Understanding Public Procurement Laws & Procedures
Public procurement involves the purchasing of various items by entities like school districts, which are subject to specific laws and regulations. It is essential to classify purchases to apply the appropriate legal framework. The process includes different classifications such as Materials & Supplies, Services, and Public Works contracts, with defined rules for bidding and contract limits. Uniform bid forms and electronic bidding options streamline the procurement process, ensuring transparency and compliance with regulations.
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PUBLIC PROCUREMENT SUMMARY PUBLIC PROCUREMENT SUMMARY By: Charles F. Hardie VI, J.D.
Different purchases are subject to different laws. School Districts purchase a wide variety of items. Classification of Purchases Only then can you determine what laws apply to the particular purchase. First step is to classify the type of purchase
Public Works General Classifications Materials & Supplies Services
Found at La. R.S. 38:2211 et seq. (A/K/A Public Bid Law) What is a Public Work? Public Works Contracts Public work means the erection, construction, alteration, improvement, or repair of any public facility or immovable property owned, used, or leased by a public entity. Routine maintenance is not considered a public work. La. Atty. Gen. Op. No. 16-0082
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 and responsive bidder who bid according to the bidding documents as advertised, and no such public work shall be done except as provided in this Part. Public Works General Rule Current Contract Limit: $250,000 (through February 1, 2025) Check your policies! Check your policies!
Requires use of a Uniform Bid Form Provisions to Note Public Works Requires written evidence of authority of person submitting bid to be contained with bid (See, Dynamic Constructors, L.L.C. v. Plaquemines Parish Government, 173 So.3d 1239) The advertisement required by this Section for any contract for public works shall be published once a week for three different weeks in a newspaper in the locality, and the first advertisement shall appear at least twenty-five days before the opening of bids
Public entities shall provide, as an additional bidding option, a uniform and secure electronic interactive system for the submittal of bids for public works requiring competitive bidding. Provisions to Note Public Works When a design professional or public entity mandates attendance by prospective bidders at pre-bid conferences as a prerequisite to bid on a public works project, the date, place, and time of the pre-bid conference shall be stated in each advertisement notice. Must attend the entire conference. attend the entire conference. Must
If other documentation is required as part of the bid documents, the apparent low bidder has a minimum of ten days to submit the documents. Provisions to Note Public Works If apparent low bidder fails to submit the other documentation, the bid is declared non-responsive and the next lowest bidder is provided ten days to submit their documentation. After bids are opened, bids can only be rejected for responsiveness, responsibility, or just cause. Can be performed by own employees only when the project is estimated to cost less than the bid threshold (La. Atty. Gen. Op. No. 04-0079)
Documents that Must be Included with Bid Completed Bid Form Addenda Acknowledged Base Bid and any alternates Name, Address, Title and signature of Bidder License Number Bid Security Written Evidence of Signature Authority Any additional requirements, unless required by State or federal law, are void and are not to be considered in the award (La. R.S. 38:2212(B)(2)
Services No standard definition for services . While public entities are subject to Louisiana's Public Bid Law when making certain purchases of materials or supplies, Louisiana courts have held that contracts for services are not subject to the requirements of Louisiana's Public Bid Law the requirements of Louisiana's Public Bid Law. La. Atty. Gen. 14-0142. contracts for services are not subject to Numerous Attorney General Opinions have expressed the same conclusion in response to inquiries on a wide variety of service contracts. See generally Attorney General Opinion Nos. 00-246, 07-0278, 09-0252. La. Atty. Gen. 14-0142.
Materials and Supplies No standard definition for what is considered to be a material or supply. Automobiles, pencils, fuel, office furniture, sports equipment, computers, food items. Majority of purchases will be considered a material or supply.
Public Bid (Default) Request for Proposals ( RFP ) Purchasing Mechanisms for Materials & Supplies Piggybacking State Contract Group Purchasing Organization
NEW THRESHOLDS NEW THRESHOLDS A. (1)(a) All purchases of any materials or supplies exceeding the sum of sixty 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. La. R.S. 38:2212.1
However, purchases of thirty thousand dollars or more, but less than sixty thousand dollars, shall be made by obtaining not less than three quotes by telephone, facsimile email, or any other printable electronic form. If telephone quotes are received, a written confirmation of the accepted offers 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. La. R.S. 38:2212.1 Act No. 465 of the 2018 Regular Session added email and other printable electronic forms .
