Opinion Number ( 1998 )

Dear Mr. LaRocca:

On behalf of Hospital Service District No. 2 of St. Mary Parish you have requested the opinion of this office on the following issue:

Is waterproofing of an existing structure by a private contractor, where the materials to be used in the project will be purchased separately under public bid, considered to be a public work which must be bid, or, is it merely "maintenance of public works built and completed," which is exempt from bid requirements?

So long as the waterproofing contract does not include materials and supplies which will be required for the completion of the project you describe, the contract for waterproofing service or work need not be bid. This would be true under either of two analyses of the language of the Public Bid Law. La. R.S. 38:2211 and following.

As you have pointed out in your opinion request, R.S. 38:2212I states, "This Section shall not apply to labor necessary for themaintenance of public works built and completed." Webster's 3rdNew International Dictionary, Unabridged, defines "maintenance" as, "the labor of keeping something (as building or equipment)in a state of repair or efficiency". Waterproofing is the epitome of maintenance and therefore clearly falls within the above referenced exception to the bidding requirement.

Also, since the proposed contract would apply only to labor and not include materials and supplies, the contract could be classified as one for "services" rather than "public works" and thereby fall within the exception to the bidding requirements which has been recognized in Lafourche Parish Water DistrictNo. 1 v. Carl Heck Engineers, 346 So.2d 769 (La.App. 1st Cir., 1977) and Wallace Stevens, Inc. v. Lafourche Hospital,323 So.2d 794 (La. 1975).

I trust this answers your inquiry. Please feel free to contact us if we may be of any further assistance to your in this matter.

Yours very truly,

RICHARD P. IEYOUB ATTORNEY GENERAL

By: GLENN R. DUCOTE Assistant Attorney General

RPI/GRD/cla

Date Received:

Date Released: