| HB 1079 - Public works construction contracts; amend provisions |
First Reader Summary
A BILL to amend Title 36 of the Official Code of Georgia
Annotated, relating to the governments, so as to define certain
terms; to provide that all public works construction contracts
entered into by a governmental agency shall be in writing and
entered into minutes; and for other purposes.
| House |
Action |
Senate |
| 3/24/99 |
Read 1st Time |
2/23/00 |
| 1/10/00 |
Read 2nd Time |
3/13/00 |
| 2/14/00 |
Favorably Reported |
3/9/00 |
| Sub |
Committee Amend/Sub |
Sub |
| 2/22/00 |
Read 3rd Time |
3/20/00 |
| 2/22/00 |
Passed/Adopted |
3/20/00 |
| CS |
Comm/Floor Amend/Sub |
CS |
| 3/22/00 |
Amend/Sub Agreed To |
|
| 4/3/00 |
Sent to Governor |
|
| 4/20/00 |
Signed by Governor |
|
| 663 |
Act/Veto Number |
|
| 4/20/00 |
Effective Date |
|
HB 1079 HB 1079/AP
H. B. No. 1079 (AS PASSED HOUSE AND SENATE)
By: Representative Shanahan of the 10th
A BILL TO BE ENTITLED
AN ACT
1- 1 To amend Title 36 of the Official Code of Georgia Annotated,
1- 2 relating to local government, so as to define certain terms;
1- 3 to provide that all public works construction contracts
1- 4 entered into by a governmental entity shall be in writing
1- 5 and available for public inspection; to provide for the
1- 6 letting of public works construction contracts by
1- 7 competitive bid or competitive proposal; to provide for
1- 8 notice; to provide for addenda; to provide for
1- 9 prequalification of prospective bidders; to provide for
1-10 bonding requirements; to provide for bid bonds; to provide
1-11 for the withdrawal of bids; to provide for performance
1-12 bonds; to provide for payment bonds; to provide for
1-13 penalties; to repeal portions of Chapter 10 of the Official
1-14 Code of Georgia Annotated, relating to public works
1-15 contracts; to repeal Article 4 of Chapter 82 of the Official
1-16 Code of Georgia Annotated, relating to bonds for public
1-17 contractors; to repeal Chapter 84 of the Official Code of
1-18 Georgia Annotated, relating to competition for public works;
1-19 to amend Code Section 13-10-1 of the Official Code of
1-20 Georgia Annotated, relating to bid bonds or other
1-21 securities; to change certain cross-references throughout
1-22 Title 32 of the Official Code of Georgia Annotated, relating
1-23 to highways, bridges, and ferries; to provide for matters
1-24 relative to the foregoing; to repeal conflicting laws; and
1-25 for other purposes.
1-26 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
1-27 SECTION 1.
1-28 Title 36 of the Official Code of Georgia Annotated, relating
1-29 to local government, is amended by inserting at the end
1-30 thereof a new chapter to read as follows:
1-31 36-91-1.
1-32 As used in this chapter, the term:
-1-
2- 1 (1) 'Bid bond' means a bond with good and sufficient
2- 2 surety or sureties for the faithful acceptance of the
2- 3 contract payable to, in favor of, and for the protection
2- 4 of the governmental entity for which the contract is to
2- 5 be awarded.
2- 6 (2) 'Change order' means an alteration, addition, or
2- 7 deduction from the original scope of work as defined by
2- 8 the contract documents to address changes or unforeseen
2- 9 conditions necessary for project completion.
2-10 (3) 'Competitive sealed bidding' means a method of
2-11 soliciting public works construction contracts whereby
2-12 the award is based upon the lowest responsive,
2-13 responsible bid in conformance with the provisions of
2-14 subsection (b) of Code Section 36-91-21.
2-15 (4) 'Competitive sealed proposals' means a method of
2-16 soliciting public works contracts whereby the award is
2-17 based upon criteria identified in a request for
2-18 proposals in conformance with the provisions of
2-19 subsection (c) of Code Section 36-91-21.
2-20 (5) 'Emergency' means any situation resulting in
2-21 imminent danger to the public health or safety or the
2-22 loss of an essential governmental service.
2-23 (6) 'Governing authority' means the official or group of
2-24 officials responsible for governance of a governmental
2-25 entity.
2-26 (7) 'Governmental entity' means a county, municipal
2-27 corporation, consolidated government, authority, board
2-28 of education, or other public board, body, or commission
2-29 but shall not include any authority, board, department,
2-30 or commission of the state, or a public transportation
2-31 agency as defined by Chapter 9 of Title 32.
2-32 (8) 'Payment bond' means a bond with good and sufficient
2-33 surety or sureties payable to the governmental entity
2-34 for which the work is to be done and intended for the
2-35 use and protection of all subcontractors and all persons
2-36 supplying labor, materials, machinery, and equipment in
2-37 the prosecution of the work provided for in the public
2-38 works construction contract.
2-39 (9) 'Performance bond' means a bond with good and
2-40 sufficient surety or sureties for the faithful
2-41 performance of the contract and to indemnify the
2-42 governmental entity for any damages occasioned by a
-2-
3- 1 failure to perform the same within the prescribed time.
3- 2 Such bond shall be payable to, in favor of, and for the
3- 3 protection of the governmental entity for which the work
3- 4 is to be done.
3- 5 (10) 'Public works construction' means the building,
3- 6 altering, repairing, improving, or demolishing of any
3- 7 public structure or building or other public
3- 8 improvements of any kind to any public real property
3- 9 other than those projects covered by Chapter 4 of Title
3-10 32. Such term does not include the routine operation,
3-11 repair, or maintenance of existing structures,
3-12 buildings, or real property.
3-13 (11) 'Responsible bidder' or 'responsible offeror' means
3-14 a person or entity that has the capability in all
3-15 respects to perform fully and reliably the contract
3-16 requirements.
3-17 (12) 'Responsive bidder' or 'responsive offeror' means a
3-18 person or entity that has submitted a bid or proposal
3-19 that conforms in all material respects to the
3-20 requirements set forth in the invitation for bids or
3-21 request for proposals.
3-22 (13) 'Scope of project' means the work required by the
3-23 original contract documents and any subsequent change
3-24 orders required or appropriate to accomplish the intent
3-25 of the project as described in the bid documents.
3-26 (14) 'Scope of work' means the work that is required by
3-27 the contract documents.
3-28 (15) 'Sole source' means those procurements made
3-29 pursuant to a written determination by a governing
3-30 authority that there is only one source for the required
3-31 supply, service, or construction item.
3-32 36-91-20.
3-33 (a) All public works construction contracts subject to
3-34 this chapter entered into by a governmental entity with
3-35 private persons or entities shall be in writing and on
3-36 file and available for public inspection at a place
3-37 designated by such governmental entity. Municipalities and
3-38 consolidated governments shall execute and enter into
3-39 contracts in the manner provided in applicable local
3-40 legislation or by ordinance.
