SB100ENROLLED Page 0 U95RXG-2 By Senator Orr RFD: Finance and Taxation Education First Read: 21-Mar-23 2023 Regular Session 1 2 3 4 5 SB100 EnrolledSB100 Enrolled Page 1 Enrolled, An Act, Relating to state government; to amend Sections 41-4-114, 41-4-120, 41-4-122 as last amended by Act 2022-357 of the 2022 Regular Session, 41-4-124, 41-4-125, Section 41-4-126 as last amended by Act 2022-357 of the 2022 Regular Session, 41-4-139, 41-4-172, 29-2-41.1 Code of Alabama 1975, to further provide exemptions to the state procurement code; to further provide for the authority to make emergency procurements and the review of those procurements by the Contract Review Legislative Oversight Committee; to provide for the procurement of certain health professionals who provide services to the Medicaid Agency under certain conditions; to further provide for the definition of professional services to include the management and administration of occupational licensing boards; to provide for the procurement of supplies, services, and professional services by district attorneys or sheriffs; to provide for the change of the name of the Office of the Chief Procurement Officer to the Division of Procurement; and to add Section 41-4-125.01 to the Code of Alabama 1975, to provide for the procurement of physicians retained to provide medical services to the State of Alabama. BE IT ENACTED BY THE LEGISLATURE OF ALABAMA: Section 1. Sections 41-4-114, 41-4-120, 41-4-122 as last amended by Act 2022-357 of the 2022 Regular Session, 41-4-124, 41-4-125, Section 41-4-126 as last amended by Act 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SB100 EnrolledSB100 Enrolled Page 2 2022-357 of the 2022 Regular Session, 41-4-139, 41-4-172, 29-2-41.1, Code of Alabama 1975, are amended to read as follows: "§41-4-114 (a) For purposes of this article, the following words shall have the following meanings: (1) BUSINESS. Any corporation, partnership, individual, sole proprietorship, joint stock company, joint venture, or other private legal entity. (2) CAPITAL EQUIPMENT. Tangible personal property that can be appraised for value, is not disposable or consumable, is stand alone, and has a useful life of one year or more. (3) CHANGE ORDER. A written order signed by the procurement officer directing the contractor to make changes which the changes clause of the contract authorizes the procurement officer to order without the consent of the contractor. (4) CHIEF PROCUREMENT OFFICER. The person individual holding the position created in Section 41-4-120, as the head of the Office of the Chief Procurement Officer Division of Procurement. (5) CONTINGENCY FEE CONTRACT. An agreement, express or implied, for litigation legal services of an attorney or attorneys, including any associated counsel, under which compensation is contingent in whole or in part upon the successful accomplishment or disposition of the subject matter of the agreement. The payment may be in an amount which either is fixed or is to be determined under a formula. 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 SB100 EnrolledSB100 Enrolled Page 3 (6) CONTINGENCY FEE COUNSEL. An attorney or attorneys performing services under a contingency fee contract. (7) CONTRACT. All types of state agreements, regardless of what they may be called, for the procurement of supplies or services. (8) CONTRACT MODIFICATION. Any written alteration in specifications, delivery point, rate of delivery, period of performance, price, quantity, or other provisions of any contract accomplished by mutual action of the parties to the contract. (9) CONTRACTING AGENCY. The Governor, Attorney General, or director of a state agency, department, bureau, commission, authority, public corporation, or instrumentality of the State of Alabama that seeks to enter a contract. (10) CONTRACTOR. Any person having a contract with a governmental body. (11) DATA. Recorded information, regardless of form or characteristic. (12) DESIGNEE. A duly authorized representative of a person. (13) ELECTRONIC. Electrical, digital, magnetic, optical, electromagnetic, or other similar technology. (14) GOVERNMENTAL BODY. Except as otherwise provided in this article, an agency, department, board, bureau, commission, committee, institution, corporation, authority, or office of this state. The term does not include the legislative or judicial departments of the state or a legislative or judicial agency, the Alabama State Port 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 SB100 EnrolledSB100 Enrolled Page 4 Authority, municipalities, or the county commission and governing boards of instrumentalities of counties including waterworks boards, sewer boards, gas boards, and other like utility boards and commissions. (15) GRANT. The furnishing by the state or federal government of assistance, whether financial or otherwise, to any person to support a program authorized by law. The term does not include an award with a primary purpose to procure an end product, whether in the form of supplies or services. (16) JUDICIAL AGENCY. Any department, appellate court, trial