Was St. Martinville's sewer-project bid addendum valid when it added an early-completion incentive?

Plain-English summary

St. Martinville added an early-completion incentive, changed the bid form and performance time, and kept the same bid opening for a sewer rehabilitation project. The addendum went into the mail on Wednesday afternoon; bids opened Monday evening. Both bidders acknowledged receiving it. In 2000, the attorney general's office concluded that the addendum satisfied the Louisiana Public Bid Law's then-applicable timing requirement and that the city could award to the lowest responsible and responsive bidder.

The law barred an addendum modifying plans and specifications within seventy-two hours of opening, excluding Saturdays, Sundays, and legal holidays. The office calculated that seventy-two qualifying hours had elapsed ninety minutes before opening. It also said an early-completion incentive could be included in a bid solicitation through a timely addendum.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

St. Martinville officials at the time

The opinion found no reason the city could not award this sewer contract, including its early-completion incentive, to the lowest responsible and responsive bidder who answered the solicitation on time.

Bidders at the time

Both bidders acknowledged the addendum. The office treated that fact as resolving any doubt about fairness to interested bidders in the circumstances presented.

Common questions

Q: When did the opinion count the addendum as issued?
A: At 4:30 p.m. Wednesday, when it was placed in the U.S. Mail; the city also faxed it to bid document holders that evening.

Q: Did the intervening weekend count toward the seventy-two hours?
A: No. The statute quoted in the opinion excluded Saturdays, Sundays, and legal holidays.

Q: Could the addendum add an early-completion payment?
A: The office said the Public Bid Law did not prohibit an incentive payment if it was part of the solicitation, as this timely addendum made it.

Background and statutory framework

The opinion applied La. R.S. 38:2212C(2)'s addendum timing rule to the stated September 27 issuance and October 2 bid opening. It checked legal holidays against La. R.S. 1:55 and concluded that seventy-two qualifying hours expired at 4:30 p.m. on opening day, before the 6:00 p.m. opening.

Citations and references

• La. R.S. 38:2212C(2) (timing of bid addenda)
• La. R.S. 1:55 (legal holidays)

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/00-0435

Original opinion text

December 1, 2000
OPINION NUMBER 00-435

90 - A - 1(a) PUBLIC FUNDS & CONTRACTS - Construction

R.S. 38:2212C; R.S. 1:55
Honorable Eric Martin, Mayor
Addendum issued more than 72 hours before time scheduled for bid
City of St. Martinville
opening was valid. Inclusion of incentive payment plan for early
P.O. Box 379
completion of project in addendum was not unlike any other change
St. Martinville, LA 70582
in specifications made by a timely addendum.

Dear Mayor Martin:

You have requested the opinion of this office on the following issue regarding a proposed public works contract by the City of St. Martinville for sewer rehabilitation:

In a public works bid solicitation which was advertised and scheduled for bid opening on Monday, October 2 at 6:00 p.m. an addendum was issued on Wednesday, September 27 by 4:30 p.m. by U.S. Mail and was transmitted by FAX to all bid document holders between 4:41 and 5:08 p.m. on that same day. The addendum added an incentive payment for early completion, revised the bid form and changed the contract performance time. The bid opening date was not altered. Both bidders who responded to the solicitation acknowledged receipt of the addendum. Are the addendum and the solicitation valid and may a bid award be made to the lowest responsible and responsive bidder?

As you are aware, the City of St. Martinville is governed by the provisions of the Louisiana Public Bid Law in the expenditure of public funds for purchases and for contracts for public works. La. R.S. 38:2212C(2) provides in pertinent part:

No public entity shall issue or cause to be issued any addenda modifying plans and specifications within a period of seventy-two hours prior to the advertised time for the opening of bids, excluding Saturdays, Sundays, and any other legal holidays... [Emphasis added.]

The facts presented in your letter indicate that the addendum was issued at 4:30 p.m. on Wednesday, September 27 when it was placed in the U.S. Mail and that bids were duly received at 6:00 p.m. on Monday, October 2. None of the intervening days is a legal holiday as established by La. R.S. 1:55. Therefore, excluding the Saturday and Sunday which fell in the midst of this period, 72 hours of “work days” from issuance of the addendum passed at 4:30 p.m. on October 2, 90 minutes before the scheduled time for the opening of bids. This meets the statutory delay requirement for the issuance of addenda.

Page 2

Opinion Number 00-435
Hon. Eric Martin, Mayor
City of St. Martinville
Page -2-

In addition, the fact that both bidders acknowledged receipt of the addendum should resolve any doubt about fairness to interested bidders.

Use of “incentive payments” in public contracts is not prohibited by the Public Bid Law so long as such an arrangement is part of the bid solicitation, which was accomplished by the addendum discussed above. Such contract provisions have been used frequently in recent public works solicitations by state and local entities to expedite completion of public projects and minimize inconvenience to the public during construction. Inclusion of such an early completion incentive plan in the specifications by addendum was no different than any other change in the specifications made by an addendum. Such changes are explicitly anticipated by the Public Bid Law in R.S. 38:2212C.

Therefore, we see no reason why the City of St. Martinville may not award a contract which includes early completion incentive payments to the lowest responsible and responsive bidder who responded timely to your solicitation for sewer rehabilitation work. I trust that this answers your inquiry. Please let me know if we may be of any further assistance to you in this matter.

Very truly yours,

RICHARD P. IEYOUB
Attorney General

By:
GLENN R. DUCOTE
Assistant Attorney General

RPI/GRD/dra

Page 3

OPINION NUMBER 00-435
SYLLABUS

90 - A - 1(a) PUBLIC FUNDS & CONTRACTS - Construction

R.S. 38:2212C; R.S. 1:55

Addendum issued more than 72 hours before time scheduled for bid opening was valid. Inclusion of incentive payment plan for early completion of project in addendum was not unlike any other change in specifications made by a timely addendum.

Honorable Eric Martin, Mayor
City of St. Martinville
P.O. Box 379
St. Martinville, LA 70582

Date Received:

Date Released: December 1, 2000

Glenn R. Ducote
Assistant Attorney General