HB189INTRODUCED
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HB189
R7PWYMY-1
By Representative Garrett
RFD: State Government
First Read: 05-Feb-25
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5 R7PWYMY-1 02/03/2025 TRP (L)bm 2024-2993
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First Read: 05-Feb-25
SYNOPSIS:
Under existing law, prior to awarding a public
works contract that exceeds one hundred thousand
dollars ($100,000), a state or county awarding
authority is required to advertise for sealed bids in a
newspaper of general circulation once a week for at
least three consecutive weeks in the county or counties
in which the improvement will occur.
If a municipality is the awarding authority, it
must advertise for sealed bids at least once in a
newspaper of general circulation published in the
municipality where the awarding authority is located.
However, if a newspaper is not available, the awarding
authority shall advertise by posting notice on a
bulletin board and also by sending notice by mail to
all registered persons.
This bill authorizes the expansion of acceptable
methods an awarding authority may use to advertise for
sealed bids on a public works project that exceeds one
hundred thousand dollars ($100,000).
This bill will provide a safe harbor for state,
county, and municipal awarding authorities to have the
advertisement requirement deemed satisfied if the
awarding authority complies with more than one of the
allowable methods but one of the methods of advertising
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allowable methods but one of the methods of advertising
fails through no fault of the awarding authority.
This bill will further provide a safe harbor
which deems the advertising requirement satisfied if
the Department of Transportation complies with one of
the approved advertising methods, the selected method
of advertising fails through no fault of the
department, and the department advertises on its
publicly accessible website for the required number of
weeks.
A BILL
TO BE ENTITLED
AN ACT
Relating to public works contracts advertising and
notice requirements; to amend Section 39-2-2, Code of Alabama
1975; to add additional methods of advertising for sealed
bids; to provide a safe harbor for an awarding authority that
selects multiple methods of advertising but one of those
methods fails; and to provide a safe harbor for the Department
of Transportation under certain circumstances.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. Section 39-2-2, Code of Alabama 1975, is
amended to read as follows:
"ยง39-2-2
(a)(1) Before entering into any contract for a public
works involving an amount in excess of one hundred thousand
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works involving an amount in excess of one hundred thousand
dollars ($100,000), the awarding authority shall advertise for
sealed bids, except as provided in subsection (j).
(2)a. If the awarding authority is the state, a county,
or an instrumentality thereof, it shall advertise for sealed
bids at least once each week for three consecutive weeks in at
least one of the following ways:
1. At least once each week for three consecutive weeks
in a newspaper of general circulation in the county or
counties in which the improvement, or some part thereofof the
improvement, is to will be made. The Department of Finance may
adopt rules for alternative compliance with this subparagraph
by allowing advertisement on the website or digital version of
a printed newspaper.
2. At least three consecutive weeks on the centralized
website administered and maintained by the Department of
Finance as authorized through administrative rule.
3. At least 30 days prior to bid submission deadline by
first class U.S. mail or electronic mail to all persons who
have registered with the awarding authority to receive a
solicitation on bids for the public works contract. When using
this method, the awarding authority shall also publish a
notice for the bid solicitation on either the centralized
website or the awarding authority's publicly accessible
website and the notice shall include instructions on how to
register with the awarding authority to receive future bid
solicitations by U.S. mail or electronic mail.
b. If the awarding authority is a municipality, or an
instrumentality thereof, it shall advertise for sealed bids in
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instrumentality thereof, it shall advertise for sealed bids in
at least one of the following ways:
1.(i) Atat least once in a newspaper of general
circulation published in the municipality where the awarding
authority is located. The Department of Finance may adopt
rules for alternative compliance with this subparagraph by
allowing advertisement on the website or digital version of a
printed newspaper.
(ii) If no newspaper is published in the municipality,
the awarding authority shall advertise by posting notice
thereof on a bulletin board maintained outside the purchasing
office and in any other manner and for the length of time as
may be determined. In addition to bulletin board notice,
sealed bids shall also be solicited by sending notice by U.S.
mail or electronic mail to all persons who have filed a
request in writing with the official designated by the
awarding authority that they be listed for solicitation on
bids for the public works contracts indicated in the request.
