Alabama 2023 Regular Session

Alabama Senate Bill SB290 Compare Versions

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1	1	SB290INTRODUCED
2	2	Page 0
3	3	4S0M3I-1
4	4	By Senator Givhan
5	5	RFD: Fiscal Responsibility and Economic Development
6	6	First Read: 03-May-23
7	7	2023 Regular Session
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13	13	6 4S0M3I-1 04/12/2023 CMH (L)bm 2023-1061
14	14	Page 1
15	15	SYNOPSIS:
16	16	Under existing law, contracts for public works
17	17	involving an amount in excess of $50,000 are subject to
18	18	the public works competitive bid procedures.
19	19	This bill would increase the threshold amount to
20	20	$100,000 and would authorize an additional increase to
21	21	the amount based on increases in the Consumer Price
22	22	Index.
23	23	This bill would authorize the use of electronic
24	24	means to provide certain required notices.
25	25	This bill would also authorize the use of
26	26	electronic sealed bids.
27	27	Section 111.05 of the Constitution of Alabama of
28	28	2022, prohibits a general law whose purpose or effect
29	29	would be to require a new or increased expenditure of
30	30	local funds from becoming effective with regard to a
31	31	local governmental entity without enactment by a 2/3
32	32	vote unless: it comes within one of a number of
33	33	specified exceptions; it is approved by the affected
34	34	entity; or the Legislature appropriates funds, or
35	35	provides a local source of revenue, to the entity for
36	36	the purpose.
37	37	The purpose or effect of this bill would be to
38	38	require a new or increased expenditure of local funds
39	39	within the meaning of the amendment. However, the bill
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69	69	does not require approval of a local governmental
70	70	entity or enactment by a 2/3 vote to become effective
71	71	because it comes within one of the specified exceptions
72	72	contained in the amendment.
73	73	A BILL
74	74	TO BE ENTITLED
75	75	AN ACT
76	76	Relating to public works contracts; to amend Sections
77	77	39-1-1, 39-2-1, 39-2-2, and 39-2-6, Code of Alabama 1975, to
78	78	increase the threshold dollar amount for which competitive
79	79	bidding is generally required; to further provide for certain
80	80	notice procedures; to authorize the publication of notice by
81	81	electronic means; to authorize the use of electronic sealed
82	82	bids; to authorize certain statutory dollar amounts to be
83	83	increased based on increases in the Consumer Price Index; and
84	84	in connection therewith would have as its purpose or effect
85	85	the requirement of a new or increased expenditure of local
86	86	funds within the meaning of Section 111.05 of the Constitution
87	87	of Alabama of 2022.
88	88	BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
89	89	Section 1. Sections 39-1-1, 39-2-1, 39-2-2, and 39-2-6,
90	90	Code of Alabama 1975, are amended to read as follows:
91	91	"§39-1-1
92	92	(a) Any person entering into a contract with an
93	93	awarding authority in this state for the prosecution of any
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123	123	public works shall, before commencing the work, shall execute
124	124	a performance bond, with penalty equal to 100 percent of the
125	125	amount of the contract price. In addition, another bond,
126	126	payable to the awarding authority letting the contract, shall
127	127	be executed in an amount not less than 50 percent of the
128	128	contract price, with the obligation that the contractor or
129	129	contractors shall promptly make payments to all persons
130	130	supplying labor, materials, or supplies for or in the
131	131	prosecution of the work provided in the contract and for the
132	132	payment of reasonable attorneys'attorney fees incurred by
133	133	successful claimants or plaintiffs in civil actions on the
134	134	bond.
135	135	(b) Any person that has furnished labor, materials, or
136	136	supplies for or in the prosecution of a public work and
137	137	payment has not been made may institute a civil action upon
138	138	the payment bond and have their rights and claims adjudicated
139	139	in a civil action and judgment entered thereon.
140	140	Notwithstanding the foregoing, a civil action shall not be
141	141	instituted on the bond until 45 days after written notice to
142	142	the surety of the amount claimed to be due and the nature of
143	143	the claim. The civil action shall be commenced not later than
144	144	one year from the date of final settlement of the contract.
145	145	The giving of notice by registered or certified mail, postage
146	146	prepaid, addressed to the surety at any of its places of
147	147	business or offices shall be deemed sufficient under this
148	148	section. In the event the surety or contractor fails to pay
149	149	the claim in full within 45 days from the mailing of the
150	150	notice, then the person or persons may recover from the
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180	180	contractor and surety, in addition to the amount of the claim,
181	181	a reasonable attorney'sattorney fee based on the result,
182	182	together with interest on the claim from the date of the
183	183	notice.
