HB 168 — Relating to public works contracts; to amend Sections 39-1-1, 39-2-1, 39-2-2, and 39-2-6, Code of Alabama 1975, to increase the threshold dollar amount for which competitive bidding is generally required; to further provide for certain notice procedures; to authorize the publication of notice by electronic means; to authorize the use of electronic sealed bids; and in connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local funds within the meaning of Section 111.05 of the Constitution of Alabama of 2022.

The awarding authority shall not be deemed to have violated this article for the prior expenditure that was not bid, provided that the awarding authority documented its reasonable belief, based on expenditures in previous years, that the total amount would be below the dollar threshold and that the Page 7 HB168 INTRODUCED subsequent expenditure was bid.

(g) Beginning October 1, 2027, and every three years thereafter, all dollar amounts used in this article shall be subject to a cost adjustment based on the following procedure:

The Chief Examiner of the Department of Examiners of Public Accounts may submit to the Chair of the Legislative Council a recommendation that the amount be increased based on the percentage increase in the Consumer Price Index for the immediately preceding three-year period, rounded to the nearest thousand dollars.

The recommendation shall be subject to the approval of the Legislative Council.

In the event the recommendation is not disapproved by the Legislative Council by the end of April following the submission of the recommendation, the recommendation shall be deemed to be approved.

Upon approval, the Department of Examiners of Public Accounts shall notify the public of the adjusted dollar amounts by July 1 before the fiscal year in which the changes will take effect." "§41-16-51 (a) Competitive bids for entities subject to this article shall not be required for utility services, the rates for which are fixed by law, regulation, or ordinance, and the competitive bidding requirements of this article shall not apply to any of the following:

(1) The purchase of insurance.

(2) The purchase of ballots and supplies for conducting any primary, general, special, or municipal election.

(3) Contracts for securing services of attorneys, Page 8 HB168 INTRODUCED physicians, architects, teachers, superintendents of construction, artists, appraisers, engineers, consultants, certified public accountants, public accountants, or other individuals possessing a high degree of professional skill where the personality of the individual plays a decisive part.

(4) Contracts of employment in the regular civil service.

(5) Contracts for fiscal or financial advice or services.

(6) Purchases of products made or manufactured by blind or visually impaired individuals under the direction or supervision of the Alabama Institute for Deaf and Blind in accordance with Sections 21-2-1 to 21-2-4, inclusive Chapter 2 of Title 21.

(7) Purchases of maps or photographs from any federal agency.

(8) Purchases of manuscripts, books, maps, pamphlets, periodicals, and library/research electronic data bases of manuscripts, books, maps, pamphlets, or periodicals.

(9) The selection of paying agents and trustees for any security issued by a public body.

(10) Existing contracts up for renewal for sanitation or solid waste collection, recycling, and disposal between municipalities or counties, or both, and those providing the service.

(11) Purchases of computer and word processing hardware when the hardware is the only type that is compatible with hardware already owned by the entity taking bids and custom Page 9 HB168 INTRODUCED software.

(12) Professional services contracts for codification and publication of the laws and ordinances of municipalities and counties.

(13) Contractual services and purchases of commodities for which there is only one vendor or supplier and contractual services and purchases of personal property which by their very nature are impossible to award by competitive bidding.

(14) Purchases of dirt, sand, or gravel by a county governing body from in-county property owners in order to supply a county road or bridge project in which the materials will be used.

The material shall be delivered to the project site by county employees and equipment used only on projects project components conducted exclusively by county employees.

(15) Contractual services and purchases of products related to, or having an impact upon, security plans, procedures, assessments, measures, or systems, or the security or safety of persons, structures, facilities, or infrastructures.

(16) Subject to the limitations in this subdivision, purchases, leases, or lease/purchases of goods or services, other than voice or data wireless communication services, made as a part of the purchasing cooperative sponsored by the National Association of Counties, its successor organization, or any other national or regional governmental cooperative purchasing program.

The purchases, leases, or lease/purchases may only be made if all of the following occur:

TheIn goods or services being purchased, including Page 10 HB168 INTRODUCED those purchased through a lease/purchasenewspaper agreement, or leased are available as a result of ageneral competitivecirculation bidin processthe conductedcounty byor acounties governmentalin entitywhich and approved by the Alabamawork, Departmentor ofsome Examinersportion ofthereof, Publichas Accountsbeen fordone. each bid.

