07 LC 28
3385
Senate
Bill 146
By:
Senators Seabaugh of the 28th, Shafer of the 48th, Stoner of the 6th, Pearson of
the 51st, Williams of the 19th and others
AS
PASSED SENATE
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 91 of Title 36 of the Official Code of Georgia Annotated, relating
to public works bidding, so as to provide definitions; to provide for the
advertisement of contract opportunities; to provide for the specifications of
such notices and advertisements; to provide for related matters; to repeal
conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
91 of Title 36 of the Official Code of Georgia Annotated, relating to public
works bidding, is amended by revising Code Section 36-91-2, relating to
definitions, as follows:
"36-91-2.
As
used in this chapter, the term:
(1)
'Alternate bids' means the amount stated in the bid or proposal to be added to
or deducted from the amount of the base bid or base proposal if the
corresponding change in project scope or alternate materials or methods of
construction is accepted.
(2)
'Base bid' or 'base proposal' means the amount of money stated in the bid or
proposal as the sum for which the bidder or proposer offers to perform the
work.
(1)(3)
'Bid bond' means a bond with good and sufficient surety or sureties for the
faithful acceptance of the contract payable to, in favor of, and for the
protection of the governmental entity for which the contract is to be
awarded.
(2)(4)
'Change order' means an alteration, addition, or deduction from the original
scope of work as defined by the contract documents to address changes or
unforeseen conditions necessary for project completion.
(3)(5)
'Competitive sealed bidding' means a method of soliciting public works
construction contracts whereby the award is based upon the lowest responsive,
responsible bid in conformance with the provisions of subsection (b) of Code
Section 36-91-21.
(4)(6)
'Competitive sealed proposals' means a method of soliciting public works
contracts whereby the award is based upon criteria identified in a request for
proposals in conformance with the provisions of subsection (c) of Code Section
36-91-21.
(5)(7)
'Emergency' means any situation resulting in imminent danger to the public
health or safety or the loss of an essential governmental service.
(6)(8)
'Governing authority' means the official or group of officials responsible for
governance of a governmental entity.
(7)(9)
'Governmental entity' means a county, municipal corporation, consolidated
government, authority, board of education, or other public board, body, or
commission but shall not include any authority, board, department, or commission
of the state, or a public transportation agency as defined by Chapter 9 of Title
32.
(8)(10)
'Payment bond' means a bond with good and sufficient surety or sureties payable
to the governmental entity for which the work is to be done and intended for the
use and protection of all subcontractors and all persons supplying labor,
materials, machinery, and equipment in the prosecution of the work provided for
in the public works construction contract.
(9)(11)
'Performance bond' means a bond with good and sufficient surety or sureties for
the faithful performance of the contract and to indemnify the governmental
entity for any damages occasioned by a failure to perform the same within the
prescribed time. Such bond shall be payable to, in favor of, and for the
protection of the governmental entity for which the work is to be
done.
(10)(12)
'Public works construction' means the building, altering, repairing, improving,
or demolishing of any public structure or building or other public improvements
of any kind to any public real property other than those projects covered by
Chapter 4 of Title 32. Such term does not include the routine operation,
repair, or maintenance of existing structures, buildings, or real
property.
(11)(13)
'Responsible bidder' or 'responsible offeror' means a person or entity that has
the capability in all respects to perform fully and reliably the contract
requirements.
(12)(14)
'Responsive bidder' or 'responsive offeror' means a person or entity that has
submitted a bid or proposal that conforms in all material respects to the
requirements set forth in the invitation for bids or request for
proposals.
(13)(15)
'Scope of project' means the work required by the original contract documents
and any subsequent change orders required or appropriate to accomplish the
intent of the project as described in the bid documents.
(14)(16)
'Scope of work' means the work that is required by the contract
documents.
(15)(17)
'Sole source' means those procurements made pursuant to a written determination
by a governing authority that there is only one source for the required supply,
service, or construction item."
SECTION
2.
Said
chapter is further amended by revising Code Section 36-91-20, relating to
written contract required, as follows:
"36-91-20.
(a)
All public works construction contracts subject to this chapter entered into by
a governmental entity with private persons or entities shall be in writing and
on file and available for public inspection at a place designated by such
governmental entity. Municipalities and consolidated governments shall execute
and enter into contracts in the manner provided in applicable local legislation
or by ordinance.