184	184	(c) Every person having a right of action on the last
185	185	described bond as provided in this section shall, upon written
186	186	application to the authority under the direction of whom the
187	187	work has been prosecuted, indicating that labor, material,
188	188	foodstuffs, or supplies for the work have been supplied and
189	189	that payment has not been made, shall be promptly furnished a
190	190	certified copy of the additional bond and contract. The
191	191	claimant may bring a civil action in the claimant's name on
192	192	the bond against the contractor and the surety, or either of
193	193	them, in the county in which the work is to be or has been
194	194	performed or in any other county where venue is otherwise
195	195	allowed by law.
196	196	(d) In the event a civil action is instituted on the
197	197	payment bond, at any time more than 15 days before the trial
198	198	begins, any party may serve upon the adverse party an offer to
199	199	accept judgment in favor of the offeror or to allow judgment
200	200	to be entered in favor of the offeree for the money or as
201	201	otherwise specified in the offer. If within 10 days after the
202	202	service of the offer, the adverse party serves written notice
203	203	that the offer is accepted, either party may then file the
204	204	offer and notice of acceptance together with proof of service
205	205	and the clerk of the court shall enter judgment. An offer not
206	206	accepted shall be deemed withdrawn and evidence of the offer
207	207	shall not be admissible. If the judgment finally obtained by
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237	237	the offeree is less favorable than the offer, the offeree
238	238	shall pay the reasonable attorney'sattorney fees and costs
239	239	incurred by the offeror after the making of the offer. An
240	240	offer that is made but not accepted does not preclude a
241	241	subsequent offer. When the liability of one party to another
242	242	party has been determined by verdict, order, or judgment, but
243	243	the amount or extent of the liability remains to be determined
244	244	by further proceedings, any party may make an offer of
245	245	judgment, which shall have the same effect as an offer made
246	246	before trial if the offer is made no less than 10 days prior
247	247	to the commencement of hearings to determine the amount or
248	248	extent of liability.
249	249	(e) This section shall not require the taking of a bond
250	250	to secure contracts in an amount less than fifty thousand
251	251	dollars ($50,000) one hundred thousand dollars ($100,000) .
252	252	(f)(1) The contractor shall, immediately after the
253	253	completion of the contract, shall give notice of the
254	254	completion by an advertisement in a newspaper of general
255	255	circulation published within the city or county in which the
256	256	work has been done, for a period of four successive
257	257	weeks.publishing the notice for a minimum of three weeks using
258	258	one or more of the following methods:
259	259	a. In a newspaper of general circulation in the county
260	260	or counties in which the work, or some portion thereof, has
261	261	been done.
262	262	b. On a website that is maintained by a newspaper of
263	263	general circulation in the county or counties in which the
264	264	work, or some portion thereof, has been done.
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294	294	c. On a website utilized by the awarding authority for
295	295	publishing notices.
296	296	(2) If no newspaper is published in the county in which
297	297	the work was done, and if the awarding authority does not
298	298	utilize a website for the purpose of publishing notices, the
299	299	notice may be given by posting at the courthouse for 30 days,
300	300	and proof of the posting of the notice shall be given by the
301	301	judge of probate, the sheriff, and the contractor.
302	302	(3) A final settlement shall not be made upon the
303	303	contract until the expiration of 30 days after the completion
304	304	of the notice. Proof of publication of the notice shall be
305	305	made by the contractor to the authority by whom the contract
306	306	was made by affidavit of the publisher or website owner and a
307	307	printed copy of the notice published. If no newspaper is
308	308	published in the county in which the work is done, the notice
309	309	may be given by posting at the courthouse for 30 days, and
310	310	proof of same shall be made by the judge of probate, sheriff,
311	311	and the contractor.
312	312	(4) For contracts for road resurfacing materials that
313	313	are awarded on an annual basis, where the bid specifications
314	314	include options such as a unit price for materials, a unit
315	315	price for the delivery of materials, or a unit price for
316	316	materials to be laid in place by the bidder, notice of
317	317	completion pursuant to this subsection may be given on an
318	318	annual basis upon completion of the project as a whole, rather
319	319	than at the completion of each proceed order.