TheOn goodsa orwebsite servicesthat areis eithermaintained notby ata thenewspaper timeof availablegeneral tocirculation countiesin on the statecounty purchasing program or arecounties availablein atwhich athe pricework, equal to or lesssome thanportion thatthereof, onhas thebeen statedone. purchasing program.

TheOn purchase, lease, or lease/purchase is made through a participatingwebsite Alabamautilized vendorby holdingthe anawarding Alabamaauthority businessfor licensepublishing ifnotices. such a vendor exists.

d.(2) If no newspaper is published in the county in which the work was done, and if the awarding authority does not utilize a website for the purpose of publishing notices, the notice may be given by posting at the courthouse for 30 days, and proof of the posting of the notice shall be given by the awarding authority and the contractor.

ThePage entity4 purchasing,HB168 leasing,Enrolled or(3) lease/purchasingA goodsfinal orsettlement servicesshall undernot thisbe subdivisionmade hasupon beenthe notifiedcontract byuntil the Departmentexpiration of Examiners30 ofdays Publicafter Accounts that the competitivecompletion bidof process utilized by the cooperativenotice. program offering the goods complies with this subdivision.

InProof addition,of uponpublication request,of athe vendornotice shall providebe themade entityby purchasing,the leasing,contractor orto lease/purchasingthe itemsauthority thatby exceedwhom fifteenthe thousandcontract dollarswas ($15,000)made goodsby oraffidavit servicesof equalingthe thirtypublisher thousand dollars ($30,000) or morewebsite whichowner areand made under this exception subdivision during the previous 12 months a reportprinted copy of the sales,notice leases,published. and lease/purchases.

If no newspaper is published in the county in which includesthe Thework reportis shalldone, includethe anotice generalmay descriptionbe given by posting at the courthouse for 30 days, and proof of same shall be made by the goodsjudge orof services;probate, sheriff, and the contractor.

(4) For contracts for road resurfacing materials that are awarded on an annual basis, where the numberbid specifications include options such as a unit price for materials, a unit price for the delivery of unitsmaterials, sold,or leased,a andunit leased/purchasedprice perfor entity;materials to be laid in place by the bidder, notice of completion pursuant to this subsection may be given on an annual basis upon completion of the project as a whole, rather than at the completion of each proceed order.

and(g) theSubsection price(f) shall not apply to contractors performing contracts of unitsless purchased,than leased,fifty orthousand leased/purchased.dollars ($50,000)one hundred thousand dollars ($100,000) in amount.

(17)In Purchasesuch Purchasescases, the governing body of goodsthe orcontracting services,agency, otherto thanexpedite wirelessfinal communicationpayment, services,shall whethercause voicenotice orof data,final fromcompletion Pageof 11the HB168contract INTRODUCEDto vendorsbe thatpublished haveone beentime awardedin a currentnewspaper of general circulation, published in the county of the contracting agency and validshall Governmentpost Servicesnotice Administrationof contract.final completion on the agency's bulletin board for one week, and shall require the contractor to certify under oath that all bills have been Page 5 HB168 Enrolled paid in full.

AnyFinal purchasesettlement madewith pursuantthe tocontractor thismay subdivisionbe shallmade beat underany time after the samenotice termshas andbeen conditionsposted asfor providedone entire week." "§39-2-1 As used in this title, the Governmentfollowing Serviceswords Administrationshall contract.have the meanings ascribed to them as follows:

Prices(1) paidAWARDING forAUTHORITY. such goods and services, other than wireless communication services, whether voice or data, may not exceed the amount provided in the Government Services Administration contract.

(18)Any Purchasesgovernmental ofboard, goodscommission, oragency, servicesbody, fromauthority, vendorsinstrumentality, thatdepartment, haveor beensubdivision awardedof a current and valid statewide contract listed on the Alabamastate, Buysits e-procurementcounties system.and municipalities.

