AL
Alabama House Bill HB168

Alabama 2023 Regular Session

Alabama House Bill HB168 Compare Versions

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44 By Representatives Underwood, Pettus, Rigsby, Lomax, Woods
55 RFD: State Government
66 First Read: 21-Mar-23
7-2023 Regular Session
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14-Enrolled, An Act,
15-Relating to public works contracts; to amend Sections
16-39-1-1, 39-2-1, 39-2-2, and 39-2-6, Code of Alabama 1975, to
17-increase the threshold dollar amount for which competitive
18-bidding is generally required; to further provide for certain
19-notice procedures; to authorize the publication of notice by
20-electronic means; to authorize the use of electronic sealed
21-bids; and in connection therewith would have as its purpose or
22-effect the requirement of a new or increased expenditure of
23-local funds within the meaning of Section 111.05 of the
24-Constitution of Alabama of 2022.
25-BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
26-Section 1. Sections 39-1-1, 39-2-1, 39-2-2, and 39-2-6,
27-Code of Alabama 1975, are amended to read as follows:
28-"§39-1-1
29-(a) Any person entering into a contract with an
30-awarding authority in this state for the prosecution of any
31-public works shall, before commencing the work, shall execute
32-a performance bond, with penalty equal to 100 percent of the
33-amount of the contract price. In addition, another bond,
34-payable to the awarding authority letting the contract, shall
35-be executed in an amount not less than 50 percent of the
36-contract price, with the obligation that the contractor or
37-contractors shall promptly make payments to all persons
38-supplying labor, materials, or supplies for or in the
13+SYNOPSIS:
14+Under existing law, with the exception of
15+contracts for public works, all expenditure of funds of
16+whatever nature for labor, services, work, or for the
17+purchase or lease of materials, equipment, supplies, or
18+other personal property involving $15,000 or more made
19+by or on behalf of certain state and local public
20+awarding authorities are required to be made by
21+contractual agreement entered into by free and open
22+competitive bidding, on sealed bids, to the lowest
23+responsible bidder.
24+Also under existing law, before an awarding
25+authority may enter into any contract for a public
26+works involving an amount in excess of $50,000, the
27+awarding authority is required to advertise the
28+contract and award the contract to the lowest
29+responsible bidder.
30+This bill would increase various threshold
31+dollar amounts for which competitive bidding is
32+generally required and would authorize those dollar
33+amounts to be further increased based on increases in
34+the Consumer Price Index.
35+Section 111.05 of the Constitution of Alabama of
36+2022, prohibits a general law whose purpose or effect
37+would be to require a new or increased expenditure of
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68-prosecution of the work provided in the contract and for the
69-payment of reasonable attorneys'attorney fees incurred by
70-successful claimants or plaintiffs in civil actions on the
71-bond.
72-(b) Any person that has furnished labor, materials, or
73-supplies for or in the prosecution of a public work and
74-payment has not been made may institute a civil action upon
75-the payment bond and have their rights and claims adjudicated
76-in a civil action and judgment entered thereon.
77-Notwithstanding the foregoing, a civil action shall not be
78-instituted on the bond until 45 days after written notice to
79-the surety of the amount claimed to be due and the nature of
80-the claim. The civil action shall be commenced not later than
81-one year from the date of final settlement of the contract.
82-The giving of notice by registered or certified mail, postage
83-prepaid, addressed to the surety at any of its places of
84-business or offices shall be deemed sufficient under this
85-section. In the event the surety or contractor fails to pay
86-the claim in full within 45 days from the mailing of the
87-notice, then the person or persons may recover from the
88-contractor and surety, in addition to the amount of the claim,
89-a reasonable attorney'sattorney fee based on the result,
90-together with interest on the claim from the date of the
91-notice.
92-(c) Every person having a right of action on the last
93-described bond as provided in this section shall, upon written
94-application to the authority under the direction of whom the
95-work has been prosecuted, indicating that labor, material,
67+local funds from becoming effective with regard to a
68+local governmental entity without enactment by a 2/3
69+vote unless: it comes within one of a number of
70+specified exceptions; it is approved by the affected
71+entity; or the Legislature appropriates funds, or
72+provides a local source of revenue, to the entity for
73+the purpose.
74+The purpose or effect of this bill would be to
75+require a new or increased expenditure of local funds
76+within the meaning of the amendment. However, the bill
77+does not require approval of a local governmental
78+entity or enactment by a 2/3 vote to become effective
79+because it comes within one of the specified exceptions
80+contained in the amendment.
81+A BILL
82+TO BE ENTITLED
83+AN ACT
84+Relating to public contracts; to amend Sections
85+41-16-50, 41-16-51, 41-16-52, 41-16-53, 41-16-54, and
86+41-16-55, Code of Alabama 1975, to increase the threshold
87+dollar amount for which competitive bidding is generally
88+required for certain state and local public awarding
89+authorities, with exceptions; to amend Sections 39-2-2 and
90+39-2-4, Code of Alabama 1975, to increase the threshold dollar
91+amount for which competitive bidding is generally required for
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125-foodstuffs, or supplies for the work have been supplied and
126-that payment has not been made, shall be promptly furnished a
127-certified copy of the additional bond and contract. The
128-claimant may bring a civil action in the claimant's name on
129-the bond against the contractor and the surety, or either of
130-them, in the county in which the work is to be or has been
131-performed or in any other county where venue is otherwise
132-allowed by law.
133-(d) In the event a civil action is instituted on the
134-payment bond, at any time more than 15 days before the trial
135-begins, any party may serve upon the adverse party an offer to
136-accept judgment in favor of the offeror or to allow judgment
137-to be entered in favor of the offeree for the money or as
138-otherwise specified in the offer. If within 10 days after the
139-service of the offer, the adverse party serves written notice
140-that the offer is accepted, either party may then file the
141-offer and notice of acceptance together with proof of service
142-and the clerk of the court shall enter judgment. An offer not
143-accepted shall be deemed withdrawn and evidence of the offer
144-shall not be admissible. If the judgment finally obtained by
145-the offeree is less favorable than the offer, the offeree
146-shall pay the reasonable attorney'sattorney fees and costs
147-incurred by the offeror after the making of the offer. An
148-offer that is made but not accepted does not preclude a
149-subsequent offer. When the liability of one party to another
150-party has been determined by verdict, order, or judgment, but
151-the amount or extent of the liability remains to be determined
152-by further proceedings, any party may make an offer of
121+public works contracts; to provide a legislative method for
122+the increase of the threshold dollar amounts; and in
123+connection therewith would have as its purpose or effect the
124+requirement of a new or increased expenditure of local funds
125+within the meaning of Section 111.05 of the Constitution of
126+Alabama of 2022.
127+BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
128+Section 1. Sections 41-16-50, 41-16-51, 41-16-52,
129+41-16-53, 41-16-54, and 41-16-55, Code of Alabama 1975, are
130+amended to read as follows:
131+"§41-16-50
132+(a) With the exception of contracts for public works
133+whose competitive bidding requirements are governed
134+exclusively by Title 39, all expenditure of funds of whatever
135+nature for labor, services, work, or for the purchase of
136+materials, equipment, supplies, or other personal property
137+involving fifteen thousand dollars ($15,000) thirty thousand
138+dollars ($30,000) or more, and the lease of materials,
139+equipment, supplies, or other personal property where the
140+lessee is, or becomes legally and contractually , bound under
141+the terms of the lease , to pay a total amount of fifteen
142+thousand dollars ($15,000) thirty thousand dollars ($30,000)
143+or more, made by or on behalf of the Alabama Fire College, the
144+district boards of education of independent school districts,
145+the county commissions, the governing bodies of the
146+municipalities of the state, and the governing boards of
147+instrumentalities of counties and municipalities, including
148+waterworks boards, sewer boards, gas boards, and other like
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182-judgment, which shall have the same effect as an offer made
183-before trial if the offer is made no less than 10 days prior
184-to the commencement of hearings to determine the amount or
185-extent of liability.
186-(e) This section shall not require the taking of a bond
187-to secure contracts in an amount less than fifty thousand
188-dollars ($50,000) one hundred thousand dollars ($100,000) .
