Repealed by Acts 1997, No. 97-225, p. 348, §4, effective April 22, 1997.

A prosecution for any offense in violation of the competitive bid laws of Articles 2 and 3 of this chapter must be commenced within six years after the commission of the offense.

(a) Whenever the State of Alabama is a party to any contract, the contract shall be executed by all parties in a timely fashion. When a party to a contract, other than the state, has fully executed the responsibility under the contract and there remains only the payment of funds by the state, payment shall be made in a timely manner. If the amount due by the state is not in dispute, payment shall be made within 30 days after the other party has completed his or her portion of the contract and presented a proper invoice. If the amount payable is not paid within 30 days, interest on the amount shall be charged. A party who receives a payment from the state in connection with a contract shall pay each of its subcontractors or sub-subcontractors the portion of the state's payment to the extent of that subcontractor's or sub-subcontractor's interest in the state's payment in accordance with the payment terms agreed to by the contractor and the subcontractor, but if payment terms are not agreed to, then within seven days after receipt of payment from the state. The payment shall include interest, if any, that is attributable to work performed by the subcontractor or sub-subcontractor. The interest rate shall be the legal amount currently charged by the state. Interest shall be paid from the same fund or source from which the contract principal is paid. Nothing in this subsection shall prevent the state, contractor, or subcontractor from withholding payments if there is a bona fide dispute over one or more of the following:

(1) Unsatisfactory job progress.

(2) Defective construction not remedied.

(3) Disputed work.

(4) Third party claims filed or reasonable evidence that a claim will be filed.

(5) Failure of the contractor, subcontractor, or sub-subcontractor to make timely payments for labor, equipment and materials.

(6) Property damage to owner, contractor, or subcontractor.

(7) Reasonable evidence that the contract, subcontract, or sub-subcontract cannot be completed for the unpaid balance of the contract or contract sum.

(b) In the event that there is a bona fide dispute over all or any portion of the amount due on a progress payment from the owner, contractor, or subcontractor then the owner, contractor, or subcontractor may withhold payment in an amount not to exceed two times the disputed amount.

(c) An owner is required to notify a contractor in writing within 15 days of receipt of any disputed request for payment. A contractor, subcontractor, and sub-subcontractor is required to provide written notification within five days of disputed request for payment or notice of disputed request for payment.

(d) The amount of retainage withheld by the contractor to the subcontractor or the subcontractor to the sub-subcontractor shall not exceed the retainage withheld by the state unless interest is applied to the withheld amount.

(a) With the exception of contracts for public works whose competitive bidding requirements are governed exclusively by Title 39, all contracts of whatever nature for labor, services, work, or for the purchase or lease of materials, equipment, supplies, or other personal property, involving seven thousand five hundred dollars ($7,500) or more, made by or on behalf of any state department, board, bureau, commission, committee, institution, corporation, authority, or office shall, except as otherwise provided in this article, be let by free and open competitive bidding, on sealed bids, to the lowest responsible bidder.

(b) A 'preferred vendor' shall be a person, firm, or corporation which is granted preference priority according to the following:

(1) PRIORITY '1. Produces or manufactures the product within the state.

(2) PRIORITY '2. Has an assembly plant or distribution facility for the product within the state.

(3) PRIORITY '3. Is organized for business under the applicable laws of the state as a corporation, partnership, or professional association and has maintained at least one retail outlet or service center for the product or service within the state for not less than one year prior to the deadline date for the competitive bid.

(c) In the event a bid is received for the product or service from a person, firm, or corporation deemed to be a responsible bidder and a preferred vendor where any state department, board, bureau, commission, committee, institution, corporation, authority, or office is the awarding authority and the bid is no more than five percent greater than the bid of the lowest responsible bidder, the awarding authority may award the contract to the preferred vendor.