320	320	(g) Subsection (f) shall not apply to contractors
321	321	performing contracts of less than fifty thousand dollars
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351	351	($50,000)one hundred thousand dollars ($100,000) in amount. In
352	352	such cases, the governing body of the contracting agency, to
353	353	expedite final payment, shall cause notice of final completion
354	354	of the contract to be published one time in a newspaper of
355	355	general circulation, published in the county of the
356	356	contracting agency and shall post notice of final completion
357	357	on the agency's bulletin board for one week, and shall require
358	358	the contractor to certify under oath that all bills have been
359	359	paid in full. Final settlement with the contractor may be made
360	360	at any time after the notice has been posted for one entire
361	361	week."
362	362	"§39-2-1
363	363	As used in this title, the following words shall have
364	364	the meanings ascribed to them as follows:
365	365	(1) AWARDING AUTHORITY. Any governmental board,
366	366	commission, agency, body, authority, instrumentality,
367	367	department, or subdivision of the state, its counties and
368	368	municipalities. This term includes, but shall not be limited
369	369	to, the Department of Transportation, the State Building
370	370	Commission the Division of Real Property Management of the
371	371	Department of Finance , the State Board of Education, and any
372	372	other entity contracting for public works. This term shall
373	373	exclude the State Docks Department and any entity exempted
374	374	from the competitive bid laws of the state by statute.
375	375	(2) FORCE ACCOUNT WORK. Work paid for by reimbursing
376	376	for the actual costs for labor, materials, and equipment usage
377	377	incurred in the performance of the work, as directed,
378	378	including a percentage for overhead and profit, where
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408	408	appropriate.
409	409	(3) LIFE CYCLE COSTS. The total cost of ownership over
410	410	the extended life of a public works project, taking into
411	411	consideration the costs of construction, operation, and
412	412	maintenance, less any value obtained from salvage and
413	413	quantifiable environmental benefits, or the sum of all
414	414	recurring and one-time (non-recurring) costs over the full
415	415	life span or a specified period of a good, service, structure,
416	416	or system, including purchase price, installation costs,
417	417	operating costs, maintenance and upgrade costs, and remaining
418	418	(residual or salvage) value at the end of ownership or its
419	419	useful life.
420	420	(4) PERSON. Natural persons, partnerships, limited
421	421	liability companies, corporations, and other legal entities.
422	422	(5) PUBLIC PROPERTY. Real property which the state,
423	423	county, municipality, or awarding authority thereof owns or
424	424	has a contractual right to own or purchase, including
425	425	easements, rights-of-way, or otherwise.
426	426	(6) PUBLIC WORKS. The construction, installation,
427	427	repair, renovation, or maintenance of public buildings,
428	428	structures, sewers, waterworks, roads, curbs, gutters, side
429	429	walls, bridges, docks, underpasses, and viaducts as well as
430	430	any other improvement to be constructed, installed, repaired,
431	431	renovated, or maintained on public property and to be paid, in
432	432	whole or in part, with public funds or with financing to be
433	433	retired with public funds in the form of lease payments or
434	434	otherwise."
435	435	"§39-2-2
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465	465	(a)(1) Before entering into any contract for a public
466	466	works involving an amount in excess of fifty thousand dollars
467	467	($50,000) one hundred thousand dollars ($100,000) , the
468	468	awarding authority shall advertise for sealed bids, except as
469	469	provided in subsection (j).
470	470	(2)a. If the awarding authority is the state ,or a
471	471	county, or municipality, or an instrumentality thereof, it
472	472	shall advertise for sealed bids at least once each week for
473	473	three consecutive weeks in a newspaper of general circulation
474	474	in the county or counties in which the improvement, or some
475	475	part thereof, is to be made. for a minimum of three weeks
476	476	prior to any submission deadline using one or more of the
477	477	following methods:
478	478	1. Publication in a newspaper of general publication in
479	479	the county or counties in which the work is to be done.
480	480	2. Publication on a website that is maintained by a
481	481	newspaper of general circulation in the county or counties in
482	482	which the work is to be done.
483	483	3. Publication on a website utilized by the awarding
484	484	authority for publishing notices.