-3-
4- 1 (b) Prior to entering into a public works construction
4- 2 contract other than those exempted by Code Section
4- 3 36-91-22, a governmental entity shall publicly advertise
4- 4 the contract opportunity. Such notice shall be posted
4- 5 conspicuously in the governing authority's office and
4- 6 shall be advertised in the legal organ of the county or by
4- 7 electronic means on an Internet website of the
4- 8 governmental entity or an Internet website identified by
4- 9 the governmental entity. Contract opportunities shall be
4-10 advertised a minimum of two times, with the first
4-11 advertisement occurring at least four weeks prior to the
4-12 opening of the sealed bids or proposals. The second
4-13 advertisement shall follow no earlier than two weeks from
4-14 the first advertisement. Plans and specifications shall
4-15 be available on the first day of the advertisement and
4-16 shall be open to inspection by the public. The
4-17 advertisement shall include such details and
4-18 specifications as will enable the public to know the
4-19 extent and character of the work to be done. All required
4-20 notices of advertisement shall also advise of any
4-21 mandatory prequalification requirements or pre-bid
4-22 conferences as well as any federal requirements pursuant
4-23 to subsection (d) of Code Section 36-91-22.
4-24 (c) Governmental entities are authorized to utilize any
4-25 construction delivery method, provided that all public
4-26 works construction contracts subject to the requirements
4-27 of this chapter that place the bidder or offeror at risk
4-28 for construction and require labor and building materials
4-29 in the execution of the contract shall be awarded on the
4-30 basis of competitive sealed bidding or competitive sealed
4-31 proposals. Governmental entities shall have the authority
4-32 to reject any and all bids or proposals and to waive
4-33 technicalities and informalities.
4-34 (d) No governmental entity shall issue or cause to be
4-35 issued any addenda modifying plans and specifications
4-36 within a period of 72 hours prior to the advertised time
4-37 for the opening bids or proposals, excluding Saturdays,
4-38 Sundays, and legal holidays. However, if the necessity
4-39 arises to issue an addendum modifying plans and
4-40 specifications within the 72 hour period prior to the
4-41 advertised time for the opening of bids or proposals,
4-42 excluding Saturdays, Sundays, and legal holidays, then the
4-43 opening of bids or proposals shall be extended at least 72
4-44 hours, excluding Saturdays, Sundays, and legal holidays,
4-45 from the date of the original bid or proposal opening
-4-
5- 1 without need to readvertise as required by subsection (b)
5- 2 of this Code section.
5- 3 (e) Bid and contract documents may contain provisions
5- 4 authorizing the issuance of change orders, without the
5- 5 necessity of additional requests for bids or proposals,
5- 6 within the scope of the project when appropriate or
5- 7 necessary in the performance of the contract. Change
5- 8 orders may not be used to evade the purposes of this
5- 9 article.
5-10 (f) Any governmental entity may, in its discretion, adopt
5-11 a process for mandatory prequalification of prospective
5-12 bidders or offerors; provided, however, that:
5-13 (1) Criteria for prequalification must be reasonably
5-14 related to the project or the quality of work;
5-15 (2) Criteria for prequalification must be available to
5-16 any prospective bidder or offeror requesting such
5-17 information;
5-18 (3) Any prequalification process must include a method
5-19 of notifying prospective bidders or offerors of the
5-20 criteria for prequalification; and
5-21 (4) Any prequalification process must include a
5-22 procedure for a disqualified bidder to respond to his or
5-23 her disqualification to a representative of the
5-24 governmental entity; provided, however, that such
5-25 procedure shall not be construed to require the
5-26 governmental entity to provide a formal appeals
5-27 procedure.
5-28 36-91-21.
5-29 (a) It shall be unlawful to let out any public works
5-30 construction contracts subject to the requirements of this
5-31 chapter without complying with the competitive award
5-32 requirements contained in this Code section. Any
5-33 contractor who performs any work of the kind in any other
5-34 manner and who knows that the public works construction
5-35 contract was let out without complying with the notice and
5-36 competitive award requirements of this chapter shall not
5-37 be entitled to receive any payment for such work.
5-38 (b) Any competitive sealed bidding process shall comply
5-39 with the following requirements:
5-40 (1) The governmental entity shall publicly advertise an
5-41 invitation for bids;
-5-
6- 1 (2) Bidders shall submit sealed bids based on the
6- 2 criteria set forth in such invitation;
6- 3 (3) The governmental entity shall open the bids publicly
6- 4 and evaluate such bids without discussions with the
6- 5 bidders; and
6- 6 (4) The contract shall be awarded to the lowest
6- 7 responsible and responsive bidder whose bid meets the
6- 8 requirements and criteria set forth in the invitation
6- 9 for bids; provided, however, that if the bid from the
6-10 lowest responsible and responsive bidder exceeds the
6-11 funds budgeted for the public works construction
6-12 contract, the governmental entity may negotiate with
6-13 such apparent low bidder to obtain a contract price
6-14 within the budgeted amount. Such negotiations may
6-15 include changes in the scope of work and other bid
6-16 requirements.
6-17 (c)(1) In making any competitive sealed proposal, a
6-18 governmental entity shall:
6-19 (A) Publicly advertise a request for proposals, which
6-20 request shall include conceptual program information
6-21 in the request for proposals describing the requested
6-22 services in a level of detail appropriate to the
6-23 project delivery method selected for the project, as
6-24 well as the relative importance of the evaluation
6-25 factors;
6-26 (B) Open all proposals received at the time and place
6-27 designated in the request for proposals so as to avoid
6-28 disclosure of contents to competing offerors during
6-29 the process of negotiations; and
6-30 (C) Make an award to the responsible and responsive
6-31 offeror whose proposal is determined in writing to be
6-32 the most advantageous to the governmental entity,
6-33 taking into consideration the evaluation factors set
6-34 forth in the request for proposals. The evaluation
6-35 factors shall be the basis on which the award decision
6-36 is made. The contract file shall indicate the basis on
6-37 which the award is made.
6-38 (2) As set forth in the request for proposals, offerors
6-39 submitting proposals may be afforded an opportunity for
6-40 discussion, negotiation, and revision of proposals.
6-41 Discussions, negotiations, and revisions may be
6-42 permitted after submission of proposals and prior to
-6-
7- 1 award for the purpose of obtaining best and final
7- 2 offers. In accordance with the request for proposals,
7- 3 all responsible offerors found by the governmental
7- 4 entity to have submitted proposals reasonably
7- 5 susceptible of being selected for award shall be given
7- 6 an opportunity to participate in such discussions,
7- 7 negotiations, and revisions. During the process of
7- 8 discussion, negotiation, and revision, the governmental
7- 9 entity shall not disclose the contents of proposals to
7-10 competing offerors.
