Could Mandeville require contractor qualification forms with every public-works bid?

Plain-English summary

Mandeville asked whether its public-works bidders could be required to complete two contractor qualification forms, AIA Document A305 and EJCDC Statement C-451, before or after bids were opened. In November 2015, the Attorney General concluded that the city could not demand either form with every initial bid. La. R.S. 38:2212(B)(2) required the Louisiana Uniform Bid Form and listed the information allowed at bid opening.

The AG said the city could include the qualification forms in bidding documents and instruct the apparent low bidder to complete and submit them within ten days after bids were opened. It also found no Public Bid Law prohibition on including the forms as exhibits to the final contract or incorporating their information in a mutually acceptable manner.

Currency note

This opinion was issued in 2015. 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.

Common questions

Could the city reject an initial bid for omitting A305 or C-451?

Under the AG’s reading, the city could not require those extra forms with the initial bid. They were not on the statute’s list of bid-opening submissions.

Could the apparent low bidder be asked to supply the forms later?

Yes. The opinion said the bidding documents could require that bidder to submit them within ten days after bid opening.

Could the forms appear in the final public-works contract?

The AG found no prohibition in the Public Bid Law against including them as contract exhibits or otherwise incorporating their information by agreement.

Did the opinion apply the same bid process to every small project?

It noted that public-works projects estimated below the then-stated $150,000 threshold were not subject to the advertising and bidding requirements it discussed. Its principal answer addressed publicly bid work.

Background and statutory framework

La. R.S. 38:2212(B)(2) required the Uniform Bid Form and enumerated the limited material required at opening; Subsection (B)(3) allowed later documentation from the apparent low bidder. The AG applied those provisions to the two qualification statements and separated submission timing from contract incorporation.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/15-0139

Original opinion text

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DEPARTMENT OF JUSTICE
P.O. BOX 94005
BATON ROUGE
70804-9005
JAMES D. "BUDDY" CALDWEll
AITORNEY GENERAL
NOV 30 2015
OPINION 15-0139
90-A-1 PUBLIC FUNDS & CONTRACTS

Mr. Ernest A. Burquieres
lao R.S. 3B:2212

Mandeville Councilman, District 3 Pursuanllo plain language of La. RS. 38:2212(8)(2), the City may nol
3101 East Causeway Approach
require potential bidders to complete either Document A305, or
Statement C-451 as part of the pre-bid materials. The City may,
Mandeville, LA 70448-3592
however, include such forms as part of their bidding documents and
include a requirement and instruction to potential bidders that such fonns would be required to be completed and submitted by the apparent lowbidder within ten days afterthe date bids are opened.

Dear Councilman Burquieres:

Your request for an Attorney General's Opinion has been assigned to me for research and reply, You have asked for our opinion as to whether the City of Mandeville ("City") may require potential bidders to fill out either the American Institute of Architects AlA Document A305 ("Document A305"), or the Engineers Joint Contract Documents Committee EJDC Qualifications Statement C-451 ("Statement C-451") in either the pre­ bid, or post-bid materials. You have also asked our opinion as to whether either of these documents may be included in the City's publicly bid contracts.

As a public entity, as defined in La. R.S. 38:2211(A)(11), the City is subject to the provisions of the Louisiana Public Bid Law. Under Louisiana's Public Bid Law, contracts for public works projects exceeding $150,000 must be advertised and let to the lowest responsible and responsive bidder. La. R.S. 38:2212(A)(1). Public works projects that are estimated to cost less than $150,000 are not subject to the advertising and bidding requirements of the Public Bid Law and may be undertaken by the public entity with its own employees or may be negotiated with one or more contractors. La. R.S.
38:2212(N).