(a) Competitive bids shall not be required for utility services where no competition exists or where rates are fixed by law or ordinance, and the competitive bidding requirements of this article shall not apply to: The purchase of insurance by the state; contracts for the securing of services of attorneys, physicians, architects, teachers, artists, appraisers, engineers, or other individuals possessing a high degree of professional skill where the personality of the individual plays a decisive part; contracts of employment in the regular civil service of the state; purchases of alcoholic beverages only by the Alcoholic Beverage Control Board; purchases and contracts for repair of equipment used in the construction and maintenance of highways by the State Department of Transportation; purchases of products made or manufactured by the blind or visually handicapped under the direction or supervision of the Alabama Institute for Deaf and Blind in accordance with Sections 21-2-1 through 21-2-4; purchases of maps or photographs purchased from any federal agency; contractual services and purchases of personal property, which by their very nature are impossible of award by competitive bidding; barter transactions by the Department of Corrections; and purchases, contracts, or repairs by the Alabama State Port Authority when it is deemed by the Director of the Alabama State Port Authority and the Secretary-Treasurer of the Alabama State Port Authority that the purchases, contracts, or repairs are impractical of award by competitive bidding due to the exigencies of time or interference with the flow of commerce. The Director of the Alabama State Port Authority and the Secretary-Treasurer of the Alabama State Port Authority shall place a sworn statement in writing in the permanent file or records setting out the emergency or exigency relied upon and the necessity for negotiation instead of proceeding by competitive bidding in that particular instance, and the sworn statement shall be open to public inspection. A copy of the sworn statement shall be furnished forthwith to the Governor and Attorney General.

(b) All educational and eleemosynary institutions governed by a board of trustees or other similar governing body and the Alabama State Port Authority shall be exempt from this article which relate to the powers, duties, authority, restrictions, and limitations conferred or imposed upon the Department of Finance, Division of Purchasing. The educational and eleemosynary institutions, the Alabama State Port Authority, and the other state agencies exempted from this article shall let by free and open competitive bidding on sealed bids to the lowest responsible bidder all contracts of whatever nature for labor, services or work or for the purchase or lease of materials, equipment, supplies, or other personal property involving seven thousand five hundred dollars ($7,500) or more. The institutions, departments, and agencies shall establish and maintain purchasing facilities as may be necessary to carry out the intent and purpose of this article by complying with the requirements for competitive bidding in the operation and management of each institution, department, or agency.

(c) Contracts entered into in violation of this article shall be void.

(d) Nothing in this section shall be construed as repealing Sections 9-2-106 and 9-2-107.

The governing authorities of two or more agencies within the same county or adjoining counties, or the governing bodies of two or more counties, whose contracts are required under this article to be let by competitive bidding, may provide by joint agreement for the purchase of labor, services, or work or for the purchase or lease of materials, equipment, supplies, or other personal property for use by their respective agencies. The agreement shall be entered into by similar executive orders or resolutions issued or adopted by each of the participating governing authorities which shall set forth the categories of labor, services, or work or the materials, equipment, supplies, or other personal property to be purchased or leased, the manner of advertising for bids and of awarding of contracts, the method of payment by each participating contracting agency, and other matters deemed necessary to carry out the purposes of the agreement. Each contracting agency's share of expenditures for purchases under any agreement shall be appropriated and paid in the manner set forth in the agreement and in the same manner as for other expenses of the contracting agency. The contracting agencies entering into a joint agreement, as permitted by this section, may designate a joint purchasing agent and the agent shall have the responsibility to comply with the provisions of this article. Purchases, contracts, or agreements made pursuant to a joint purchasing agreement shall be subject to all of the terms and conditions of this article.

In the event that utility services are no longer exempt from competitive bidding under this article, non-adjoining counties may not purchase utility services by joint agreement under authority granted by this section.

All laws to the contrary notwithstanding, any state department or agency whose principal business is honorariums is hereby exempted from the provisions of the state competitive bid laws on purchases and contracts for services made by such department or agency.

The state may without advertisement or receiving competitive bids purchase materials, equipment, supplies or other personal property from the United States government or any agency, division or instrumentality thereof when such purchase is deemed by the state Purchasing Agent to be in the best interest of the State of Alabama.

In case of emergency affecting public health, safety or convenience, so declared in writing by the head of the institution or state agency involved, setting forth the nature of the danger to public health, safety or convenience involved in delay, contracts may be let to the extent necessary to meet the emergency without public advertisement. Such action and the reasons therefor shall immediately be made public by the awarding authority.