The advertisement required by this Section for any contract for materials or supplies shall be published two times in a newspaper in the locality, the first advertisement to appear at least fifteen days before the opening of the bids. In addition to the newspaper advertisement, a public entity may also publish an advertisement by electronic media available to the general public. La. R.S. 38:2212.1 The first publication of the advertisement shall not occur on a Saturday, Sunday, or legal holiday. Plans and specifications shall be available to bidders on the day of the first advertisement and shall be available until twenty-four hours before the bid opening date.
Any proposal shall include no more than three alternates. An alternate bid by any name is still an alternate. Alternates, if accepted, shall be accepted in the order in which they are listed on the bid form. Determination of the low bidder shall be on the basis of the sum of the base bid and any alternates accepted. La. R.S. 38:2212.1 However, the public entity may accept alternates in any order which does not affect determination of the low bidder.
Must allow for electronic bids Bid Public entities shall have the option to require that all bids be submitted electronically for any competitive bid let out for public bid. Submittal Applies to public works and materials & supplies
The opening of bids shall be governed by the provisions of R.S. 38:2214. The public entity desiring to let a public contract shall, in the advertisement for bids, designate the time and place that the bids will be received and shall at that time and place publicly open the bids and read them aloud; however, no public entity shall accept or take any bids, including receiving any hand-delivered bids, on days which are recognized as holidays by the United States Postal Service. La. R.S. 38:2212.1: Bid Opening
Bids can be rejected for just cause. Bids can be withdrawn within 48 hours if the bidder submits clear and convincing, sworn written evidence of a mechanical, clerical, mathematical error, or omission of a substantial quantity of work. Bid Opening If withdrawn, a bidder cannot submit a bid if there is a re-bid. Nor can he/she be a subcontractor to the successful bidder. Applies to public works and materials & supplies
The public entity purchasing the materials or supplies may require a written contract or bond. When any bid is accepted for the purchase of materials or supplies, the public entity purchasing the materials or supplies may require that a written contract be entered into between the successful bidder and the public entity and further, the public entity may require that the successful bidder shall furnish good and solvent bond in an amount not less than one-half of the amount of the contract, for the faithful performance of his duties. Any such requirements shall be incorporated in the specifications and advertisement. La. R.S. 38:2212.1: After Bid Opening
Political Subdivisions Telecommunications and Data Processing Procurement Law . (La. R.S. 38:2234-2237) Alternate Procurement Method For Technological Equipment Law provides an alternate purchasing procedure for the purchase of telecommunications or data processing systems, including equipment, and related services. Telecommunications and data processing equipment would ordinarily be considered materials and supplies and subject to bid under 38:2212.1.
What are Telecommunications Systems and Equipment? (1) Telecommunications equipment, systems, related services are limited to the equipment and means to provide: (a) Electronic transmission facilities. (b) Data transmission systems. (c) Voice transmission systems. (d) Telephone systems. (e) Facsimile systems. (f) Radio paging services. (g) Mobile telephone services. (h) Intercom and electro-mechanical paging systems. (i) Any and all systems based on emerging and future telecommunication technologies relative to (a) through (h) above.
B. For the purposes of this Part, relative to data processing, the following words and phrases shall be defined as follows: (1) Data means recorded information, regardless of form or characteristic. (2) Procurement means and includes the selling, buying, purchasing, renting, leasing, or otherwise obtaining of data processing equipment, related services, or software or software, as well as all activities engaged in, resulting in, or expected to result in the selling, buying, purchasing, renting, leasing, or otherwise obtaining of data processing equipment, related services, or software by political subdivisions. Data Processing Services and Equipment (3) Related services means and is limited to service activities affecting the maintenance of data processing equipment or software. or software. (4) Software means computer programs and documentation essential to and necessary for a computer to perform productive operations.
