoming law.
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