189-(f)(1) The contractor shall, immediately after the
190-completion of the contract, shall give notice of the
191-completion by an advertisement in a newspaper of general
192-circulation published within the city or county in which the
193-work has been done, for a period of four successive
194-weeks.publishing the notice for a minimum of three weeks using
195-one or more of the following methods:
196-a. In a newspaper of general circulation in the county
197-or counties in which the work, or some portion thereof, has
198-been done.
199-b. On a website that is maintained by a newspaper of
200-general circulation in the county or counties in which the
201-work, or some portion thereof, has been done.
202-c. On a website utilized by the awarding authority for
203-publishing notices.
204-(2) If no newspaper is published in the county in which
205-the work was done, and if the awarding authority does not
206-utilize a website for the purpose of publishing notices, the
207-notice may be given by posting at the courthouse for 30 days,
208-and proof of the posting of the notice shall be given by the
209-awarding authority and the contractor.
178+utility boards and commissions, except as hereinafter
179+otherwise provided in this article , shall be made under
180+contractual agreement entered into by free and open
181+competitive bidding, on sealed bids, to the lowest responsible
182+and responsive bidder.
183+(b)(1) Prior to advertising for bids for an item of
184+personal property or services, where a county, a municipality,
185+or an instrumentality thereof is the awarding authority, the
186+awarding authority may establish a local preference zone
187+consisting of eitherany of the following:
188+a. The the legal boundaries or jurisdiction of the
189+awarding authority , or the.
190+b. The boundaries of the county in which the awarding
191+authority is located , or the.
192+c. The boundaries of the Core Based Statistical Area in
193+which the awarding authority is located.
194+(2) If no such action is taken by the awarding authority
195+under subdivision (1) , the boundaries of the local preference
196+zone shall be deemed to be the same as the legal boundaries or
197+jurisdiction of the awarding authority.
198+(3) In the event a bid is received for an item of
199+personal property or services to be purchased or contracted
200+for from a person, firm, or corporation deemed to be a
201+responsible bidder, having a place of business within the
202+local preference zone where the county, a municipality, or an
203+instrumentality thereof is the awarding authority, and the bid
204+is no more than five percent greater than the bid of the
205+lowest responsible bidder, the awarding authority may award
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239-(3) A final settlement shall not be made upon the
240-contract until the expiration of 30 days after the completion
241-of the notice. Proof of publication of the notice shall be
242-made by the contractor to the authority by whom the contract
243-was made by affidavit of the publisher or website owner and a
244-printed copy of the notice published. If no newspaper is
245-published in the county in which the work is done, the notice
246-may be given by posting at the courthouse for 30 days, and
247-proof of same shall be made by the judge of probate, sheriff,
248-and the contractor.
249-(4) For contracts for road resurfacing materials that
250-are awarded on an annual basis, where the bid specifications
251-include options such as a unit price for materials, a unit
252-price for the delivery of materials, or a unit price for
253-materials to be laid in place by the bidder, notice of
254-completion pursuant to this subsection may be given on an
255-annual basis upon completion of the project as a whole, rather
256-than at the completion of each proceed order.
257-(g) Subsection (f) shall not apply to contractors
258-performing contracts of less than fifty thousand dollars
259-($50,000)one hundred thousand dollars ($100,000) in amount. In
260-such cases, the governing body of the contracting agency, to
261-expedite final payment, shall cause notice of final completion
262-of the contract to be published one time in a newspaper of
263-general circulation, published in the county of the
264-contracting agency and shall post notice of final completion
265-on the agency's bulletin board for one week, and shall require
266-the contractor to certify under oath that all bills have been
235+the contract to the resident responsible bidder.
236+(4)If no bids or only one bid is received at the time
237+stated in the advertisement for bids, the awarding authority
238+may advertise for and seek other competitive bids, or the
239+awarding authority may negotiate through the receipt of
240+informal bids not subject to the requirements of this article.
241+Where only one responsible and responsive bid has been
242+received, any negotiation for the work shall be for a price
243+lower than that bid. In the event only one bidder responds to
244+the invitation to bid, the awarding authority may reject the
245+bid and negotiate the purchase or contract, providing the
246+negotiated price is lower than the bid price.
247+(5) In the event both or all bids exceed the awarding
248+authority's anticipated budget, the awarding authority may
249+negotiate with the lowest responsible and responsive bidder,
250+provided the negotiated price is lower than the bid price.
251+(b)(c) The governing bodies of two or more contracting
252+agencies, as enumerated in subsection (a), or the governing
253+bodies of two or more counties, or the governing bodies of two
254+or more city or county boards of education, may provide, by
255+joint agreement, for the purchase of labor, services, or work,
256+or for the purchase or lease of materials, equipment,
257+supplies, or other personal property for use by their
258+respective agencies. The agreement shall be entered into by
259+similar ordinances, in the case of municipalities, or
260+resolutions, in the case of other contracting agencies,
261+adopted by each of the participating governing bodies, which
262+shall set forth the categories of labor, services, or work, or
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296-paid in full. Final settlement with the contractor may be made
297-at any time after the notice has been posted for one entire
298-week."
299-"§39-2-1
300-As used in this title, the following words shall have
301-the meanings ascribed to them as follows:
302-(1) AWARDING AUTHORITY. Any governmental board,
303-commission, agency, body, authority, instrumentality,
304-department, or subdivision of the state, its counties and
305-municipalities. This term includes, but shall not be limited
306-to, the Department of Transportation, the State Building
307-Commission the Division of Real Property Management of the
308-Department of Finance , the State Board of Education, and any
309-other entity contracting for public works. This term shall
310-exclude the State Docks Department and any entity exempted
311-from the competitive bid laws of the state by statute.
312-(2) FORCE ACCOUNT WORK. Work paid for by reimbursing
313-for the actual costs for labor, materials, and equipment usage
314-incurred in the performance of the work, as directed,
315-including a percentage for overhead and profit, where
316-appropriate.
317-(3) LIFE CYCLE COSTS. The total cost of ownership over
318-the extended life of a public works project, taking into
319-consideration the costs of construction, operation, and
320-maintenance, less any value obtained from salvage and
321-quantifiable environmental benefits, or the sum of all
322-recurring and one-time (non-recurring) costs over the full
323-life span or a specified period of a good, service, structure,
292+for the purchase or lease of materials, equipment, supplies,
293+or other personal property to be purchased, the manner of
294+advertising for bids and the awarding of contracts, the method
295+of payment by each participating contracting agency, and other
296+matters deemed necessary to carry out the purposes of the
297+agreement. Each contracting agency's share of expenditures for
298+purchases under any agreement shall be appropriated and paid
299+in the manner set forth in the agreement and in the same
300+manner as for other expenses of the contracting agency. The
301+contracting agencies entering into a joint agreement, as
302+herein permitted by this section , may designate a joint
303+purchasing or bidding agent, and the agent shall comply with
304+this article. Purchases, contracts, or agreements made
305+pursuant to a joint purchasing or bidding agreement shall be
306+subject to all terms and conditions of this article.
307+In the event that utility services are no longer exempt
308+from competitive bidding under this article, non-adjoining
309+counties may not purchase utility services by joint agreement
310+under authority granted by this subsection.
311+(c)(d) The awarding authority may require bidders to
312+furnish a bid bond for a particular bid solicitation if the
313+bonding requirement applies to all bidders, is included in the
314+written bid specifications, and if bonding is available for
315+the services, equipment, or materials.
316+(d)(e) Notwithstanding subsection (a), in the event the
317+lowest bid for an item of personal property or services to be
318+purchased or contracted for is received from a foreign entity,
319+where the county, a municipality, or an instrumentality
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353-or system, including purchase price, installation costs,
354-operating costs, maintenance and upgrade costs, and remaining
355-(residual or salvage) value at the end of ownership or its
356-useful life.
357-(4) PERSON. Natural persons, partnerships, limited
358-liability companies, corporations, and other legal entities.
359-(5) PUBLIC PROPERTY. Real property which the state,
360-county, municipality, or awarding authority thereof owns or
361-has a contractual right to own or purchase, including
362-easements, rights-of-way, or otherwise.
