Opinion Number ( 1998 )

Dear Mr. Herbert:

On behalf of the New Orleans Aviation Board (NOAB) you have requested the opinion of this office on the applicability of the Louisiana Public Bid Law, R.S. 38:2211 and following, to a proposed program for the NOAB, with the help of federal funds, to undertake noise insulation of private residences which are within certain airport noise contours. In return for these improvements to these private residences, the homeowner provides an air navigation easement for flight operations. This program may eventually improve several hundred private residences.

The NOAB is a public entity which is subject to the Louisiana Public Bid Law. R.S. 38:2212A(1)(a)(i) provides, in pertinent part:

All public work exceeding the contract limit as defined herein, [presently $100,000] including labor and materials . . . to be paid out of public funds, 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.

R.S. 38:2211A(11) defines public work as:

. . . the erection, construction, alteration, improvement or repair of any public facility or immovable property owned, used or leased by a public entity.

Your request suggests that the improvements to the private residences to be done by the NOAB with public funds should not be subject to the Louisiana Public Bid Law since the property being improved is neither public property nor is it owned, used orleased by a public entity. We disagree.

In exchange for the improvements to be made by NOAB to these private residences, you indicate that the homeowner will grant to the NOAB a navigation easement for flight operations. We interpret this to indicate that the NOAB will be using the property belonging to the private homeowners and that this is one type of use which falls within the definition of public work in the Louisiana Public Bid Law. Further, it is our opinion that Requests for Proposals are inappropriate for the type of work to be undertaken under this project.

Therefore, it is the opinion of this office that noise mitigation measures to be undertaken with public funds in private residences within NOAB's airport noise contours must be advertised and let for bid pursuant to the Louisiana Public Bid Law.

I trust this answers your inquiry. Please advise 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