AnyThis purchaseterm madeincludes, pursuantbut toshall thisnot subdivisionbe shalllimited beto, underthe Department of Transportation, the sameState termsBuilding andCommission conditionsthe asDivision providedof inReal Property Management of the statewideDepartment contract.of Finance, the State Board of Education, and any other entity contracting for public works.

PricesThis paidterm forshall suchexclude goodsthe State Docks Department and servicesany mayentity notexempted exceedfrom the amountcompetitive providedbid inlaws of the statewidestate contract.by statute.

(19)(2) PurchasesFORCE ofACCOUNT goodsWORK. or services between governmental entities of the state, as authorized by Section 11-1-10.

(b)Work Thispaid articlefor shallby notreimbursing applyfor to:the actual costs for labor, materials, and equipment usage incurred in the performance of the work, as directed, including a percentage for overhead and profit, where appropriate.

(1)(3) AnyLIFE purchasesCYCLE ofCOSTS. products where the price of the products is already regulated and established by state law.

(2)The Purchasestotal madecost byof individualownership schoolsover the extended life of a public works project, taking into consideration the countycosts orof municipalconstruction, publicoperation, schooland systemsmaintenance, less any value obtained from moniessalvage otherand thanquantifiable thoseenvironmental raisedbenefits, byor taxationthe sum of all recurring and one-time (non-recurring) costs over the full life span or receiveda throughspecified appropriationsperiod fromof statea good, service, structure, Page 6 HB168 Enrolled or countysystem, sources.including purchase price, installation costs, operating costs, maintenance and upgrade costs, and remaining (residual or salvage) value at the end of ownership or its useful life.

(3)(4) ThePERSON. purchase, lease, sale, construction, installation, acquisition, improvement, enlargement, or expansion of any building or structure or other facility designed or intended for lease or sale by a medical clinic Page 12 HB168 INTRODUCED board organized under Sections 11-58-1 to 11-58-14, inclusive Chapter 58 of Title 11.

(4)Natural Thepersons, purchase,partnerships, lease,limited orliability othercompanies, acquisitioncorporations, of machinery, equipment, supplies, and other personallegal propertyentities. or services by a medical clinic board organized under Sections 11-58-1 to 11-58-14, inclusive Chapter 58 of Title 11.

(5) PurchasesPUBLIC forPROPERTY. public hospitals and nursing homes operated by the governing boards of instrumentalities of the state, counties, and municipalities.

(6)Real Contractsproperty forwhich the purchase,state, lease,county, sale,municipality, construction, installation, acquisition, improvement, enlargement, or extensionawarding ofauthority anythereof plant,owns building, structure, or otherhas facilitya orcontractual anyright machinery, equipment, furniture, or furnishings therefor designed or intended for lease or sale for industrial development, other than public utilities, under Sections 11-54-80 to 11-54-99,own inclusive Division 1 of Article 4 of Chapter 54 of Title 11, or Sectionspurchase, 11-54-20including toeasements, 11-54-28,rights-of-way, inclusive Article 2 of Chapter 54 of Title 11, or anyotherwise. other law or amendment to the Constitution of Alabama of 2022 authorizing the construction of plants or other facilities for industrial development or for the construction and equipment of buildings for public building authorities under Sections 11-56-1 to 11-56-22, inclusive Chapter 56 of Title 11.

(7)(6) ThePUBLIC purchaseWORKS. of equipment, supplies, or materials needed, used, and consumed in the normal and routine operation of any waterworks system, sanitary sewer system, gas system, or electric system, or any two or more thereof, that are owned by municipalities, counties, or public corporations, boards, Page 13 HB168 INTRODUCED or authorities that are agencies, departments, or instrumentalities of municipalities or counties and no part of the operating expenses of which system or systems, during the then current fiscal year, have been paid from revenues derived from taxes or from appropriations of the state, a county, or a municipality.

