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Regular Session, 2010
SENATE BILL NO. 71
BY SENATOR APPEL
PUBLIC CONTRACTS. Requires state and local contractors to disclose the full disposition,
splitting, or sharing of contract commissions, fees, or other consideration by an "affidavit
of notice of fee disposition" if the contract is let without bid. (7/1/10)
AN ACT1
To amend and reenact R.S. 39:1767 and R.S. 48:251.8, and to enact R.S. 38:2196.1, R.S.2
39:200(N), 1493.1, and Part X of Chapter 17 of Subtitle III of Title 39 of the3
Louisiana Revised Statutes of 1950, to be comprised of R.S. 39:1758, relative to4
public contracts; to require certain contractors to disclose the full disposition,5
splitting, or sharing of contract commissions, fees, or other consideration by6
affidavit; to provide for the form of the affidavit; to provide for nullification of7
contracts in certain circumstances; to provide for criminal penalties; and to provide8
for related matters.9
Be it enacted by the Legislature of Louisiana:10
Section 1. R.S. 38:2196.1 is hereby enacted to read as follows:11
§2196.1. Public contracts; disclosure of disposition of commission, fee, or other12
consideration; penalties13
A.(1)(a) Notwithstanding any other provision of law to the contrary or14
any limitation of the applicability of any of this Part or Chapter in any other15
provision of law, when any person or other entity enters into any contract16
awarded without bidding with a public entity in which a commission, fee, or17 SB NO. 71
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other consideration is paid to the contractor for the contractor to sell to or1
provide to the public entity any commodity, goods, brokerage service or other2
service of any kind, insurance, or anything of value, then the full disposition,3
splitting, or sharing of such commission, fee, or other consideration shall be4
disclosed to the public entity by the contractor in writing by an affidavit of5
notice of fee disposition in the manner provided for in this Section.6
(b) For purposes of this Section, "public entity" means the state or any7
political subdivision of the state, or any agency, department, office, or other8
instrumentality of the state or political subdivision.9
(2) The affidavit of notice of fee disposition shall be on a form which shall10
be prescribed by the Board of Ethics and shall be notarized as to its11
authenticity. The affidavit of notice of fee disposition shall include the full value12
of the commission, fee, or other consideration to be paid, the names of all13
parties to receive dispositions, splits, or shares of the commission, fee, or other14
consideration, and the signature of the party authorized to commit the entity15
receiving the commission, fee, or other consideration to the contract, who shall16
attest to the truth of the facts set forth in the affidavit. The affidavit of notice17
of fee disposition shall be attached to and made a part of the contract for which18
the commission, fee, or other consideration is paid and shall be recorded in the19
public record.20
B. If at any time the disposition, splitting, or sharing of the commission,21
fee, or other consideration changes, or the amount of the commission, fee, or22
other consideration changes, then a new affidavit reflecting the changes from23
the first affidavit shall be prepared, executed, notarized, and recorded by the24
contractor in the public record.25
C.(1) If for any reason the information on the recorded affidavit shall26
be found to be incorrect, then the contract shall become null and void and all27
payments of the commission, fee, or other consideration shall be rebated to the28
public entity which entered into the contract.29 SB NO. 71
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(2) In addition, intentional misrepresentation of the facts on an affidavit1
shall subject the party attesting to the facts to the penalties provided for filing2
or maintaining false public records provided for in R.S. 14:133.3
Section 2. R.S. 39:1767 is hereby amended and reenacted and R.S. 39:200(N),4
1493.1, and Part X of Chapter 17 of Subtitle III of Title 39 of the Louisiana Revised Statutes5
of 1950, comprised of R.S. 39:1758, are hereby enacted to read as follows:6
§200. General provisions7
The following general provisions shall apply to all procurements under this Part:8
* * *9
N. Notwithstanding any limitation of the applicability of this Part or10
Chapter in any other provision of law, the provisions of R.S. 38:2196.111
regarding the requirement for an affidavit of notice of fee disposition shall be12
required of all contracts awarded without bidding.13
* * *14
§1493.1. Requirement for affidavit of notice of fee disposition15
Notwithstanding any limitation of the applicability of this Part or16
Chapter in any other provision of law, the provisions of R.S. 38:2196.117
regarding the requirement for an affidavit of notice of fee disposition shall be18
required of all contracts awarded without bidding.19
* * *20
PART X. REQUIREMENTS OF CONTRACTS21
§1758. Requirement for affidavit of notice of fee disposition22
Notwithstanding any limitation of the applicability of this Part or23
Chapter in any other provision of law, the provisions of R.S. 38:2196.124
regarding the requirement for an affidavit of notice of fee disposition shall be25
required of all contracts awarded without bidding.26
* * *27
§1767. Appropriation dependency; requirement for affidavit of notice of fee28
disposition29 SB NO. 71
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A. All lease-purchase contracts entered into pursuant to this Chapter shall1
contain an annual appropriation dependency requirement to the effect that renewal2
