Opinion Number ( 2010 )

Dear Mr. Lundin:

Your request for an Attorney General's Opinion has been assigned to me for research and reply. On behalf of the Plaquemines Parish Government ("Plaquemines"), you have asked for our opinion as to whether Plaquemines would be exempt from the provisions of Act 590 of the 2008 Regular Session ("Act 590").

Act 590 provides, in pertinent part, the following:

AN ACT To amend and reenact R.S. 38:2212(A)(1)(f) and 2212.1(B)(4), relative to public contracts; to provide the option for contractors to electronically submit bids for public contracts; to provide for the receipt of electronic bids by political subdivisions; and to provide for related matters. * * * This office has previously recognized that Act 590 significantly changes Louisiana's Public Bid Law, La.Rev.Stat. 38:2211, et. seq. See Attorney General Opinion No. 08-0222. Act 590 requires political subdivisions, with high speed internet access, to provide contractors the option of submitting bids for public contracts through an electronic interactive system. This requirement extends to competitively bid public contracts for public works projects and the purchase of materials and supplies.

Specifically, Act 590 amended and reenacted La.Rev.Stat. 38:2212 to read, in pertinent part, as follows:

§ 2212. Advertisement and letting to lowest responsible bidder; public work; electronic bidding; participation in mentor-protégé program

A. (1) (a) All public work exceeding the contract limit as defined in this Section, including labor and materials, to be done by a public entity shall be advertised and let by contract to the lowest responsible bidder who had bid according to the contract, plans, and specifications as advertised, and no such public work shall be done except as provided in this Part.

* * * (f)(i) Contractors shall be provided the option to submit bids for public contracts through a uniform and secure electronic interactive system. Political subdivisions shall follow the standards for the receipt of electronic bids adopted by the office of the governor, division of administration, and the office of information technology as provided for in LAC 4:XV.701, and shall make the appropriate provisions necessary for the acceptance of electronic bids for all purchases requiring competitive bidding as required by this Section. Any special condition or requirement for the submission shall be specified in the advertisement for bids required by this Section. If bids are to be accepted electronically, the advertisement required in this Section shall contain the electronic address of the public entity and shall establish the specific times for public access to the electronic interactive environment for purposes of submission of bids.

(ii) Public entities that are currently without available high speed Internet access will be exempt from this requirement until such time that high speed Internet access becomes available.

(iii) Any parish with a police jury form of government and a population of less than fifty thousand shall be exempt from the provisions of this Subparagraph.

(iv) Any city or municipality with a population of less than twenty-five thousand shall be exempt from the provisions of this Subparagraph.

* * * Act 590 also amended and reenacted La.Rev.Stat. 38: 2212.1 to read, in pertinent part, as follows:

§ 2212.1. Advertisement and letting to lowest responsible bidder; materials and supplies

A.(1)(a) All purchases of any materials or supplies exceeding the sum of twenty thousand dollars to be paid out of public funds shall be advertised and let by contract to the lowest responsible bidder who has bid according to the specifications as advertised, and no such purchase shall be made except as provided in this Part.

* * * B. * * * (4)(a)Contractors shall be provided the option to submit bids for public contracts through a uniform and secure electronic interactive system. Political subdivisions shall follow the standards for the receipt of electronic bids adopted by the office of the governor, division of administration, and the office of information technology as provided for in LAC 4:XV.701, and shall make the appropriate provisions necessary for the acceptance of electronic bids for all purchases requiring competitive bidding as required by this Section. Any special condition or requirement for the submission shall be specified in the advertisement for bids required by this Section.

(b) Public entities that are currently without available high speed Internet access will be exempt from this requirement until such time that high speed Internet access becomes available.

(c) Any parish with a police jury form of government and a population of less than fifty thousand shall be exempt from the provisions of this subparagraph.

(d) Any city or municipality with a population of less than twenty-five thousand shall be exempt from the provisions of this Subparagraph.

* * * According to your opinion request, Plaquemines operates under a Home Rule Charter and Plaquemines Parish presently has a population of less than 25,000. Considering these facts, you ask whether Plaquemines must comply with the provisions of Act 590.

Our reading of Act 590 reveals only three (3) possible exemptions to its general provisions:

(1) Public entities that are currently without available high speed Internet access are exempt until such time that high speed Internet access becomes available.

(2) Any parish with a police jury form of government and a population of less than 50,000 is exempt.

(3) Any city or municipality with a population of less than 25,000 is exempt.

Accordingly, a public entity that fails to meet the conditions of any of these three (3) exemptions must comply with the general provisions of Act 590.

Based on the plain language of Act 590 and the information available to our office, it is our opinion that Plaquemines does not meet the conditions of any of the available three (3) exemptions. Plaquemines is not a public entity without available high speed internet access. It is not a parish with a police jury form of government with a population of less than 50,000, nor is it a city or municipality with a population of less than 25,000. As such, we believe Plaquemines is required to comply with the provisions of Act 590.¹

We trust this adequately responds to your request. If you should have any questions about the response contained herein, please feel free to contact our office.

Yours very truly,

JAMES D. "BUDDY" CALDWELL ATTORNEY GENERAL

BY: __________________________ MICHAEL J. VALLAN Assistant Attorney General

JDC/MJV/crt

¹ Our conclusion is guided by the established rules of statutory interpretation, which holds that when a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written. See Pumphrey v. City ofNew Orleans, 05-979, p. 10-12 (La.4/4/06),925 So.2d 1202, 1209-10.