7-11 (d) Whenever a public works construction contract for any
7-12 governmental entity subject to the requirements of this
7-13 chapter is to be let out by competitive sealed bid or
7-14 proposal, no person, by himself or herself or otherwise,
7-15 shall prevent or attempt to prevent competition in such
7-16 bidding or proposals by any means whatever. No person who
7-17 desires to procure such work for himself or herself or for
7-18 another shall prevent or endeavor to prevent anyone from
7-19 making a bid or proposal therefor by any means whatever,
7-20 nor shall such person so desiring the work cause or induce
7-21 another to withdraw a bid or proposal for the work.
7-22 (e) Before commencing the work, any person who procures
7-23 such public work by bidding or proposal shall make an oath
7-24 in writing that he or she has not directly or indirectly
7-25 violated subsection (d) of this Code section. The oath
7-26 shall be filed by the officer whose duty it is to make the
7-27 payment. If the contractor is a partnership, all of the
7-28 partners and any officer, agent, or other person who may
7-29 have represented or acted for them in bidding for or
7-30 procuring the contract shall also make the oath. If the
7-31 contractor is a corporation, all officers, agents, or
7-32 other persons who may have acted for or represented the
7-33 corporation in bidding for or procuring the contract shall
7-34 make the oath. If such oath is false, the contract shall
7-35 be void, and all sums paid by the governmental entity on
7-36 the contract may be recovered by appropriate action.
7-37 (f) If any member of a governmental entity lets out any
7-38 public works construction contract subject to the
7-39 requirements of this article and receives, takes, or
7-40 contracts to receive or take, either directly or
7-41 indirectly, any part of the pay or profit arising out of
7-42 any such contract, he or she shall be guilty of a
7-43 misdemeanor.
-7-
8- 1 (g) No public works construction contract with a governing
8- 2 authority shall be valid for any purpose unless the
8- 3 contractor shall comply with all bonding requirements of
8- 4 this chapter. No such contract shall be valid if any
8- 5 governmental entity lets out any public works construction
8- 6 contract subject to the requirements of this chapter
8- 7 without complying with the requirements of this chapter.
8- 8 36-91-22.
8- 9 (a) The requirements of this chapter shall not apply to
8-10 public works construction projects, when the same can be
8-11 performed at a cost of less than $100,000.00. Public works
8-12 construction projects shall not be subdivided in an effort
8-13 to evade the provisions of this chapter.
8-14 (b) Any governmental entity having a correctional
8-15 institution shall have the power and authority to purchase
8-16 material for and use inmate labor in performing public
8-17 works construction projects; and in such cases, this
8-18 chapter shall not apply. Any governmental entity may
8-19 contract with a governmental entity having a correctional
8-20 institution for the use of inmate labor from such
8-21 institution and use the inmates in the performance of any
8-22 public works construction project; and in such cases, this
8-23 chapter shall not apply.
8-24 (c) In the event that the labor used or to be used in a
8-25 public works construction project is furnished at no
8-26 expense by the state or federal government or any agency
8-27 thereof, the governing authority shall have the power and
8-28 authority to purchase material for such public works
8-29 construction project and use the labor furnished free to
8-30 the governmental entity; and in such case, this chapter
8-31 shall not apply.
8-32 (d) Where a public works construction contract involves
8-33 the expenditure of federal assistance or funds, the
8-34 receipt of which is conditioned upon compliance with
8-35 federal laws or regulations regarding the procedures for
8-36 awarding public works construction contracts, a
8-37 governmental entity shall comply with such federal
8-38 requirements and shall not be required to comply with the
8-39 provisions of this chapter that differ from the federal
8-40 requirements. The governmental entity shall provide
8-41 notice that federal procedures exist for the award of such
8-42 contracts in the advertisement required by subsection (b)
8-43 of Code Section 36-91-20. The availability and location
-8-
9- 1 of such federal requirements shall be provided to any
9- 2 person requesting such information.
9- 3 (e) The requirements of this chapter shall not apply to
9- 4 public works construction projects necessitated by an
9- 5 emergency; provided, however, that the nature of the
9- 6 emergency shall be described in the minutes of the
9- 7 governing authority. Any contract let by a county
9- 8 pursuant to this subsection shall be ratified, as soon as
9- 9 practicable, on the minutes of the governing authority,
9-10 and the nature of the emergency shall be described
9-11 therein.
9-12 (f) The requirements of this chapter shall not apply to
9-13 public works construction projects subject to the
9-14 requirements of Chapter 4 of Title 32.
9-15 (g) The requirements of this chapter shall not apply to
9-16 public works construction projects or any portion of a
9-17 public works construction project self-performed by a
9-18 governmental entity. If the governmental entity contracts
9-19 with a private person or entity for a portion of such
9-20 project, the provisions of this chapter shall apply to any
9-21 such contract estimated to exceed $100,000.00.
9-22 (h) The requirements of this chapter shall not apply to
9-23 sole source public works construction contracts.
9-24 36-91-40.
9-25 (a)(1) Any bid bond, performance bond, payment bond, or
9-26 security deposit required for a public works
9-27 construction contract shall be approved and filed with
9-28 the treasurer or the person performing the duties
9-29 usually performed by a treasurer of the obligee named
9-30 therein. At the option of the governmental entity, if
9-31 the surety named in the bond is other than a surety
9-32 company authorized by law to do business in this state
9-33 pursuant to a current certificate of authority to
9-34 transact surety business by the Commissioner of
9-35 Insurance, such bond shall not be approved and filed
9-36 unless such surety is on the United States Department of
9-37 Treasury's list of approved bond sureties.
9-38 (2) Any bid bond, performance bond, or payment bond
9-39 required by this Code section shall be approved as to
9-40 form and as to the solvency of the surety by an officer
9-41 of the governmental entity negotiating the contract on
-9-
10- 1 behalf of the governmental entity. In the case of a bid
10- 2 bond, such approval shall be obtained prior to
10- 3 acceptance of the bid or proposal. In the case of
10- 4 payment bonds and performance bonds, such approval shall
10- 5 be obtained prior to the execution of the contract.
10- 6 (b) Whenever, in the judgment of the obligee:
10- 7 (1) Any surety on a bid, performance, or payment bond
10- 8 has become insolvent;
10- 9 (2) Any corporate surety is no longer certified or
10-10 approved by the Commissioner of Insurance to do business
10-11 in the state; or
10-12 (3) For any cause there are no longer proper or
10-13 sufficient sureties on any or all of the bonds,
10-14 the obligee may require the contractor to strengthen any
10-15 or all of the bonds or to furnish a new or additional bond
10-16 or bonds within ten days. Thereupon, if so ordered by the
10-17 obligee, all work on the contract shall cease unless such
10-18 new or additional bond or bonds are furnished. If such
10-19 bond or bonds are not furnished within such time, the
10-20 obligee may terminate the contract and complete the same
10-21 as the agent of and at the expense of the contractor and
10-22 his or her sureties.
