Bill Text: MO HB1716 | 2012 | Regular Session | Introduced
Bill Title: Establishes the Political Subdivision Construction Bidding Standards Act which creates bidding standards for contracts of $25,000 or more by certain political subdivisions
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2012-03-28 - Public Hearing Completed (H) [HB1716 Detail]
Download: Missouri-2012-HB1716-Introduced.html
SECOND REGULAR SESSION
96TH GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVE COX.
5725L.01I D. ADAM CRUMBLISS, Chief Clerk
AN ACT
To amend chapter 67, RSMo, by adding thereto one new section relating to construction contract bidding standards for political subdivisions.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Chapter 67, RSMo, is amended by adding thereto one new section, to be known as section 67.314, to read as follows:
67.314. 1. The provisions of this section shall apply to contracts for construction awarded by political subdivisions of the state of Missouri and shall be known as the "Political Subdivision Construction Bidding Standards Act".
2. As used in this section, the following terms mean:
(1) "Contracts for construction", the construction or alteration of any building, structure, highway, bridge, street, viaduct, water or sewer line or system, pipeline, demolition, moving, or excavation connected therewith, and shall include the furnishing of surveying, construction engineering, planning or management services, or labor, material, or equipment, as required to perform work under the contract for construction. The direct purchase by a political subdivision of products or equipment from a vendor shall not be deemed a contract for construction. Neither shall a subcontract for labor, materials, or equipment, or such purchases by the person awarded a contract by the political subdivision or the contractor's subcontractors be deemed a contract for construction for purposes of this section;
(2) "Established local construction procurement policy", a policy and procedure for use in soliciting bids for multiple construction projects that has been officially adopted by the governing body of the political subdivision or established by the public works director, engineer, or similar official authorized by the political subdivision to administer the award of construction contracts;
(3) "Political subdivision", any city, town, village, county, or special purpose district, including all units of local government organized and operating under the laws of Missouri within local geographic areas wholly or partly within the state of Missouri, and all boards, commissions, divisions, departments, officers, and agents of such political subdivisions, in award of contracts for construction from public funds.
3. Nothing in this section shall be construed to require competitive bidding for the procurement of equipment, parts, or operating systems, or the installation of such items, when specifications for the procurement require a specific manufacturer to be compatible with existing or new facilities at a power plant, wastewater or water treatment facility, or other similar facility owned or operated by a political subdivision, provided that award of a contract for such purchases and installation without competitive bidding is not otherwise prohibited by law. Nothing in this section shall be construed to require the design or engineering of any project, as the term "project" is defined in section 8.287, to be awarded by competitive bidding if the contract for such services is under a separate contract from a contract for construction and is awarded under sections 8.285 to 8.291, or to construction management services governed by sections 8.675 to 8.687. Neither shall this section be construed to apply to contracts awarded by the design/build method of project delivery, if the political subdivision's procurement of design/build projects is otherwise authorized by statute.
4. (1) To the extent a political subdivision is not subject to specific requirements for advertising, soliciting, awarding, or rejecting bids for such projects by Missouri statutes or rules, federal or state funding requirements, or an established local construction procurement policy, the political subdivision shall comply with the minimum standards of this subsection.
