May 22, 1998
National Institute of Governmental Purchasing, Southeast Louisiana Chapter
Presented by Glenn R. Ducote
Assistant Attorney General
Louisiana Department of Justice
Richard Ieyoub, Attorney General
The Louisiana Public Bid Law, Louisiana Revised Statutes, Title 38, Chapter 10, Public Contracts; Part II, Letting Contracts; Sections 2211-2261 is applicable to:
This law applies to contracts for public works. (38:2212A(1)(A))
This law applies to" purchases of materials and supplies". (38:2212A(1)(a))
The law becomes applicable when monetary "thresholds" are met for a particular procurement.
for a purchase below $7,500, no procedure is specified by state law.
for a purchase between $7,500 and $15,000, at least three telephone, facsimile or written quotations must be obtained on the same specification and documented in the file.
for a purchase exceeding $15,000, the procurement must be advertised and awarded based on sealed bids which are received timely.
Contracts for materials, supplies, or equipment which will be needed in partial deliveries through the fiscal year must be purchased through a "requirements" contract based on the estimated total value of that commodity which will be purchased during the fiscal year.
Advertising of a bid solicitation is required once a procurement meets the above bid thresholds.
beginning at least 30 days before bids are to be received for projects estimated by your licensed design professional to cost over $500,000;
beginning at least 25 days before bids are to be received for projects estimated by your licensed design professional to cost under $500,000;
Telecommunications and Data Processing equipment, software and related services may be purchased either by public bidding or by means of a Request for Proposals (RFP).
The Public Bid Law gives great emphasis to the requirement that open specifications be used in soliciting bids for purchases or for public works. R.S. 38:2212F9(2) emphatically provides:
Whenever in specifications the name of a certain brand, make, manufacturer, or definite specification is utilized, the specifications shall state clearly that they are used only to denote the quality standard of product desired and that they do not restrict bidders to the specific brand, make, manufacturer, or specification named; that they are used only to set forth and convey to prospective bidders the general style, type, character, and quality of product desired; and that equivalent products will be acceptable. It shall be the responsibility of the professionally employed architect or engineer to determine what is considered an equivalent product on any and all projects in which he has been legally employed to perform his professional services.
To this legislative mandate, our Supreme Court has recently added:
In the area of product specifications, the emphasis in the statutory language and the case law is on the quality of the product or material. Under the Public Bid Law, a public entity is allowed, subject to certain legislatively imposed restrictions, to specify a particular quality of product desired. A public entity may not impose a product specification which suppresses competition by eliminating products of equal quality. AGC v. Calcasieu Parish School Board, 586 So.2d 1354 (La. Sup. Ct. 1991). Emphasis added.
The number of alternates allowed in specifications is limited to three - no matter what these options are called. Alternates, if accepted, must be accepted in the order listed on the bid form, unless going out of order has no effect on determination of the low bidder.
All public works contracts must authorize Change Orders.
Opening of Bids must be done at the time and place indicated in advertisement.
Waiving Informalities. The statute provides: "The provisions and requirements of this Section, those stated in the advertisement for bids, and those required on the bid form shall not be considered as informalities and shall not be waived by any public entity." That does not leave much that can be waived, although a court recently held that "a public entity may waive deviations that are not substantive in nature." Boh Bros. v. DOTD, 1st Cir. 1997) 698 So.2d 675.
This is a bad decision and is likely to lead to additional
limits on discretion by new legislation.
Withdrawal of Bids:
Cancellation of a Solicitation:
Bid Bonds and Performance Bonds:
The surety for either bid or performance bond must be on US Treasury list or be a Louisiana domiciled company with at least an "A-" Best rating. This is to help assure that you have a solvent surety if your contractor fails to perform.
Responsibility and Responsiveness:
Illegal Procurement Practices:
Reprinted by permission of Glenn R. Ducote