TITLE 36 LOCAL GOVERNMENT

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ARTICLE 2 CONTRACTING AND BIDDING REQUIREMENTS

36-91-21. Competitive award requirements.

It shall be unlawful to let out any public works construction contracts subject to the requirements of this chapter without complying with the competitive award requirements contained in this Code section. Any contractor who performs any work of the kind in any other manner and who knows that the public works construction contract was let out without complying with the notice and competitive award requirements of this chapter shall not be entitled to receive any payment for such work.
Any competitive sealed bidding process shall comply with the following requirements:
1. The governmental entity shall publicly advertise an invitation for bids;
2. Bidders shall submit sealed bids based on the criteria set forth in such invitation;
3. The governmental entity shall open the bids publicly and evaluate such bids without discussions with the bidders; and
4. The contract shall be awarded to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the invitation for bids; provided, however, that if the bid from the lowest responsible and responsive bidder exceeds the funds budgeted for the public works construction contract, the governmental entity may negotiate with such apparent low bidder to obtain a contract price within the budgeted amount. Such negotiations may include changes in the scope of work and other bid requirements.
1. In making any competitive sealed proposal, a governmental entity shall:
  1. Publicly advertise a request for proposals, which request shall include conceptual program information in the request for proposals describing the requested services in a level of detail appropriate to the project delivery method selected for the project, as well as the relative importance of the evaluation factors;
  2. Open all proposals received at the time and place designated in the request for proposals so as to avoid disclosure of contents to competing offerors during the process of negotiations; and
  3. Make an award to the responsible and responsive offeror whose proposal is determined in writing to be the most advantageous to the governmental entity, taking into consideration the evaluation factors set forth in the request for proposals. The evaluation factors shall be the basis on which the award decision is made. The contract file shall indicate the basis on which the award is made.
2. As set forth in the request for proposals, offerors submitting proposals may be afforded an opportunity for discussion, negotiation, and revision of proposals. Discussions, negotiations, and revisions may be permitted after submission of proposals and prior to award for the purpose of obtaining best and final offers. In accordance with the request for proposals, all responsible offerors found by the governmental entity to have submitted proposals reasonably susceptible of being selected for award shall be given an opportunity to participate in such discussions, negotiations, and revisions. During the process of discussion, negotiation, and revision, the governmental entity shall not disclose the contents of proposals to competing offerors.
Whenever a public works construction contract for any governmental entity subject to the requirements of this chapter is to be let out by competitive sealed bid or proposal, no person, by himself or herself or otherwise, shall prevent or attempt to prevent competition in such bidding or proposals by any means whatever. No person who desires to procure such work for himself or herself or for another shall prevent or endeavor to prevent anyone from making a bid or proposal therefor by any means whatever, nor shall such person so desiring the work cause or induce another to withdraw a bid or proposal for the work.
Before commencing the work, any person who procures such public work by bidding or proposal shall make an oath in writing that he or she has not directly or indirectly violated subsection (d) of this Code section. The oath shall be filed by the officer whose duty it is to make the payment. If the contractor is a partnership, all of the partners and any officer, agent, or other person who may have represented or acted for them in bidding for or procuring the contract shall also make the oath. If the contractor is a corporation, all officers, agents, or other persons who may have acted for or represented the corporation in bidding for or procuring the contract shall make the oath. If such oath is false, the contract shall be void, and all sums paid by the governmental entity on the contract may be recovered by appropriate action.
1. Unless otherwise required by law, no governmental entity that contracts for public works construction shall in its bid documents, specifications, project agreements, or other controlling documents for a public works construction contract:
  1. Require or prohibit bidders, offerors, contractors, subcontractors, or material suppliers to enter into or adhere to prehire agreements, project labor agreements, collective bargaining agreements, or any other agreement with one or more labor organizations on the same or other related construction projects; or
  2. Discriminate against, or treat differently, bidders, offerors, contractors, subcontractors, or material suppliers for becoming or refusing to become or remain signatories or otherwise to adhere to agreements with one or more labor organizations on the same or other related construction projects.
2. Nothing in this subsection shall prohibit bidders, offerors, contractors, subcontractors, or material suppliers from voluntarily entering into agreements described in paragraph (1) of this subsection.
3. The head of a governmental entity may exempt a particular public works construction contract from the requirements of any or all of the provisions of paragraph (1) of this subsection if the governmental entity finds, after public notice and a hearing, that special circumstances require an exemption to avert an imminent threat to public health or safety. A finding of special circumstance under this paragraph shall not be based on the possibility or presence of a labor dispute concerning the use of contractors or subcontractors who are nonsignatories to, or otherwise do not adhere to, agreements with one or more labor organizations or concerning employees on the particular project who are not members of or affiliated with a labor organization.
If any member of a governmental entity lets out any public works construction contract subject to the requirements of this article and receives, takes, or contracts to receive or take, either directly or indirectly, any part of the pay or profit arising out of any such contract, he or she shall be guilty of a misdemeanor.
No public works construction contract with a governing authority shall be valid for any purpose unless the contractor shall comply with all bonding requirements of this chapter. No such contract shall be valid if any governmental entity lets out any public works construction contract subject to the requirements of this chapter without complying with the requirements of this chapter.