(8)The Purchasesconstruction, madeinstallation, byrepair, localrenovation, housingor authorities,maintenance organizedof andpublic existingbuildings, understructures, Chaptersewers, 1waterworks, ofroads, Titlecurbs, 24,gutters, fromside monieswalls, bridges, docks, underpasses, and viaducts as well as any other thanimprovement thoseto raisedbe byconstructed, state,installed, county,repaired, renovated, or citymaintained taxationon public property and to be paid, in whole or receivedin throughpart, appropriationswith frompublic state,funds county,or with financing to be retired with public funds in the form of lease payments or cityotherwise." sources."§39-2-2 (a)(1) Before entering into any contract for a public works involving an amount in excess of fifty thousand dollars ($50,000) one hundred thousand dollars ($100,000), the awarding authority shall advertise for sealed bids, except as provided in subsection (j).

(c) The state trade schools, state junior colleges, state colleges, and universities under the supervision and control of the State Board of Education, the district boards of education of independent school districts, the county commissions, and the governing bodies of the municipalities of the state shall establish and maintain such purchasing facilities and procedures as may be necessary to carry out the intent and purpose of this article by complying with the requirements for competitive bidding in the operation and management of each state trade school, state junior college, state college, or university under the supervision and control of the State Board of Education, the district boards of education of independent school districts, the county commissions, and the governing bodies of the municipalities of the state and the governing boards of instrumentalities of counties and municipalities, including waterworks boards, sewer boards, gas boards, and other like utility boards and Page 14 HB168 INTRODUCED commissions.

(d) Contracts entered into in violation of this article shall be void and any person who violates the provisions of this article shall be guilty of a Class C felony." "§41-16-52 (a) All expenditures of funds of whatever nature for repair parts and the repair of heavy duty off-highway construction equipment or of any vehicles with a gross vehicle weight rating of 25,000 pounds or greater, including machinery used for grading, drainage, road construction, and compaction for the exclusive use of county and municipal highway, street, and sanitation departments, involving not more than twenty-two thousand five hundred dollars ($22,500) forty thousand dollars ($40,000) made by or on behalf of any county commissions and the governing bodies of the municipalities of the state, and the governing bodies of instrumentalities, including waterworks boards, sewer boards, gas boards, and other like utility boards and commissions, shall be made, at the option of the governing boards, bodies, instrumentalities, and commissions, without regard to this article.

The foregoing exemption from this article shall apply to each incident of repair as to any repair parts, equipment, vehicles, or machinery.

The amount of the exempted expenditure shall not be construed to be an aggregate of all the expenditures per fiscal year as to any individual vehicle or piece of equipment or machinery.

(b) The option provided by subsection (a) may be exercised by the governing boards, bodies, instrumentalities, Page 15 HB168 INTRODUCED and commissions by specific reference to this section on any and all purchase orders and purchase commitments executed by the governing boards, bodies, instrumentalities, and commissions;

provided, however.

However, the option shall not be exercised by any employee, agent, or servant unless done so after having received official prior approval of the respective governing board, body, instrumentality, or commission or unless exercised pursuant to a formal policy adopted by the governing board, body, instrumentality, or commission setting out conditions and restrictions under which the option shall be exercised.

(c) All expenditures of funds of whatever nature for the leasing of heavy duty off-highway construction equipment and all vehicles with a gross vehicle weight rating of 25,000 pounds or greater, including machinery for grading, drainage, road construction, and compaction for exclusive use of county and municipal highway, street, and sanitation departments, involving a monthly rental of not more than five thousand dollars ($5,000) ten thousand dollars ($10,000) per month per vehicle or piece of equipment or machinery but not to exceed fifteen thousand dollars ($15,000) thirty thousand dollars ($30,000) per month for all such vehicles and pieces of equipment made by or on behalf of any county commissions and the governing boards of municipalities of the state and the governing bodies of instrumentalities, including waterworks boards, sewer boards, gas boards, and other like utility boards and commissions shall be made, at the option of the governing boards, bodies, instrumentalities, and commissions, Page 16 HB168 INTRODUCED without regard to the provisions of this article." "§41-16-53 In case of emergency affecting public health, safety or convenience, so declared in writing by the awarding authority, setting forth the nature of the danger to public health, safety or convenience involved in delay, contracts may be let to the extent necessary to meet the emergency without public advertisement.

Such action and the reasons therefor shall immediately be made public by the awarding authority.Notwithstanding any law to the contrary, in the event circumstances arise for which a delay in remedying or otherwise addressing would likely cause harm to an individual or public property, a contract may be let to the extent necessary to mitigate the harm without regard to the requirements of this article, provided the awarding authority does both of the following:

(1) Documents two or more price quotations or price estimates before letting the contract.