(a) The Purchasing Agent shall advertise for sealed bids on all purchases in excess of seven thousand five hundred dollars ($7,500) by posting notice thereof on a bulletin board maintained outside the office door or by publication of notice thereof, one time, in a newspaper published in Montgomery County, Alabama, or in any other manner, for such lengths of time as the Purchasing Agent may determine. The Purchasing Agent shall also solicit sealed bids by sending notice by mail to all Alabama persons, firms, or corporations who have filed a request in writing that they be listed for solicitation on bids for the particular items set forth in the request and the other persons, firms, or corporations the Purchasing Agent deems necessary to insure competition. If any person, firm, or corporation whose name is listed fails to respond to any solicitation for bids after the receipt of three solicitations, the listing may be cancelled by the Purchasing Agent.

(b) All bids shall be sealed when received, shall be opened in public at the hour stated in the notice, and all original bids together with all documents pertaining to the award of the contract shall be retained and made a part of the permanent file or records and shall be open to public inspection.

(c) If the purchase or contract will involve an amount of seven thousand five hundred dollars ($7,500) or less, the Purchasing Agent may make the purchases or contracts either upon the basis of sealed bids or in the open market.

(d) No purchase or contract involving an amount in excess of seven thousand five hundred dollars ($7,500) shall be divided into parts involving amounts of seven thousand five hundred dollars ($7,500) or less for the purpose of avoiding the requirements of this article. All such partial contracts involving seven thousand five hundred dollars ($7,500) or less shall be void.

Any agreement or collusion among bidders or prospective bidders in restraint of freedom of competition by agreement to bid at a fixed price or to refrain from bidding or otherwise shall render the bids of such bidders void. Each bidder shall accompany his bid with a sworn statement that he has not been a party to such an agreement.

Any disclosure in advance of the terms of a bid submitted in response to an advertisement for bids shall render the proceedings void and require advertisement and award anew.

(a) When purchases are required to be made through competitive bidding, award shall, except as provided in subsection (e), be made to the lowest responsible bidder taking into consideration the qualities of the commodities proposed to be supplied, their conformity with specifications, the purposes for which required, the terms of delivery, transportation charges and the dates of delivery provided, that the awarding authority may at any time within 30 days after the bids are opened negotiate and award the contract to anyone, provided he secures a price at least five percent under the low acceptable bid. The award of such a negotiated contract shall be subject to approval by the Director of Finance and the Governor, except in cases where the awarding authority is a two-year or four-year college or university governed by a board. The awarding authority or requisitioning agency shall have the right to reject any bid if the price is deemed excessive or quality of product inferior.

(b) Each bid, with the name of the bidder, shall be entered on a record. Each record, with the successful bid indicated thereon and with the reasons for the award if not awarded to the lowest bidder shall, after award of the order or contract, be open to public inspection.

(c) The Purchasing Agent in the purchase of or contract for personal property or contractual services shall give preference, provided there is no sacrifice or loss in price or quality, to commodities produced in Alabama or sold by Alabama persons, firms or corporations.

(d) Contracts for the purchase of personal property or contractual services shall be let for periods not greater than three years, however, any contract that generates funds or will reduce annual costs by awarding the contract for a longer term than a period of three years which is let by or on behalf of a state two-year or four-year college or university may be let for periods not greater than 10 years. Any contract awarded pursuant to this section for terms of less than 10 years may be extended for a period not to exceed 10 years from the initial awarding of the contract provided that the terms of the contract shall not be altered or renegotiated during the period for which the contract is extended.

(e) Contracts for the purchase of services for receiving, processing, and paying claims for services rendered recipients of the Alabama Medicaid program authorized under Section 22-6-7 which are required to be competitively bid may be awarded to the bidder whose proposal is most advantageous to the state, taking into consideration cost factors, program suitability factors (technical factors) including understanding of program requirements, management plan, excellence of program design, key personnel, corporate or company resources and designated location, and other factors including financial condition and capability of the bidder, corporate experience and past performance and priority of the business to insure the contract awarded is the best for the purposes required. Each of these criteria shall be given relative weight value as designated in the invitation to bid, with price retaining the most significant weight. Responsiveness to the bid shall be scored for each designated criteria. If, for reasons cited above, the bid selected is not from the lowest bidding contractor, the Alabama Medicaid Agency shall present its reasons for not recommending award to the low bidder to the Medicaid Interim Committee. The committee shall evaluate the findings of the Alabama Medicaid Agency and must, by resolution, approve the action of the awarding authority before final awarding of any such contract. The committee shall also hear any valid appeals against the recommendation of the Alabama Medicaid Agency from the low bid contractor(s) whose bid was not selected.