A political subdivision may lease, rent, or purchase telecommunications or data processing systems, including equipment, and related services, through a request for proposals which shall conform to the following requirements: (1) Specifications for the telecommunications or data processing systems equipment and related services shall be prepared in advance and shall designate the specific class or classes of equipment desired and may include all features associated with such class or classes of equipment. The specifications may also include requirements for the maintenance of the equipment if desired. Political Subdivisions Telecommunications and Data Processing Procurement Law Additional requirements for lease/purchase.
Public notice of the request for proposals shall be given at least thirty days prior to the date scheduled for opening the request for proposals. In addition, written notice of the request for proposals shall be mailed to persons, firms, or corporations who are known to be in a position to furnish such equipment, systems, and related services. Telecommunications Act Advertising This public notice may also be given by electronic media available to the general public.
The RFP must: (1) indicate the relative importance of price and other evaluation factors, (2) shall clearly define the tasks to be performed under the contract, (3) the functional specifications, (4) the criteria to be used in evaluating the proposals and (5) the time frames within which the work must be completed. An award shall be made to the responsible offeror whose proposal is determined in writing by the governing authority of the political subdivision to be the most advantageous, taking into consideration price and other evaluation factors set forth in the request for proposals. Telecommunications Act RFP Requirements No other basis of evaluation shall be used except those set out in the request for proposals.
The governing authority of the political subdivision may reject all proposals when it is deemed that such action is in the best interest of such political subdivision. Telecommunications Act: After Evaluation of the RFP Where written proposals are submitted by vendors, the proposals of the successful vendor shall be incorporated into the final contract consummated with that vendor.
La. R.S. 2237.1 and R.S. 39:1753.1 prohibit the purchase of telecommunications or video surveillance equipment as described in Section 889(a) of the Fiscal Year 2019 National Defense Authorization Act Prohibited Equipment Requires vendor to supply an affidavit of compliance with the Act Listed equipment is that manufactured by certain Chinese companies (Huwei, ZTE, and affiliated companies) Law is specific to the 2019 National Defense Authorization Act so it may still apply despite any changes by current Administration
Piggybacking There are now TWO Piggybacking: TWOMethods of Louisiana Local Services Law (Title 33) La. R.S. 38:321.1
Louisiana Local Services Law, provides authority for purchases made jointly with other political subdivisions or purchases made under a viable contract previously entered into by another Louisiana local political subdivision (La. Attorney General Opinion No. 12-0165). Piggybacking (Local Services Law)
Verify that the contract was bid in compliance with state law. Compliance Viable Verify that the contract is still active, fresh or viable. Piggyback Requirements (Title 33) Obtain written consent or approval from the other public entity who bid the contract and obtain confirmation as to the contract number and, if necessary, the council resolution accepting the contract/bid. Obtain Consent Confirm that the vendor and the product, services, materials, supplies or equipment are the same and that the price is same or lower. Confirm Price
Act 510 of 2016 as interpreted by La. A.G. Op. No. 17-0152. Piggybacking is authorized under La. R.S. 38:321.1 if: 1. Purchase made within one year of original contract being bid. 2. Original Contract was bid in accordance with PBL 3. Purchases on the contract do not exceed two times what was purchased by original bidder 4. Written consent of the political subdivision which bid the contract is obtained, as well as the contract number, and if applicable, the resolution accepting the contract. Piggybacking (R.S. 38:321.1) 5. The vendor agrees to the additional purchase. 6. The vendor, product, materials, supplies, vehicles, or equipment are identical to those specified in the existing public contract of the other political subdivision, and the price is the same as the original contract price.
The Attorney General has opined that political subdivisions may purchase materials and supplies off of existing state contracts. If the Louisiana Office of State Purchasing has a contract with a supplier for the particular product, then the School Board can purchase the product via the State contract. State Contract Be aware of conditions contained in the State contract. May purchase from a local vendor at State contract price (can add costs of shipping, preparation, & delivery not to exceed 7% on purchases up to $10,000 or 5% on purchases greater than $10,000)
Purchases from Other Governmental Entities Surplus materials and supplies can be purchased from another public entity or United States government (La. R.S. 38:2212.1(D) Federal General Services Administration Lists, provided they are not higher on State contract and the public entity utilizes Louisiana licensed dealer or distributor
Enacted during 2016 Legislative Session, amended in 2018, fixed in 2019 Session Found in La. R.S. 38:2212.1(N) As used in this Subsection, qualified group purchasing organization means an organization, whether for profit or not for profit, of which two or more public school districts are members and which solicits proposals or bids from vendors of materials, equipment, or supplies of the type and nature as may be purchased by a public school district or public school. Group Purchasing Organization
GPO Authorization Notwithstanding any provision of this Part to the contrary, any public school district or public school may enter into an agreement with one or more qualified group purchasing organizations for the purchase of materials, equipment, and supplies, including any installation thereof.