(2) Adopts a resolution declaring the nature of the circumstances, the action to be taken, and the reasons for taking the action." "§41-16-54 (a)(1) All proposed purchases in excess of fifteen thousand dollars ($15,000) thirty thousand dollars ($30,000) shall be advertised by posting notice thereof on a bulletin board maintained outside the purchasing office and in any other manner and for any length of time as may be determined.

Sealed bids or bids to be submitted by a reverse auction Page 17 HB168 INTRODUCED procedure shall also be solicited by sending notice by mail or other electronic means to all persons, firms, or corporations who have filed a request in writing that they be listed for solicitation on bids for the particular items that are set forth in the request.

If any person, firm, or corporation whose name is listed fails to respond to any solicitation for bids after the receipt of three solicitations, the listing may be cancelled.

(2) If a governing body mandates that advertisement for bids shall be published in a newspaper, the contract for purchase shall be awarded if the newspaper to which the advertisement was submitted did not publish the advertisement if the governing body can provide proof that it in good faith submitted the advertisement to the newspaper with instructions to publish the notice in accordance with this section.

(b) Except as provided in subsection (d), all bids shall be sealed when received and shall be opened in public at the hour stated in the notice.

(c) If the purchase or contract will involve an amount of fifteen thousand dollars ($15,000) or less less than thirty thousand dollars ($30,000), the purchases or contracts may be made upon the basis of sealed bids, a joint purchasing agreement, a reverse auction procedure, or in the open market.

(d) Beginning January 1, 2009, the awarding authority may make purchases or contracts involving an amount of fifteen thousand dollars ($15,000) thirty thousand dollars ($30,000) or more through a reverse auction procedure;

provided, however, that.

However, a reverse auction shall only be Page 18 HB168 INTRODUCED allowed where the item to be purchased at a reverse auction is either not at the time available on the state purchasing program under the same terms and conditions or, if available, the lowest price offered in the reverse auction is equal to or less than the price for which the item is available on the state purchasing program under the same terms and conditions.

All of the purchases shall be subject to audit by the Examiners of Public Accounts.

For purposes of this article, a reverse auction procedure includes either of the following:

(1) A real-time bidding process usually lasting less than one hour and taking place at a previously scheduled time and Internet location, in which multiple anonymous suppliers submit bids to provide the designated goods or services.

(2) a.

A bidding process usually lasting less than two weeks and taking place during a previously scheduled period and at a previously scheduled Internet location, in which multiple anonymous suppliers submit bids to provide the designated goods or services.

b.

No later than November 30, 2008, the Department of Examiners of Public Accounts shall establish procedures for the use of reverse auction, which shall be distributed to all contracting agencies and shall be used in conducting any audits of the purchasing agency.

(e) All original bids together with all documents pertaining to the award of the contract shall be retained in accordance with a retention period of at least seven years established by the Local Government Records Commission and shall be open to public inspection.

Page 19 HB168 INTRODUCED (f) No purchase or contract involving professional services shall be subject to the requirements of this article and no purchase or contract involving an amount in excess of fifteen thousand dollars ($15,000) shall be divided into parts involving amounts of fifteen thousand dollars ($15,000) or less for the purpose of avoiding the requirements of this article.

All such partial contracts involving fifteen thousand dollars ($15,000) or less shall be void.

(g) This section shall be applicable to education purchases made pursuant to Chapter 13B of Title 16." "§41-16-55 (a) Any agreement or collusion among bidders or prospective bidders in restraint of freedom of competition, by agreement, to bid at a fixed price or to refrain from bidding or otherwise shall render the bids of such the bidders void and shall cause such the bidders to be disqualified from submitting further bids to the awarding authority on future purchases.

(b) Whoever knowingly participates in a collusive agreement in violation of this section involving a bid or bids of fifteen thousand dollars ($15,000) less than thirty thousand dollars ($30,000) and under shall be guilty of a Class A misdemeanor and, upon conviction, shall be punished as prescribed by law.

