Opinion Number ( 1995 )

Dear Mr. Bruneau:

You have requested the opinion of this office on the following issue:

May state agencies, upon opening bids for materials, supplies or public works, refuse to allow immediate public inspection of the bids received and delay inspection until "after 72 hours"?

You have provided this office with a copy of the Division of Administration's standard "Instructions to Bidders" attached to all bid solicitations. Instruction 5, provides:

Bid Opening Bidders may attend the bid opening, but no information or opinions concerning the ultimate contract award will be given at the bid opening or during the evaluation process. Bids may be examined 72 hours after request is made. Information pertaining to completed files may be secured by visiting State Purchasing during normal working hours. Written bid tabulations will not be furnished.

We are familiar with the procedure for public bid opening by the State Purchasing Agency which requires that each bid be publicly opened and read aloud with the name of bidder, the bid amount(s) and any special terms or conditions which are attached by the bidder. From the time of the opening, the bids are considered to be "in active use" while they are tabulated, copied and inspected by purchasing officials for compliance with administrative and technical requirements. Bid bonds, where submitted, must be removed and secured. We are advised that this activity routinely takes two to three days and it is this experience which has given rise to the 72 hour provision in the instructions to bidders, along with the fact that original bids have occasionally been altered or tampered with by those inspecting bids at the opening.

The public opening and reading of the bids provides those interested parties present with the opportunity to verify the bid results without subjecting the bids to tampering or alteration and allows those officials responsible to proceed with the tasks required to process the bids. However, we do recognize that, under the provisions of La. R.S. 44:33B, the bids, even if in active use, must be available for inspection within 72 hours, rather than ". . . 72 hours after the request is made", as stated in the Instructions to Bidders. Also, the purchasing official with the bids in his/her custody must certify to the applicant for the record that it is in active use and "shall fix a day and hour within three days, exclusive of Saturdays, Sundays and legal public holidays, for the exercise of the right. . ." of inspection.

By copy of this opinion we are advising State Purchasing of our advice on this issue with the hope that procedures will be revised to provide compliance with the Public Record Act as well as to protect the integrity of the bid process.

We are advised that the contract for vending machine services at the Metropolitan Development Center was awarded on November 22, 1994 and that no protest was filed to that award. R.S. 39:1671 requires that any protest to the award of a contract based on legal deficiencies in the award process must be filed within fourteen days after contract award. Therefore, the time for protests and the suspension of contract award has long passed and readvertising of the solicitation would be inappropriate.

I trust that this answers your inquiry. Please let us know if we may be of any further assistance to you in this matter.

Yours very truly,

RICHARD P. IEYOUB Attorney General

By: ________________________________ GLENN R. DUCOTE Assistant Attorney General

RPI/GRD/cla

Mr. Emile "Peppi" Bruneau, Jr. State Representative 145 Robert E. Lee Blvd., Suite 206 New Orleans, LA 70124

DATE RECEIVED:

DATE RELEASED:

Glenn R. Ducote Assistant Attorney General