363-(6) PUBLIC WORKS. The construction, installation,
364-repair, renovation, or maintenance of public buildings,
365-structures, sewers, waterworks, roads, curbs, gutters, side
366-walls, bridges, docks, underpasses, and viaducts as well as
367-any other improvement to be constructed, installed, repaired,
368-renovated, or maintained on public property and to be paid, in
369-whole or in part, with public funds or with financing to be
370-retired with public funds in the form of lease payments or
371-otherwise."
372-"§39-2-2
373-(a)(1) Before entering into any contract for a public
374-works involving an amount in excess of fifty thousand dollars
375-($50,000)one hundred thousand dollars ($100,000) , the
376-awarding authority shall advertise for sealed bids, except as
377-provided in subsection (j).
378-(2)a. If the awarding authority is the state ,or a
379-county, or an instrumentality thereof, it shall advertise for
380-sealed bids at least once each week for three consecutive
349+thereof is the awarding authority, the awarding authority may
350+award the contract to a responsible bidder whose bid is no
351+more than 10 percent greater than the foreign entity if the
352+bidder has a place of business within the local preference
353+zone or is a responsible bidder from a business within the
354+state that is a woman-owned enterprise, an enterprise of small
355+business, as defined in Section 25-10-3, a minority-owned
356+business enterprise, a veteran-owned business enterprise, or a
357+disadvantaged-owned business enterprise. For the purposes of
358+this subsection, foreign entity means a business entity that
359+does not have a place of business within the state.
360+(f)(1) No expenditure involving thirty thousand dollars
361+($30,000) or more may be split into parts involving sums of
362+less than thirty thousand dollars ($30,000) for the purpose of
363+evading the requirements of this article.
364+(2) If an awarding authority documents its reasonable
365+belief, based on expenditures in previous years, that an
366+expenditure will not meet the dollar threshold and, based upon
367+that reasonable belief, makes the expenditure without bidding,
368+but then circumstances arise that necessitate making a
369+subsequent expenditure of like items or services that would
370+increase the total to or above the dollar threshold, then the
371+subsequent expenditure shall be bid pursuant to this article.
372+The awarding authority shall not be deemed to have violated
373+this article for the prior expenditure that was not bid,
374+provided that the awarding authority documented its reasonable
375+belief, based on expenditures in previous years, that the
376+total amount would be below the dollar threshold and that the
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410-weeks in a newspaper of general circulation in the county or
411-counties in which the improvement, or some part thereof, is to
412-be made.
413-b. If the awarding authority is a municipality, or an
414-instrumentality thereof, it shall advertise for sealed bids at
415-least once in a newspaper of general circulation published in
416-the municipality where the awarding authority is located. If
417-no newspaper is published in the municipality, the awarding
418-authority shall advertise by posting notice thereof on a
419-bulletin board maintained outside the purchasing office and in
420-any other manner and for the length of time as may be
421-determined. In addition to bulletin board notice, sealed bids
422-shall also be solicited by sending notice by mail to all
423-persons who have filed a request in writing with the official
424-designated by the awarding authority that they be listed for
425-solicitation on bids for the public works contracts indicated
426-in the request. If any person whose name is listed fails to
427-respond to any solicitation for bids after the receipt of
428-three such solicitations, the listing may be canceled.
429-(3) With the exception of the Department of
430-Transportation, for all public works contracts involving an
431-estimated amount in excess of five hundred thousand dollars
432-($500,000), awarding authorities shall also advertise for
433-sealed bids at least once in three newspapers of general
434-circulation throughout the state.
435-(4)(3) The advertisements shall briefly describe the
436-improvement, state that plans and specifications for the
437-improvement are on file for examination in a designated office
406+subsequent expenditure was bid.
407+(g) Beginning October 1, 2027, and every three years
408+thereafter, all dollar amounts used in this article shall be
409+subject to a cost adjustment based on the following procedure:
410+The Chief Examiner of the Department of Examiners of Public
411+Accounts may submit to the Chair of the Legislative Council a
412+recommendation that the amount be increased based on the
413+percentage increase in the Consumer Price Index for the
414+immediately preceding three-year period, rounded to the
415+nearest thousand dollars. The recommendation shall be subject
416+to the approval of the Legislative Council. In the event the
417+recommendation is not disapproved by the Legislative Council
418+by the end of April following the submission of the
419+recommendation, the recommendation shall be deemed to be
420+approved. Upon approval, the Department of Examiners of Public
421+Accounts shall notify the public of the adjusted dollar
422+amounts by July 1 before the fiscal year in which the changes
423+will take effect. "
424+"§41-16-51
425+(a) Competitive bids for entities subject to this
426+article shall not be required for utility services, the rates
427+for which are fixed by law, regulation, or ordinance, and the
428+competitive bidding requirements of this article shall not
429+apply to any of the following :
430+(1) The purchase of insurance.
431+(2) The purchase of ballots and supplies for conducting
432+any primary, general, special, or municipal election.
433+(3) Contracts for securing services of attorneys,
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467-of the awarding authority, state the procedure for obtaining
468-plans and specifications, state the time and place in which
469-bids shall be received and opened, and identify whether
470-prequalification is required and where all written
471-prequalification information is available for review.
472-(5)(4) All bids shall be opened publicly at the
473-advertised time and place.
474-(6)(5) No public work, as defined in this chapter,
475-involving a sum in excess of fifty thousand dollars ($50,000)
476-one hundred thousand dollars ($100,000) shall be split into
477-parts involving sums of fifty thousand dollars ($50,000) one
478-hundred thousand dollars ($100,000) or less for the purpose of
479-evading the requirements of this section.
480-(b)(1) An awarding authority may let contracts for
481-public works involving fifty thousand dollars ($50,000) one
482-hundred thousand dollars ($100,000) or less with or without
483-advertising or sealed bids.
484-(2) An awarding authority may enter into a contract for
485-public works if an advertisement for sealed bids for the
486-contract was submitted by the awarding authority to a
487-newspaper and the newspaper only published the advertisement
488-for two weeks if the authority can provide proof that it, in
489-good faith, submitted the advertisement to the newspaper with
490-instructions to publish the notice in accordance with the
491-provisions of this section.
492-(c) All contracts for public works entered into in
493-violation of this title shall be void and violative of public
494-policy. Anyone who willfully violates this article concerning
463+physicians, architects, teachers, superintendents of
464+construction, artists, appraisers, engineers, consultants,
465+certified public accountants, public accountants, or other
466+individuals possessing a high degree of professional skill
467+where the personality of the individual plays a decisive part.
468+(4) Contracts of employment in the regular civil
469+service.
470+(5) Contracts for fiscal or financial advice or
471+services.
472+(6) Purchases of products made or manufactured by blind
473+or visually impaired individuals under the direction or
474+supervision of the Alabama Institute for Deaf and Blind in
475+accordance with Sections 21-2-1 to 21-2-4, inclusive Chapter 2
476+of Title 21.
477+(7) Purchases of maps or photographs from any federal
478+agency.
479+(8) Purchases of manuscripts, books, maps, pamphlets,
480+periodicals, and library/research electronic data bases of
481+manuscripts, books, maps, pamphlets, or periodicals.
482+(9) The selection of paying agents and trustees for any
483+security issued by a public body.
484+(10) Existing contracts up for renewal for sanitation or
485+solid waste collection, recycling, and disposal between
486+municipalities or counties, or both, and those providing the
487+service.
488+(11) Purchases of computer and word processing hardware
489+when the hardware is the only type that is compatible with
490+hardware already owned by the entity taking bids and custom
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524-public works shall be guilty of a Class C felony.
525-(d)(1) Excluded from the operation of this title shall
526-be contracts with persons who shall perform only
527-architectural, engineering, construction management, program
528-management, or project management services in support of the
529-public works and who shall not engage in actual construction,
530-repair, renovation, or maintenance of the public works with
531-their own forces, by contract, subcontract, purchase order,
532-lease, or otherwise.