(c) Whoever knowingly and intentionally participates in a collusive agreement in violation of this section involving a bid or bids of over fifteen thousand dollars ($15,000) thirty thousand dollars ($30,000) or more shall be guilty of a Class Page 20 HB168 INTRODUCED C felony, and upon conviction shall be punished as prescribed by law." Section 2.

Sections 39-2-2 and 39-2-4, Code of Alabama 1975, are amended to read as follows:

"§39-2-2 (a)(1) Before entering into any contract for a public works involving an amount in excess of fifty thousand dollars ($50,000) one hundred thousand dollars ($100,000), the awarding authority shall advertise for sealed bids, except as provided in subsection (j).

If the awarding authority is the statestate, or a county, or an instrumentality thereof, it shall advertise for sealed bids at least once each week for three consecutive Page 7 HB168 Enrolled weeks in a newspaper of general circulation in the county or counties in which the improvement, or some part thereof, is to be made.

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 Page 21 HB168 INTRODUCED solicitation on bids for the public works contracts indicated in the request.

(4)(4)(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 Page 8 HB168 Enrolled 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.

(5)(5)(4) All bids shall be opened publicly at the advertised time and place.

(6)(6)(5) No public work, as defined in this chapter, involving a sum in excess of fifty thousand dollars ($50,000) one hundred thousand dollars ($100,000) shall be split into parts involving sums of fifty thousand dollars ($50,000) 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 fifty thousand dollars ($50,000) one Page 22 HB168 INTRODUCED hundred thousand dollars ($100,000) or less with or without advertising or sealed bids.

Anyone who willfully violates this article concerning Page 9 HB168 Enrolled public works shall be guilty of a Class C felony.

(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 Page 23 HB168 INTRODUCED 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:

Page 10 HB168 Enrolled c.

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 Page 24 HB168 INTRODUCED 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)(e)(1) 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.

The action and the reasons for the action taken shall immediately be made public Page 11 HB168 Enrolled by the awarding authority upon request.

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.

(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 Construction Management 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 Page 12 HB168 Enrolled 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 Page 25 HB168 INTRODUCED item for which there is no other viable alternative.

(i) The awarding authority may not offer a contract for Page 13 HB168 Enrolled 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 Page 26 HB168 INTRODUCED 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.

(k) BeginningFor Octoberthe 1,purposes 2027,of this chapter, sealed bids may also be solicited and everysubmitted threethrough yearselectronic thereafter,means allincluding, dollarbut amountsnot usedlimited into, thiselectrical, sectiondigital, shallmagnetic, beoptical, subjectelectromagnetic, toor aany costother adjustmentsimilar basedtechnology, onprovided that the followingawarding procedure:authority adopts rules and policies to ensure that all electronic submissions are transmitted securely and bids remained sealed until bid opening.

The(l)(1) ChiefNotwithstanding Examinerany other provision of thelaw, Departmentany ofentity Examinerssubject to this chapter that is an awarding authority of Publica Accountscontract for public works, by resolution or board action, may submitpurchase tomaterials theor Chairequipment ofpursuant theto Legislativesubdivisions Council(14), a(16), recommendation17), that(18), theor amount(19) beof increasedSection based41-16-51(a), oneven thewhen percentagethose increasematerials inor theequipment Consumerare Priceotherwise Indexpart forof the immediatelycontract precedingfor three-yearpublic period,works roundedsubject to the nearestrequirements thousandof dollars.this title.

ThePage recommendation14 HB168 Enrolled (2) Except for those materials or equipment described in subdivision (1), the remaining portion of the public works project shall be subject to the approvalrequirements of this title, even if the Legislativeremaining Council.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)." "§39-2-6 (a) The contract shall be awarded to the lowest responsible and responsive bidder, unless the awarding authority finds that all the bids are unreasonable or that it is not toin the interest of the awarding authority to accept any of the bids.

InA theresponsible eventbidder the recommendation is notone disapprovedwho, byamong theother Legislativequalities Councildetermined bynecessary thefor endperformance, ofis Aprilcompetent, followingexperienced, theand submissionfinancially ofable theto recommendation,perform the recommendationcontract. shall be deemed to be approved.

