SB121INTRODUCED
Page 0
SB121
F2415DC-1
By Senator Elliott
RFD: County and Municipal Government
First Read: 06-Feb-25
1
2
3
4
5 F2415DC-1 02/06/2025 CMH (L)bm 2024-3221
Page 1
First Read: 06-Feb-25
SYNOPSIS:
Under existing law, before entering into any
contract for a public works involving an amount in
excess of $100,000, an awarding authority must
advertise for sealed bids in a specified manner, which
generally includes advertisement by newspaper once a
week for three consecutive weeks.
This bill would provide additional means by
which the required public notice of the public contract
may be published, including a method of publication on
a website, application, or other digital platform
maintained by the Department of Finance for the purpose
of providing public notice.
A BILL
TO BE ENTITLED
AN ACT
Relating to public works contracts; to amend Section
39-2-2, Code of Alabama 1975, to further provide for the
requirement to publish notice of certain public works
contracts.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. Section 39-2-2, Code of Alabama 1975, is
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 SB121 INTRODUCED
Page 2
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 All contracts
for a public works involving an amount in excess of one
hundred thousand dollars ($100,000) , the awarding authority
shall advertise for sealed bids shall be awarded by competitive
sealed bidding, 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.
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 SB121 INTRODUCED
Page 3
three such solicitations, the listing may be canceled.
(2)(3)The advertisements An invitation to bid 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 ,
and state all contractual terms and conditions applicable to
the improvement.
(3) Adequate public notice of the invitation to bid
shall be given a reasonable time prior to the date set forth
for the opening of bids as described in subdivision (5). The
public notice shall be publicized in any of the following
ways:
a. Once per week for three consecutive weeks in a
newspaper of general circulation in the county or municipality
in which the work, or some part thereof, is to be made.
b. For a minimum of three weeks on an Internet website,
application, or other digital platform maintained by the
Department of Finance for the purpose of giving public notice;
provided, if the awarding authority is a municipality, the
publication shall be for a minimum of seven consecutive
calendar days.
c. In accordance with the procedures submitted by the
Association of County Engineers of Alabama and approved by the
Department of Examiners of Public Accounts as authorized by
general law.
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 SB121 INTRODUCED
Page 4
general law.
(4) Notwithstanding the requirements of subdivision
(3), the publication requirements of the public notice of the
invitation to bid shall be deemed to be satisfied under either
of the following conditions:
a. Both of the following occur: (i) The public awarding
authority complies with one or more of the methods of
publication described in subdivision (3); and (ii) one of the
selected methods fails to be published through no fault of the
public awarding authority.
b. If the awarding authority is the Department of
Transportation, all of the following occur: (i) The department
complies with one or more of the methods of publication
described in subdivision (3); (ii) the selected method fails
to be published through no fault of the department; and (iii)
the department successfully advertises the public notice of
the invitation to bid on its publicly accessible website for a
minimum of three weeks.
(4)(5) All bids shall be opened publicly at the
advertised time and place designated in the invitation to bid .
The amount of each bid and the name of each bidder shall be
recorded. The record and each bid shall be open to public
inspection to the extent required by law for public records.
(5)(6) 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
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 SB121 INTRODUCED
Page 5
(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 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)a. 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
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 SB121 INTRODUCED
Page 6
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.1. 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.2. 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.3. 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.4. 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.b. The exemption from the requirement to utilizeuse
sealed bids for the purchase of heating or air conditioning
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 SB121 INTRODUCED
Page 7
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
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
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 SB121 INTRODUCED
Page 8
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
authority at the time of advertisement for sealed bids.
(g) In the event ofIf a proposed public works project ,
is 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.
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 SB121 INTRODUCED
Page 9
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 department'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,
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 SB121 INTRODUCED
Page 10
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
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.
253
254
255
256
257
258
259
260
261
262
263
264
265
266