533-(2) Excluded from operation of the bidding requirements
534-in this title are contracts for the purchase of any heating or
535-air conditioning units or systems by any awarding authority
536-subject to Chapter 13B of Title 16, or Article 3, commencing
537-with Section 41-16-50, of Chapter 16 of Title 41, or Article
538-5, commencing with Section 41-4-110, of Chapter 4 of Title 41,
539-provided the contract is entered into with an Alabama vendor
540-who has been granted approved vendor status for the sale of
541-heating or air conditioning units or systems as a part of a
542-purchasing cooperative, and each of the following occur:
543-a. The heating or air conditioning unit or system being
544-purchased is available as a result of a competitive bid
545-process conducted by a governmental entity which has been
546-approved by the Department of Examiners of Public Accounts.
547-b. The purchase of the heating or air conditioning unit
548-or system is not available on the state purchasing program at
549-the time or the purchase under the purchasing cooperative is
550-available at a price that is equal to or less than that
551-available through the state purchasing program.
520+software.
521+(12) Professional services contracts for codification
522+and publication of the laws and ordinances of municipalities
523+and counties.
524+(13) Contractual services and purchases of commodities
525+for which there is only one vendor or supplier and contractual
526+services and purchases of personal property which by their
527+very nature are impossible to award by competitive bidding.
528+(14) Purchases of dirt, sand, or gravel by a county
529+governing body from in-county property owners in order to
530+supply a county road or bridge project in which the materials
531+will be used. The material shall be delivered to the project
532+site by county employees and equipment used only on projects
533+project components conducted exclusively by county employees.
534+(15) Contractual services and purchases of products
535+related to, or having an impact upon, security plans,
536+procedures, assessments, measures, or systems, or the security
537+or safety of persons, structures, facilities, or
538+infrastructures.
539+(16) Subject to the limitations in this subdivision,
540+purchases, leases, or lease/purchases of goods or services,
541+other than voice or data wireless communication services, made
542+as a part of the purchasing cooperative sponsored by the
543+National Association of Counties, its successor organization,
544+or any other national or regional governmental cooperative
545+purchasing program. The purchases, leases, or lease/purchases
546+may only be made if all of the following occur:
547+a. The goods or services being purchased, including
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581-c. The entity entering into the contract for the
582-purchase of the heating or air conditioning unit or system has
583-been notified by the Department of Examiners of Public
584-Accounts that the competitive bid process utilized by the
585-cooperative program offering the goods complies with this
586-subdivision.
587-d. Upon request, the vendor has provided the purchasing
588-entity with a report of sales made under this subdivision
589-during the previous 12-month period, to include a general
590-description of the heating or air conditioning units and
591-systems sold, the number of units sold per entity, and the
592-purchase price of the units.
593-e. The exemption from the requirement to utilize sealed
594-bids for the purchase of heating or air conditioning units or
595-systems authorized by this section shall not serve to exempt
596-any public works project from the remaining provisions of this
597-article, including, but not limited to, design, installation,
598-and review requirements, compliance with all applicable codes,
599-laws, specifications, and standards, and the compensation of
600-engineers, architects, or others as mandated by state law or
601-rule.
602-(e)(1) In case of an emergency affecting public health,
603-safety, or convenience, as declared in writing by the awarding
604-authority, setting forth the nature of the danger to the
605-public health, safety, or convenience which would result from
606-delay, contracts may be let to the extent necessary to meet
607-the emergency without public advertisement. The action and the
608-reasons for the action taken shall immediately be made public
577+those purchased through a lease/purchase agreement, or leased
578+are available as a result of a competitive bid process
579+conducted by a governmental entity and approved by the Alabama
580+Department of Examiners of Public Accounts for each bid.
581+b. The goods or services are either not at the time
582+available to counties on the state purchasing program or are
583+available at a price equal to or less than that on the state
584+purchasing program.
585+c. The purchase, lease, or lease/purchase is made
586+through a participating Alabama vendor holding an Alabama
587+business license if such a vendor exists.
588+d. The entity purchasing, leasing, or lease/purchasing
589+goods or services under this subdivision has been notified by
590+the Department of Examiners of Public Accounts that the
591+competitive bid process utilized by the cooperative program
592+offering the goods complies with this subdivision. In
593+addition, upon request, a vendor shall provide the entity
594+purchasing, leasing, or lease/purchasing items that exceed
595+fifteen thousand dollars ($15,000) goods or services equaling
596+thirty thousand dollars ($30,000) or more which are made under
597+this exception subdivision during the previous 12 months a
598+report of the sales, leases, and lease/purchases .which
599+includes The report shall include a general description of the
600+goods or services; the number of units sold, leased, and
601+leased/purchased per entity; and the price of units purchased,
602+leased, or leased/purchased.
603+(17) Purchase Purchases of goods or services, other than
604+wireless communication services, whether voice or data, from
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638-by the awarding authority upon request. In case of an
639-emergency for which a delay in remedying would cause immediate
640-harm to a person or public property, contracts may be let to
641-the extent necessary to meet the emergency without public
642-advertisement or bidding.
643-(2) In case of an emergency affecting public health,
644-safety, or convenience, as declared in writing by the awarding
645-authority, setting forth the nature of the danger to the
646-public health, safety, or convenience which would result from
647-delay, contracts may be let to the extent necessary to meet
648-the emergency without public advertisement.
649-(3) Any action taken under subdivision (1) or (2), and
650-the reasons for the action taken, shall immediately be made
651-public by the awarding authority and published in writing.
652-(f) No awarding authority may specify in the plans and
653-specifications for the improvement the use of materials,
654-products, systems, or services by a sole source unless all of
655-the following requirements are met:
656-(1) Except for contracts involving the construction,
657-reconstruction, renovation, or replacement of public roads,
658-bridges, and water and sewer facilities, the awarding
659-authority can document to the satisfaction of the Division of
660-Construction Management Division of Real Property Management
661-of the Department of Finance, or in the case of an educational
662-institution or state educational institution as provided
663-pursuant to Sections 41-4-353 and 41-4-400, to the
664-satisfaction of its governing board, that the sole source
665-product, material, system, or service is of an indispensable
634+vendors that have been awarded a current and valid Government
635+Services Administration contract. Any purchase made pursuant
636+to this subdivision shall be under the same terms and
637+conditions as provided in the Government Services
638+Administration contract. Prices paid for such goods and
639+services, other than wireless communication services, whether
640+voice or data, may not exceed the amount provided in the
641+Government Services Administration contract.
642+(18) Purchases of goods or services from vendors that
643+have been awarded a current and valid statewide contract
644+listed on the Alabama Buys e-procurement system. Any purchase
645+made pursuant to this subdivision shall be under the same
646+terms and conditions as provided in the statewide contract.
647+Prices paid for such goods and services may not exceed the
648+amount provided in the statewide contract.
649+(19) Purchases of goods or services between governmental
650+entities of the state, as authorized by Section 11-1-10.
651+(b) This article shall not apply to:
652+(1) Any purchases of products where the price of the
653+products is already regulated and established by state law.
654+(2) Purchases made by individual schools of the county
655+or municipal public school systems from monies other than
656+those raised by taxation or received through appropriations
657+from state or county sources.
658+(3) The purchase, lease, sale, construction,
659+installation, acquisition, improvement, enlargement, or
660+expansion of any building or structure or other facility
661+designed or intended for lease or sale by a medical clinic
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695-nature for the improvement, that there are no other viable
696-alternatives, and that only this particular product, material,
697-system, or service fulfills the function for which it is
698-needed.
699-(2) The sole source specification has been recommended
700-by the architect or engineer of record as an indispensable
701-item for which there is no other viable alternative.
702-(3) All information substantiating the use of a sole
703-source specification, including the recommendation of the
704-architect or engineer of record, shall be documented and made
705-available for examination in the office of the awarding
706-authority at the time of advertisement for sealed bids.
707-(g) In the event of a proposed public works project,
708-acknowledged in writing by the Alabama Homeland Security
709-Department as: (1) having a direct impact on the security or
710-safety of persons or facilities; and (2) requiring
711-confidential handling for the protection of such persons or
712-facilities, contracts may be let without public advertisement
713-but with the taking of informal bids otherwise consistent with
714-the requirements of this title and the requirements of
715-maintaining confidentiality. Records of bidding and award
716-shall not be disclosed to the public and shall remain
717-confidential.
