AL
Alabama House Bill HB189

Alabama 2025 Regular Session

Alabama House Bill HB189 Compare Versions

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33 HB189
44 R7PWYMY-1
55 By Representative Garrett
66 RFD: State Government
77 First Read: 05-Feb-25
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1212 5 R7PWYMY-1 02/03/2025 TRP (L)bm 2024-2993
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1414 First Read: 05-Feb-25
1515 SYNOPSIS:
1616 Under existing law, prior to awarding a public
1717 works contract that exceeds one hundred thousand
1818 dollars ($100,000), a state or county awarding
1919 authority is required to advertise for sealed bids in a
2020 newspaper of general circulation once a week for at
2121 least three consecutive weeks in the county or counties
2222 in which the improvement will occur.
2323 If a municipality is the awarding authority, it
2424 must advertise for sealed bids at least once in a
2525 newspaper of general circulation published in the
2626 municipality where the awarding authority is located.
2727 However, if a newspaper is not available, the awarding
2828 authority shall advertise by posting notice on a
2929 bulletin board and also by sending notice by mail to
3030 all registered persons.
3131 This bill authorizes the expansion of acceptable
3232 methods an awarding authority may use to advertise for
3333 sealed bids on a public works project that exceeds one
3434 hundred thousand dollars ($100,000).
3535 This bill will provide a safe harbor for state,
3636 county, and municipal awarding authorities to have the
3737 advertisement requirement deemed satisfied if the
3838 awarding authority complies with more than one of the
3939 allowable methods but one of the methods of advertising
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6969 allowable methods but one of the methods of advertising
7070 fails through no fault of the awarding authority.
7171 This bill will further provide a safe harbor
7272 which deems the advertising requirement satisfied if
7373 the Department of Transportation complies with one of
7474 the approved advertising methods, the selected method
7575 of advertising fails through no fault of the
7676 department, and the department advertises on its
7777 publicly accessible website for the required number of
7878 weeks.
7979 A BILL
8080 TO BE ENTITLED
8181 AN ACT
8282 Relating to public works contracts advertising and
8383 notice requirements; to amend Section 39-2-2, Code of Alabama
8484 1975; to add additional methods of advertising for sealed
8585 bids; to provide a safe harbor for an awarding authority that
8686 selects multiple methods of advertising but one of those
8787 methods fails; and to provide a safe harbor for the Department
8888 of Transportation under certain circumstances.
8989 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
9090 Section 1. Section 39-2-2, Code of Alabama 1975, is
9191 amended to read as follows:
9292 "ยง39-2-2
9393 (a)(1) Before entering into any contract for a public
9494 works involving an amount in excess of one hundred thousand
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124124 works involving an amount in excess of one hundred thousand
125125 dollars ($100,000), the awarding authority shall advertise for
126126 sealed bids, except as provided in subsection (j).
127127 (2)a. If the awarding authority is the state, a county,
128128 or an instrumentality thereof, it shall advertise for sealed
129129 bids at least once each week for three consecutive weeks in at
130130 least one of the following ways:
131131 1. At least once each week for three consecutive weeks
132132 in a newspaper of general circulation in the county or
133133 counties in which the improvement, or some part thereofof the
134134 improvement, is to will be made. The Department of Finance may
135135 adopt rules for alternative compliance with this subparagraph
136136 by allowing advertisement on the website or digital version of
137137 a printed newspaper.
138138 2. At least three consecutive weeks on the centralized
139139 website administered and maintained by the Department of
140140 Finance as authorized through administrative rule.
141141 3. At least 30 days prior to bid submission deadline by
142142 first class U.S. mail or electronic mail to all persons who
143143 have registered with the awarding authority to receive a
144144 solicitation on bids for the public works contract. When using
145145 this method, the awarding authority shall also publish a
146146 notice for the bid solicitation on either the centralized
147147 website or the awarding authority's publicly accessible
148148 website and the notice shall include instructions on how to
149149 register with the awarding authority to receive future bid
150150 solicitations by U.S. mail or electronic mail.
151151 b. If the awarding authority is a municipality, or an
152152 instrumentality thereof, it shall advertise for sealed bids in
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182182 instrumentality thereof, it shall advertise for sealed bids in
183183 at least one of the following ways:
184184 1.(i) Atat least once in a newspaper of general
185185 circulation published in the municipality where the awarding
186186 authority is located. The Department of Finance may adopt
187187 rules for alternative compliance with this subparagraph by
188188 allowing advertisement on the website or digital version of a
189189 printed newspaper.
190190 (ii) If no newspaper is published in the municipality,
191191 the awarding authority shall advertise by posting notice
192192 thereof on a bulletin board maintained outside the purchasing
193193 office and in any other manner and for the length of time as
194194 may be determined. In addition to bulletin board notice,
195195 sealed bids shall also be solicited by sending notice by U.S.