10-23 36-91-41.
10-24 (a) Bid bonds shall be required for all public works
10-25 construction contracts subject to the requirements of this
10-26 article with estimated bids or proposals over $100,000.00;
10-27 provided, however, that a governmental entity may require
10-28 a bid bond for projects with estimated bids or proposals
10-29 of $100,000.00 or less.
10-30 (b) In the case of competitive sealed bids, except as
10-31 provided in Code Sections 36-91-43 and 36-91-44, a bid may
10-32 not be revoked or withdrawn until 60 days after the time
10-33 set by the governmental entity for opening of bids. Upon
10-34 expiration of this time period, the bid will cease to be
10-35 valid, unless the bidder provides written notice to the
10-36 governmental entity prior to the scheduled expiration date
10-37 that the bid will be extended for a time period specified
10-38 by the governmental entity.
10-39 (c) In the case of competitive sealed proposals, the
10-40 governmental entity shall advise offerors in the request
10-41 for proposals of the number of days that offerors will be
-10-
11- 1 required to honor their proposals; provided, however, that
11- 2 if an offeror is not selected within 60 days of opening
11- 3 the proposals, any offeror that is determined by the
11- 4 governmental entity to be unlikely of being selected for
11- 5 contract award shall be released from his or her proposal.
11- 6 (d) If a governmental entity requires a bid bond for any
11- 7 public works construction contract, no bid or proposal for
11- 8 a contract with the governmental entity shall be valid for
11- 9 any purpose unless the contractor shall give a bid bond
11-10 with good and sufficient surety or sureties approved by
11-11 the governing authority. The bid bond shall be in the
11-12 amount of not less than 5 percent of the total amount
11-13 payable by the terms of the contract. No bid or proposal
11-14 shall be read aloud or considered if a proper bid bond or
11-15 other security authorized in Code Section 36-91-42 has not
11-16 been submitted. The provisions of this subsection shall
11-17 not apply to any bid or proposal for a contract that is
11-18 required by law to be accompanied by a proposal guaranty
11-19 and shall not apply to any bid or proposal for a contract
11-20 with any public agency or body which receives funding from
11-21 the United States Department of Transportation and which
11-22 is primarily engaged in the business of public
11-23 transportation.
11-24 36-91-42.
11-25 (a) In lieu of the bid bond provided for in Code Section
11-26 36-91-41, the governmental entity may accept a cashier's
11-27 check, certified check, or cash in the amount of not less
11-28 than 5 percent of the total amount payable by the terms of
11-29 the contract payable to and for the protection of the
11-30 governmental entity for which the contract is to be
11-31 awarded.
11-32 (b) When the amount of any bid bond required under this
11-33 article does not exceed $300,000.00, the governmental
11-34 entity may, in its sole discretion, accept an irrevocable
11-35 letter of credit issued by a bank or savings and loan
11-36 association, as defined in Code Section 7-1-4, in the
11-37 amount of and in lieu of the bond otherwise required under
11-38 Code Section 36-91-41.
11-39 36-91-43.
11-40 (a) Any governmental entity receiving bids subject to this
11-41 article shall permit a bidder to withdraw a bid from
11-42 consideration after the bid opening without forfeiture of
-11-
12- 1 the bid security if the bidder has made an appreciable
12- 2 error in the calculation of his or her bid and if:
12- 3 (1) Such error in the calculation of his or her bid can
12- 4 be documented by clear and convincing written evidence;
12- 5 (2) Such error can be clearly shown by objective
12- 6 evidence drawn from inspection of the original work
12- 7 papers, documents, or materials used in the preparation
12- 8 of the bid sought to be withdrawn;
12- 9 (3) The bidder serves written notice upon the
12-10 governmental entity which invited proposals for the work
12-11 prior to the award of the contract and not later than 48
12-12 hours after the opening of bids, excluding Saturdays,
12-13 Sundays, and legal holidays;
12-14 (4) The bid was submitted in good faith and the mistake
12-15 was due to a calculation or clerical error, an
12-16 inadvertent omission, or a typographical error as
12-17 opposed to an error in judgment; and
12-18 (5) The withdrawal of the bid will not result in undue
12-19 prejudice to the governmental entity or other bidders by
12-20 placing them in a materially worse position than they
12-21 would have occupied if the bid had never been submitted.
12-22 (b) In the event that an apparent successful bidder has
12-23 withdrawn his or her bid as provided in subsection (a) of
12-24 this Code section, action on the remaining bids should be
12-25 considered as though the withdrawn bid had not been
12-26 received. In the event the project is relet for bids,
12-27 under no circumstances shall a bidder who has filed a
12-28 request to withdraw a bid be permitted to resubmit a bid
12-29 for the work.
12-30 (c) No bidder who is permitted to withdraw a bid pursuant
12-31 to subsection (a) of this Code section shall for
12-32 compensation supply any material or labor to, or perform
12-33 any subcontract or other work agreement for, the person or
12-34 firm to whom the contract is awarded or otherwise benefit,
12-35 directly or indirectly, from the performance of the
12-36 project for which the withdrawn bid was submitted.
12-37 36-91-44.
12-38 (a) As used in this Code section, the term 'corporation'
12-39 means with respect to any corporation, any other
12-40 corporation related thereto:
12-41 (1) As a parent corporation;
-12-
13- 1 (2) As a subsidiary corporation;
13- 2 (3) As a sister corporation;
13- 3 (4) By common ownership or control; or
13- 4 (5) By control of one corporation by the other.
13- 5 (b) In any case where two or more affiliated corporations
13- 6 bid for a contract under this Code section and any one or
13- 7 more of such affiliated corporations subsequently rescind
13- 8 or revoke their bid or bids in favor of another such
13- 9 affiliated corporation whose bid is for a higher amount
13-10 and the contract is awarded at such higher amount to other
13-11 affiliated corporation, then the bid bond, proposal
13-12 guaranty, or other security otherwise required under this
13-13 article of each affiliated corporation rescinding or
13-14 revoking its bid shall be forfeited.
13-15 36-91-45.
13-16 The obligee in any bid bond required to be given in
13-17 accordance with this article shall be entitled to maintain
13-18 an action thereon at any time upon any breach of such
13-19 bond; provided, however, that no action may be instituted
13-20 on the bonds or security deposits after one year from the
13-21 completion of the contract and the acceptance of the
13-22 public work by the governmental entity.
13-23 36-91-50.
13-24 Performance bonds shall be required for all public works
13-25 construction contracts subject to the requirements of this
13-26 chapter with an estimated contract amount greater than
13-27 $100,000.00; provided, however, that a governmental entity
13-28 may require a performance bond for a public works
13-29 construction contracts that are estimated at $100,000.00
13-30 or less. No public works construction contract requiring
13-31 a performance bond shall be valid for any purpose unless
13-32 the contractor shall give such performance bond. The
13-33 performance bond shall be in the amount of at least the
13-34 total amount payable by the terms of the contract and
13-35 shall be increased as the total amount payable due to the
13-36 contract is increased.