court, board, body, bureau, commission, committee, institution, corporation, authority, or office created, established, and operating as an agency of the judicial department of this state. The term includes, but is not limited to, the Administrative Office of Courts, the State Law Library, the Court of the Judiciary, and the Sentencing Commission. (17) LEGISLATIVE AGENCY. The Alabama State Legislature and any department, board, body, bureau, commission, committee, institution, corporation, authority, or office created, established, and operating as an agency of the legislative department of this state. The term includes, but is not limited to, the Legislative Services Agency and the Department of Examiners of Public Accounts. (18) PERSON. An individual, corporation, association, partnership, limited liability corporation, union, committee, club, other organization, or group. (19) PROCUREMENT. Buying, purchasing, renting, leasing, 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 SB100 EnrolledSB100 Enrolled Page 5 or otherwise acquiring any supplies or services. The term includes all functions that pertain to the obtaining of any supply or service, including description of requirements, selection and solicitation of sources, preparation and award of contracts, and all phases of contract administration. The term does not include the leasing of real property. (20) PROCUREMENT OFFICER. Any person individual duly authorized by the Chief Procurement Officer to enter into and administer contracts and make written determinations with respect to those contracts. The term includes an authorized representative acting within the limits of authority. (21) PROFESSIONAL SERVICES. The services of physicians, architects, engineers, landscape architects, land surveyors, geoscientists, attorneys, teachers, artists, appraisers, and other individuals, or business entities offering the services of those individuals, who possess a high degree of scientific or specialized skill and knowledge where the experience and professional qualifications of the service provider are particularly relevant to the provision of the required service. The term also includes the management or administration of any occupational licensing board, as defined under Section 41-9A-1, by a person other than a state employee. (22) PUBLIC FUNDS. Money, regardless of its source, that is owned or held by a governmental body. (23) PUBLIC NOTICE. The distribution or dissemination of information to interested parties using methods that are reasonably available, including, but not limited to, 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 SB100 EnrolledSB100 Enrolled Page 6 publication in newspapers of general circulation, electronic or paper mailing lists, and websites designated by the state and maintained for that purpose. (24) PURCHASING AGENCY. A governmental body, other than the Office of the Chief Procurement Officer, that is authorized by this article, its implementing rules, or by delegation from the Chief Procurement Officer to enter into contracts. (25) SERVICES. The furnishing of labor, time, or effort by a contractor. The term does not include the delivery of a specific end product, other than reports that are merely incidental to the required performance. (26) SIGNATURE. A manual signature or an electronic signature, as defined in Section 8-1A-2. (27) SOLICITATION. Any request to submit quotes, bids, or offers to the state for the procurement of supplies or services. The term includes invitations to bid and requests for proposals. (28) SUPPLIES. All property, including equipment, materials, and printing. The term does not include land or a permanent interest in land. (29) USING AGENCY. A governmental body that utilizes any supplies or services procured under this article. (30) WRITTEN or IN WRITING. The product of any method of forming characters on paper, other materials, or viewable screens, which can be read, retrieved, and reproduced, including information that is electronically transmitted and stored. 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 SB100 EnrolledSB100 Enrolled Page 7 (b) The terms state, state department, state agency, agency, state entity, instrumentality of the state, and governmental body do not include municipalities, political subdivisions, county commissions, or the governing boards of instrumentalities of counties including waterworks boards, sewer boards, gas boards, and other like utility boards and commissions." "§41-4-120 There is created within the Department of Finance the Office of the Chief Procurement Officer Division of Procurement, headed by the Chief Procurement Officer." "§41-4-122 (a) The Chief Procurement Officer shall serve as the central procurement officer of the state. (b) Consistent with this article, the Chief Procurement Officer shall adopt operational procedures governing the internal functions of the Office of the Chief Procurement Officer Division of Procurement . (c) Except as otherwise specifically provided in this article, the Chief Procurement Officer, in accordance with rules adopted