718-(h) If a pre-bid meeting is held, the pre-bid meeting
719-shall be held at least seven days prior to the bid opening
720-except when the project has been declared an emergency in
721-accordance with subsection (e).
722-(i) The awarding authority may not offer a contract for
691+board organized under Sections 11-58-1 to 11-58-14, inclusive
692+Chapter 58 of Title 11 .
693+(4) The purchase, lease, or other acquisition of
694+machinery, equipment, supplies, and other personal property or
695+services by a medical clinic board organized under Sections
696+11-58-1 to 11-58-14, inclusive Chapter 58 of Title 11 .
697+(5) Purchases for public hospitals and nursing homes
698+operated by the governing boards of instrumentalities of the
699+state, counties, and municipalities.
700+(6) Contracts for the purchase, lease, sale,
701+construction, installation, acquisition, improvement,
702+enlargement, or extension of any plant, building, structure,
703+or other facility or any machinery, equipment, furniture, or
704+furnishings therefor designed or intended for lease or sale
705+for industrial development, other than public utilities, under
706+Sections 11-54-80 to 11-54-99, inclusive Division 1 of Article
707+4 of Chapter 54 of Title 11 , or Sections 11-54-20 to 11-54-28,
708+inclusive Article 2 of Chapter 54 of Title 11 , or any other
709+law or amendment to the Constitution of Alabama of 2022
710+authorizing the construction of plants or other facilities for
711+industrial development or for the construction and equipment
712+of buildings for public building authorities under Sections
713+11-56-1 to 11-56-22, inclusive Chapter 56 of Title 11 .
714+(7) The purchase of equipment, supplies, or materials
715+needed, used, and consumed in the normal and routine operation
716+of any waterworks system, sanitary sewer system, gas system,
717+or electric system, or any two or more thereof, that are owned
718+by municipalities, counties, or public corporations, boards,
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752-bidding unless confirmation of any applicable grant has been
753-received and any required matching funds have been secured by
754-or are available to the awarding authority.
755-(j) Notwithstanding subsection (a), the Department of
756-Transportation may enter into contracts for road construction
757-or road maintenance projects that do not involve more than two
758-hundred fifty thousand dollars ($250,000) without advertising
759-for sealed bids, provided the project is listed on the
760-department website for at least seven calendar days before
761-entering into the contract. The total cost of all projects not
762-subject to advertising and sealed bids pursuant to this
763-subsection may not exceed one million dollars ($1,000,000) in
764-the aggregate per year.
765-(k) For the purposes of this chapter, sealed bids may
766-also be solicited and submitted through electronic means
767-including, but not limited to, electrical, digital, magnetic,
768-optical, electromagnetic, or any other similar technology,
769-provided that the awarding authority adopts rules and policies
770-to ensure that all electronic submissions are transmitted
771-securely and bids remained sealed until bid opening.
772-(l)(1) Notwithstanding any other provision of law, any
773-entity subject to this chapter that is an awarding authority
774-of a contract for public works, by resolution or board action,
775-may purchase materials or equipment pursuant to subdivisions
776-(14), (16), 17), (18), or (19) of Section 41-16-51(a), even
777-when those materials or equipment are otherwise part of the
778-contract for public works subject to the requirements of this
779-title.
748+or authorities that are agencies, departments, or
749+instrumentalities of municipalities or counties and no part of
750+the operating expenses of which system or systems, during the
751+then current fiscal year, have been paid from revenues derived
752+from taxes or from appropriations of the state, a county, or a
753+municipality.
754+(8) Purchases made by local housing authorities,
755+organized and existing under Chapter 1 of Title 24, from
756+monies other than those raised by state, county, or city
757+taxation or received through appropriations from state,
758+county, or city sources.
759+(c) The state trade schools, state junior colleges,
760+state colleges, and universities under the supervision and
761+control of the State Board of Education, the district boards
762+of education of independent school districts, the county
763+commissions, and the governing bodies of the municipalities of
764+the state shall establish and maintain such purchasing
765+facilities and procedures as may be necessary to carry out the
766+intent and purpose of this article by complying with the
767+requirements for competitive bidding in the operation and
768+management of each state trade school, state junior college,
769+state college, or university under the supervision and control
770+of the State Board of Education, the district boards of
771+education of independent school districts, the county
772+commissions, and the governing bodies of the municipalities of
773+the state and the governing boards of instrumentalities of
774+counties and municipalities, including waterworks boards,
775+sewer boards, gas boards, and other like utility boards and
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809-(2) Except for those materials or equipment described
810-in subdivision (1), the remaining portion of the public works
811-project shall be subject to the requirements of this title,
812-even if the remaining portion would involve an amount less
813-than one hundred thousand dollars ($100,000) as a result of
814-the exclusion of the purchase of the materials or equipment as
815-described in subdivision (1). "
816-"§39-2-6
817-(a) The contract shall be awarded to the lowest
818-responsible and responsive bidder, unless the awarding
819-authority finds that all the bids are unreasonable or that it
820-is not toin the interest of the awarding authority to accept
821-any of the bids. A responsible bidder is one who, among other
822-qualities determined necessary for performance, is competent,
823-experienced, and financially able to perform the contract. A
824-responsive bidder is one who submits a bid that complies with
825-the terms and conditions of the invitation for bids. Minor
826-irregularities in the bid shall not defeat responsiveness. The
827-bidder to whom the award is made shall be notified by
828-telegram, confirmed facsimile, electronic mail, or letter at
829-the earliest possible date. If the successful bidder fails or
830-refuses to sign the contract, to make bond as provided in this
831-chapter, or to provide evidence of insurance as required by
832-the bid documents, the awarding authority may award the
833-contract to the second lowest responsible and responsive
834-bidder. If the second lowest bidder fails or refuses to sign
835-the contract, make bond as provided in this chapter, or to
836-provide evidence of insurance as required by the bid
805+commissions.
806+(d) Contracts entered into in violation of this article
807+shall be void and any person who violates the provisions of
808+this article shall be guilty of a Class C felony."
809+"§41-16-52
810+(a) All expenditures of funds of whatever nature for
811+repair parts and the repair of heavy duty off-highway
812+construction equipment or of any vehicles with a gross vehicle
813+weight rating of 25,000 pounds or greater, including machinery
814+used for grading, drainage, road construction, and compaction
815+for the exclusive use of county and municipal highway, street,
816+and sanitation departments, involving not more than twenty-two
817+thousand five hundred dollars ($22,500) forty thousand dollars
818+($40,000) made by or on behalf of any county commissions and
819+the governing bodies of the municipalities of the state, and
820+the governing bodies of instrumentalities, including
821+waterworks boards, sewer boards, gas boards, and other like
822+utility boards and commissions, shall be made, at the option
823+of the governing boards, bodies, instrumentalities, and
824+commissions, without regard to this article. The foregoing
825+exemption from this article shall apply to each incident of
826+repair as to any repair parts, equipment, vehicles, or
827+machinery. The amount of the exempted expenditure shall not be
828+construed to be an aggregate of all the expenditures per
829+fiscal year as to any individual vehicle or piece of equipment
830+or machinery.
831+(b) The option provided by subsection (a) may be
832+exercised by the governing boards, bodies, instrumentalities,
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866-documents, the awarding authority may award the contract to
867-the third lowest responsible and responsive bidder.
868-(b) If no bids or only one bid is received at the time
869-stated in the advertisement for bids, the awarding authority
870-may advertise for and seek other competitive bids, or the
871-awarding authority may direct that the work shall be done by
872-force account under its direction and control or, with the
873-exception of the Department of Transportation, the awarding
874-authority may negotiate for the work through the receipt of
875-informal bids not subject to the requirements of this section.
876-Where only one responsible and responsive bid has been
877-received, any negotiation for the work shall be for a price
878-lower than that bid.
879-(c) When With the exception of the Department of
880-Transportation, when two or more bids are received, and all
881-bids exceed available funding for the contract, a local board
882-of education or a public two-year or four-year institution of
883-higher education the awarding authority may negotiate for the
884-work with the lowest responsible and responsive bidder ,
885-provided that the local board of education or public two-year
886-or four-year institution of higher education awarding
887-authority can document the shortage of funding, that time is
888-of the essence, and that the negotiated changes are in the
889-public interest and do not materially alter the scope and
890-nature of the project.