and continuation of such contract is contingent upon the appropriation of funds to3
fulfill the requirements of the contract and if the legislature, after a diligent and good4
faith effort, fails to appropriate sufficient monies to provide for the continuation of5
a contract, or if such appropriation can not be effected, the contract shall terminate6
in accordance with the terms of the lease on the last day of the last fiscal year for7
which funds were appropriated, provided the equipment is returned to the nonprofit8
lessor or his agent, as provided in the equipment-lease-purchase contract and such9
contract shall not be a long-term debt of the state or the applicable purchasing10
agency. In addition, in such equipment-lease-purchase contracts, the nonprofit lessor11
shall covenant and agree to indemnify and hold the lessee harmless against any loss,12
damage, liability, cost, penalty, or expense, including attorney fees, which is not13
otherwise agreed to by the lessee in the equipment-lease-purchase contract and14
which is incurred and arises upon a failure of the legislature to appropriate funds in15
the manner described above for a continuation of the contract or the exercise of the16
option to purchase the selected equipment.17
B. Notwithstanding any limitation of the applicability of this Part or18
Chapter in any other provision of law, the provisions of R.S. 38:2196.119
regarding the requirement for an affidavit of notice of fee disposition shall be20
required of all contracts awarded without bidding.21
Section 3. R.S. 48:251.8 is hereby amended and reenacted to read as follows:22
§251.8. Public contracts; certain provisions invalid; requirement for affidavit of23
notice of fee disposition24
A. The legislature hereby declares null and void and unenforceable as against25
public policy any provision in a department contract which requires either of the26
following:27
(1) That a suit or arbitration proceeding must be brought in a forum or28
jurisdiction outside of this state, instead of being pursued in accordance with the laws29 SB NO. 71
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of this state governing such actions.1
(2) That the agreement must be interpreted according to the laws of another2
jurisdiction.3
B. Notwithstanding any limitation of the applicability of this Part or4
Chapter in any other provision of law, the provisions of R.S. 38:2196.15
regarding the requirement for an affidavit of notice of fee disposition shall be6
required of all contracts awarded without bidding.7
Section 4. This Act shall become effective on July 1, 2010; if vetoed by the governor8
and subsequently approved by the legislature, this Act shall become effective on July 1,9
2010, or on the day following such approval by the legislature, whichever is later.10
The original instrument was prepared by Riley Boudreaux. The following
digest, which does not constitute a part of the legislative instrument, was
prepared by Tammy Crain Waldrop.
DIGEST
Appel (SB 71)
Proposed law requires any person or other entity who enters into any contract awarded
without bidding with a "public entity" in which a commission, fee, or other consideration is
paid to the contractor for the contractor to sell to or provide to the public entity any
commodity, goods, brokerage service or other service of any kind, insurance, or anything
of value, to disclose the full disposition, splitting, or sharing of such commission, fee, or
other consideration to the "public entity" in writing by an "affidavit of notice of fee
disposition".
"Public entity" is defined as the state or any political subdivision of the state, or any agency,
department, office, or other instrumentality of the state or political subdivision.
The "affidavit of notice of fee disposition" must be on a form prescribed by the Board of
Ethics and must be notarized as to its authenticity; must include the full value of the
commission, fee, or other consideration to be paid, the names of all parties to receive
dispositions, splits, or shares of the commission, fee, or other consideration, and the
signature of the party authorized to commit the entity to the contract, who must attest to the
truth of the facts set forth in the affidavit. The affidavit of notice of fee disposition must be
attached to and made a part of the contract for which the commission, fee, or other
consideration is paid and must be recorded in the public record.
Requires the contractor to prepare, execute, notarize, and record in the public record new
affidavit reflecting changes in the disposition, splitting, or sharing of the commission, fee,
or other consideration or changes in the amount.
If for any reason the information on the recorded affidavit is found to be incorrect, then the
contract is null and void and all payments of the commission, fee, or other consideration
must be rebated to the public entity. Intentional misrepresentation of the facts on an affidavit
subjects the party attesting to the facts to the penalties provided for filing or maintaining
false public records - imprisonment for not more than 5 years with or without hard labor or
a fine of not more than $5,000, or both. SB NO. 71
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Effective July 1, 2010.
(Amends R.S. 39:1767 and R.S. 48:251.8; adds R.S. 38:2196.1, R.S. 39:200(N), 1493.1 and
1758)
Summary of Amendments Adopted by Senate
Committee Amendments Proposed by Senate Committee on Commerce, Consumer
Protection, and International Affairs to the original bill.
1. Changes who prescribes the form for the affidavit of notice of fee disposition
from the public entity to the state Board of Ethics.
2. Technical changes.
Senate Floor Amendments to engrossed bill.
1. Technical amendments.