under this article, shall do all of the following: (1) Except for alcoholic beverages, which shall be purchased by the Alcoholic Beverage Control Board, procure or supervise the procurement of all supplies and services needed by the state. (2) Ensure compliance with this article and the rules 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 SB100 EnrolledSB100 Enrolled Page 8 implementing this article by reviewing and monitoring procurements conducted by any designee, department, agency, or official delegated authority under Section 41-4-123. (3) Require, upon request of the Chief Procurement Officer, the periodic reporting of all procurement by or for counties, the purchase, contract, or lease price of which is one hundred dollars ($100) or more, and require information in connection therewith; to prescribe forms and fix the time for submitting such reports; and, when requested by any county, municipal corporation, other local public body, including any board of education, to make such purchase contract, or lease for it. It shall be the duty of every county to make the report on forms furnished by the Office of the Chief Procurement Officer whenever requested to do so, but not more than once every 30 days. (4)(3) Perform other functions and duties of the Department of Finance as may be assigned by the Director of Finance. (d) The Chief Procurement Officer may establish and maintain a system for the purchase of supplies and services by governmental bodies that conduct their procurement activities through the Office of the Chief Procurement Officer Division of Procurement, through the utilization of approved credit cards. County and municipal governments and instrumentalities or public corporations thereof may participate in the state fleet fuel card program subject to the terms and conditions of the program related to the utilization of the fleet fuel card; provided, however, that county and municipal governments and 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 SB100 EnrolledSB100 Enrolled Page 9 instrumentalities or public corporations thereof shall not otherwise be subject to this subsection. The Chief Procurement Officer shall establish by rule a process for the competitive solicitation of credit card providers. The state Comptroller and the Chief Procurement Officer shall adopt fiscal procedures governing the payment of charges incurred by credit card users and the utilization of credit cards. The use of approved credit cards shall be established by the state Comptroller and the Chief Procurement Officer, with the approval of the Director of Finance, and be published through the Alabama fiscal procedures, in which each purchase made using approved credit cards is required to have prior approval by the department head or his or her designee and a record of each purchase and approval is to be maintained. The Chief Procurement Officer may select the provider or providers offering the highest fees to the division for the use of its credit card or credit cards. Fees received by the division for the use of credit cards shall be placed in a special fund entitled the State Procurement Fund in the State Treasury for the use of the division and the funds shall be appropriated, budgeted, and allotted in accordance with Sections 41-4-80 to 41-4-96, inclusive, and 41-19-1 to 41-19-12, inclusive, and only in amounts stipulated in general appropriations bills and other appropriation bills. Approved credit cards may be issued to requisitioning agencies upon the recommendation of the Chief Procurement Officer and the approval of the Director of Finance. Approved credit cards shall be assigned to the department and limited in number. Approved credit cards may be 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 SB100 EnrolledSB100 Enrolled Page 10 utilized to purchase items of supplies and services, and may not exceed the limitations set forth by rule. The director of the governmental body utilizing credit cards is responsible for the proper use of credit cards assigned to his or her agency, in accordance with rules established by Alabama fiscal procedures. The Chief Procurement Officer may collect any credit card from any governmental body at any time due to improper use. The Chief Procurement Officer shall submit an annual report and accounting regarding the use of credit cards by each governmental body to the Director of Finance and the Governor. (e) The Office of the Chief Procurement Officer Division of Procurement may charge a biannual registration fee to vendors desiring to register with the office to receive invitations to bid for any supplies or services solicited by the division and to governmental bodies for their proportionate share of operating costs of the office. Any fee shall be set by administrative rule upon the approval of the Director of Finance. Any fees collected under this subsection shall be deposited in the State Treasury to the credit of the State Procurement Fund and shall be appropriated, budgeted, and allotted in accordance with Sections 41-4-80 to 41-4-96, inclusive, and 41-19-1 to 41-19-12, inclusive, and only in amounts stipulated in general appropriations bills and other appropriation bills. (f) The Chief Procurement Officer may make purchases, contracts, or leases for any county, instrumentality of a county, municipal corporation, local board of education, or other local public body upon the request of the local public body. (f)(g) The Chief Procurement Officer shall adopt rules consistent with this article to govern the procurement of supplies and services procured by the state." 