Bill Text: GA SB492 | 2011-2012 | Regular Session | Engrossed

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: State Purchasing; require state contract awards for heavy equipment follow certain specific procedures

Spectrum: Partisan Bill (Republican 1-0)

Status: (Passed) 2012-07-01 - Effective Date [SB492 Detail]

Download: Georgia-2011-SB492-Engrossed.html

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12 SB 492/CSFA/2

Senate Bill 492

By: Senator Mullis of the 53rd

AS PASSED SENATE

A BILL TO BE ENTITLED
AN ACT

To amend Code Section 36-91-21 and Part 1 of Article 3 of Chapter 5 of Title 50 of the Official Code of Georgia Annotated, relating to competitive award requirements and general authority, duties, and procedure relative to state purchasing, respectively, so as to require that state contract awards for heavy equipment follow certain specific procedures; to provide requirements for the procurement of services; to provide for related matters; to provide an effective date and applicability; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Code Section 36-91-21 of the Official Code of Georgia Annotated, relating to competitive award requirements, is amended by redesignating existing subsections (f) and (g) as subsections (g) and (h), respectively, and by adding a new subsection (f) to read as follows:

"(f) 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.

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."

SECTION 1.1.

Chapter 4 of Title 50 of the Official Code of Georgia Annotated, relating to organization of the executive branch generally, is amended by adding a new Code section to read as follows:

"50-4-8.

No contract between a state agency and a private provider or vendor for the provision of all or part of any governmental services provided by the agency or for the provision of any services to the agency shall be entered into on or after July 1, 2012, if any such services will be performed outside the boundaries of the United States, except for those limited circumstances where the nature of the service being performed is unique to that location and cannot be performed within the boundaries of the United States. If at any time during the performance of a contract the private contracting party uses any services which are performed outside the boundaries of the United States, such private contracting party shall be liable to the state agency for damages in an amount equal to the contract value of such services. Each such contract entered into on or after July 1, 2012, shall contain a provision requiring compliance with the provisions of this Code section and providing that a breach of such provision, at the election of the agency, shall constitute a breach of the contract. In the event an agency brings an action in any court to enforce such provisions, it shall be entitled to reasonable attorney's fees in addition to any other damages."

SECTION 2.

Part 1 of Article 3 of Chapter 5 of Title 50 of the Official Code of Georgia Annotated, relating to general authority, duties, and procedure relative to state purchasing, is amended by revising subsection (b) of Code Section 50-5-67, relating to state purchasing through competitive bidding, as follows:

"(b)(1) Except as otherwise provided for in this part, all contracts for the purchases of supplies, materials, equipment, or services other than professional and personal employment services made under this part shall, wherever possible, be based upon competitive bids and shall be awarded to the lowest responsible bidder, taking into consideration the quality of the articles to be supplied and conformity with the specifications which have been established and prescribed, the purposes for which the articles are required, the discount allowed for prompt payment, the transportation charges, and the date or dates of delivery specified in the bid and any other cost affecting the total cost of ownership during the life cycle of the supplies, materials, equipment, or services as specified in the solicitation document. Competitive bids on such contracts shall be received in accordance with rules and regulations to be adopted by the commissioner of administrative services, which rules and regulations shall prescribe, among other things, the manner, time, and places for proper advertisement for the bids, indicating the time and place when the bids will be received; the article for which the bid shall be submitted and the specification prescribed for the article; the amount or number of the articles desired and for which the bids are to be made; and the amount, if any, of bonds or certified checks to accompany the bids. Any and all bids so received may be rejected.

(2)(A) In addition to the provisions of paragraph (1) of this subsection, any contract for the purchase of heavy equipment awarded by the state or any of its departments or divisions, including but not limited to the Department of Administrative Services, shall provide to the agency, department, municipality, or county which will be the end user of the heavy equipment the option to purchase such heavy equipment from a dealer which:

(i) Is the exclusive dealer in this state of heavy equipment for a manufacturer; and

(ii) Submitted a complete responsive bid as provided for under paragraph (1) of this subsection; provided, however, that such dealers shall have the option to provide either a fixed dollar price or a guaranteed minimum discount off of the manufacturer's suggested consumer list price for heavy equipment.

(B) As used in this paragraph, the term 'heavy equipment' means self-propelled, self-powered, or pull-type equipment and machinery, including diesel engines, weighing 5,000 pounds or more and primarily employed for construction, industrial, maritime, mining, or forestry use. The term shall not include:

(i) Motor vehicles requiring registration and a certificate of title;

(ii) Farm machinery, equipment, or implements; or

(iii) Equipment that is considered consumer goods, as that term is defined in Code Section 11-9-102."

SECTION 3.

Said part is further amended by revising Code Section 50-5-72, relating to construction and public works contracts conducted by the Department of Administrative Services and exceptions, as follows:

"50-5-72.

(a) Notwithstanding any other provision of this part or any other law dealing with the subject matter contained in this Code section to the contrary, all construction or public works contracts, exceeding a total expenditure of $100,000.00, of any department, board, bureau, commission, office, or agency of the state government, except as provided in this Code section, shall be conducted and negotiated by the Department of Administrative Services in accordance with this part; provided, however, that any expenditure of less than $100,000.00 shall still be subject to review and approval by the Department of Administrative Services, which may approve noncompetitive expenditures of up to $100,000.00.

(b) All advertising costs incurred in connection with such contracts shall be borne by and paid from the funds appropriated to and available to the department, board, bureau, commission, office, or agency of the state government for which the contract is negotiated. (c) Unless otherwise required by law, the Department of Administrative Services shall not 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.

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.

(d) The commissioner of administrative services is authorized and directed to promulgate such rules and regulations as shall carry out the additional duties and responsibilities placed upon the department by this Code section.

(e) Nothing contained in this Code section shall apply to or affect the Department of Transportation, the several public authorities of this state, including the Stone Mountain Memorial Association and the Board of Regents of the University System of Georgia, or the expenditure of money credited to the account of this state in the Unemployment Trust Fund by the secretary of the treasury of the United States pursuant to Section 903 of the Social Security Act and appropriated as provided in Code Section 34-8-85. No contract in existence on March 18, 1964, shall be affected by this Code section, and such contract may continue to be utilized."

SECTION 4.

This Act shall become effective on July 1, 2012, and shall apply to all contracts entered into on or after such date.

SECTION 5.

All laws and parts of laws in conflict with this Act are repealed.