If any person whose name is listed fails to respond to any
solicitation for bids after the receipt of three such
solicitations, the listing may be canceled.
2. At least seven consecutive days on a centralized
website administered and maintained by the Department of
Finance, as authorized through administrative rule.
c.1. If the awarding authority: (i) complies with more
than one method of advertising set forth in paragraph a. or
b., as applicable; and (ii) one of the selected methods fails
to be published through no fault of the awarding authority,
the advertisement requirement is deemed satisfied.
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the advertisement requirement is deemed satisfied.
2. If the awarding authority: (i) is the Department of
Transportation; (ii) the department complies with one of the
methods of advertising set forth in paragraph a.; (iii) the
selected method fails to be published through no fault of the
department; and (iv) the department also advertises on its
publicly accessible website for the required number of weeks,
the advertisement requirement is deemed satisfied.
(3) The advertisements shall briefly describe the
improvement, state that plans and specifications for the
improvement are on file for examination in a designated office
of the awarding authority, state the procedure for obtaining
plans and specifications, state the time and place in which
bids shall be received and opened, and identify whether
prequalification is required and where all written
prequalification information is available for review.
(4) All bids shall be opened publicly at the advertised
time and place.
(5) No public work, as defined in this chapter,
involving a sum in excess of one hundred thousand dollars
($100,000) shall be split into parts involving sums of one
hundred thousand dollars ($100,000) or less for the purpose of
evading the requirements of this section.
(b)(1) An awarding authority may let contracts for
public works involving one hundred thousand dollars ($100,000)
or less with or without advertising or sealed bids.
(2) An awarding authority may enter into a contract for
public works if an advertisement for sealed bids for the
contract was submitted by the awarding authority to a
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contract was submitted by the awarding authority to a
newspaper and the newspaper only published the advertisement
for two weeks if the authority can provide proof that it, in
good faith, submitted the advertisement to the newspaper with
instructions to publish the notice in accordance with the
provisions of this section.
(c) All contracts for public works entered into in
violation of this title shall be void and violative of public
policy. Anyone who willfully violates this article concerning
public works shall be guilty of a Class C felony.
(d)(1) Excluded from the operation of this title shall
be contracts with persons who shall perform only
architectural, engineering, construction management, program
management, or project management services in support of the
public works and who shall not engage in actual construction,
repair, renovation, or maintenance of the public works with
their own forces, by contract, subcontract, purchase order,
lease, or otherwise.
(2) Excluded from operation of the bidding requirements
in this title are contracts for the purchase of any heating or
air conditioning units or systems by any awarding authority
subject to Chapter 13B of Title 16, Article 3, commencing with
Section 41-16-50, of Chapter 16 of Title 41, or Article 5,
commencing with Section 41-4-110, of Chapter 4 of Title 41,
provided the contract is entered into with an Alabama vendor
who has been granted approved vendor status for the sale of
heating or air conditioning units or systems as a part of a
purchasing cooperative, and each of the following occur:
a. The heating or air conditioning unit or system being
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a. The heating or air conditioning unit or system being
purchased is available as a result of a competitive bid
process conducted by a governmental entity which has been
approved by the Department of Examiners of Public Accounts.
b. The purchase of the heating or air conditioning unit
or system is not available on the state purchasing program at
the time, or the purchase under the purchasing cooperative is
available at a price that is equal to or less than that
available through the state purchasing program.
c. The entity entering into the contract for the
purchase of the heating or air conditioning unit or system has
been notified by the Department of Examiners of Public
Accounts that the competitive bid process utilized by the
cooperative program offering the goods complies with this
subdivision.
d. Upon request, the vendor has provided the purchasing
entity with a report of sales made under this subdivision
during the previous 12-month period, to include a general
description of the heating or air conditioning units and
systems sold, the number of units sold per entity, and the
purchase price of the units.
e. The exemption from the requirement to utilize sealed
bids for the purchase of heating or air conditioning units or
systems authorized by this section shall not serve to exempt
any public works project from the remaining provisions of this
article, including, but not limited to, design, installation,
and review requirements, compliance with all applicable codes,
laws, specifications, and standards, and the compensation of
engineers, architects, or others as mandated by state law or
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engineers, architects, or others as mandated by state law or
rule.