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 SB100 EnrolledSB100 Enrolled Page 11 "§41-4-124 (a) Except as otherwise provided in this article, all rights, powers, duties, and authority relating to the procurement of supplies and services now vested in, or exercised by, any governmental body under existing law are transferred to the Chief Procurement Officer. (b) The following governmental bodies are subject to this article except as it relates to the purchase of professional services and the oversight and authority of the Chief Procurement Officer, but shall establish and maintain procurement offices and personnel and shall adopt rules as may be necessary to comply with this article: (1) All educational and eleemosynary institutions governed by a board of trustees or other similar governing body. (2) The Retirement Systems of Alabama. (3) The Department of Mental Health. (c) The Alabama Department of Transportation is subject to this article except as it relates to the purchase of professional services and shall adopt rules governing the purchase of professional services by the department which are consistent with the principles contained in this article and promote fairness, competition, transparency, integrity, and value in the procurement process. (d) The procurement of any supplies, services, or professional services by a district attorney or sheriff shall be solely governed by Article 3, commencing with Section 41-16-50 of Chapter 16. 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 SB100 EnrolledSB100 Enrolled Page 12 (d)(e) The procurement of any supplies or services by a legislative agency or judicial agency shall be solely governed by procedures adopted by the Legislative Council for all legislative agencies and by rules adopted by the Supreme Court of Alabama for all judicial agencies. The procedures adopted shall be consistent with any applicable requirements of the Constitution of Alabama of 1901 2022, and shall be established in accordance with the underlying purposes and policies of promoting responsible and efficient use of public funds dedicated and appropriated to the agencies for their use, providing consistency of application of rules and requirements across all agencies within the applicable branch of state government, and promoting fairness, competition, transparency, integrity, and value in the procurement process. In no case may the legislative and judicial departments of the state adopt procedures that conflict with the laws of this state regarding the public disclosure of the use of public funds and the transparency of public expenditures, or that otherwise conflict with state law regarding public records and public access to those records. Except for the requirement to act in good faith, no other provision of this article shall apply to legislative or judicial agencies; provided, that the legislative and judicial departments may adopt all or any part of this article and its accompanying rules. (e)(f) The procurement of any supplies or services by the Alabama State Port Authority shall be solely governed by procedures adopted by the Board of Directors of the Alabama State Port Authority. The procedures adopted shall be 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 SB100 EnrolledSB100 Enrolled Page 13 consistent with any applicable requirements of the Constitution of Alabama of 1901 2022, and shall be established in accordance with the underlying purposes and policies of promoting responsible and efficient use of the funds of the Alabama State Port Authority, providing consistency of application of rules and requirements across all agencies within the applicable branch of state government, and promoting fairness, competition, transparency, integrity, and value in the procurement process. Except for the protection of information otherwise legally considered commercially confidential, sensitive, or of a nature that upon release would harm the competitive advantage of itself or its customers, concessionaires, lessees, or suppliers, the Alabama State Port Authority may not adopt procedures that conflict with the laws of this state regarding the public disclosure of the use of its funds and the transparency of its expenditures, or that otherwise conflict with state law regarding public records and public access to those records. Except as provided in this subsection and the requirement to act in good faith, no other provision of this article shall apply to the Alabama State Port Authority; provided, however, that the Alabama State Port Authority may adopt all or any part of this article