(f) Notwithstanding the requirements under Sections 41-16-20, 41-16-21, and this section, contractual services and purchases of personal property regarding the athletic department, food services, and transit services negotiated on behalf of two-year and four-year colleges and universities may be awarded without competitive bidding provided that no state revenues, appropriations, or other state funds are expended or committed and when it is deemed by the respective board that financial benefits will accrue to the institution, except that in the cases where an Alabama business entity as defined by this section is available to supply the product or service they will have preference unless the product or service supplied by a foreign corporation is substantially different or superior to the product or service supplied by the Alabama business entity. However, the terms and conditions of any of the services or purchases which are contracted through negotiation without being competitively bid and the name and address of the recipient of such a contract shall be advertised in a newspaper of general circulation in the municipality in which the college or university is located once a week for two consecutive weeks commencing no later than 10 days after the date of the contract. For the purposes of this section, the term Alabama business entity shall mean any sole proprietorship, partnership, or corporation organized in the State of Alabama.

Bond in a responsible sum for faithful performance of the contract, with adequate surety, shall be required in an amount specified in the advertisement for bids.

No contract awarded to the lowest responsible bidder shall be assignable by the successful bidder without written consent of the awarding authority and requisitioning agency, and in no event shall a contract be assigned to an unsuccessful bidder whose bid was rejected because he was not a responsible bidder.

Neither the Purchasing Agent nor any assistant or employee of his shall be financially interested or have any personal beneficial interest, either directly or indirectly, in the purchase of or contract for any personal property or contractual service, nor in any firm, partnership, association or corporation furnishing any such personal property or contractual services to the state government or to any of its departments, agencies or institutions. Neither the Purchasing Agent nor any assistant or employee of his shall accept or receive, directly or indirectly, from any person, firm, association or corporation to whom any contract may be awarded, by rebate, gifts or otherwise, any money or thing of value whatsoever or any promise, obligation or contract for future reward or compensation, nor shall any person willfully make any purchase or award any contract in violation of the provisions of this article.

Any violation of this section shall be deemed a misdemeanor, and any person who violates this section shall, upon conviction, be imprisoned for not more than 12 months or fined not more than $500.00 or both. Upon conviction thereof, any such Purchasing Agent, assistant or employee of his or any person who willfully makes any purchase or awards any contract in violation of the provisions of this article shall be removed from office.

Any taxpayer of the area within the jurisdiction of the awarding authority and any bona fide unsuccessful bidder on a particular contract shall be empowered to bring a civil action in the appropriate court to enjoin execution of any contract entered into in violation of the provisions of this article.

This article shall be cumulative in its nature.

All conflicting provisions of law are hereby expressly repealed; however, this article shall in no manner repeal any of the provisions of Chapter 36 of Title 16 of this code or Chapters 2 and 5 of Title 39 of this code or Article 5 of Chapter 4 of this title.