(b)(1)
Prior to entering into a public works construction contract other than those
exempted by Code Section 36-91-22, a governmental entity shall publicly
advertise the contract opportunity. Such notice shall be posted conspicuously
in the governing authority´s office and shall be advertised in the legal
organ of the county or by electronic means on an Internet website of the
governmental entity or an Internet website identified by the governmental entity
which may
include the Georgia Procurement Registry as provided by Code Section
50-5-69.
(2)
Contract opportunities
that are
advertised in the legal organ shall be
advertised a minimum of two times, with the first advertisement occurring at
least four weeks prior to the opening of the sealed bids or proposals. The
second advertisement shall follow no earlier than two weeks from the first
advertisement.
(3)
Contract opportunities that are advertised solely on the Internet shall be
posted continuously for at least four weeks prior to the opening of sealed bids
or proposals. Inadvertent or unintentional loss of Internet service during the
advertisement period shall not require the contract award or bid or proposal
opening to be delayed.
(4)
Contract opportunities that will be awarded by competitive sealed bids shall
have
Plans
plans
and specifications
shall
be available on the first day of the
advertisement and shall be open to inspection by the public.
The plans and
specifications shall indicate if the project will be awarded by base bid or base
bid plus alternates and:
(A)
A statement listing whether all anticipated federal, state, or local permits
required for the project have been obtained or an indication of the status of
the application for each such permit including when it is expected to be
obtained; and
(B)
A statement listing whether all anticipated rights of way and easements required
for the project have been obtained or an indication of the status as to when
each such rights of way or easements are expected to be obtained.
(5)
Contract opportunities that will be awarded by competitive sealed proposals
shall be publicly advertised with a request for proposals which request shall
include conceptual program information in the request for proposals describing
the requested services in a level of detail appropriate to the project delivery
method selected for the project.
(6)
The advertisement shall include such details and specifications as will enable
the public to know the extent and character of the work to be done.
(7)
All required notices of advertisement shall also advise of any mandatory
prequalification requirements or pre-bid conferences as well as any federal
requirements pursuant to subsection (d) of Code Section 36-91-22.
Any
advertisement which provides notice of a mandatory pre-bid conference or
prequalification shall provide reasonable advance notice of said conference or
for the submittal of such prequalification information.
(c)
Governmental entities are authorized to utilize any construction delivery
method, provided that all public works construction contracts subject to the
requirements of this chapter that:
(1)
Place the bidder or offeror at risk for construction; and
(2)
Require labor or building materials in the execution of the
contract
shall
be awarded on the basis of competitive sealed bidding or competitive sealed
proposals. Governmental entities shall have the authority to reject
any
and all bids or proposals
or any bid or
proposal that is nonresponsive and to
waive technicalities and informalities.
(d)
No governmental entity shall issue or cause to be issued any addenda modifying
plans and specifications within a period of 72 hours prior to the advertised
time for the opening bids or proposals, excluding Saturdays, Sundays, and legal
holidays. However, if the necessity arises to issue an addendum modifying plans
and specifications within the 72 hour period prior to the advertised time for
the opening of bids or proposals, excluding Saturdays, Sundays, and legal
holidays, then the opening of bids or proposals shall be extended at least 72
hours, excluding Saturdays, Sundays, and legal holidays, from the date of the
original bid or proposal opening without need to readvertise as required by
subsection (b) of this Code section.
(e)
Bid and contract documents may contain provisions authorizing the issuance of
change orders, without the necessity of additional requests for bids or
proposals, within the scope of the project when appropriate or necessary in the
performance of the contract. Change orders may not be used to evade the
purposes of this article.
(f)
Any governmental entity may, in its discretion, adopt a process for mandatory
prequalification of prospective bidders or offerors; provided, however,
that:
(1)
Criteria for prequalification must be reasonably related to the project or the
quality of work;
(2)
Criteria for prequalification must be available to any prospective bidder or
offeror requesting such information
for each
project that requires
prequalification;
(3)
Any prequalification process must include a method of notifying prospective
bidders or offerors of the criteria for
or limitations
to prequalification; and
(4)
Any prequalification process must include a procedure for a disqualified bidder
to respond to his or her disqualification to a representative of the
governmental entity; provided, however, that such procedure shall not be
construed to require the governmental entity to provide a formal appeals
procedure. A
prequalified bidder or offeror can not be later disqualified without
cause."
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.