and its accompanying rules." "§41-4-125 (a)(1) Except as otherwise provided in this section, attorneys retained to represent the state in litigation shall be appointed by the Attorney General in consultation with the Governor from a list of attorneys maintained by the Attorney 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 SB100 EnrolledSB100 Enrolled Page 14 General. All attorneys interested in representing the state may apply and shall be included on the list. The selection of the attorney or law firm shall be based upon the level of skill, experience, and expertise required in the litigation and the fees charged by the attorney or law firm shall be taken into consideration so that the state receives the best representation for the funds paid. Fees shall be negotiated and approved by the Governor in consultation with the Attorney General. Maximum fees paid for legal representation that does not involve a contingency fee contract may be established by executive order of the Governor. (2) Attorneys retained by any state purchasing entity to render nonlitigation legal services shall be selected by the entity from a list of attorneys maintained by the Legal Advisor to the Governor. All attorneys interested in representing any purchasing state entity may apply and shall be included on the list. The selection of the attorney or law firm shall be based upon the level of skill, experience, and expertise required for the services, but the fees charged by the attorney or law firm shall be taken into consideration so that the state entity shall receive the best representation for the funds paid. Fees for the services shall be negotiated by the state entity requiring the services and shall be subject to the review and approval of the Governor or the Director of Finance when so designated by the Governor. (b) This section article does not apply to either of the following: (1) The appointment of attorneys or experts by a court. 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 SB100 EnrolledSB100 Enrolled Page 15 (2) The retention of experts by the state for the purposes of litigation or avoidance of litigation. (c) Nothing in this section shall be construed as altering or amending the Governor's authority to retain attorneys under Section 36-13-2; provided, the Governor shall select the attorneys from three proposals received from attorneys included on the list maintained by the Attorney General. (d)(1) A governmental body may not enter into a contingency fee contract with any attorney or law firm unless the contracting agency makes a written determination prior to entering into a contingency fee contract that contingency fee representation is both cost effective and in the public interest. Any written determination shall include specific findings for each of the following factors: a. Whether there are sufficient and appropriate legal and financial resources within the state to handle the matter without a contingency contract. b. The expected time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the attorney services properly. c. The geographic area where the attorney services are to be provided. d. The amount of experience desired for the particular kind of attorney services to be provided and the nature of the private attorney's experience with similar issues or cases. (2) Subject to subdivision (3), the state may not enter into a contingency fee contract that provides for the 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 SB100 EnrolledSB100 Enrolled Page 16 contingency fee counsel to receive an aggregate contingency fee calculated from the gross recovery resulting from a judgment or settlement in each action, exclusive of expenses, in excess of the total of all of the following: a. Twenty-two percent of any recovery of up to that does not exceed ten million dollars ($10,000,000); plus b. Twenty percent of any portion of the recovery between that exceeds ten million dollars ($10,000,000) and but does not exceed twenty-five million dollars ($25,000,000); plus c. Sixteen percent of any portion of the recovery between that exceeds twenty-five million dollars ($25,000,000) and but does not exceed fifty million dollars ($50,000,000); plus d. Twelve percent of any portion of the recovery between that exceeds fifty million dollars ($50,000,000) and but does not exceed seventy-five million dollars ($75,000,000); plus e. Eight percent of any portion of the recovery between seventy-five million dollars ($75,000,000) and one hundred million dollars ($100,000,000); plus f. Seven and one-tenth (7.1) percent of any portion of the recovery exceeding one hundred million dollars ($100,000,000). (3) The aggregate fee paid under a contingency fee contract may not exceed seventy-five million dollars ($75,000,000). (4) All litigation expenses incurred by the contingency 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 SB100 EnrolledSB100 Enrolled Page 17 fee counsel shall be paid or reimbursed upon approval on a monthly basis upon presentation of documentation of the expenses to the contracting agency. (5) The Attorney General