UponA approval,responsive the Department of Examiners of Public Accounts shall notify the public of the adjusted dollar amounts by July 1 before the fiscal year in which the changes will take effect." "§39-2-4 (a) The bidder shallis beone requiredwho tosubmits file with his or her bid either a cashier's check drawn on an Alabama bank or a bid bondthat executedcomplies bywith athe suretyterms company duly authorized and Pageconditions 27 HB168 INTRODUCED qualified to make such bonds in the State of Alabama, payable to the awardinginvitation authority for anbids. amount not less than five percent of the awarding authority's estimated cost or of the contractor's bid, but in no event more than ten thousand dollars ($10,000) twenty thousand dollars ($20,000), except if the awarding authority is the Department of Transportation, then the bid guarantee shall not be more than fifty thousand dollars ($50,000).

TheMinor bidirregularities guaranties as provided in thisthe sectionbid shall constitutenot alldefeat ofresponsiveness. the qualifications or guaranty to be required of contractors as prerequisites to bidding for public works, except as required by the State Licensing Board for General Contractors and the prequalification as required by the Department of Transportation, the Building Commission, or any other awarding authority.

(b)The Withbidder theto exceptionwhom of the Departmentaward ofis Transportationmade whichshall hasbe prequalificationnotified procedures and criteria set forth by statute,telegram, anyconfirmed awardingfacsimile, authorityelectronic thatmail, proposesor toletter prequalifyat biddersthe shallearliest establishpossible writtendate. prequalification procedures and criteria that:

(1)If arethe publishedsuccessful sufficientlybidder infails advanceor ofrefuses anyto affectedsign contractthe socontract, thatto amake bonabond fideas bidderprovided mayin seekthis andchapter, obtainor prequalificationto priorprovide toevidence preparingof ainsurance bidas forrequired thatby contract,the suchbid publicationdocuments, tothe beawarding accomplishedauthority bymay award the methodscontract specifiedto inthe subsectionsecond (a)lowest ofresponsible Sectionand 39-2-2;responsive bidder.

(2)If arethe relatedsecond lowest bidder fails or refuses to sign the purposecontract, make bond as provided in this chapter, or to provide evidence of insurance as required by the bid Page 15 HB168 Enrolled documents, the awarding authority may award the contract orto contractsthe affected;third lowest responsible and responsive bidder.

(3)(b) areIf relatedno tobids contractor requirementsonly one bid is received at the time stated in the advertisement for bids, the awarding authority may advertise for and seek other competitive bids, or the qualityawarding authority may direct that the work shall be done by force account under its direction and control or, with the exception of the productDepartment orof serviceTransportation, inthe question;awarding authority may negotiate for the work through the receipt of informal bids not subject to the requirements of this section.

(4)Where areonly relatedone toresponsible theand responsibility,responsive includingbid thehas competency,been experience,received, andany financialnegotiation ability,for ofthe work shall be for a bidder;price lower than that bid.

Page(c) 28When HB168With INTRODUCEDthe exception of the Department of Transportation, when two or more bids are received, and (5)all willbids permitexceed reasonableavailable competitionfunding atfor the contract, a levellocal board of education or a public two-year or four-year institution of higher education the awarding authority may negotiate for the work with the lowest responsible and responsive bidder, provided that servesthe local board of education or public two-year or four-year institution of higher education awarding authority can document the shortage of funding, that time is of the essence, and that the negotiated changes are in the public interest.interest and do not materially alter the scope and nature of the project.

The(d) prequalificationIf publicationthe mayawarding runauthority concurrentlyfinds withthat all bids received are unreasonable or that it is not to the publicationinterest requiredof underthe subsectionawarding (a)authority to accept any of Sectionthe 39-2-2,bids, providedthe itawarding producesPage 16 HB168 Enrolled authority may direct that the abovework requiredshall advancebe notice.done by force account under its direction and control.

(c)(e) WithinOn any construction project on which the boundsawarding ofauthority goodhas faith,prepared plans and specifications, has received bids, and has determined to do by force account or by negotiation, the awarding authority retainsshall make available the rightplans toand determinespecifications, whetheran aitemized contractorestimate hasof metcost, prequalificationand proceduresany informal bids for review by the Department of Examiners of Public Accounts and, upon completion of the project by an awarding authority, the final total costs together with an itemized list of cost of any and criteria.all changes made in the original plans and specifications shall also be made available for review by the Department of Examiners of Public Accounts.