891-(d) If the awarding authority finds that all bids
892-received are unreasonable or that it is not to the interest of
893-the awarding authority to accept any of the bids, the awarding
862+and commissions by specific reference to this section on any
863+and all purchase orders and purchase commitments executed by
864+the governing boards, bodies, instrumentalities, and
865+commissions; provided, however . However, the option shall not
866+be exercised by any employee, agent, or servant unless done so
867+after having received official prior approval of the
868+respective governing board, body, instrumentality, or
869+commission or unless exercised pursuant to a formal policy
870+adopted by the governing board, body, instrumentality, or
871+commission setting out conditions and restrictions under which
872+the option shall be exercised.
873+(c) All expenditures of funds of whatever nature for the
874+leasing of heavy duty off-highway construction equipment and
875+all vehicles with a gross vehicle weight rating of 25,000
876+pounds or greater, including machinery for grading, drainage,
877+road construction, and compaction for exclusive use of county
878+and municipal highway, street, and sanitation departments,
879+involving a monthly rental of not more than five thousand
880+dollars ($5,000) ten thousand dollars ($10,000) per month per
881+vehicle or piece of equipment or machinery but not to exceed
882+fifteen thousand dollars ($15,000) thirty thousand dollars
883+($30,000) per month for all such vehicles and pieces of
884+equipment made by or on behalf of any county commissions and
885+the governing boards of municipalities of the state and the
886+governing bodies of instrumentalities, including waterworks
887+boards, sewer boards, gas boards, and other like utility
888+boards and commissions shall be made, at the option of the
889+governing boards, bodies, instrumentalities, and commissions,
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923-authority may direct that the work shall be done by force
924-account under its direction and control.
925-(e) On any construction project on which the awarding
926-authority has prepared plans and specifications, has received
927-bids, and has determined to do by force account or by
928-negotiation, the awarding authority shall make available the
929-plans and specifications, an itemized estimate of cost, and
930-any informal bids for review by the Department of Examiners of
931-Public Accounts and, upon completion of the project by an
932-awarding authority, the final total costs together with an
933-itemized list of cost of any and all changes made in the
934-original plans and specifications shall also be made available
935-for review by the Department of Examiners of Public Accounts.
936-Furthermore, the above described information shall be made
937-public by the awarding authority upon request. Upon the
938-approval of the awarding authority, its duly authorized
939-officer or officers, when proceeding upon the basis of force
940-account, may let any subdivision or unit of work by contract
941-on informal bids.
942-(f) No provision of this section shall be interpreted
943-as precluding the use of convict labor by the awarding
944-authority. This section shall not apply to routine maintenance
945-and repair jobs done by maintenance personnel who are regular
946-employees of the awarding authority, nor shall it apply to
947-road or bridge construction work performed by an awarding
948-authority's regular employees and own equipment.
949-(g) No contract awarded to the lowest responsible and
950-responsive bidder shall be assignable by the successful bidder
919+without regard to the provisions of this article."
920+"§41-16-53
921+In case of emergency affecting public health, safety or
922+convenience, so declared in writing by the awarding authority,
923+setting forth the nature of the danger to public health,
924+safety or convenience involved in delay, contracts may be let
925+to the extent necessary to meet the emergency without public
926+advertisement. Such action and the reasons therefor shall
927+immediately be made public by the awarding
928+authority.Notwithstanding any law to the contrary, in the
929+event circumstances arise for which a delay in remedying or
930+otherwise addressing would likely cause harm to an individual
931+or public property, a contract may be let to the extent
932+necessary to mitigate the harm without regard to the
933+requirements of this article, provided the awarding authority
934+does both of the following:
935+(1) Documents two or more price quotations or price
936+estimates before letting the contract.
937+(2) Adopts a resolution declaring the nature of the
938+circumstances, the action to be taken, and the reasons for
939+taking the action. "
940+"§41-16-54
941+(a)(1) All proposed purchases in excess of fifteen
942+thousand dollars ($15,000) thirty thousand dollars ($30,000)
943+shall be advertised by posting notice thereof on a bulletin
944+board maintained outside the purchasing office and in any
945+other manner and for any length of time as may be determined.
946+Sealed bids or bids to be submitted by a reverse auction
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980-without written consent of the awarding authority, and in no
981-event shall a contract be assigned to an unsuccessful bidder
982-whose bid was rejected because he or she was not a responsible
983-or responsive bidder.
984-(h) Any agreement or collusion among bidders or
985-prospective bidders in restraint of freedom of competition to
986-bid at a fixed price or to refrain from bidding or otherwise
987-shall render the bids void and shall cause the bidders or
988-prospective bidders to be disqualified from submitting further
989-bids to the awarding authority on future lettings. Any bidder
990-or prospective bidder who willfully participates in any
991-agreement or collusion in restraint of freedom of competition
992-shall be guilty of a felony and, on conviction thereof, shall
993-be fined not less than five thousand dollars ($5,000) nor more
994-than fifty thousand dollars ($50,000) or, at the discretion of
995-the jury, shall be imprisoned in the penitentiary for not less
996-than one nor more than three years.
997-(i) Any disclosure in advance of the terms of a bid
998-submitted in response to an advertisement for bids shall
999-render the proceedings void and require advertisement and
1000-award anew.
1001-(j) The lowest responsible and responsive bidder on a
1002-public works project may be determined to be the bidder
1003-offering the lowest life cycle costs. The lowest responsible
1004-and responsive bidder shall otherwise meet all of the
1005-conditions and specifications contained in the invitation to
1006-bid, except that a bidder may still be considered responsive
1007-if he or she responds with a bid using different construction
976+procedure shall also be solicited by sending notice by mail or
977+other electronic means to all persons, firms, or corporations
978+who have filed a request in writing that they be listed for
979+solicitation on bids for the particular items that are set
980+forth in the request. If any person, firm, or corporation
981+whose name is listed fails to respond to any solicitation for
982+bids after the receipt of three solicitations, the listing may
983+be cancelled.
984+(2) If a governing body mandates that advertisement for
985+bids shall be published in a newspaper, the contract for
986+purchase shall be awarded if the newspaper to which the
987+advertisement was submitted did not publish the advertisement
988+if the governing body can provide proof that it in good faith
989+submitted the advertisement to the newspaper with instructions
990+to publish the notice in accordance with this section.
991+(b) Except as provided in subsection (d), all bids shall
992+be sealed when received and shall be opened in public at the
993+hour stated in the notice.
994+(c) If the purchase or contract will involve an amount
995+of fifteen thousand dollars ($15,000) or less less than thirty
996+thousand dollars ($30,000) , the purchases or contracts may be
997+made upon the basis of sealed bids, a joint purchasing
998+agreement, a reverse auction procedure, or in the open market.
999+(d) Beginning January 1, 2009, the awarding authority
1000+may make purchases or contracts involving an amount of fifteen
1001+thousand dollars ($15,000) thirty thousand dollars ($30,000)
1002+or more through a reverse auction procedure ; provided,
1003+however, that. However, a reverse auction shall only be
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1037-materials than those specified in the invitation to bid if the
1038-materials' use would result in lower life cycle costs for the
1039-public works project. To utilize this provision to determine
1040-the lowest responsible and responsive bidder, the awarding
1041-authority must include a notice in the invitation to bid that
1042-the lowest responsible and responsive bidder may be determined
1043-by using life cycle costs, and must also include in the
1044-invitation to bid the criteria under which it shall evaluate
1045-the life cycle costs."
1046-Section 2. Although this bill would have as its purpose
1047-or effect the requirement of a new or increased expenditure of
1048-local funds, the bill is excluded from further requirements
1049-and application under Section 111.05 of the Constitution of
1050-Alabama of 2022, because the bill defines a new crime or
1051-amends the definition of an existing crime.
1052-Section 3. This act shall become effective on the first
1053-day of the third month following its passage and approval by
1054-the Governor, or its otherwise becoming law.