196196 mail or electronic mail to all persons who have filed a
197197 request in writing with the official designated by the
198198 awarding authority that they be listed for solicitation on
199199 bids for the public works contracts indicated in the request.
200200 If any person whose name is listed fails to respond to any
201201 solicitation for bids after the receipt of three such
202202 solicitations, the listing may be canceled.
203203 2. At least seven consecutive days on a centralized
204204 website administered and maintained by the Department of
205205 Finance, as authorized through administrative rule.
206206 c.1. If the awarding authority: (i) complies with more
207207 than one method of advertising set forth in paragraph a. or
208208 b., as applicable; and (ii) one of the selected methods fails
209209 to be published through no fault of the awarding authority,
210210 the advertisement requirement is deemed satisfied.
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240240 the advertisement requirement is deemed satisfied.
241241 2. If the awarding authority: (i) is the Department of
242242 Transportation; (ii) the department complies with one of the
243243 methods of advertising set forth in paragraph a.; (iii) the
244244 selected method fails to be published through no fault of the
245245 department; and (iv) the department also advertises on its
246246 publicly accessible website for the required number of weeks,
247247 the advertisement requirement is deemed satisfied.
248248 (3) The advertisements shall briefly describe the
249249 improvement, state that plans and specifications for the
250250 improvement are on file for examination in a designated office
251251 of the awarding authority, state the procedure for obtaining
252252 plans and specifications, state the time and place in which
253253 bids shall be received and opened, and identify whether
254254 prequalification is required and where all written
255255 prequalification information is available for review.
256256 (4) All bids shall be opened publicly at the advertised
257257 time and place.
258258 (5) No public work, as defined in this chapter,
259259 involving a sum in excess of one hundred thousand dollars
260260 ($100,000) shall be split into parts involving sums of one
261261 hundred thousand dollars ($100,000) or less for the purpose of
262262 evading the requirements of this section.
263263 (b)(1) An awarding authority may let contracts for
264264 public works involving one hundred thousand dollars ($100,000)
265265 or less with or without advertising or sealed bids.
266266 (2) An awarding authority may enter into a contract for
267267 public works if an advertisement for sealed bids for the
268268 contract was submitted by the awarding authority to a
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298298 contract was submitted by the awarding authority to a
299299 newspaper and the newspaper only published the advertisement
300300 for two weeks if the authority can provide proof that it, in
301301 good faith, submitted the advertisement to the newspaper with
302302 instructions to publish the notice in accordance with the
303303 provisions of this section.
304304 (c) All contracts for public works entered into in
305305 violation of this title shall be void and violative of public
306306 policy. Anyone who willfully violates this article concerning
307307 public works shall be guilty of a Class C felony.
308308 (d)(1) Excluded from the operation of this title shall
309309 be contracts with persons who shall perform only
310310 architectural, engineering, construction management, program
311311 management, or project management services in support of the
312312 public works and who shall not engage in actual construction,
313313 repair, renovation, or maintenance of the public works with
314314 their own forces, by contract, subcontract, purchase order,
315315 lease, or otherwise.
316316 (2) Excluded from operation of the bidding requirements
317317 in this title are contracts for the purchase of any heating or
318318 air conditioning units or systems by any awarding authority
319319 subject to Chapter 13B of Title 16, Article 3, commencing with
320320 Section 41-16-50, of Chapter 16 of Title 41, or Article 5,
321321 commencing with Section 41-4-110, of Chapter 4 of Title 41,
322322 provided the contract is entered into with an Alabama vendor
323323 who has been granted approved vendor status for the sale of
324324 heating or air conditioning units or systems as a part of a
325325 purchasing cooperative, and each of the following occur:
326326 a. The heating or air conditioning unit or system being
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356356 a. The heating or air conditioning unit or system being
357357 purchased is available as a result of a competitive bid
358358 process conducted by a governmental entity which has been
359359 approved by the Department of Examiners of Public Accounts.
360360 b. The purchase of the heating or air conditioning unit
361361 or system is not available on the state purchasing program at
362362 the time, or the purchase under the purchasing cooperative is
363363 available at a price that is equal to or less than that
364364 available through the state purchasing program.
365365 c. The entity entering into the contract for the
366366 purchase of the heating or air conditioning unit or system has
367367 been notified by the Department of Examiners of Public
368368 Accounts that the competitive bid process utilized by the
369369 cooperative program offering the goods complies with this
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371371 d. Upon request, the vendor has provided the purchasing
372372 entity with a report of sales made under this subdivision
373373 during the previous 12-month period, to include a general
374374 description of the heating or air conditioning units and
375375 systems sold, the number of units sold per entity, and the
376376 purchase price of the units.
377377 e. The exemption from the requirement to utilize sealed
378378 bids for the purchase of heating or air conditioning units or
379379 systems authorized by this section shall not serve to exempt
380380 any public works project from the remaining provisions of this
381381 article, including, but not limited to, design, installation,
382382 and review requirements, compliance with all applicable codes,
383383 laws, specifications, and standards, and the compensation of
384384 engineers, architects, or others as mandated by state law or
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414414 engineers, architects, or others as mandated by state law or
415415 rule.