Any such agreement shall require that the qualified group purchasing organization submit a price list for materials, equipment and supplies offered by it and that the prices quoted on the list remain in effect for a stated period of time of not less than three months. Group Purchasing Organization Requirements Any such price list shall be considered, for all purposes, to be a valid and binding bid by the qualified group purchasing organization during the effective period of the agreement, and no additional bid by the qualified group purchasing organization is necessary.
Price lists submitted by a qualified group purchasing organization are not public record and shall not be available for public inspection. Group Purchasing Organization Requirements The agreement setting forth the existence of the price list and the effective date thereof is, however, a public record, and that portion of the price list setting forth the price of the materials, equipment, or supplies being purchased shall become a public record at the time of opening of bids or upon the execution of a contract for the purchase of material, equipment, supplies.
A school board may purchase materials, equipment or supplies directly from or through a qualified group purchasing organization if (1) the price is less than that for the same or substantially similar materials, equipment, or supplies on the state contract or bid list or (2) substantially similar materials, equipment or supplies are not on State contract. Limit on GPO Authorization La. R.S. 38:2212.1(N)(4)
When using federal funds, competition competitionis required. State contracts, Piggybacking, or GPO purchases may cause issues. Use of Federal Funds Services are Services are required to be required to be competitively competitively procured procured as well if they meet the federal thresholds. Strictest requirements govern.
Provisions for contract remedies in event of default/breach Termination for Cause and Convenience Contract Requirements for FEMA Equal Opportunity Clause Copeland Anti-Kickback Act Notice of Awarding Agency Requirements and Regulations Pertaining to Reporting Contract Work Hours and Safety Standards Act
Retention of Records (3 years from closeout) Clean Air and Clean Water Act Contract Requirements for FEMA Energy Efficiency Suspension and Debarment Davis Bacon is not applicable Davis Bacon is not applicable
ESSER Funds Davis Bacon is applicable to any construction projects using ESSER funds if the cost is $2,000
2022 & 2023 Legislative Acts of Interest
Revised and re-organized contractor licensing laws Joint Ventures are now required to possess a license Act 195 (2022) Applies to the entire bidding process Changes LA jurisprudence where a license was required only if a separate juridical entity was formed
Changed thresholds for materials and supplies Formal bidding required for purchases exceeding $60,000 Informal quotes required between $30,000-$60,000 Act 204 (2022)
Amends La. R.S. 38:2295 regarding approval of substitutions Supplier/Contractor may, but not required to, submit a substitute product for approval no later than seven (7) working days prior to bid Act 424 (2022) Response by designer required within three (3), exclusive of holidays and weekends If no response given, substitute approved Already revised by 2023 Act 113
Revises La. R.S. 38:2248(B) regarding punch list process Requires punch list be furnished to contractor within ten (10) days of substantial completion Act 756 (2022) Permits punch list to be supplemented/amended by the designer or public entity within fourteen (14) days of provision of list to contractor
Adds definition of working days to R.S. 38:2211, to include Monday through Friday, and excludes recognized holidays and declared emergencies Act 774 (2022) Revises R.S. 38:2212(B) and specifically forbids a public entity from requiring a bidder to submit any document other than the bid form, unit price form, bid security, and written evidence of signature authority with the bid package
Amends La. R.S. 38:2295 regarding approval of substitutions Supplier/Contractor may, but not required to, submit a substitute product for approval no later than fourteen (14) working days prior to bid Act 113 (2023) Response by designer required within ten (10) days, exclusive of holidays and weekends If no response given, substitute no longer automatically approved, but bid date must be extended 7-21 working days
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