(2) If a political subdivision is not subject to a specific requirement for advertising for bids or soliciting, awarding, or rejecting bids under Missouri statutes or rules, or federal or state funding requirements, and if the political subdivision has not adopted an established local construction procurement policy that is applicable to the specific political subdivision regarding contracts for construction, the political subdivision shall comply with the following provisions when soliciting bids and awarding construction contracts of twenty-five thousand dollars or more:
(a) Contracts for construction shall be advertised in advance of the acceptance of bids. If no provision of Missouri statutes or rules, or federal or state funding requirements, or established local construction procurement policy requiring advertising otherwise applies, bids shall be solicited by advertisement once a week for two consecutive weeks in a newspaper of general circulation, qualified under chapter 493, located in a county where the political subdivision is located. If there is no newspaper in the county qualified under chapter 493, advertisements may be placed in a newspaper in an adjoining county. The last insertion of the advertisement shall be not less than ten days before the date stated in the advertisement for acceptance of bids. Project advertisements and bid solicitations shall state the date and time of the deadline for the acceptance of bids, the place for submission of bids, and shall provide for informing bidders of the date, time, and place where bids shall be opened;
(b) If no provision of Missouri statute or rules, or federal or state funding requirements, or established local construction procurement policy otherwise applies, contracts for construction shall be awarded in compliance with this subdivision. The contract shall be awarded to the lowest and best bidder submitting a bid which is responsive to the contract as advertised by the political subdivision. The political subdivision may reject the low bidder by declaring the bidder ineligible for contract award based on the bidder's failure to provide a performance or payment bond as required by section 107.170, the bidder's nonperformance on previous contracts, or for other reasons specified as to the bidder's inability to adequately perform the contract. The reasons for bid rejection or award of the contract to another bidder shall be stated in writing to the low bidder within five business days of the rejection of the bid, if requested.
5. (1) If a political subdivision establishes a local construction procurement policy, the provisions of the policy shall meet the standards of this subsection.
(2) An established local construction procurement policy complies with this section if it provides for advertising of construction contracts in a manner reasonably likely to inform potential bidders of the project on a timely basis, in addition to advertisement in a newspaper of general circulation qualified under chapter 493, and requires that the date, time, and place for submission of bids be stated in the advertisement or solicitation for bids and provides for informing bidders of the date, time, and place bids will be opened. Such established local construction procurement policy shall also state any requirements for prequalification of bidders. If any additional project-specific qualifications are established, such qualifications shall be stated to potential bidders in advance of submission of bids. The established local construction procurement policy shall also state the bid award standard to be used in selecting contractors to perform contracts under the policy.
(3) No political subdivision shall establish or maintain a local construction procurement policy that provides for awarding one or more contracts for construction without competitive bidding if the contract for construction equals or exceeds twenty-five thousand dollars. The dollar limitation established in this subdivision shall not apply to any political subdivision that has established a higher dollar amount requiring bidding of construction contracts that was established in a local construction procurement policy before January 1, 2011.
6. (1) All political subdivisions shall comply with the standard for administering competitive bidding established under this subsection.
(2) Unless specifically required by conditions of funding from the federal government or the requirement of a federal statute or regulation, no local construction procurement policy shall include provisions and no contract for construction shall be awarded by a political subdivision in violation of the following requirements:
(a) No bid shall be opened or contract awarded in advance of the advertised deadline for submission of bids or in a place other than that established in paragraph (b) of this subdivision;
(b) No bid shall be accepted unless it is sealed and is in writing. If the letting of the project for which bids were solicited is cancelled, bids shall be returned to the bidder unopened;
(c) No bid shall be accepted after the advertised deadline for acceptance of bids;
(d) All bids received shall be held secure and confidential from all persons until the bids are opened on the date and at the time and place established in this section. Bids shall be opened in public on the date and at the time and place stated in the advertisement and request for bids or in an amended request for bids. If the date, time, or place of bid opening is changed from information stated in the original or amended advertisement or solicitation for bids or other notice to bidders, notice of the date, time, and place of bid opening shall be made to the general public at least two business days in advance of the bid opening. Bids shall be opened in public;
(e) No construction contract shall be awarded in substantial violation of a state statute or a political subdivision's established local construction procurement policy;
(f) No construction contract shall be awarded in violation of section 107.170 requiring performance and payment bonds.
The political subdivision shall notify any person who has prequalified for the specific project or has registered and obtained plans and specifications from the political subdivision or the political subdivision's engineer for the specific project regarding any changes in the acceptance or opening of bids under this subsection.