485	485	b. If the awarding authority is a municipality, or an
486	486	instrumentality thereof, it shall advertise for sealed bids at
487	487	least once in a newspaper of general circulation published in
488	488	the municipality where the awarding authority is located. If
489	489	no newspaper is published in the municipality, the awarding
490	490	authority shall advertise by posting notice thereof on a
491	491	bulletin board maintained outside the purchasing office and in
492	492	any other manner and for the length of time as may be
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522	522	determined. In addition to bulletin board notice, sealed bids
523	523	shall also be solicited by sending notice by mail to all
524	524	persons who have filed a request in writing with the official
525	525	designated by the awarding authority that they be listed for
526	526	solicitation on bids for the public works contracts indicated
527	527	in the request. If any person whose name is listed fails to
528	528	respond to any solicitation for bids after the receipt of
529	529	three such solicitations, the listing may be canceled. If no
530	530	newspaper is published in the county in which the work is
531	531	done, and if the awarding authority does not utilize a website
532	532	for the purposes of publishing the notices, the notice may be
533	533	given by posting at the courthouse for 30 days, and proof of
534	534	the same shall be made by the judge of probate, sheriff, and
535	535	the awarding authority.
536	536	(3) With the exception of the Department of
537	537	Transportation, for all public works contracts involving an
538	538	estimated amount in excess of five hundred thousand dollars
539	539	($500,000), awarding authorities shall also advertise for
540	540	sealed bids at least once in three newspapers of general
541	541	circulation throughout the state.
542	542	(4)(3) The advertisements shall briefly describe the
543	543	improvement, state that plans and specifications for the
544	544	improvement are on file for examination in a designated office
545	545	of the awarding authority, state the procedure for obtaining
546	546	plans and specifications, state the time and place in which
547	547	bids shall be received and opened, and identify whether
548	548	prequalification is required and where all written
549	549	prequalification information is available for review.
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579	579	(5)(4) All bids shall be opened publicly at the
580	580	advertised time and place.
581	581	(6)(5) No public work, as defined in this chapter,
582	582	involving a sum in excess of fifty thousand dollars ($50,000)
583	583	one hundred thousand dollars ($100,000) shall be split into
584	584	parts involving sums of fifty thousand dollars ($50,000) one
585	585	hundred thousand dollars ($100,000) or less for the purpose of
586	586	evading the requirements of this section.
587	587	(b)(1) An awarding authority may let contracts for
588	588	public works involving fifty thousand dollars ($50,000) one
589	589	hundred thousand dollars ($100,000) or less with or without
590	590	advertising or sealed bids.
591	591	(2) An awarding authority may enter into a contract for
592	592	public works if an advertisement for sealed bids for the
593	593	contract was submitted by the awarding authority to a
594	594	newspaper and the newspaper only published the advertisement
595	595	for two weeks if the authority can provide proof that it, in
596	596	good faith, submitted the advertisement to the newspaper with
597	597	instructions to publish the notice in accordance with the
598	598	provisions of this section.
599	599	(c) All contracts for public works entered into in
600	600	violation of this title shall be void and violative of public
601	601	policy. Anyone who willfully violates this article concerning
602	602	public works shall be guilty of a Class C felony.
603	603	(d)(1) Excluded from the operation of this title shall
604	604	be contracts with persons who shall perform only
605	605	architectural, engineering, construction management, program
606	606	management, or project management services in support of the
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636	636	public works and who shall not engage in actual construction,
637	637	repair, renovation, or maintenance of the public works with
638	638	their own forces, by contract, subcontract, purchase order,
639	639	lease, or otherwise.
640	640	(2) Excluded from operation of the bidding requirements
641	641	in this title are contracts for the purchase of any heating or
642	642	air conditioning units or systems by any awarding authority
643	643	subject to Chapter 13B of Title 16, or Article 3, commencing
644	644	with Section 41-16-50, of Chapter 16 of Title 41, provided the
645	645	contract is entered into with an Alabama vendor who has been
646	646	granted approved vendor status for the sale of heating or air
647	647	conditioning units or systems as a part of a purchasing
648	648	cooperative, and each of the following occur:
649	649	a. The heating or air conditioning unit or system being
650	650	purchased is available as a result of a competitive bid
651	651	process conducted by a governmental entity which has been
652	652	approved by the Department of Examiners of Public Accounts.
653	653	b. The purchase of the heating or air conditioning unit
654	654	or system is not available on the state purchasing program at
655	655	the time or the purchase under the purchasing cooperative is
656	656	available at a price that is equal to or less than that
657	657	available through the state purchasing program.
658	658	c. The entity entering into the contract for the
659	659	purchase of the heating or air conditioning unit or system has
660	660	been notified by the Department of Examiners of Public
661	661	Accounts that the competitive bid process utilized by the
662	662	cooperative program offering the goods complies with this
663	663	subdivision.