13-37 36-91-51.
13-38 When the amount of the performance bond required under
13-39 this article does not exceed $300,000.00 the governmental
-13-
14- 1 entity may, in its sole discretion, accept an irrevocable
14- 2 letter of credit by a bank or savings and loan
14- 3 association, as defined in Code Section 7-1-4, in the
14- 4 amount of and in lieu of the bond otherwise required under
14- 5 this article.
14- 6 36-91-52.
14- 7 The obligee in any performance bond required to be given
14- 8 in accordance with this article shall be entitled to
14- 9 maintain an action thereon at any time upon any breach of
14-10 such bond; provided, however, no action can be instituted
14-11 on the bonds or security deposits after one year from the
14-12 completion of the contract and the acceptance of the
14-13 public work by the governmental entity.
14-14 36-91-70.
14-15 Payment bonds shall be required for all public works
14-16 construction contracts subject to the requirements of this
14-17 chapter with an estimated contract amount greater than
14-18 $100,000.00; provided, however, that a governmental entity
14-19 may require a payment bond for public works construction
14-20 contracts that are estimated at $100,000.00 or less. No
14-21 public works construction contract requiring a payment
14-22 bond shall be valid for any purpose, unless the contractor
14-23 shall give such payment bond; provided, however, that, in
14-24 lieu of such payment bond, the governmental entity, in its
14-25 discretion, may accept a cashier's check, certified check,
14-26 or cash in an amount not less than the total amount
14-27 payable by the terms of the contract for the use and
14-28 protection of all subcontractors and all persons supplying
14-29 labor, materials, machinery, and equipment in the
14-30 prosecution of work provided in the contract.
14-31 36-91-71.
14-32 If a payment bond or security deposit, together with an
14-33 affidavit, when necessary, is not taken in the manner and
14-34 form required in this article, the corporation or body for
14-35 which work is done under the contract shall be liable to
14-36 all subcontractors and to all persons furnishing labor,
14-37 skill, tools, machinery, or materials to the contractor or
14-38 subcontractor thereunder for any loss resulting to them
14-39 from such failure. No agreement, modification, or change
14-40 in the contract, change in the work covered by the
-14-
15- 1 contract, or extension of time for the completion of the
15- 2 contract shall release the sureties of such payment bond.
15- 3 36-91-72.
15- 4 (a) The contractor furnishing the payment bond or security
15- 5 deposit shall post on the public works construction site
15- 6 and file with the clerk of the superior court in the
15- 7 county in which the site is located a notice of
15- 8 commencement no later than 15 days after the contractor
15- 9 physically commences work on the project and supply a copy
15-10 of the notice of commencement to any subcontractor,
15-11 materialman, or person who makes a written request of the
15-12 contractor. Failure to supply a copy of the notice of
15-13 commencement within ten calendar days of receipt of the
15-14 written request from the subcontractor, materialman, or
15-15 person shall render the provisions of paragraph (1) of
15-16 subsection (a) of Code Section 36-91-73 inapplicable to
15-17 the subcontractor, materialman, or person making the
15-18 request. The notice of commencement shall include:
15-19 (1) The name, address, and telephone number of the
15-20 contractor;
15-21 (2) The name and location of the public work being
15-22 constructed or a general description of the improvement;
15-23 (3) The name and address of the governmental entity that
15-24 is contracting for the public works construction;
15-25 (4) The name and address of the surety for the
15-26 performance and payment bonds, if any; and
15-27 (5) The name and address of the holder of the security
15-28 deposit provided, if any.
15-29 (b) The failure to file a notice of commencement shall
15-30 render the notice to contractor requirements of paragraph
15-31 (1) of subsection (a) of Code Section 36-91-73
15-32 inapplicable.
15-33 (c) The clerk of the superior court shall file the notice
15-34 of commencement within the records of that office and
15-35 maintain an index separate from other real estate records
15-36 or an index with the preliminary notices specified in
15-37 subsection (a) of Code Section 44-14-361.3. Each such
15-38 notice of commencement shall be indexed under the name of
15-39 the governmental entity and the name of the contractor as
15-40 contained in the notice of commencement.
-15-
16- 1 36-91-73.
16- 2 (a) Every person entitled to the protection of the payment
16- 3 bond or security deposit required to be given who has not
16- 4 been paid in full for labor or material furnished in the
16- 5 prosecution of the work referred to in such bond or
16- 6 security deposit before the expiration of a period of 90
16- 7 days after the day on which the last of the labor was done
16- 8 or performed by such person or the material or equipment
16- 9 or machinery was furnished or supplied by such person for
16-10 which such claim is made, or when he or she has completed
16-11 his or her subcontract for which claim is made, shall have
16-12 the right to bring an action on such payment bond or
16-13 security deposit for the amount, or the balance thereof,
16-14 unpaid at the time of the commencement of such action and
16-15 to prosecute such action to final execution and judgment
16-16 for the sum or sums due such person; provided, however,
16-17 that:
16-18 (1) Any person having direct contractual relationship
16-19 with a subcontractor but no contractual relationship,
16-20 express or implied, with the contractor furnishing such
16-21 payment bond or security deposit on a public works
16-22 construction project where the contractor has not
16-23 complied with the notice of commencement requirements
16-24 shall have the right of action upon the payment bond or
16-25 security deposit upon giving written notice to the
16-26 contractor within 90 days from the day on which such
16-27 person did or performed the last of the labor or
16-28 furnished the last of the material or machinery or
16-29 equipment for which such claim is made, stating with
16-30 substantial accuracy the amount claimed and the name of
16-31 the party to whom the material was furnished or supplied
16-32 or for whom the labor was performed or done. The notice
16-33 to the contractor may be served by registered or
16-34 certified mail, postage prepaid, duly addressed to the
16-35 contractor, at any place at which the contractor
16-36 maintains an office or conducts his or her business or
16-37 at his or her residence, by depositing such notice in
16-38 any post office or branch post office or any letter box
16-39 under the control of the United States Postal Service;
16-40 alternatively, notice may be served in any manner in
16-41 which the sheriffs of this state are authorized by law
16-42 to serve summons or process; and
16-43 (2) Any person having a direct contractual relationship
16-44 with a subcontractor but no contractual relationship,
-16-
17- 1 express or implied, with the contractor furnishing such
17- 2 payment bond or security deposit on a public works
17- 3 construction project where the contractor has complied
17- 4 with the notice of commencement requirements in
17- 5 accordance with subsection (a) of Code Section 36-91-72
17- 6 shall have the right of action on the payment bond or
17- 7 security deposit, provided that such person shall,
17- 8 within 30 days from the filing of the notice of
17- 9 commencement or 30 days following the first delivery of
17-10 labor, material, machinery, or equipment, whichever is
17-11 later, give to the contractor a written notice setting
17-12 forth:
17-13 (A) The name, address, and telephone number of the
17-14 person providing labor, material, machinery, or
17-15 equipment;
17-16 (B) The name and address of each person at whose
17-17 instance the labor, material, machinery, or equipment
17-18 is being furnished;
17-19 (C) The name and the location of the public works
17-20 construction site; and
17-21 (D) A description of the labor, material, machinery,
17-22 or equipment being provided and, if known, the
17-23 contract price or anticipated value of the labor,
17-24 material, machinery, or equipment to be provided or
17-25 the amount claimed to be due, if any.