7. Nothing in this section shall be construed to prohibit acceptance and processing of bids through an established program of electronic bidding by computer, provided bids accepted and processed electronically shall meet standards established by the requirements of the electronic bidding program which are comparable to requirements for written bids established by this section.
8. Before or after a contract has been awarded, any person submitting a bid for a contract for construction and any person denied the opportunity to fairly compete for contract award due to violations of this section may file an action for any violation of subsection 6 of this section or sections 34.203 to 34.216, and shall have standing to seek injunctive relief, attorney's fees, and costs in a court of competent jurisdiction for violations of subsection 6 of this section or sections 34.203 to 34.216 as provided by this subsection. If the court determines upon substantial evidence there have been violations of subsection 6 of this section, the court may order a contract to be rebid or, if a contract has been awarded, order that the award be set aside and order a contract to be rebid. The court may award reasonable attorney's fees upon a finding of violation.
9. An unintentional failure to meet one or more publication dates for newspaper advertising or other requirements to inform potential bidders shall not constitute a violation of subsection 6 of this section where a court finds that bids for the construction contract were advertised in a newspaper of general circulation and were fairly solicited in substantial compliance with subsection 4 or 5 of this section, and finds that the contract was awarded through competitive bidding.
10. (1) Within three days after the filing of an action under subsection 8 of this section, the clerk of the court shall issue a summons under applicable state law and applicable local or supreme court rules. A copy of the petition shall be personally served upon the defendant by personal process server as provided by law or by any sheriff. Such service shall be served at the earliest time and shall take priority over service in other civil actions.
(2) Final disposition of an action under subsection 8 of this section shall take place not more than forty-five days after the service of such petition, unless waived by the parties or for good cause shown. Final disposition shall not include appellate review.
(3) Except as provided in subdivision (4) of this subsection, any action under subsection 8 of this section that is brought by the contractor more than fifteen days after the award of a contract shall be dismissed by the court. The computation of time periods herein prescribed shall be per Missouri Supreme Court Rule 44.01(a).
(4) If the court finds there has been fraud, collusion, or corruption in the award of a contract, an action brought by a person under subsection 8 of this section shall not be subject to the time limitation set forth in subdivision (3) of this subsection. In the event that the court finds fraud, collusion, or corruption in the award of a contract, then, in addition to the remedies set out in subsection 8 of this section, the court may order monetary damages or equitable relief for all injured parties as it deems appropriate.
(5) If the court finds there is no substantial cause for the action brought under this section and determines that the action was brought for purposes of harassment or disruption of the awarded contract, the court may order the claimant to pay the political subdivision's cost of attorney's fees. Upon a finding under this subdivision, the court may also award monetary damages resulting from delays in the project.
(6) Any action under subsection 8 of this section shall be heard by a court sitting without a jury and subject to review only per the standards set out in Murphy v. Carron, 536 S.W. 30 (Mo. Banc 1976). If more than one contractor submitting bids on a contract brings an action under subsection 8 of this section, the court shall adjudicate the actions jointly under the time limits established under subdivision (2) of this subsection.
11. Nothing in this section shall be construed to prohibit a political subdivision from rejecting any individual bid or any and all bids. Neither shall anything in this section prohibit a political subdivision from awarding contracts without competitive bidding when the political subdivision deems it necessary to remove an immediate danger to the public health or safety, to prevent loss to public or private property which requires government action, or to prevent an interruption of or to restore an essential public service.
12. Nothing in this section shall be construed to prohibit a political subdivision from adopting an established local construction procurement policy governing contracts for construction after the effective date of this section. Neither shall this section be construed to allow a political subdivision to maintain or enact any provision governing construction contracts in conflict with subsection 6 of this section or any state statute in effect on the effective date of this section or as subsequently amended or enacted.
13. No political subdivision shall divide a project into component labor or material allocations for the purpose of avoiding bidding or advertising provisions of this section.
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