may certify in writing to the Governor that, in the opinion of the Attorney General, an issue affecting the public health, safety, convenience, or economic welfare of the state exists that justifies that the contingency fee limitations set forth in subdivision (2) or (3) be suspended in the case of a particular contingency fee contract. Upon receipt of the written certification, the Governor, by the issuance of an executive order, may waive the limitations with respect to the specified contingency fee contract. (6) A governmental body may not enter into a contingency fee contract unless all of the following requirements are met throughout the entire contract period, including any extensions of the period: a. A government attorney has complete control over the course and conduct of the case. b. A government attorney with supervisory authority is personally involved in overseeing the litigation. c. A government attorney retains veto power over any decisions made by the contingency fee counsel. d. After giving reasonable notice to the contingency fee counsel, any defendant that is the subject of the litigation may contact the lead government attorney directly unless directed to do otherwise by that attorney. Contingency fee counsel shall have the right to may participate in the 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 SB100 EnrolledSB100 Enrolled Page 18 discussion with the lead government attorney or attorneys unless, after consultation with contingency fee counsel, the lead government attorney agrees to the discussion without contingency fee counsel being present. e. A government attorney with supervisory authority for the case shall attend all settlement conferences. f. Decisions regarding settlement of the case shall be reserved exclusively to the discretion of the government attorney and the state. (7) The Attorney General shall develop a standard addendum to every contract for contingent fee attorney services that shall be used in all cases, describing in detail what is expected of both the contingency fee counsel and the state, including, without limitation, the requirements listed in subdivision (6). (8) Copies of any executed contingency fee contract and the contracting agency's written determination to enter into the contingency fee contract with the contingency fee counsel and any payment of any contingency fees shall be posted online as provided in Section 41-4-65. (9) Every contingency fee counsel, from the inception of the contingency fee contract until at least four years after the contract expires or is terminated, shall maintain detailed current records, including documentation of all time records, expenses, disbursements, charges, credits, underlying receipts and invoices, and other financial transactions that concern the provision of the attorney services. The contingency fee counsel shall make all the records available 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 SB100 EnrolledSB100 Enrolled Page 19 for inspection and copying upon request by the Governor, Attorney General, or contracting agency. In addition, the contingency fee counsel shall maintain detailed contemporaneous time records for the attorneys and paralegals working on the contract in six minute increments and, upon request, shall provide promptly these records to the Governor, Attorney General, or contracting agency. (10) Any contingency fee paid to a private attorney or law firm shall be paid from the State Treasury from the funds recovered as a result of the contingent contingency fee contract within 30 days of receipt of the recovery unless ordered to do otherwise by a court with jurisdiction over the litigation subject to the contingency fee contract." "§41-4-126 (a) Unless otherwise ordered by rule, with approval of the Governor, the following supplies and services need not be procured through the Office of the Chief Procurement Officer Division of Procurement and are exempt from the competitive requirements of this article: (1) Works of art for museum and public display. (2) Published books in any format such as digital, audio, or hardcopy; maps; periodicals; and technical pamphlets. (3) Utility services where no competition exists or where rates are fixed by law. (4) Purchases of alcoholic beverages by the Alcoholic Beverage Control Board. (5) Purchases of products made or manufactured by the 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 SB100 EnrolledSB100 Enrolled Page 20 blind or visually handicapped 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. (6) Photographs purchased from a federal agency. (7) Barter transactions by the Department of Corrections. (8) The purchase of insurance and supplies or services related to the purchase of insurance. (9) Supplies and services that by their very nature are impossible to award by competitive process, as determined by the Chief Procurement Officer. (b) Any state department or agency whose principal business is honorariums is exempted from this chapter on purchases and contracts for services made by that department or agency. (c) Nothing in this article is