(a) With the exception of contracts for public works whose competitive bidding requirements are governed exclusively by Title 39, all expenditure of funds of whatever nature for labor, services, work, or for the purchase of materials, equipment, supplies, or other personal property involving seven thousand five hundred dollars ($7,500) or more, and the lease of materials, equipment, supplies, or other personal property where the lessee is, or becomes legally and contractually, bound under the terms of the lease, to pay a total amount of seven thousand five hundred dollars ($7,500) or more, made by or on behalf of any state trade school, state junior college, state college, or university under the supervision and control of the State Board of Education, the city and county boards of education, the district boards of education of independent school districts, the county commissions, the governing bodies of the municipalities of the state, and the governing boards of instrumentalities of counties and municipalities, including waterworks boards, sewer boards, gas boards, and other like utility boards and commissions, except as hereinafter provided, shall be made under contractual agreement entered into by free and open competitive bidding, on sealed bids, to the lowest responsible bidder. Prior to advertising for bids for an item of personal property, where the county, a municipality, or an instrumentality thereof is the awarding authority, the awarding authority may establish a local preference zone consisting of either the legal boundaries or jurisdiction of the awarding authority, or the boundaries of the county in which the awarding authority is located, or the boundaries of the Standard Metropolitan Statistical Area (SMSA) in which the awarding authority is located. If no such action is taken by the awarding authority, the boundaries of the local preference zone shall be deemed to be the same as the legal boundaries or jurisdiction of the awarding authority. In the event a bid is received for an item of personal property to be purchased or contracted for from a person, firm, or corporation deemed to be a responsible bidder, having a place of business within the local preference zone where the county, a municipality, or an instrumentality thereof is the awarding authority, and the bid is no more than three percent greater than the bid of the lowest responsible bidder, the awarding authority may award the contract to the resident responsible bidder. In the event only one bidder responds to the invitation to bid, the awarding authority may reject the bid and negotiate the purchase or contract, providing the negotiated price is lower than the bid price.

(b) The governing bodies of two or more contracting agencies, as enumerated in subsection (a) within the same county or adjoining counties, or the governing bodies of two or more counties, may provide, by joint agreement, for the purchase of labor, services, or work, or for the purchase or lease of materials, equipment, supplies, or other personal property for use by their respective agencies. The agreement shall be entered into by similar ordinances, in the case of municipalities, or resolutions, in the case of other contracting agencies, adopted by each of the participating governing bodies, which shall set forth the categories of labor, services, or work, or for the purchase or lease of materials, equipment, supplies, or other personal property to be purchased, the manner of advertising for bids and the awarding of contracts, the method of payment by each participating contracting agency, and other matters deemed necessary to carry out the purposes of the agreement. Each contracting agency's share of expenditures for purchases under any agreement shall be appropriated and paid in the manner set forth in the agreement and in the same manner as for other expenses of the contracting agency. The contracting agencies entering into a joint agreement, as herein permitted, may designate a joint purchasing agent, and the agent shall have the responsibility to comply with this article. Purchases, contracts, or agreements made pursuant to a joint purchasing agreement shall be subject to all terms and conditions of this article.

In the event that utility services are no longer exempt from competitive bidding under this article, non-adjoining counties may not purchase utility services by joint agreement under authority granted by this subsection.

(c) All bidders shall furnish a bid bond on any contract exceeding ten thousand dollars ($10,000) if bonding is available for the services, equipment, or materials.

(a) Competitive bids shall not be required for utility services, the rates for which are fixed by law, regulation, or ordinance, and the competitive bidding requirements of this article shall not apply to:

(1) The purchase of insurance.

(2) The purchase of ballots and supplies for conducting any primary, general, special, or municipal election.

(3) Contracts for securing services of attorneys, physicians, architects, teachers, superintendents of construction, artists, appraisers, engineers, consultants, certified public accountants, public accountants, or other individuals possessing a high degree of professional skill where the personality of the individual plays a decisive part.

(4) Contracts of employment in the regular civil service.

(5) Contracts for fiscal or financial advice or services.

(6) Purchases of products made or manufactured by the blind or visually handicapped under the direction or supervision of the Alabama Institute for Deaf and Blind in accordance with Sections 21-2-1 to 21-2-4, inclusive.

(7) Purchases of maps or photographs from any federal agency.

(8) Purchases of manuscripts, books, maps, pamphlets, or periodicals.

(9) The selection of paying agents and trustees for any security issued by a public body.

(10) Existing contracts up for renewal for sanitation or solid waste collection, recycling, and disposal between municipalities or counties, or both, and those providing the service.

(11) Purchases of computer and word processing hardware when the hardware is the only type that is compatible with hardware already owned by the entity taking bids and custom software.

(12) Professional services contracts for codification and publication of the laws and ordinances of municipalities and counties.

