Could a water system accept public-works bids whose bonds used a different form than the one in its specification book?

Plain-English summary

Sandy Lake Water System received two public-works bids with bid bonds on forms other than the one in its specification book. In Opinion 03-0298, the AG concluded that both bonds were responsive. The submitted forms contained the same required information, with only minor additions and formatting changes. The Public Bid Law required a bid bond but did not prescribe the particular form in the specification book.

The engineers' advisory had asked bidders to use the supplied forms, saying they would save federal approval time. The AG read that notice as a request rather than a mandatory bid condition. It concluded that the contract could be awarded to the lowest responsive and responsible bidder on the facts provided.

Currency note

The full issue date is not legible in the available official extract. 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.

What the opinion meant at issuance

Water system

The opinion treated the two alternate bond forms as acceptable because the law, advertisement, and bid form did not make the specification-book bond form a condition. The advisory's “please use” wording did not change that result.

Bidders

The AG's answer depended on the bonds containing the required information and differing only in minor, inconsequential ways. It did not approve every departure from a required public-bid document.

Common questions

Q: Did using a different bond form automatically disqualify these bids? A: No. The AG found the submitted bonds responsive because they supplied the required information and the specific form had not been made mandatory.

Q: Did the consulting engineers' advisory make the book's form compulsory? A: The AG read “please use the forms” as a request, not a disqualification rule.

Q: Could the water system award the contract to the low bidder? A: The opinion said an award to the lowest responsive and responsible bidder was permitted after finding the two challenged bonds responsive.

Background and statutory framework

The AG quoted La. R.S. 38:2218A on the required bid security and R.S. 38:2212A(1)(b) on nonwaivable bid requirements. It distinguished a statutory or advertised requirement from a form merely requested in an advisory notice and applied that distinction to the Sandy Lake bids.

Citations and references

Statutes quoted or cited: La. R.S. 38:2218A; R.S. 38:2212A(1)(b).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/03-0298

Original opinion text

One American Place
DEPARTMENT OF JUSTICE
301 Main Street, Suite 600
CIVIL DIVISION
P.O. Box 94005
BATON ROUGE
TEL.: (225) 342-7013
FAX: (22.5) 342-2090
RICHARD P. IEYOUB
70804-9005
ATI"ORNEY GENERAL

Opinion Number 03-0298

90-A-1 Public Funds & Contracts
R.S. 38:2211 A (11)
R.S, 38:2212 A (1) (a) & (d)
Mr. Russell Purvis
R.S, 38:2212 A (1)(b)
Attorney at Law
R.S. 38:2218A
Smith, Taliaferro, Purvis & Boothe
Louisiana Public Bid Law requires a Bid Bond of not more
Post Office Box 277
than five percent of the contract pdce for public works
Jonesville, LA 71343
projects exceeding $25,000.00. Bid Bond submitted by
low bidder was responsive to public works bid solicitation of public entity.
Dear Mr. Purvis:

On behalf of the Sandy Lake Water System you have requested an opinion of our office regarding whether formal bids made by G.D. Womack Trenching, Inc. and CBC Services, Inc. in response to public works project No. 01-10-379E were responsive and whether an award of the contract to Womack Trenching as low bidder would be inconsistent with the advisory notice issued by the consulting engineers on June 10, 2003, and, if so, would the award of the contract violate the Louisiana Public Bid Law.
Included with your request were copies of the three bids for the project, the advertisement, summary of the bid proposals received from the three bidders including the bid bonds, copies of two addendums, and the June 10, 2003, advisory notice issued by the public entity through McManus Consulting Engineers.

The June 10, 2003, advisory notice stated to all bidders that: ’~/Vhen bidding, please use the forms in the specification book as provided; i.e. Bid Bond, Corporate Resolutions, and Certificate of Corporate Principal. USDA requires the use of these forms. Should you be awarded the contract, the above-mentioned forms will save contract approval time from USDA." Both Womack and CBC prepared and submitted a Bid Bond but did so on a form different than that found in the specification book. The information contained in the submitted Bid Bonds were the same as that set forth in bid form found in the specification book with some minor and inconsequential additions and formatting changes.

The question presented is whether or not G.D. Womack and CBC were responsive bidders when they submitted Bid Bonds required by R.S. 38:2218A but on a form other than the Bid Bond form found in the specification book. If responsive then G.D.
Womack would be the low responsive and responsible bidder and would be awarded the contract. If non-responsive then the bids of both G.D. Womack and CBC would be rejected.

Page 2

Opinion Number 03-0298
Mr. Russell Purvis, Attorney at Law
Sandy Lake Water System
Page -2-

Under the Louisiana Public Bid Law, contracts for public works projects costing
$100,000 or more must be advertised and let to the lowest responsive and responsible bidder. Public works means the erection, construction, alteration, improvement, or repair of any public facility or immovable property owned, used or leased by a public entity. LSA R.S. 38:2212A(1)(a) & (d) and 38:2211A.(11). The project let out for bids by Sandy Lake Water System is a public works project and will cost in excess of
$100,000.
La. R.S. 38:2218A reads as follows:

The public entity advertising for bids for work shall require the bidders to attach a certified check, cashier’s check, or bid bond for not more than five percent of the contract price of the work to be done, as an evidence of good faith of the bidder.

La. R.S. 38:2212A(1 )(b) read as follows:

The provisions and requirements of this Section, those stated in the advertisement for bids, and those required on the bid form shall not be waived by any public entity.

The bid bond form found in the specification book and referenced in the June 10, 2003, advisory issued by the consulting engineers is not a requirement found in the Public Bid Law, is not required in the legal advertisement issued on this project and is not a requirement found on the bid form. R.S. 38:2218 does not prescribe a particular bid bond form that bidders must use; only that a bid bond be submitted by a bidder and that the bid bond be for not more than five percent of the contract price. As such the prohibitory requirements of R.S. 38:2212A(1)(b) are not applicable.

Furthermore, the language of the June 10, 2003, advisory does not contain a requirement that each bidder use the bid bond contained in the specification book such that failure to utilize the form would be considered non-responsive to the bid solicitation. The advisory only states that each bidder "...please use the forms in the specification book as provided; i.e. Bid Bond ...". The notice is more in the form of a request than a mandate.

It is therefore the opinion of this office that the Bid Bonds submitted by Womack and CBC were responsive to the bid solicitation issued by Sandy Lake Water System, Inc. and the contract for public works project No. 01-10-379E, Contracts A & D may be awarded to G.D. Trenching Inc. as the lowest responsive and responsible bidder.

Page 3

Opinion Number 03-0298
Mr. Russell Purvis, Attorney at Law
Sandy Lake Water System
Page -3-

We trust that this answers your inquiry.

Yours very truly,

RICHARD P. IEYOUB
Attorney General

BY:~ ~" ~’~’--~------
RICHARD L.
Assistant AttorneyGeneral

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