17-26 (b) Nothing contained in this Code section shall limit the
17-27 right of action of a person entitled to the protection of
17-28 the payment bond or security deposit required to be given
17-29 pursuant to this article to the 90 day period following
17-30 the day on which such person did or performed the last of
17-31 the labor or furnished the last of the material or
17-32 machinery or equipment for which such claim is made.
17-33 (c) Every action instituted under this Code section shall
17-34 be brought in the name of the claimant without making the
17-35 governmental entity for which the work was done or was to
17-36 be done a party to such action.
17-37 36-91-74.
17-38 The official who has the custody of the bond or security
17-39 deposit required by this article is authorized and
17-40 directed to furnish to any person making application
17-41 therefor a copy of the bond or security deposit agreement
17-42 and the contract for which it was given, certified by the
-17-
18- 1 official who has custody of the bond or security deposit.
18- 2 With his or her application, such person shall also submit
18- 3 an affidavit that he or she has supplied labor or
18- 4 materials for such work and that payment therefor has not
18- 5 been made or that he or she is being sued on any such bond
18- 6 or security deposit. Such copy shall be primary evidence
18- 7 of the bond or security deposit and contract and shall be
18- 8 admitted in evidence without further proof. Applicants
18- 9 shall pay for such certified copies and such certified
18-10 statements such fees as the official fixes to cover the
18-11 cost of preparation thereof, provided that in no case
18-12 shall the fee fixed exceed the fees which the clerks of
18-13 the superior courts are permitted to charge for similar
18-14 copies.
18-15 36-91-75.
18-16 No action can be instituted on the payment bonds or
18-17 security deposits after one year from the completion of
18-18 the contract and the acceptance of the public works
18-19 construction by the proper public authorities. Every
18-20 action instituted under this article shall be brought in
18-21 the name of the claimant, without the governmental entity
18-22 for which the work was done or was to be done being made a
18-23 party thereto."
18-24 SECTION 2.
18-25 Said title is further amended by striking Code Sections
18-26 36-10-2, relating to the letting of contracts for public
18-27 works; 36-10-3, relating to the posting and publication of
18-28 notice and specifications; 36-10-4, relating to bonds of
18-29 contractors and related matters; and 36-10-5, relating to
18-30 illegal letting of certain contracts and related matters,
18-31 and inserting in lieu thereof, respectively, the following:
18-32 "36-10-2.
18-33 Reserved.
18-34 36-10-3.
18-35 Reserved.
18-36 36-10-4.
18-37 Reserved.
18-38 36-10-5.
18-39 Reserved."
-18-
19- 1 SECTION 3.
19- 2 Said title is further amended by striking in its entirety
19- 3 Code Section 36-39-8, relating to a resolution letting
19- 4 contract for improvements following time for protests or
19- 5 filing of petition, and inserting in lieu thereof the
19- 6 following:
19- 7 "36-39-8.
19- 8 After the expiration of the time for objection or protest
19- 9 on the part of the property owners, if no sufficient
19-10 protest is filed, or on receipt of a petition for an
19-11 improvement signed by the owners of a majority of the
19-12 frontage of the land to be assessed, if the petition is
19-13 found to be in proper form and properly executed, the
19-14 governing body shall adopt a resolution reciting that no
19-15 protest has been filed or that a petition was filed, as
19-16 the case may be, and expressing the determination of the
19-17 governing body to proceed with the improvement. The
19-18 resolution shall state the kind of improvement, define the
19-19 extent and character of the same, and specify such other
19-20 matters as may be necessary to instruct the engineer
19-21 employed by the municipal corporation in the performance
19-22 of his or her duties in preparing for such improvement the
19-23 necessary plans, plats, profiles, specifications, and
19-24 estimates. The resolution shall set forth any and all such
19-25 reasonable terms and conditions as the governing body
19-26 deems proper to impose with reference to the letting of
19-27 the contract and the provisions thereof. The governing
19-28 body, by such resolution, shall provide that the
19-29 contractor shall execute to the municipal corporation a
19-30 good and sufficient bond, as provided in Code Sections
19-31 36-82-101 though 36-82-105 Section 36-91-22, and may also
19-32 require a bond in an amount to be stated in the resolution
19-33 for the maintenance of the good condition of the
19-34 improvements for a period of not less than five years from
19-35 the time of completion, in the discretion of the governing
19-36 body. The resolution shall also direct the clerk of the
19-37 municipal corporation to advertise for sealed proposals
19-38 for furnishing the materials and performing the work
19-39 necessary in making such improvements."
19-40 SECTION 4.
19-41 Said title is further amended by striking in its entirety
19-42 Article 4 of Chapter 82, relating to bonds for public
19-43 contractors, and inserting in lieu thereof the following:
-19-
20- 1 SECTION 5.
20- 2 Said title is further amended by striking in its entirety
20- 3 Chapter 84, relating to competition for public work bids,
20- 4 and inserting in lieu thereof the following:
20- 5 SECTION 6.
20- 6 Code Section 13-10-1 of the Official Code of Georgia
20- 7 Annotated, relating to bid bonds or other securities and
20- 8 bonds or other security required on contracts for public
20- 9 works and related matters, is amended by striking said Code
20-10 section in its entirety and inserting in lieu thereof the
20-11 following:
20-12 "13-10-1.
20-13 (a)(1) If the state, a county, a municipal corporation,
20-14 or any public board or body thereof requires a bid bond
20-15 for any particular public work, no bid for a contract
20-16 with the state, county, municipal corporation, or any
20-17 public board or body thereof for the doing of such
20-18 public work shall be valid for any purpose, unless the
20-19 contractor shall give a bid bond with good and
20-20 sufficient surety or sureties approved by the governing
20-21 authority for the faithful acceptance of the contract
20-22 payable to, in favor of, and for the protection of the
20-23 state, county, municipal corporation, or public board or
20-24 body thereof for which the contract is to be awarded.
20-25 The bid bond shall be in the amount of not less than 5
20-26 percent of the total amount payable by the terms of the
20-27 contract. No bid shall be read aloud or considered if a
20-28 proper bid bond or other security authorized in
20-29 paragraph (2) of this subsection has not been submitted.