664	664	309
665	665	310
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667	667	312
668	668	313
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680	680	325
681	681	326
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693	693	d. Upon request, the vendor has provided the purchasing
694	694	entity with a report of sales made under this subdivision
695	695	during the previous 12-month period, to include a general
696	696	description of the heating or air conditioning units and
697	697	systems sold, the number of units sold per entity, and the
698	698	purchase price of the units.
699	699	e. The exemption from the requirement to utilize sealed
700	700	bids for the purchase of heating or air conditioning units or
701	701	systems authorized by this section shall not serve to exempt
702	702	any public works project from the remaining provisions of this
703	703	article, including, but not limited to, design, installation,
704	704	and review requirements, compliance with all applicable codes,
705	705	laws, specifications, and standards, and the compensation of
706	706	engineers, architects, or others as mandated by state law or
707	707	rule.
708	708	(e)(1) In case of an emergency affecting public health,
709	709	safety, or convenience, as declared in writing by the awarding
710	710	authority, setting forth the nature of the danger to the
711	711	public health, safety, or convenience which would result from
712	712	delay, contracts may be let to the extent necessary to meet
713	713	the emergency without public advertisement. The action and the
714	714	reasons for the action taken shall immediately be made public
715	715	by the awarding authority upon request. In case of an
716	716	emergency for which a delay in remedying would cause
717	717	additional harm to a person or public property, contracts may
718	718	be let to the extent necessary to meet the emergency without
719	719	public advertisement or bidding.
720	720	(2) In case of an emergency affecting public health,
721	721	337
722	722	338
723	723	339
724	724	340
725	725	341
726	726	342
727	727	343
728	728	344
729	729	345
730	730	346
731	731	347
732	732	348
733	733	349
734	734	350
735	735	351
736	736	352
737	737	353
738	738	354
739	739	355
740	740	356
741	741	357
742	742	358
743	743	359
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745	745	361
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750	750	safety, or convenience, as declared in writing by the awarding
751	751	authority, setting forth the nature of the danger to the
752	752	public health, safety, or convenience which would result from
753	753	delay, contracts may be let to the extent necessary to meet
754	754	the emergency without public advertisement.
755	755	(3) Any action taken under subdivision (1) or (2), and
756	756	the reasons for the action taken, shall immediately be made
757	757	public by the awarding authority upon request.
758	758	(f) No awarding authority may specify in the plans and
759	759	specifications for the improvement the use of materials,
760	760	products, systems, or services by a sole source unless all of
761	761	the following requirements are met:
762	762	(1) Except for contracts involving the construction,
763	763	reconstruction, renovation, or replacement of public roads,
764	764	bridges, and water and sewer facilities, the awarding
765	765	authority can document to the satisfaction of the Division of
766	766	Construction Management Division of Real Property Management
767	767	of the Department of Finance, or in the case of an educational
768	768	institution or state educational institution as provided
769	769	pursuant to Sections 41-4-353 and 41-4-400, to the
770	770	satisfaction of its governing board, that the sole source
771	771	product, material, system, or service is of an indispensable
772	772	nature for the improvement, that there are no other viable
773	773	alternatives, and that only this particular product, material,
774	774	system, or service fulfills the function for which it is
775	775	needed.
776	776	(2) The sole source specification has been recommended
777	777	by the architect or engineer of record as an indispensable
778	778	365
779	779	366
780	780	367
781	781	368
782	782	369
783	783	370
784	784	371
785	785	372
786	786	373
787	787	374
788	788	375
789	789	376
790	790	377
791	791	378
792	792	379
793	793	380
794	794	381
795	795	382
796	796	383
797	797	384
798	798	385
799	799	386
800	800	387
801	801	388
802	802	389
803	803	390
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806	806	Page 15
807	807	item for which there is no other viable alternative.
808	808	(3) All information substantiating the use of a sole
809	809	source specification, including the recommendation of the
810	810	architect or engineer of record, shall be documented and made
811	811	available for examination in the office of the awarding
812	812	authority at the time of advertisement for sealed bids.
813	813	(g) In the event of a proposed public works project,
814	814	acknowledged in writing by the Alabama Homeland Security
815	815	Department as: (1) having a direct impact on the security or
816	816	safety of persons or facilities; and (2) requiring
817	817	confidential handling for the protection of such persons or
818	818	facilities, contracts may be let without public advertisement
819	819	but with the taking of informal bids otherwise consistent with
820	820	the requirements of this title and the requirements of
821	821	maintaining confidentiality. Records of bidding and award
822	822	shall not be disclosed to the public and shall remain
823	823	confidential.