(d)Furthermore, Any bidder who has prequalified pursuant to the requirementsabove indescribed subsectioninformation (b) shall be deemedmade responsiblepublic for purposes of award unless the prequalification is revoked by the awarding authority underupon therequest. following procedures:

(1)Upon Nothe laterapproval thanof fivethe workingawarding daysauthority, orits theduly nextauthorized regularofficer meetingor afterofficers, thewhen openingproceeding ofupon bids, the awardingbasis authorityof issuesforce writtenaccount, noticemay tolet theany biddersubdivision ofor itsunit intentof towork revokeby prequalificationcontract andon theinformal groundsbids. therefor;.

(2)(f) theTheNo bidderprovision isof thenthis providedsection anshall opportunity to be heardinterpreted beforeas precluding the awardinguse authorityof onconvict labor by the intendedawarding revocation;.authority.

(3)This theThesection awardingshall authoritynot makesapply ato goodroutine faithmaintenance showingand ofrepair ajobs materialdone inaccuracyby inmaintenance thepersonnel prequalificationwho applicationare regular employees of athe bidderawarding orauthority, ofnor ashall materialit changeapply into theroad responsibilityor ofbridge theconstruction bidderwork sinceperformed submittingby itsan prequalificationawarding application;authority's regular employees and own equipment.

and.(g) No contract awarded to the lowest responsible and responsive bidder shall be assignable by the successful bidder Page 17 HB168 Enrolled without written consent of the awarding authority, and in no event shall a contract be assigned to an unsuccessful bidder whose bid was rejected because he or she was not a responsible or responsive bidder.

(4)(h) theTheAny revocationagreement ofor prequalificationcollusion isamong determinedbidders noor laterprospective thanbidders 10in daysrestraint afterof writtenfreedom notice of intentcompetition to revoke,bid unlessat a fixed price or to refrain from bidding or otherwise shall render the bidderbids whosevoid qualificationand isshall incause questionthe agreesbidders inor writingprospective bidders to anbe extensiondisqualified infrom time.submitting further bids to the awarding authority on future lettings.

PageAny 29bidder HB168or INTRODUCEDprospective (e)bidder Nothingwho willfully participates in thisany sectionagreement shallor precludecollusion thein rejectionrestraint of freedom of competition shall be guilty of a bidderfelony determinedand, on conviction thereof, shall be fined not responsibleless than five thousand dollars ($5,000) nor themore inclusionthan offifty criteriathousand indollars the($50,000) bidor, documentsat whichthe woulddiscretion limitof contractthe awardsjury, toshall responsiblebe biddersimprisoned wherein nothe prequalificationpenitentiary procedurefor isnot employedless bythan theone awardingnor authority."more Sectionthan 3.three years.

(i) Any disclosure in advance of the terms of a bid submitted in response to an advertisement for bids shall render the proceedings void and require advertisement and award anew.

(j) The lowest responsible and responsive bidder on a public works project may be determined to be the bidder offering the lowest life cycle costs.

The lowest responsible and responsive bidder shall otherwise meet all of the conditions and specifications contained in the invitation to bid, except that a bidder may still be considered responsive if he or she responds with a bid using different construction Page 18 HB168 Enrolled materials than those specified in the invitation to bid if the materials' use would result in lower life cycle costs for the public works project.

To utilize this provision to determine the lowest responsible and responsive bidder, the awarding authority must include a notice in the invitation to bid that the lowest responsible and responsive bidder may be determined by using life cycle costs, and must also include in the invitation to bid the criteria under which it shall evaluate the life cycle costs." Section 2.

Section 4.3.

Page 3019 HB168 Enrolled ________________________________________________ Speaker of the House of Representatives ________________________________________________ President and Presiding Officer of the Senate House of Representatives I hereby certify that the within Act originated in and was passed by the House 23-May-23, as amended.

John Treadwell Clerk Senate 01-Jun-23 Passed Page 20