20-30 The provisions of this subsection shall not apply to any
20-31 bid for a contract which is required by law to be
20-32 accompanied by a proposal guaranty and shall not apply
20-33 to bids for contracts with any public agency or body
20-34 which receives funding from the United States Department
20-35 of Transportation and which is primarily engaged in the
20-36 business of public transportation.
20-37 (2) In lieu of the bid bond provided for in paragraph
20-38 (1) of this subsection, the state, a county, a municipal
-20-
21- 1 corporation, or any public board or body thereof may
21- 2 accept a cashier's check, certified check, or cash in
21- 3 the amount of not less than 5 percent of the total
21- 4 amount payable by the terms of the contract payable to
21- 5 and for the protection of the state, county, municipal
21- 6 corporation, or public board or body thereof for which
21- 7 the contract is to be awarded.
21- 8 (3)(A) Any public entity receiving bids subject to
21- 9 this subsection shall permit a bidder to withdraw its
21-10 bid from consideration after the bid opening without
21-11 forfeiture of its bid security if:
21-12 (i) The bidder has made an appreciable error in the
21-13 calculation of his or her bid that can be documented
21-14 by clear and convincing written evidence;
21-15 (ii) Such errors can be clearly shown by objective
21-16 evidence drawn from inspection of the original work
21-17 papers, documents, or materials used in the
21-18 preparation of the bid sought to be withdrawn;
21-19 (iii) The bidder serves written notice upon the
21-20 public entity which invited proposals for the work
21-21 prior to the award of the contract and not later
21-22 than 48 hours after the opening of bids, excluding
21-23 Saturdays and Sundays and legal holidays;
21-24 (iv) The bid was submitted in good faith and the
21-25 mistake was due to a calculation or clerical error,
21-26 an inadvertent omission, or a typographical error as
21-27 opposed to an error in judgment; and
21-28 (v) The withdrawal of the bid will not result in
21-29 undue prejudice to the public entity or other
21-30 bidders by placing them in a materially worse
21-31 position than they would have occupied if the bid
21-32 had never been submitted.
21-33 (B) In the event that the apparent successful bidder
21-34 has withdrawn its bid, action on the remaining bids
21-35 should be considered as though the withdrawn bid had
21-36 not been received.
21-37 (C) In the event the project is relet for bids, under
21-38 no circumstances shall the bidder who has filed a
21-39 request to withdraw be permitted to rebid the work.
21-40 (D) No bidder who is permitted to withdraw a bid shall
21-41 for compensation supply any material or labor to, or
-21-
22- 1 perform any subcontract or other work agreement for,
22- 2 the person or firm to whom the contract is awarded or
22- 3 otherwise benefit, directly or indirectly, from the
22- 4 performance of the project for which the withdrawn bid
22- 5 was submitted.
22- 6 (b) No contract with this state, a county, a municipal
22- 7 corporation, or any public board or body thereof, for the
22- 8 doing of any public work shall be valid for any purpose,
22- 9 unless the contractor shall give:
22-10 (1) A performance bond with good and sufficient surety
22-11 or sureties payable to, in favor of, and for the
22-12 protection of the state, county, municipal corporation,
22-13 or public board or body thereof for which the work is to
22-14 be done. The performance bond shall be in the amount of
22-15 at least the total amount payable by the terms of the
22-16 contract. This bond shall not be required when a bond
22-17 is required under Code Section 36-10-4;
22-18 (2)(A) A payment bond with good and sufficient surety
22-19 or sureties, payable to the state, county, municipal
22-20 corporation, or public board or body thereof for which
22-21 the work is to be done, and for the use and protection
22-22 of all subcontractors and all persons supplying labor,
22-23 materials, machinery, and equipment in the prosecution
22-24 of the work provided for in the contract. The payment
22-25 bond shall be in the amount of at least the total
22-26 amount payable by the terms of the contract.
22-27 (B) In lieu of the payment bond provided for in
22-28 subparagraph (A) of this paragraph, the state, a
22-29 county, a municipal corporation, or any public board
22-30 or body thereof may accept a cashier's check,
22-31 certified check, or cash in the amount of at least the
22-32 total amount payable by the terms of the contract for
22-33 the use and protection of all subcontractors and all
22-34 persons supplying labor, materials, machinery, and
22-35 equipment in the prosecution of work provided in the
22-36 contract.
22-37 (c) This Code section shall not apply where the total
22-38 contract price does not exceed $40,000.00; provided,
22-39 however, that the state, or any department or agency
22-40 thereof, a county, a municipal corporation, or any public
22-41 board or body thereof, may in its discretion require
22-42 performance and payment bonds or bid bonds or other
22-43 security for any public works contract.
-22-
23- 1 (d) Where the amount of any bond required under the other
23- 2 subsections of this Code section does not exceed
23- 3 $300,000.00, the state, a county, a municipal corporation,
23- 4 or any public board or body thereof may, in its sole
23- 5 discretion, accept an irrevocable letter of credit issued
23- 6 by a bank or savings and loan association, as defined in
23- 7 Code Section 7-1-4, in the amount of and in lieu of the
23- 8 bond otherwise required under the other subsections of
23- 9 this Code section.
23-10 (e)(1) As used in this subsection, the term 'affiliated
23-11 corporation' means with respect to any corporation any
23-12 other corporation related thereto: as a parent
23-13 corporation; as a subsidiary corporation; as a sister
23-14 corporation; by common ownership or control; or by
23-15 control of one corporation by the other. For purposes of
23-16 this subsection, a corporation shall include a person or
23-17 a company.
23-18 (2) In any case where two or more affiliated
23-19 corporations bid for a contract under this Code section
23-20 and any one or more of such affiliated corporations
23-21 subsequently rescind or revoke their bid or bids in
23-22 favor of another such affiliated corporation whose bid
23-23 is for a higher amount and the contract is awarded at
23-24 such higher amount to such other affiliated corporation,
23-25 then the bid bond, proposal guaranty, or other security
23-26 otherwise required under this Code section of each
23-27 affiliated corporation rescinding or revoking its bid
23-28 shall be forfeited.
23-29 (f) Any bid bond, performance bond, or payment bond
23-30 required by this Code section shall be approved as to form
23-31 and as to the solvency of the surety by the officer of the
23-32 state, a county, a municipal corporation, or public board
23-33 or body thereof who negotiates the contract on behalf of
23-34 the public entity. Said approval shall be obtained prior
23-35 to the bid's being accepted."
23-36 SECTION 7.
23-37 Article 4 of Chapter 2 of Title 32 of the Official Code of
23-38 Georgia Annotated, relating to exercise of power to contract
23-39 generally, is amended by striking in its entirety Code
23-40 Section 32-2-72, relating to an oath by a successful bidder,
23-41 and inserting in lieu thereof the following:
-23-
24- 1 "32-2-72.