(Code 1981, §36-91-21, enacted by Ga. L. 2000, p. 498, § 1; Ga. L. 2001, p. 820, § 12; Ga. L. 2013, p. 628, § 5/SB 179.)

The 2013 amendment, effective May 6, 2013, added subsection (f) and redesignated former subsections (f) and (g) as present subsections (g) and (h), respectively.

Law reviews.

- For survey article on construction law, see 59 Mercer L. Rev. 55 (2007) and 60 Mercer L. Rev. 59 (2008). For survey article on local government law, see 59 Mercer L. Rev. 285 (2007) and 60 Mercer L. Rev. 263 (2008).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 36-82-102 are included in the annotations for this Code section.

Applicability.

- Since the highest bid for a town's construction project was less than $100,000.00, O.C.G.A. § 36-91-21 did not apply; also, while the winning bid was higher than another contractor's bid, the winning bid included more extensive work, consistent with the town's request and need; the awarding of the contract to the contractor's competitor was not improper. Griffin Bros., Inc. v. Town of Alto, 280 Ga. App. 176, 633 S.E.2d 589 (2006).

Mandamus.

- Based on the Georgia legislature's explicitly stated intention in the Georgia Local Government Public Works Construction Law, O.C.G.A. § 36-91-1 et seq., that local laws and ordinances controlled the manner of the city's execution of and entry into contracts, a contractor was not entitled to a writ of mandamus requiring the city to execute a contract in the contractor's favor, as neither the mayor nor the city council exercised their discretionary authority to approve any award that might or might not have resulted from the competitive sealed proposals process. Duty Free Air & Ship Supply Co./Franklin Wilson Airport Concession, Inc. v. City of Atlanta, 282 Ga. 173, 646 S.E.2d 48 (2007).

Liability when payment bond not obtained.

- Former O.C.G.A. § 36-82-102 provided that if a payment bond was not obtained, then the Atlanta Housing Authority should be liable to subcontractors who furnish labor, supplies, materials, or equipment to the contractor for any loss resulting to the subcontractor. B & B Elec. Supply Co. v. H.J. Russell Constr. Co., 166 Ga. App. 499, 304 S.E.2d 544 (1983) (decided under former O.C.G.A. § 36-82-102).

School board acted within the board's authority in furthering intent of § 36-91-21. - Trial court properly relied solely on the court's determination that an unsuccessful bidding contractor would unlikely prevail on the merits of the contractor's suit in denying the contractor's petition for an interlocutory injunction and vacation of the court's temporary restraining order as: (1) a school board acted within the board's powers in accepting, albeit late, the lowest bidder's list of subcontractors; and (2) the board was authorized to find that the bid provision requiring that a list of subcontractors be provided with a bid was immaterial and could be waived. R. D. Brown Contrs., Inc. v. Bd. of Educ. of Columbia County, 280 Ga. 210, 626 S.E.2d 471 (2006).

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting of offenders not required.

- Violation of O.C.G.A. § 36-91-21(f) (see now (g)) is not an offense designated as one that requires fingerprinting. 2000 Op. Att'y Gen. No. 2000-11.

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