(13) Contractual services and purchases of commodities for which there is only one vendor or supplier and contractual services and purchases of personal property which by their very nature are impossible to award by competitive bidding.

(14) Purchases of dirt, sand, or gravel by a county governing body from in-county property owners in order to supply a county road or bridge project in which the materials will be used. The material shall be delivered to the project site by county employees and equipment used only on projects conducted exclusively by county employees.

(15) Contractual services and purchases of products related to, or having an impact upon, security plans, procedures, assessments, measures, or systems, or the security or safety of persons, structures, facilities, or infrastructures.

(b) This article shall not apply to:

(1) Any purchases of products where the price of the products is already regulated and established by state law.

(2) Purchases made by individual schools of the county or municipal public school systems from moneys other than those raised by taxation or received through appropriations from state or county sources.

(3) The purchase, lease, sale, construction, installation, acquisition, improvement, enlargement, or expansion of any building or structure or other facility designed or intended for lease or sale by a medical clinic board organized under Sections 11-58-1 to 11-58-14, inclusive.

(4) The purchase, lease, or other acquisition of machinery, equipment, supplies, and other personal property or services by a medical clinic board organized under Sections 11-58-1 to 11-58-14, inclusive.

(5) Purchases for public hospitals and nursing homes operated by the governing boards of instrumentalities of the state, counties, and municipalities.

(6) Contracts for the purchase, lease, sale, construction, installation, acquisition, improvement, enlargement, or extension of any plant, building, structure, or other facility or any machinery, equipment, furniture, or furnishings therefor designed or intended for lease or sale for industrial development, other than public utilities, under Sections 11-54-80 to 11-54-99, inclusive, or Sections 11-54-20 to 11-54-28, inclusive, or any other statute or amendment to the Constitution of Alabama authorizing the construction of plants or other facilities for industrial development or for the construction and equipment of buildings for public building authorities under Sections 11-56-1 to 11-56-22, inclusive.

(7) The purchase of equipment, supplies, or materials needed, used, and consumed in the normal and routine operation of any waterworks system, sanitary sewer system, gas system, or electric system, or any two or more thereof, that are owned by municipalities, counties, or public corporations, boards, or authorities that are agencies, departments, or instrumentalities of municipalities or counties and no part of the operating expenses of which system or systems have, during the then current fiscal year, been paid from revenues derived from taxes or from appropriations of the state, a county, or a municipality.

(8) Purchases made by local housing authorities, organized and existing under Chapter 1 of Title 24, from moneys other than those raised by state, county, or city taxation or received through appropriations from state, county, or city sources.

(c) The state trade schools, state junior colleges, state colleges, and universities under the supervision and control of the State Board of Education, the city and county boards of education, the district boards of education of independent school districts, the county commissions, and the governing bodies of the municipalities of the state shall establish and maintain such purchasing facilities and procedures as may be necessary to carry out the intent and purpose of this article by complying with the requirements for competitive bidding in the operation and management of each state trade school, state junior college, state college, or university under the supervision and control of the State Board of Education, the city and county boards of education, the district boards of education of independent school districts, the county commissions, and the governing bodies of the municipalities of the state and the governing boards of instrumentalities of counties and municipalities, including waterworks boards, sewer boards, gas boards, and other like utility boards and commissions.

(d) Contracts entered into in violation of this article shall be void and anyone who violates the provisions of this article shall be guilty of a Class C felony.

Notwithstanding any other laws to the contrary, when it is necessary for a county or an incorporated municipality to enter into a public contract for the provision of services or for the provision of primarily services even though the contract may include the furnishing of ancillary products or ancillary goods which would otherwise be required to be let by competitive bid, the county or municipality may, without soliciting and obtaining competitive bids, contract with a vendor or provider for the services at a price which does not exceed the price which the state has established through the competitive bid process for the same services under the same terms and conditions and provided it pertains to a current and active bid on a non-statewide agency contract. The mere delivery of products or goods, or the performance of a common, non-specialized service with relation to goods or products shall not make a purchase or contract qualify for the bid exemption hereunder. If a county or incorporated municipality desires to purchase under this bid exception procedure, the purchase must be approved by a majority vote of its governing body at a public meeting thereof.