1033+allowed where the item to be purchased at a reverse auction is
1034+either not at the time available on the state purchasing
1035+program under the same terms and conditions or, if available,
1036+the lowest price offered in the reverse auction is equal to or
1037+less than the price for which the item is available on the
1038+state purchasing program under the same terms and conditions.
1039+All of the purchases shall be subject to audit by the
1040+Examiners of Public Accounts. For purposes of this article, a
1041+reverse auction procedure includes either of the following:
1042+(1) A real-time bidding process usually lasting less
1043+than one hour and taking place at a previously scheduled time
1044+and Internet location, in which multiple anonymous suppliers
1045+submit bids to provide the designated goods or services.
1046+(2) a. A bidding process usually lasting less than two
1047+weeks and taking place during a previously scheduled period
1048+and at a previously scheduled Internet location, in which
1049+multiple anonymous suppliers submit bids to provide the
1050+designated goods or services.
1051+b. No later than November 30, 2008, the Department of
1052+Examiners of Public Accounts shall establish procedures for
1053+the use of reverse auction, which shall be distributed to all
1054+contracting agencies and shall be used in conducting any
1055+audits of the purchasing agency.
1056+(e) All original bids together with all documents
1057+pertaining to the award of the contract shall be retained in
1058+accordance with a retention period of at least seven years
1059+established by the Local Government Records Commission and
1060+shall be open to public inspection.
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1074-________________________________________________
1075-Speaker of the House of Representatives
1076-________________________________________________
1077-President and Presiding Officer of the Senate
1078-House of Representatives
1079-I hereby certify that the within Act originated in and
1080-was passed by the House 23-May-23, as amended.
1081-John Treadwell
1082-Clerk
1083-Senate 01-Jun-23 Passed
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1090+(f) No purchase or contract involving professional
1091+services shall be subject to the requirements of this article
1092+and no purchase or contract involving an amount in excess of
1093+fifteen thousand dollars ($15,000) shall be divided into parts
1094+involving amounts of fifteen thousand dollars ($15,000) or
1095+less for the purpose of avoiding the requirements of this
1096+article. All such partial contracts involving fifteen thousand
1097+dollars ($15,000) or less shall be void .
1098+(g) This section shall be applicable to education
1099+purchases made pursuant to Chapter 13B of Title 16."
1100+"§41-16-55
1101+(a) Any agreement or collusion among bidders or
1102+prospective bidders in restraint of freedom of competition, by
1103+agreement, to bid at a fixed price or to refrain from bidding
1104+or otherwise shall render the bids of such the bidders void
1105+and shall cause such the bidders to be disqualified from
1106+submitting further bids to the awarding authority on future
1107+purchases.
1108+(b) Whoever knowingly participates in a collusive
1109+agreement in violation of this section involving a bid or bids
1110+of fifteen thousand dollars ($15,000) less than thirty
1111+thousand dollars ($30,000) and under shall be guilty of a
1112+Class A misdemeanor and, upon conviction, shall be punished as
1113+prescribed by law.
1114+(c) Whoever knowingly and intentionally participates in
1115+a collusive agreement in violation of this section involving a
1116+bid or bids of over fifteen thousand dollars ($15,000) thirty
1117+thousand dollars ($30,000) or more shall be guilty of a Class
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1147+C felony, and upon conviction shall be punished as prescribed
1148+by law."
1149+Section 2. Sections 39-2-2 and 39-2-4, Code of Alabama
1150+1975, are amended to read as follows:
1151+"§39-2-2
1152+(a)(1) Before entering into any contract for a public
1153+works involving an amount in excess of fifty thousand dollars
1154+($50,000) one hundred thousand dollars ($100,000) , the
1155+awarding authority shall advertise for sealed bids, except as
1156+provided in subsection (j).
1157+(2)a. If the awarding authority is the state or a
1158+county, or an instrumentality thereof, it shall advertise for
1159+sealed bids at least once each week for three consecutive
1160+weeks in a newspaper of general circulation in the county or
1161+counties in which the improvement, or some part thereof, is to
1162+be made.
1163+b. If the awarding authority is a municipality, or an
1164+instrumentality thereof, it shall advertise for sealed bids at
1165+least once in a newspaper of general circulation published in
1166+the municipality where the awarding authority is located. If
1167+no newspaper is published in the municipality, the awarding
1168+authority shall advertise by posting notice thereof on a
1169+bulletin board maintained outside the purchasing office and in
1170+any other manner and for the length of time as may be
1171+determined. In addition to bulletin board notice, sealed bids
1172+shall also be solicited by sending notice by mail to all
1173+persons who have filed a request in writing with the official
1174+designated by the awarding authority that they be listed for
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1204+solicitation on bids for the public works contracts indicated
1205+in the request. If any person whose name is listed fails to
1206+respond to any solicitation for bids after the receipt of
1207+three such solicitations, the listing may be canceled.
1208+(3) With the exception of the Department of
1209+Transportation, for all public works contracts involving an
1210+estimated amount in excess of five hundred thousand dollars
1211+($500,000), awarding authorities shall also advertise for
1212+sealed bids at least once in three newspapers of general
1213+circulation throughout the state.
1214+(4) The advertisements shall briefly describe the
1215+improvement, state that plans and specifications for the
1216+improvement are on file for examination in a designated office
1217+of the awarding authority, state the procedure for obtaining
1218+plans and specifications, state the time and place in which
1219+bids shall be received and opened, and identify whether
1220+prequalification is required and where all written
1221+prequalification information is available for review.
1222+(5) All bids shall be opened publicly at the advertised
1223+time and place.
1224+(6) No public work, as defined in this chapter,
1225+involving a sum in excess of fifty thousand dollars ($50,000)
1226+one hundred thousand dollars ($100,000) shall be split into
1227+parts involving sums of fifty thousand dollars ($50,000) one
1228+hundred thousand dollars ($100,000) or less for the purpose of
1229+evading the requirements of this section.
1230+(b)(1) An awarding authority may let contracts for
1231+public works involving fifty thousand dollars ($50,000) one
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1261+hundred thousand dollars ($100,000) or less with or without
1262+advertising or sealed bids.
1263+(2) An awarding authority may enter into a contract for
1264+public works if an advertisement for sealed bids for the
1265+contract was submitted by the awarding authority to a
1266+newspaper and the newspaper only published the advertisement
1267+for two weeks if the authority can provide proof that it, in
1268+good faith, submitted the advertisement to the newspaper with
1269+instructions to publish the notice in accordance with the
1270+provisions of this section.
1271+(c) All contracts for public works entered into in
1272+violation of this title shall be void and violative of public
1273+policy. Anyone who willfully violates this article concerning
1274+public works shall be guilty of a Class C felony.
1275+(d)(1) Excluded from the operation of this title shall
1276+be contracts with persons who shall perform only
1277+architectural, engineering, construction management, program
1278+management, or project management services in support of the
1279+public works and who shall not engage in actual construction,
1280+repair, renovation, or maintenance of the public works with
1281+their own forces, by contract, subcontract, purchase order,
1282+lease, or otherwise.
1283+(2) Excluded from operation of the bidding requirements
1284+in this title are contracts for the purchase of any heating or
1285+air conditioning units or systems by any awarding authority
1286+subject to Chapter 13B of Title 16, or Article 3, commencing
1287+with Section 41-16-50, of Chapter 16 of Title 41, provided the
1288+contract is entered into with an Alabama vendor who has been
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1318+granted approved vendor status for the sale of heating or air
1319+conditioning units or systems as a part of a purchasing
1320+cooperative, and each of the following occur:
1321+a. The heating or air conditioning unit or system being
1322+purchased is available as a result of a competitive bid
1323+process conducted by a governmental entity which has been
1324+approved by the Department of Examiners of Public Accounts.
1325+b. The purchase of the heating or air conditioning unit
1326+or system is not available on the state purchasing program at
1327+the time or the purchase under the purchasing cooperative is
1328+available at a price that is equal to or less than that
1329+available through the state purchasing program.
1330+c. The entity entering into the contract for the
1331+purchase of the heating or air conditioning unit or system has
1332+been notified by the Department of Examiners of Public
1333+Accounts that the competitive bid process utilized by the
1334+cooperative program offering the goods complies with this
1335+subdivision.