24- 2 A successful bidder, before commencing the work, shall
24- 3 execute a written oath, as required by Code Section
24- 4 36-84-1 36-91-40, stating that he or she has not violated
24- 5 such Code section which makes it unlawful to restrict
24- 6 competitive bidding."
24- 7 SECTION 8.
24- 8 Chapter 4 of Title 32 of the Official Code of Georgia
24- 9 Annotated, relating to state, county, and municipal road
24-10 systems, is amended by striking in its entirety paragraph
24-11 (1) of Code Section 32-4-42, relating to the powers of a
24-12 county with respect to its county road system, and inserting
24-13 in lieu thereof the following:
24-14 "(1) A county shall have the authority to negotiate,
24-15 let, and enter into contracts with any person or any
24-16 agency, county, or municipality of the state for the
24-17 construction, maintenance, administration, or operation
24-18 of any public road or activities incident thereto in
24-19 such manner and subject to such express limitations as
24-20 may be provided by Part 2 of this article or any other
24-21 provision of law. A county shall also have the authority
24-22 to perform such road work with its own forces or with a
24-23 combination of its own forces and the work of a
24-24 contractor, notwithstanding any contrary provisions of
24-25 Code Section 36-10-4 Chapter 91 of Title 36;".
24-26 SECTION 9.
24-27 Said chapter is further amended by striking in its entirety
24-28 paragraph (3) of Code Section 32-4-63, relating to
24-29 limitations on the power of a county to contract, and
24-30 inserting in lieu thereof the following:
24-31 "(3) For the purchase of those materials, supplies, and
24-32 equipment necessary for the county's construction and
24-33 maintenance of its public roads and for the support and
24-34 maintenance of the county's forces used in such work, as
24-35 authorized by Code Section 36-10-4 Chapter 91 of Title
24-36 36;".
24-37 SECTION 10.
24-38 Said chapter is further amended by striking in its entirety
24-39 subsection (a) of Code Section 32-4-65, relating to
24-40 advertising for bids, and inserting in lieu thereof the
24-41 following:
-24-
25- 1 "(a) Notwithstanding any provision of Chapter 10 91 of
25- 2 Title 36 and of any other provision of law to the
25- 3 contrary, on all contracts to be let by public bid a
25- 4 county shall advertise for competitive sealed bids for at
25- 5 least two weeks. The public advertisement shall be
25- 6 inserted once a week for two weeks in such newspaper
25- 7 wherein the county sheriff's sales are advertised or in
25- 8 such other newspapers or publications, or both, as will
25- 9 ensure adequate publicity, the first insertion to be two
25-10 weeks prior to the opening of the sealed bids, the second
25-11 to follow one week after the publication of the first
25-12 insertion."
25-13 SECTION 11.
25-14 Said chapter is further amended by striking in its entirety
25-15 Code Section 32-4-69, relating to the bonds of a successful
25-16 bidder generally, and inserting in lieu thereof the
25-17 following:
25-18 "32-4-69.
25-19 Notwithstanding any provision of Code Section 36-10-4
25-20 36-91-22 to the contrary, when the price of a contract let
25-21 to bid is $5,000.00 or more, no contract of a county shall
25-22 be valid unless the contractor first shall give:
25-23 (1) A bond in the amount of the bid, with one good and
25-24 solvent security, for the faithful performance of the
25-25 contract and to indemnify the county for any damages
25-26 occasioned by a failure to perform the same within the
25-27 prescribed time;
25-28 (2) The payment bond required by paragraph (2)
25-29 subsection (g) of Code Section 36-82-101 36-91-21;
25-30 (3) Such other bonds required by the county in its
25-31 advertisement for bids, including but not limited to
25-32 public liability and property damage insurance bonds."
25-33 SECTION 12.
25-34 Said chapter is further amended by striking in its entirety
25-35 subsection (a) of Code Section 32-4-71, relating to the
25-36 failure to take bonds and the liability of a county, and
25-37 inserting in lieu thereof the following:
25-38 "(a) If the payment bond required by paragraph (2) of Code
25-39 Section 32-4-69 is not taken, the county shall be liable
25-40 to subcontractors, laborers, materialmen, and other
25-41 persons, as provided in Code Section 36-82-102 36-91-22,
-25-
26- 1 for losses to them resulting from failure to take such
26- 2 bond."
26- 3 SECTION 13.
26- 4 Said chapter is further amended by striking in its entirety
26- 5 Code Section 32-4-73, relating to the oath taken by a
26- 6 successful bidder, and inserting in lieu thereof the
26- 7 following:
26- 8 "32-4-73.
26- 9 A successful bidder, before commencing the work, shall
26-10 execute a written oath, as required by Code Section
26-11 36-84-1 36-91-40, stating that he or she has not violated
26-12 such Code section, which makes it unlawful to restrict
26-13 competitive bidding."
26-14 SECTION 14.
26-15 Said chapter is further amended by striking in its entirety
26-16 Code Section 32-4-74, relating to the applicability of
26-17 certain laws to the exercise of certain powers by counties,
26-18 and inserting in lieu thereof the following:
26-19 "32-4-74.
26-20 Except as indicated to the contrary in this part, Chapter
26-21 10 91 of Title 36, Article 4 of Chapter 82 of Title 36,
26-22 and Chapter 84 of Title 36 shall apply to this part; and
26-23 the term 'public works,' as used in Chapter 10 91 of Title
26-24 36, Article 4 of Chapter 82 of Title 36, and Chapter 84 of
26-25 Title 36 shall be construed to include public roads, as
26-26 defined in Code Section 32-1-3."
26-27 SECTION 15.
26-28 Said chapter is further amended by striking in its entirety
26-29 Code Section 32-4-120, relating to the failure to take bonds
26-30 and the liability of a municipality, and inserting in lieu
26-31 thereof the following:
26-32 "32-4-120.
26-33 If the payment bond required by Code Section 32-4-119 is
26-34 not taken, the municipality then shall be liable to
26-35 subcontractors, laborers, materialmen, and other persons,
26-36 as provided in Code Section 36-82-102 36-91-22, for losses
26-37 to them resulting from failure to take such bond."
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27- 1 SECTION 16.
27- 2 Said chapter is further amended by striking in its entirety
27- 3 Code Section 32-4-123, relating to the applicability of
27- 4 certain laws to the exercise by municipalities of certain
27- 5 powers, and inserting in lieu thereof the following:
27- 6 "32-4-123.
27- 7 Except as indicated to the contrary in this part, Chapter
27- 8 10 91 of Title 36, Article 4 of Chapter 82 of Title 36,
27- 9 and Chapter 84 of Title 36 shall apply to this part."
27-10 SECTION 17.
27-11 This Act shall become effective upon its approval by the
27-12 Governor or upon its becoming law without such approval.
27-13 SECTION 18.
27-14 All laws and parts of laws in conflict with this Act are
27-15 repealed.
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Clerk of the House
Robert E. Rivers, Jr., Clerk
Last Updated on 04/27/00
