Section 39-2-2 - Advertisement for and opening of sealed bids for public works contracts; violations; exclusions; emergency actions; sole source specification(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 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) 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) 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, or 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 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.(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 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 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 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 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). Ala. Code § 39-2-2 (1975)
Amended by Act 2023-497,§ 1, eff. 9/1/2023.Amended by Act 2021-282,§ 1, eff. 7/1/2021.Amended by Act 2018-413,§ 1, eff. 6/1/2018.Amended by Act 2018-199,§ 1, eff. 3/13/2018.Amended by Act 2014-404,§ 1, eff. 7/1/2014.Amended by Act 2014-373,§ 1, eff. 7/1/2014.Acts 1947, No. 492, p. 338, §1; Acts 1961, No. 715, p. 1013; Acts 1980, No. 80-726, p. 1468; Acts 1989, No. 89-665, p. 1319, §1; Acts 1994, No. 94-207, p. 270, §1; Acts 1997, No. 97-225, p. 348, §1; Act 2004-487, p. 906, §1.