intended to repeal or limit any provision of Section 23-1-40 or Sections 23-2-140 through 23-2-175 Article 5 or Article 6 of Chapter 2 of Title 23, commencing with Section 23-2-140 , relating to the procurement authority of the State Department of Transportation and the Alabama Toll Road, Bridge and Tunnel Authority. To the extent any provision contained in this article conflicts with Section 23-1-40 or Sections 23-2-140 through 23-2-175 Article 5 or Article 6 of Chapter 2 of Title 23, the latter governs. (d) Nothing in this article repeals or limits any provision of Section 41-4-400, relating to the procurement 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560 561 562 563 564 565 SB100 EnrolledSB100 Enrolled Page 21 authority of the Division of Construction Management. To the extent any provision contained in this article conflicts with Section 41-4-400, the latter governs. (e) Nothing in this article repeals or limits any provision of Section 14-7-8, relating to the procurement authority of Alabama Correctional Industries. To the extent any provision contained in this article conflicts with Section 14-7-8, the latter governs. (f) This article does not apply to any state authority, board, or other entity with respect to contracts relating to the issuance of debt that is required to be repaid from sources other than state funds. (g) This article does not apply to direct health care services provided by the Alabama Department of Public Health. (h) Nothing in this article applies to the administration of health benefit plans by a governmental body and supplies or services related thereto. (i) Except for capital equipment, this article does not apply to the purchase by a public hospital of medical products, medical supplies, medical devices, services, implants, pharmaceuticals, fluids, gases, or any other medical products which are used in the course of treating patients, or to support the treatment of patients. (j)(1) Except as provided in subdivision (2), the purchase of supplies or services negotiated on behalf of two-year and four-year colleges and universities may be awarded without competitive bidding, provided that no state revenues, appropriations, or other state funds are expended or 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 SB100 EnrolledSB100 Enrolled Page 22 committed and when it is determined by the respective board that financial benefits will accrue to the institution. (2) When an Alabama business entity organized under the laws of this state is available to supply the product or service purchased or negotiated under subdivision (1), the Alabama business entity shall have preference unless the product or service supplied by a foreign corporation is substantially different or superior to the product or service supplied by the Alabama business entity. (3) Public notice shall be provided by the purchasing agency within 10 days of the execution of a contract under this subsection. The public notice shall include, at a minimum, the terms and conditions of any of the supplies or services that are contracted through negotiation without being competitively bid and the name and address of the recipient of the contract. (k) This article does not apply to purchases and contracts for the repair of equipment used in the construction and maintenance of highways by the Department of Transportation. (l) This article does not apply to public works projects governed by Title 39. (m) This article does not apply to the purchase by the Department of Transportation of road building materials for transportation infrastructure in the state. Road building materials may be purchased from private land owners or commercial providers from the nearest or most cost-effective source available for the particular application. Road building 594 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609 610 611 612 613 614 615 616 617 618 619 620 621 SB100 EnrolledSB100 Enrolled Page 23 materials include dirt, gravel, stone, slag, or borrow materials, in natural state or processed by crushing, grading, or screening processes. (n) This article does not apply to purchases of supplies and services for the maintenance and operation of highway infrastructure and right-of-way by the Department of Transportation. (o) Nothing in this article is intended to repeal or limit any provision of Article 2, Chapter 1, Title 23, relating to the powers and authority of the Department of Transportation. To the extent any provision contained in this article conflicts with Article 2, Chapter 1, Title 23, the latter governs. (p) Governmental bodies may purchase supplies from any vendor that offers the item at a price at least ten percent below the price established on a statewide contract by the Office of the Chief Procurement Officer Division of Procurement for the same item, provided that each purchase, whether for a single item or multiple items, does not exceed an amount established by rules of the Chief Procurement Officer. The Office of the Chief Procurement Officer Division of Procurement shall confirm that the terms and conditions of the