HB481INTRODUCED
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HB481
W1WGH99-1
By Representative Shaw
RFD: State Government
First Read: 01-Apr-25
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5 W1WGH99-1 03/25/2025 GP (L)lg 2025-1182
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First Read: 01-Apr-25
SYNOPSIS:
Existing law provides procedures that awarding
authorities must follow when entering into contracts
for public works.
This bill would exempt the purchase and
installation of certain material and equipment by local
boards of education and certain public procurement
units from those procedures.
A BILL
TO BE ENTITLED
AN ACT
Relating to contracts for public works; to amend
Section 39-2-2, Code of Alabama 1975; to provide exemptions
from certain requirements relating to contracting for public
works.
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
dollars ($100,000), the awarding authority shall advertise for
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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 a
newspaper of general circulation in the county or counties in
which the improvement, or some part thereof, is to be made.
b. If the awarding authority is a municipality , or an
instrumentality thereof, it shall advertise for sealed bids at
least once in a newspaper of general circulation published in
the municipality where the awarding authority is located. 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 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.
(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
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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
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 Contracts with persons who shall perform only
architectural, engineering, construction management, program
management, or project management services in support of the
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management, or project management services in support of the
public works and who shall do 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 are excluded from the
operation of this title .
(2) Excluded from operation of the bidding requirements
in this title are contracts 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, are excluded from operation of the bidding
requirements of this title; 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
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
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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
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
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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
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
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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) (i) having a direct impact on the security
or safety of persons or facilities; and (2) (ii) 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
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
department 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
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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)a. Notwithstanding any other provision of law,
any entity subject to this chapter that which is an awarding
authority of a contract for public works, by resolution or
board action, may purchase materials or equipment and may
install those materials or equipment, pursuant to: (i) Section
41-4-170, et seq.; (ii) subdivisions (14), (16), (17), (18),
or (19) of Section 41-16-51(a) (14), (16), (17), (18), or (19);
or (iii) Section 16-13B-2(a)(13) or (15) , even when those
materials or equipment are otherwise part of the contract for
public works subject to the requirements of this title.
b. The installation of materials or equipment pursuant
to Section 16-13B-2(a)(13) or (15) are subject to each of the
following requirements:
1. The installation must require a design professional
for plans when the services of a professional architect are
required pursuant to Section 34-2-32 or the services of a
professional engineer are required pursuant to Section
34-11-2.
2. The installation must meet the requirements for code
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2. The installation must meet the requirements for code
compliance in Section 16-1-2.4(b).
3. The installation is subject to the bond requirements
of Section 39-1-1(a).
4. The contract is competitively awarded as a result of
a competitive bid process approved by the Department of
Examiners of Public Accounts.
5. The subcontractor performing the installation is an
Alabama licensed contractor.
(2) Except for the purchase and installation of 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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