(e)(1) In case of an emergency for which a delay in
remedying would cause immediate harm to a person or public
property, contracts may be let to the extent necessary to meet
the emergency without public advertisement or bidding.
(2) In case of an emergency affecting public health,
safety, or convenience, as declared in writing by the awarding
authority, setting forth the nature of the danger to the
public health, safety, or convenience which would result from
delay, contracts may be let to the extent necessary to meet
the emergency without public advertisement.
(3) Any action taken under subdivision (1) or (2), and
the reasons for the action taken, shall immediately be made
public by the awarding authority and published in writing.
(f) No awarding authority may specify in the plans and
specifications for the improvement the use of materials,
products, systems, or services by a sole source unless all of
the following requirements are met:
(1) Except for contracts involving the construction,
reconstruction, renovation, or replacement of public roads,
bridges, and water and sewer facilities, the awarding
authority can document to the satisfaction of the Division of
Real Property Management of the Department of Finance, or in
the case of an educational institution or state educational
institution as provided pursuant to Sections 41-4-353 and
41-4-400, to the satisfaction of its governing board, that the
sole source product, material, system, or service is of an
indispensable nature for the improvement, that there are no
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indispensable nature for the improvement, that there are no
other viable alternatives, and that only this particular
product, material, system, or service fulfills the function
for which it is needed.
(2) The sole source specification has been recommended
by the architect or engineer of record as an indispensable
item for which there is no other viable alternative.
(3) All information substantiating the use of a sole
source specification, including the recommendation of the
architect or engineer of record, shall be documented and made
available for examination in the office of the awarding
authority at the time of advertisement for sealed bids.
(g) In the event of a proposed public works project,
acknowledged in writing by the Alabama Homeland Security
Department as: (1) having a direct impact on the security or
safety of persons or facilities; and (2) requiring
confidential handling for the protection of such persons or
facilities, contracts may be let without public advertisement
but with the taking of informal bids otherwise consistent with
the requirements of this title and the requirements of
maintaining confidentiality. Records of bidding and award
shall not be disclosed to the public and shall remain
confidential.
(h) If a pre-bid meeting is held, the pre-bid meeting
shall be held at least seven days prior to the bid opening
except when the project has been declared an emergency in
accordance with subsection (e).
(i) The awarding authority may not offer a contract for
bidding unless confirmation of any applicable grant has been
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bidding unless confirmation of any applicable grant has been
received and any required matching funds have been secured by
or are available to the awarding authority.
(j) Notwithstanding subsection (a), the Department of
Transportation may enter into contracts for road construction
or road maintenance projects that do not involve more than two
hundred fifty thousand dollars ($250,000) without advertising
for sealed bids, provided the project is listed on the
departmentdepartment's publicly accessible website for at
least seven calendar days before entering into the contract.
The total cost of all projects not subject to advertising and
sealed bids pursuant to this subsection may not exceed one
million dollars ($1,000,000) in the aggregate per year.
(k) For the purposes of this chapter, sealed bids may
also be solicited and submitted through electronic means
including, but not limited to, electrical, digital, magnetic,
optical, electromagnetic, or any other similar technology,
provided that the awarding authority adopts rules and policies
to ensure that all electronic submissions are transmitted
securely and bids remained sealed until bid opening.
(l)(1) Notwithstanding any other provision of law, any
entity subject to this chapter that is an awarding authority
of a contract for public works, by resolution or board action,
may purchase materials or equipment pursuant to subdivisions
(14), (16), (17), (18), or (19) of Section 41-16-51(a), even
when those materials or equipment are otherwise part of the
contract for public works subject to the requirements of this
title.
(2) Except for those materials or equipment described
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(2) Except for those materials or equipment described
in subdivision (1), the remaining portion of the public works
project shall be subject to the requirements of this title,
even if the remaining portion would involve an amount less
than one hundred thousand dollars ($100,000) as a result of
the exclusion of the purchase of the materials or equipment as
described in subdivision (1)."
Section 2. This act shall become effective on October
1, 2025.
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