purchases are substantially similar to those of the statewide contract for the same item prior to the approval of any purchase under this subsection. Any purchase that would be directly connected to any information technology network used by the state shall require prior approval by the Secretary of Information Technology. If the purchaser is to take possession 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648 649 SB100 EnrolledSB100 Enrolled Page 24 of the purchased supplies at the vendor's physical location, any acquisition of supplies under this subsection may be purchased only from vendors physically located within the state. The price of any supplies purchased under this subsection shall be the market price readily available to the public at large. The acquisition of supplies under this subsection is subject to the supervision and administration of the Office of the Chief Procurement Officer Division of Procurement. (q) Nothing in this article is intended to repeal or limit any provision of Chapter 61E of Title 16, relating to the powers and authority of the Department of Education to enter into joint purchasing agreements on behalf of educational institutions. To the extent any provision contained in this article conflicts with Chapter 61E of Title 16, the latter governs. (r) Nothing in this article shall be construed as repealing Section 9-2-106 or Section 9-2-107. (s) This article does not apply to purchases by the Alabama Department of Rehabilitation Services of supplies and services for the Alabama Department of Rehabilitation Services consumers. (t) This article does not apply to the Alabama Medicaid Agency for purposes of the selection of professional service providers for contracts with physicians, pharmacists, dentists, optometrists, opticians, nurses, and other health professionals which involve only service on agency task forces, boards, or committees. " 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 SB100 EnrolledSB100 Enrolled Page 25 "§41-4-139 (a) A written determination of nonresponsibility of a bidder or offeror shall be made in accordance with rules adopted by the Chief Procurement Officer. The unreasonable failure of a bidder or offeror to promptly supply information in connection with an inquiry with respect to responsibility may be grounds for a determination of nonresponsibility with respect to the bidder or offeror. (b) Confidential information furnished by a bidder or offeror under this section may not be disclosed outside of the Office of the Chief Procurement Officer Division of Procurement or the purchasing agency without the prior written consent of the bidder or offeror." "§41-4-172 A public procurement unit may sell to, acquire from, or use any supplies or services belonging to another public procurement unit without regard to the requirements of Division 3." "§29-2-41.1 In case of an emergency adversely affecting public health, public safety, security, or the economic public welfare of the state, so declared in writing to the Governor by the Chief Procurement Officer or the head of the institution or a purchasing agency involved, as defined under Section 41-4-114 , setting forth the nature of the danger to public health, public safety, security or the economic public welfare of the state, contracts may be let to the extent necessary to meet the emergency without review by the 678 679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 695 696 697 698 699 700 701 702 703 704 705 SB100 EnrolledSB100 Enrolled Page 26 committee. Any contract let pursuant to this section involving an emergency adversely affecting the economic public welfare of the state shall be let for a period of not more than 60 days during which time the committee shall review a contract for a longer period of time if such services are required beyond the 60-day limit hereby imposed." Section 2. Section 41-4-125.01 is added to the Code of Alabama 1975, to read as follows: 41-4-125.01 Physicians retained to provide medical services to the State of Alabama shall be selected by the purchasing state entity from a list of qualified physicians maintained by the Alabama Medical Licensure Commission. All physicians interested in providing medical services to the State of Alabama may apply and shall be included on the listing. Section 3. This act shall become effective immediately following its passage and approval by the Governor, or its otherwise becoming law. 706 707 708 709 710 711 712 713 714 715 716 717 718 719 720 721 722 723 SB100 EnrolledSB100 Enrolled Page 27 ________________________________________________ President and Presiding Officer of the Senate ________________________________________________ Speaker of the House of Representatives SB100 Senate 03-May-23 I hereby certify that the within Act originated in and passed the Senate. Patrick Harris, Secretary. House of Representatives Amended and passed: 06-Jun-23 Senate concurred in House amendment 06-Jun-23 By: Senator Orr 724 725 726 727 728 729 730 731 732 733 734 735 736 737 738 739 740 741 742 743 744 745 746 747 748 749 750 751 752 753 754 755 756 757