824	824	(h) If a pre-bid meeting is held, the pre-bid meeting
825	825	shall be held at least seven days prior to the bid opening
826	826	except when the project has been declared an emergency in
827	827	accordance with subsection (e).
828	828	(i) The awarding authority may not offer a contract for
829	829	bidding unless confirmation of any applicable grant has been
830	830	received and any required matching funds have been secured by
831	831	or are available to the awarding authority.
832	832	(j) Notwithstanding subsection (a), the Department of
833	833	Transportation may enter into contracts for road construction
834	834	or road maintenance projects that do not involve more than two
835	835	393
836	836	394
837	837	395
838	838	396
839	839	397
840	840	398
841	841	399
842	842	400
843	843	401
844	844	402
845	845	403
846	846	404
847	847	405
848	848	406
849	849	407
850	850	408
851	851	409
852	852	410
853	853	411
854	854	412
855	855	413
856	856	414
857	857	415
858	858	416
859	859	417
860	860	418
861	861	419
862	862	420 SB290 INTRODUCEDSB290 INTRODUCED
863	863	Page 16
864	864	hundred fifty thousand dollars ($250,000) without advertising
865	865	for sealed bids, provided the project is listed on the
866	866	department website for at least seven calendar days before
867	867	entering into the contract. The total cost of all projects not
868	868	subject to advertising and sealed bids pursuant to this
869	869	subsection may not exceed one million dollars ($1,000,000) in
870	870	the aggregate per year.
871	871	(k) For the purposes of this chapter, sealed bids may
872	872	also be solicited and submitted through electronic means
873	873	including, but not limited to, electrical, digital, magnetic,
874	874	optical, electromagnetic, or any other similar technology,
875	875	provided that the awarding authority adopts rules and policies
876	876	to ensure that all electronic submissions are transmitted
877	877	securely and bids remained sealed until bid opening.
878	878	(l)(1) Notwithstanding any other provision of law, a
879	879	county or municipality, or instrumentality thereof, that is an
880	880	awarding authority of a contract for public works, by
881	881	resolution, may purchase materials or equipment pursuant to
882	882	subdivisions (14), (16), 17), (18), or (19) of Section
883	883	41-16-51(a), even when those materials or equipment are
884	884	otherwise part of the contract for public works subject to
885	885	the requirements of this title.
886	886	(2) Except for those materials or equipment described
887	887	in subdivision (1), the remaining portion of the public works
888	888	project shall be subject to the requirements of this title,
889	889	even if the remaining portion would involve an amount less
890	890	than one hundred thousand dollars ($100,000) as a result of
891	891	the exclusion of the purchase of the materials or equipment as
892	892	421
893	893	422
894	894	423
895	895	424
896	896	425
897	897	426
898	898	427
899	899	428
900	900	429
901	901	430
902	902	431
903	903	432
904	904	433
905	905	434
906	906	435
907	907	436
908	908	437
909	909	438
910	910	439
911	911	440
912	912	441
913	913	442
914	914	443
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916	916	445
917	917	446
918	918	447
919	919	448 SB290 INTRODUCEDSB290 INTRODUCED
920	920	Page 17
921	921	described in subdivision (1).
922	922	(m) The dollar amounts specified in this chapter shall
923	923	be adjusted beginning October 1, 2027, and every three years
924	924	thereafter. The adjustment to the dollar amounts shall be made
925	925	based on the percentage increase in the Consumer Price Index
926	926	for all urban consumers, as published by the U.S. Department
927	927	of Labor, Bureau of Labor Statistics, and then rounded to the
928	928	nearest thousand dollars. The Department of Examiners of
929	929	Public Accounts shall notify the public of the adjusted dollar
930	930	amounts by July 1 before the fiscal year in which the changes
931	931	shall take effect. "
932	932	"§39-2-6
933	933	(a) The contract shall be awarded to the lowest
934	934	responsible and responsive bidder, unless the awarding
935	935	authority finds that all the bids are unreasonable or that it
936	936	is not toin the interest of the awarding authority to accept
937	937	any of the bids. A responsible bidder is one who, among other
938	938	qualities determined necessary for performance, is competent,
939	939	experienced, and financially able to perform the contract. A
940	940	responsive bidder is one who submits a bid that complies with
941	941	the terms and conditions of the invitation for bids. Minor
942	942	irregularities in the bid shall not defeat responsiveness. The
943	943	bidder to whom the award is made shall be notified by
944	944	telegram, confirmed facsimile, electronic mail, or letter at
945	945	the earliest possible date. If the successful bidder fails or
946	946	refuses to sign the contract, to make bond as provided in this
947	947	chapter, or to provide evidence of insurance as required by
948	948	the bid documents, the awarding authority may award the
949	949	449
950	950	450
951	951	451
952	952	452
953	953	453
954	954	454
955	955	455
956	956	456
957	957	457
958	958	458
959	959	459
960	960	460
961	961	461
962	962	462
963	963	463
964	964	464
965	965	465
966	966	466
967	967	467
968	968	468
969	969	469
970	970	470
971	971	471
972	972	472
973	973	473
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976	976	476 SB290 INTRODUCEDSB290 INTRODUCED
977	977	Page 18
978	978	contract to the second lowest responsible and responsive
979	979	bidder. If the second lowest bidder fails or refuses to sign
980	980	the contract, make bond as provided in this chapter, or to
981	981	provide evidence of insurance as required by the bid
982	982	documents, the awarding authority may award the contract to
983	983	the third lowest responsible and responsive bidder.