Louisiana courts have recognized that Louisiana's Public Bid Law is a prohibitory law founded on public policy. Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Auth., 04-0211 (La. 3/18/04), 867 SO.2d 651, 656. The statute was enacted in the interest of the taxpaying citizens for the purpose of protecting them against contracts of public officials entered into because of favoritism and involving exorbitant and extortionate prices. Airline Construction Company, Inc. v. Ascension Parish School Board, 568 SO.2d 1029, 1032 (La.1990). Furthermore, Louisiana courts have recognized that a political entity has no authority to take any action which is inconsistent with the Public Bid Law. Broadmoor, 867 So.2d 651; Louisiana Associated Gen.
Contractors, Inc. v. Louisiana Dep't of Agric. & Forestry, 05-0131 (La.2/22/06), 924 SO.2d 90,95.

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Opinion 15-0139
Mr. Ernest A. Burquieres
Page 2

La. R.S. 38:2212(B)(2) outlines what kind of documents and information a public entity can require potential bidders to complete and submit. It provides, in pertinent part, the following:

(2) Any public entity advertising for public work shall use only the Louisiana Uniform Bid Form as promulgated in accordance with the Administrative Procedure Act by the division of administration, office of facility planning and control. The bidding documents shall require only the following information and documentation to be submitted by a bidder at the time designated in the advertisement for bid opening: Bid Security or Bid Bond, Acknowledgment of Addenda, Base Bid, Alternates, Signature of Bidder, Name, Title, and Address of Bidder, Name of Firm or Joint Venture, Corporate Resolution or written evidence of the authority of the person signing the bid, and Louisiana Contractors License Number, and on public works projects where unit prices are utilized, a section on the bid form where the unit price utilized in the bid shall be set forth including a description for each unit; however, unit prices shall not be utilized for the construction of building projects, unless the unit prices and their extensions are incorporated into the base bid or alternates.

(3)(a) The bidding documents shall not require any bidder, other than the apparent low bidder, to furnish any other information or documentation, including the Attestation Affidavit and the E-Verification Form, any sooner than ten days after the date bids are opened; however, the apparent low bidder may submit such information or documentation at any time prior to the expiration of the ten-day period ...

                           •             •             •

La. R.S. 38:2212(B)(2) specifically provides that public entities are required to use the Louisiana Uniform Bid Form promulgated by the Division of Administration for all publicly bid public works contracts. It then goes on to specifically delineate an exclusive list of the information and documentation potential bidders are required to submit with their bid. La. R.S. 38:2212(B)(3) further provides that the bidding documents shall not require any bidder, other than the apparent low bidder, to provide any other information or documentation any sooner than ten days after the date bids are opened.

Thus, pursuant to plain language of La. R.S. 38:2212(B)(2), it is the opinion of this office that the City may not require potential bidders to complete either Document A305, or Statement C-451 as part of the pre-bid materials. Pursuant to La. R.S. 38:2212(B)(2), the City is required to use the Louisiana Uniform Bid Form promulgated by the Division of Administration and may only require potential bidders to submit the information and documentation listed in statute. Since neither Document A305, nor Statement C-451 is

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Opinion 15-0139
Mr. Ernest A. Burquieres
Page 3

listed in statute, the City may not require potential bidders to complete these forms and submit them with their bid. The City may, however, include such forms as part of their bidding documents and include a requirement and instruction to potential bidders that such forms would be required to be completed and submitted by the apparent low bidder within ten days after the date bids are opened. It is the opinion of this office that La. R.S. 38:2212(B)(3) allows such a practice.

With respect to your second question about incorporating the referenced forms into the City's publicly bid contracts, our review of each of the referenced forms reveals that they generally can be referred to as contractor qualification statements and seek general background information about the potential bidder/contractor. Our review of the public bid law fails to reveal any prohibition against including such documents as an exhibit to the formal contract between the parties, or otherwise incorporating the information into the contract in a manner acceptable to the parties.

We trust this adequately responds to your request. If you should have any questions about the response contained herein, please feel free to contact our office.

Yours very truly,

JAMES D. "BUDDY" CALDWELL
ATTORNEY GENERAL

BY:
MICHAEL J. \fJ LLAN
Assistant Atto ney General
JDC/MJV/as