1336+d. Upon request, the vendor has provided the purchasing
1337+entity with a report of sales made under this subdivision
1338+during the previous 12-month period, to include a general
1339+description of the heating or air conditioning units and
1340+systems sold, the number of units sold per entity, and the
1341+purchase price of the units.
1342+e. The exemption from the requirement to utilize sealed
1343+bids for the purchase of heating or air conditioning units or
1344+systems authorized by this section shall not serve to exempt
1345+any public works project from the remaining provisions of this
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1375+article, including, but not limited to, design, installation,
1376+and review requirements, compliance with all applicable codes,
1377+laws, specifications, and standards, and the compensation of
1378+engineers, architects, or others as mandated by state law or
1379+rule.
1380+(e) In case of an emergency affecting public health,
1381+safety, or convenience, as declared in writing by the awarding
1382+authority, setting forth the nature of the danger to the
1383+public health, safety, or convenience which would result from
1384+delay, contracts may be let to the extent necessary to meet
1385+the emergency without public advertisement. The action and the
1386+reasons for the action taken shall immediately be made public
1387+by the awarding authority upon request.
1388+(f) No awarding authority may specify in the plans and
1389+specifications for the improvement the use of materials,
1390+products, systems, or services by a sole source unless all of
1391+the following requirements are met:
1392+(1) Except for contracts involving the construction,
1393+reconstruction, renovation, or replacement of public roads,
1394+bridges, and water and sewer facilities, the awarding
1395+authority can document to the satisfaction of the Division of
1396+Construction Management that the sole source product,
1397+material, system, or service is of an indispensable nature for
1398+the improvement, that there are no other viable alternatives,
1399+and that only this particular product, material, system, or
1400+service fulfills the function for which it is needed.
1401+(2) The sole source specification has been recommended
1402+by the architect or engineer of record as an indispensable
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1432+item for which there is no other viable alternative.
1433+(3) All information substantiating the use of a sole
1434+source specification, including the recommendation of the
1435+architect or engineer of record, shall be documented and made
1436+available for examination in the office of the awarding
1437+authority at the time of advertisement for sealed bids.
1438+(g) In the event of a proposed public works project,
1439+acknowledged in writing by the Alabama Homeland Security
1440+Department as: (1) having a direct impact on the security or
1441+safety of persons or facilities; and (2) requiring
1442+confidential handling for the protection of such persons or
1443+facilities, contracts may be let without public advertisement
1444+but with the taking of informal bids otherwise consistent with
1445+the requirements of this title and the requirements of
1446+maintaining confidentiality. Records of bidding and award
1447+shall not be disclosed to the public and shall remain
1448+confidential.
1449+(h) If a pre-bid meeting is held, the pre-bid meeting
1450+shall be held at least seven days prior to the bid opening
1451+except when the project has been declared an emergency in
1452+accordance with subsection (e).
1453+(i) The awarding authority may not offer a contract for
1454+bidding unless confirmation of any applicable grant has been
1455+received and any required matching funds have been secured by
1456+or are available to the awarding authority.
1457+(j) Notwithstanding subsection (a), the Department of
1458+Transportation may enter into contracts for road construction
1459+or road maintenance projects that do not involve more than two
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1489+hundred fifty thousand dollars ($250,000) without advertising
1490+for sealed bids, provided the project is listed on the
1491+department website for at least seven calendar days before
1492+entering into the contract. The total cost of all projects not
1493+subject to advertising and sealed bids pursuant to this
1494+subsection may not exceed one million dollars ($1,000,000) in
1495+the aggregate per year.
1496+(k) Beginning October 1, 2027, and every three years
1497+thereafter, all dollar amounts used in this section shall be
1498+subject to a cost adjustment based on the following procedure:
1499+The Chief Examiner of the Department of Examiners of Public
1500+Accounts may submit to the Chair of the Legislative Council a
1501+recommendation that the amount be increased based on the
1502+percentage increase in the Consumer Price Index for the
1503+immediately preceding three-year period, rounded to the
1504+nearest thousand dollars. The recommendation shall be subject
1505+to the approval of the Legislative Council. In the event the
1506+recommendation is not disapproved by the Legislative Council
1507+by the end of April following the submission of the
1508+recommendation, the recommendation shall be deemed to be
1509+approved. Upon approval, the Department of Examiners of Public
1510+Accounts shall notify the public of the adjusted dollar
1511+amounts by July 1 before the fiscal year in which the changes
1512+will take effect. "
1513+"§39-2-4
1514+(a) The bidder shall be required to file with his or
1515+her bid either a cashier's check drawn on an Alabama bank or a
1516+bid bond executed by a surety company duly authorized and
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1546+qualified to make such bonds in the State of Alabama, payable
1547+to the awarding authority for an amount not less than five
1548+percent of the awarding authority's estimated cost or of the
1549+contractor's bid, but in no event more than ten thousand
1550+dollars ($10,000) twenty thousand dollars ($20,000) , except if
1551+the awarding authority is the Department of Transportation,
1552+then the bid guarantee shall not be more than fifty thousand
1553+dollars ($50,000). The bid guaranties as provided in this
1554+section shall constitute all of the qualifications or guaranty
1555+to be required of contractors as prerequisites to bidding for
1556+public works, except as required by the State Licensing Board
1557+for General Contractors and the prequalification as required
1558+by the Department of Transportation, the Building Commission,
1559+or any other awarding authority.
1560+(b) With the exception of the Department of
1561+Transportation which has prequalification procedures and
1562+criteria set forth by statute, any awarding authority that
1563+proposes to prequalify bidders shall establish written
1564+prequalification procedures and criteria that: (1) are
1565+published sufficiently in advance of any affected contract so
1566+that a bona fide bidder may seek and obtain prequalification
1567+prior to preparing a bid for that contract, such publication
1568+to be accomplished by the methods specified in subsection (a)
1569+of Section 39-2-2; (2) are related to the purpose of the
1570+contract or contracts affected; (3) are related to contract
1571+requirements or the quality of the product or service in
1572+question; (4) are related to the responsibility, including the
1573+competency, experience, and financial ability, of a bidder;
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1603+and (5) will permit reasonable competition at a level that
1604+serves the public interest. The prequalification publication
1605+may run concurrently with the publication required under
1606+subsection (a) of Section 39-2-2, provided it produces the
1607+above required advance notice.
1608+(c) Within the bounds of good faith, the awarding
1609+authority retains the right to determine whether a contractor
1610+has met prequalification procedures and criteria.
1611+(d) Any bidder who has prequalified pursuant to the
1612+requirements in subsection (b) shall be deemed responsible for
1613+purposes of award unless the prequalification is revoked by
1614+the awarding authority under the following procedures:
1615+(1) No later than five working days or the next regular
1616+meeting after the opening of bids, the awarding authority
1617+issues written notice to the bidder of its intent to revoke
1618+prequalification and the grounds therefor ;.
1619+(2) theThe bidder is then provided an opportunity to be
1620+heard before the awarding authority on the intended
1621+revocation;.
1622+(3) theThe awarding authority makes a good faith
1623+showing of a material inaccuracy in the prequalification
1624+application of a bidder or of a material change in the
1625+responsibility of the bidder since submitting its
1626+prequalification application ; and.
1627+(4) theThe revocation of prequalification is determined
1628+no later than 10 days after written notice of intent to
1629+revoke, unless the bidder whose qualification is in question
1630+agrees in writing to an extension in time.
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1660+(e) Nothing in this section shall preclude the
1661+rejection of a bidder determined not responsible nor the
1662+inclusion of criteria in the bid documents which would limit
1663+contract awards to responsible bidders where no
1664+prequalification procedure is employed by the awarding
1665+authority."
1666+Section 3. Although this bill would have as its purpose
1667+or effect the requirement of a new or increased expenditure of
1668+local funds, the bill is excluded from further requirements
1669+and application under Section 111.05 of the Constitution of
1670+Alabama of 2022, because the bill defines a new crime or
1671+amends the definition of an existing crime.
1672+Section 4. This act shall become effective on the first
1673+day of the third month following its passage and approval by
1674+the Governor, or its otherwise becoming law.
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