SB149INTRODUCED
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SB149
7ITS2EE-1
By Senator Kitchens
RFD: County and Municipal Government
First Read: 11-Feb-25
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5 7ITS2EE-1 02/06/2025 CMH (L)bm 2025-627
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First Read: 11-Feb-25
SYNOPSIS:
Under existing law, a public awarding authority
is required by law to advertise for sealed bids in a
manner required by law before awarding a contract for a
public works. If the awarding authority acts in good
faith reliance on an advertiser, the awarding authority
may award the contract notwithstanding an advertiser's
failure to properly publish the advertisement.
This bill would provide greater specificity for
the procedure to ratify an advertiser's failure to
properly publish an advertisement for sealed bids.
Also under existing law, a willful violation of
the public works law is a Class C felony.
This bill would provide that an advertiser bears
no criminal liability for its negligence to properly
advertise a public notice but would authorize the award
of civil damages for the negligence.
A BILL
TO BE ENTITLED
AN ACT
Relating to contracts for public works; to amend
Section 39-2-2, Code of Alabama 1975, to further provide for
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Section 39-2-2, Code of Alabama 1975, to further provide for
the requirement to publish public notice of the contract; and
to provide for the liability of an advertiser of a public
notice.
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
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
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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
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) AnNotwithstanding subsection (a), an awarding
authority may enter into a contract for public works if : (i)
an advertisement for sealed bids for the contract was
submitted by the awarding authority to a newspaper and; (ii)
the newspaper only publishedfailed to publish the
advertisement for two weeks if the authority can provide proof
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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. in accordance
with this section; and (iii) either of the following occurred:
a. The advertisement was published for at least three
consecutive weeks on a centralized website maintained by the
awarding authority or by the Department of Finance as
authorized by rule.
b. The awarding authority did both of the following:
1. Thirty or more days prior to the bid submission
deadline, mailed by first class U.S. mail or electronic mail
the advertisement to all persons who registered with the
official designated by the awarding authority to receive a
solicitation on bids for the public works contract.
2. Posted a notice on either the centralized website of
the awarding authority or of the Department of Finance as
described in paragraph a.
(c)(1) All contracts for public works entered into in
violation of this title shall be void and violative of public
policy.
(2)Anyone Except as provided in subdivision (3), a
person who willfully violates this article concerning public
works shall be guilty of a Class C felony.
(3)a. An advertiser who negligently fails to provide
confirmation or publish an advertisement in accordance with
this section shall not be subject to criminal liability under
this subsection.
b. If an advertiser's negligence under paragraph a.
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b. If an advertiser's negligence under paragraph a.
results in a contract being voided, canceled, or otherwise
required to be re-advertised, the advertiser may be held
civilly liable for an amount not to exceed double the amount
of the agreed-upon price for the subject advertisement.
(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
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
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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
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.
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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
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
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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)(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
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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
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) (14),
(16), (17), (18), or (19) , 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
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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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