984	984	(b) If no bids or only one bid is received at the time
985	985	stated in the advertisement for bids, the awarding authority
986	986	may advertise for and seek other competitive bids, or the
987	987	awarding authority may direct that the work shall be done by
988	988	force account under its direction and control or, with the
989	989	exception of the Department of Transportation, the awarding
990	990	authority may negotiate for the work through the receipt of
991	991	informal bids not subject to the requirements of this section.
992	992	Where only one responsible and responsive bid has been
993	993	received, any negotiation for the work shall be for a price
994	994	lower than that bid.
995	995	(c) When With the exception of the Department of
996	996	Transportation, when two or more bids are received, and all
997	997	bids exceed available funding for the contract, a local board
998	998	of education or a public two-year or four-year institution of
999	999	higher education the awarding authority may negotiate for the
1000	1000	work with the lowest responsible and responsive bidder ,
1001	1001	provided that the local board of education or public two-year
1002	1002	or four-year institution of higher education awarding
1003	1003	authority can document the shortage of funding, that time is
1004	1004	of the essence, and that the negotiated changes are in the
1005	1005	public interest and do not materially alter the scope and
1006	1006	477
1007	1007	478
1008	1008	479
1009	1009	480
1010	1010	481
1011	1011	482
1012	1012	483
1013	1013	484
1014	1014	485
1015	1015	486
1016	1016	487
1017	1017	488
1018	1018	489
1019	1019	490
1020	1020	491
1021	1021	492
1022	1022	493
1023	1023	494
1024	1024	495
1025	1025	496
1026	1026	497
1027	1027	498
1028	1028	499
1029	1029	500
1030	1030	501
1031	1031	502
1032	1032	503
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1034	1034	Page 19
1035	1035	nature of the project.
1036	1036	(d) If the awarding authority finds that all bids
1037	1037	received are unreasonable or that it is not to the interest of
1038	1038	the awarding authority to accept any of the bids, the awarding
1039	1039	authority may direct that the work shall be done by force
1040	1040	account under its direction and control.
1041	1041	(e) On any construction project on which the awarding
1042	1042	authority has prepared plans and specifications, has received
1043	1043	bids, and has determined to do by force account or by
1044	1044	negotiation, the awarding authority shall make available the
1045	1045	plans and specifications, an itemized estimate of cost, and
1046	1046	any informal bids for review by the Department of Examiners of
1047	1047	Public Accounts and, upon completion of the project by an
1048	1048	awarding authority, the final total costs together with an
1049	1049	itemized list of cost of any and all changes made in the
1050	1050	original plans and specifications shall also be made available
1051	1051	for review by the Department of Examiners of Public Accounts.
1052	1052	Furthermore, the above described information shall be made
1053	1053	public by the awarding authority upon request. Upon the
1054	1054	approval of the awarding authority, its duly authorized
1055	1055	officer or officers, when proceeding upon the basis of force
1056	1056	account, may let any subdivision or unit of work by contract
1057	1057	on informal bids.
