Opinion Number

Dear Rep. White:

Your request for an Attorney General's Opinion has been assigned to me for research and reply. Your request indicates that you were the author of House Bill 610, which eventually became Act 590 of the 2008 Regular Legislative Session (Act 590). You indicate that you intended the new law to permit internet responses for all contracts requiring competitive bidding. You seek a formal opinion from our office as to whether the provisions of Act 590 apply to La.Rev.Stat. 38:2212.1 (A)(1)(b).

La.Rev.Stat. 38:2212.1 (A)(1) provides, in pertinent part, the following:

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) However, purchases of ten thousand dollars or more, but less than twenty thousand dollars, shall be made by obtaining not less than three telephone or facsimile quotations. A written confirmation of the accepted offer shall be obtained and made a part of the purchase file. If quotations lower than the accepted quotation are received, the reasons for their rejection shall be recorded in the purchase file.

* * * Act 590 of the 2008 Regular Legislative Session amended and reenacted La.Rev.Stat. 38:2212.1 to provide, in pertinent part, the following:

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

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B.

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(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.

* * * Our reading of Act 590 reveals an obligation on the part of political subdivisions with high speed internet access to provide contractors with the option to submit bids for public contracts through an electronic interactive system. Act 590 further requires such political subdivisions to make the appropriate provisions necessary for the acceptance of electronic bids for all purchases requiring competitive bidding.

Louisiana Administrative Code Title 4, Part XV, Chapter 7, referenced in Act 590, outlines the general provisions regarding the submitting and receiving of electronic bids for public works contracts and for the purchase of materials and supplies. Section 701 provides that "[e]lectronic bid is to be an alternative, rather than exclusive, method to a paper bid" and further references the advertising and notice requirements applicable to paper bids. Also, throughout Section 701 reference is made to "bids" and not "quotes".

It has been the opinion of this office that under Louisiana's Public Bid Law, purchases of materials and supplies of ten thousand dollars or more, but less than twenty thousand dollars are not subject to a formal competitive bidding process. Such purchases may be accomplished without advertising and by obtaining no less than three telephone or fax quotes, all pursuant to statute. We believe this informal, expedited process allows political subdivisions to make purchases quickly and efficiently.

As such, it is the opinion of this office that the requirements of Act590 of the 2008 Regular Legislative Session are not applicable to the purchase of materials and supplies of ten thousand dollars or more, but less than twenty thousand dollars. Act 590 specifically refers to purchases via the formal competitive bidding process. Further, the administrative rules governing the submittal and acceptance of electronic bids references the advertising and notice requirements applicable to the formal competitive bidding process. We believe the electronic bidding provisions of Act 590 and Louisiana Administrative Code Title 4, Part XV, Chapter 7 are inconsistent with the informal, expedited procurement process outlined in La.Rev.Stat. 38:2212.1 (A)(1)(b) and therefore are not applicable.

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

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