416416 (e)(1) In case of an emergency for which a delay in
417417 remedying would cause immediate harm to a person or public
418418 property, contracts may be let to the extent necessary to meet
419419 the emergency without public advertisement or bidding.
420420 (2) In case of an emergency affecting public health,
421421 safety, or convenience, as declared in writing by the awarding
422422 authority, setting forth the nature of the danger to the
423423 public health, safety, or convenience which would result from
424424 delay, contracts may be let to the extent necessary to meet
425425 the emergency without public advertisement.
426426 (3) Any action taken under subdivision (1) or (2), and
427427 the reasons for the action taken, shall immediately be made
428428 public by the awarding authority and published in writing.
429429 (f) No awarding authority may specify in the plans and
430430 specifications for the improvement the use of materials,
431431 products, systems, or services by a sole source unless all of
432432 the following requirements are met:
433433 (1) Except for contracts involving the construction,
434434 reconstruction, renovation, or replacement of public roads,
435435 bridges, and water and sewer facilities, the awarding
436436 authority can document to the satisfaction of the Division of
437437 Real Property Management of the Department of Finance, or in
438438 the case of an educational institution or state educational
439439 institution as provided pursuant to Sections 41-4-353 and
440440 41-4-400, to the satisfaction of its governing board, that the
441441 sole source product, material, system, or service is of an
442442 indispensable nature for the improvement, that there are no
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472472 indispensable nature for the improvement, that there are no
473473 other viable alternatives, and that only this particular
474474 product, material, system, or service fulfills the function
475475 for which it is needed.
476476 (2) The sole source specification has been recommended
477477 by the architect or engineer of record as an indispensable
478478 item for which there is no other viable alternative.
479479 (3) All information substantiating the use of a sole
480480 source specification, including the recommendation of the
481481 architect or engineer of record, shall be documented and made
482482 available for examination in the office of the awarding
483483 authority at the time of advertisement for sealed bids.
484484 (g) In the event of a proposed public works project,
485485 acknowledged in writing by the Alabama Homeland Security
486486 Department as: (1) having a direct impact on the security or
487487 safety of persons or facilities; and (2) requiring
488488 confidential handling for the protection of such persons or
489489 facilities, contracts may be let without public advertisement
490490 but with the taking of informal bids otherwise consistent with
491491 the requirements of this title and the requirements of
492492 maintaining confidentiality. Records of bidding and award
493493 shall not be disclosed to the public and shall remain
494494 confidential.
495495 (h) If a pre-bid meeting is held, the pre-bid meeting
496496 shall be held at least seven days prior to the bid opening
497497 except when the project has been declared an emergency in
498498 accordance with subsection (e).
499499 (i) The awarding authority may not offer a contract for
500500 bidding unless confirmation of any applicable grant has been
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530530 bidding unless confirmation of any applicable grant has been
531531 received and any required matching funds have been secured by
532532 or are available to the awarding authority.
533533 (j) Notwithstanding subsection (a), the Department of
534534 Transportation may enter into contracts for road construction
535535 or road maintenance projects that do not involve more than two
536536 hundred fifty thousand dollars ($250,000) without advertising
537537 for sealed bids, provided the project is listed on the
538538 departmentdepartment's publicly accessible website for at
539539 least seven calendar days before entering into the contract.
540540 The total cost of all projects not subject to advertising and
541541 sealed bids pursuant to this subsection may not exceed one
542542 million dollars ($1,000,000) in the aggregate per year.
543543 (k) For the purposes of this chapter, sealed bids may
544544 also be solicited and submitted through electronic means
545545 including, but not limited to, electrical, digital, magnetic,
546546 optical, electromagnetic, or any other similar technology,
547547 provided that the awarding authority adopts rules and policies
548548 to ensure that all electronic submissions are transmitted
549549 securely and bids remained sealed until bid opening.
550550 (l)(1) Notwithstanding any other provision of law, any
551551 entity subject to this chapter that is an awarding authority
552552 of a contract for public works, by resolution or board action,
553553 may purchase materials or equipment pursuant to subdivisions
554554 (14), (16), (17), (18), or (19) of Section 41-16-51(a), even
555555 when those materials or equipment are otherwise part of the
556556 contract for public works subject to the requirements of this
557557 title.
558558 (2) Except for those materials or equipment described
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588588 (2) Except for those materials or equipment described
589589 in subdivision (1), the remaining portion of the public works
590590 project shall be subject to the requirements of this title,
591591 even if the remaining portion would involve an amount less
592592 than one hundred thousand dollars ($100,000) as a result of
593593 the exclusion of the purchase of the materials or equipment as
594594 described in subdivision (1)."
595595 Section 2. This act shall become effective on October
596596 1, 2025.
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