1058	1058	(f) No provision of this section shall be interpreted
1059	1059	as precluding the use of convict labor by the awarding
1060	1060	authority. This section shall not apply to routine maintenance
1061	1061	and repair jobs done by maintenance personnel who are regular
1062	1062	employees of the awarding authority, nor shall it apply to
1063	1063	505
1064	1064	506
1065	1065	507
1066	1066	508
1067	1067	509
1068	1068	510
1069	1069	511
1070	1070	512
1071	1071	513
1072	1072	514
1073	1073	515
1074	1074	516
1075	1075	517
1076	1076	518
1077	1077	519
1078	1078	520
1079	1079	521
1080	1080	522
1081	1081	523
1082	1082	524
1083	1083	525
1084	1084	526
1085	1085	527
1086	1086	528
1087	1087	529
1088	1088	530
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1091	1091	Page 20
1092	1092	road or bridge construction work performed by an awarding
1093	1093	authority's regular employees and own equipment.
1094	1094	(g) No contract awarded to the lowest responsible and
1095	1095	responsive bidder shall be assignable by the successful bidder
1096	1096	without written consent of the awarding authority, and in no
1097	1097	event shall a contract be assigned to an unsuccessful bidder
1098	1098	whose bid was rejected because he or she was not a responsible
1099	1099	or responsive bidder.
1100	1100	(h) Any agreement or collusion among bidders or
1101	1101	prospective bidders in restraint of freedom of competition to
1102	1102	bid at a fixed price or to refrain from bidding or otherwise
1103	1103	shall render the bids void and shall cause the bidders or
1104	1104	prospective bidders to be disqualified from submitting further
1105	1105	bids to the awarding authority on future lettings. Any bidder
1106	1106	or prospective bidder who willfully participates in any
1107	1107	agreement or collusion in restraint of freedom of competition
1108	1108	shall be guilty of a felony and, on conviction thereof, shall
1109	1109	be fined not less than five thousand dollars ($5,000) nor more
1110	1110	than fifty thousand dollars ($50,000) or, at the discretion of
1111	1111	the jury, shall be imprisoned in the penitentiary for not less
1112	1112	than one nor more than three years.
1113	1113	(i) Any disclosure in advance of the terms of a bid
1114	1114	submitted in response to an advertisement for bids shall
1115	1115	render the proceedings void and require advertisement and
1116	1116	award anew.
1117	1117	(j) The lowest responsible and responsive bidder on a
1118	1118	public works project may be determined to be the bidder
1119	1119	offering the lowest life cycle costs. The lowest responsible
1120	1120	533
1121	1121	534
1122	1122	535
1123	1123	536
1124	1124	537
1125	1125	538
1126	1126	539
1127	1127	540
1128	1128	541
1129	1129	542
1130	1130	543
1131	1131	544
1132	1132	545
1133	1133	546
1134	1134	547
1135	1135	548
1136	1136	549
1137	1137	550
1138	1138	551
1139	1139	552
1140	1140	553
1141	1141	554
1142	1142	555
1143	1143	556
1144	1144	557
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1146	1146	559
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1148	1148	Page 21
1149	1149	and responsive bidder shall otherwise meet all of the
1150	1150	conditions and specifications contained in the invitation to
1151	1151	bid, except that a bidder may still be considered responsive
1152	1152	if he or she responds with a bid using different construction
1153	1153	materials than those specified in the invitation to bid if the
1154	1154	materials' use would result in lower life cycle costs for the
1155	1155	public works project. To utilize this provision to determine
1156	1156	the lowest responsible and responsive bidder, the awarding
1157	1157	authority must include a notice in the invitation to bid that
1158	1158	the lowest responsible and responsive bidder may be determined
1159	1159	by using life cycle costs, and must also include in the
1160	1160	invitation to bid the criteria under which it shall evaluate
1161	1161	the life cycle costs."
1162	1162	Section 2. Although this bill would have as its purpose
1163	1163	or effect the requirement of a new or increased expenditure of
1164	1164	local funds, the bill is excluded from further requirements
1165	1165	and application under Section 111.05 of the Constitution of
1166	1166	Alabama of 2022, because the bill defines a new crime or
1167	1167	amends the definition of an existing crime.
1168	1168	Section 3. This act shall become effective on the first
1169	1169	day of the third month following its passage and approval by
1170	1170	the Governor, or its otherwise becoming law.
1171	1171	561
1172	1172	562
1173	1173	563
1174	1174	564
1175	1175	565
1176	1176	566
1177	1177	567
1178	1178	568
1179	1179	569
1180	1180	570
1181	1181	571
1182	1182	572
1183	1183	573
1184	1184	574
1185	1185	575
1186	1186	576
1187	1187	577
1188	1188	578
1189	1189	579
1190	1190	580
1191	1191	581
1192	1192	582