(a) All expenditures of funds of whatever nature for repair parts and repair of heavy duty off-highway construction equipment and of all vehicles with a gross vehicle weight rating of 25,000 pounds or greater, including machinery used for grading, drainage, road construction and compaction for the exclusive use of county and municipal, highway, street and sanitation departments, involving not more than $15,000 made by or on behalf of any county commissions and the governing bodies of the municipalities of the state, and the governing bodies of instrumentalities, including waterworks boards, sewer boards, gas boards, and other like utility boards and commissions, shall be made, at the option of said governing boards, bodies, instrumentalities and commissions, without regard to the provisions of this article. The foregoing exemption from the provisions of this article shall apply to each incident of repair as to any such repair parts, equipment, vehicles or machinery. The amount of such exempted expenditure shall not be construed to be an aggregate of all such expenditures per fiscal year as to any individual vehicle or piece of equipment or machinery.

(b) The option provided by subsection (a) of this section may be exercised by said governing boards, bodies, instrumentalities and commissions by specific reference to this section on any and all purchase orders and purchase commitments executed by said governing boards, bodies, instrumentalities and commissions; provided, however said option shall not be exercised by any employee, agent or servant unless done so after having received official prior approval of the respective governing board, body, instrumentality or commission or unless exercised pursuant to a formal policy adopted by such governing board, body, instrumentality or commission setting out conditions and restrictions under which such option shall be exercised.

(c) All expenditures of funds of whatever nature for the leasing of heavy duty off-highway construction equipment and all vehicles with a gross vehicle weight rating of 25,000 pounds or greater, including machinery for grading, drainage, road construction and compaction for exclusive use of county and municipalities, highway, street and sanitation departments, involving a monthly rental of not more than $5,000.00 per month per vehicle or piece of equipment or machinery but not to exceed $15,000.00 per month for all such vehicles and pieces of equipment made by or on behalf of any county commissions and the governing boards of municipalities of the state and the governing bodies of instrumentalities, including waterworks boards, sewer boards, gas boards and other like utility boards and commissions shall be made, at the option of the said governing boards, bodies, instrumentalities and commissions, without regard to the provisions of this article.

In case of emergency affecting public health, safety or convenience, so declared in writing by the awarding authority, setting forth the nature of the danger to public health, safety or convenience involved in delay, contracts may be let to the extent necessary to meet the emergency without public advertisement. Such action and the reasons therefor shall immediately be made public by the awarding authority.

(a) All proposed purchases in excess of seven thousand five hundred dollars ($7,500) shall be advertised by posting notice thereof on a bulletin board maintained outside the purchasing office and in any other manner and for any length of time as may be determined. Sealed bids shall also be solicited by sending notice by mail to all persons, firms, or corporations who have filed a request in writing that they be listed for solicitation on bids for the particular items that are set forth in the request. If any person, firm, or corporation whose name is listed fails to respond to any solicitation for bids after the receipt of three solicitations, the listing may be cancelled.

(b) All bids shall be sealed when received, shall be opened in public at the hour stated in the notice, and all original bids together with all documents pertaining to the award of the contract shall be retained for a period of seven years from the date the bids are opened and shall be open to public inspection.

(c) If the purchase or contract will involve an amount of seven thousand five hundred dollars ($7,500) or less, the purchases or contracts may be made upon the basis of sealed bids or in the open market.

(d) No purchase or contract involving an amount in excess of seven thousand five hundred dollars ($7,500) shall be divided into parts involving amounts of seven thousand five hundred dollars ($7,500) or less for the purpose of avoiding the requirements of this article. All such partial contracts involving seven thousand five hundred dollars ($7,500) or less shall be void.

Any agreement or collusion among bidders or prospective bidders in restraint of freedom of competition, by agreement, to bid at a fixed price or to refrain from bidding or otherwise shall render the bids of such bidders void and shall cause such bidders to be disqualified from submitting further bids to the awarding authority on future purchases.

Whoever knowingly participates in a collusive agreement in violation of this section involving a bid or bids of $3,000.00 and under shall be guilty of a Class A misdemeanor and, upon conviction, shall be punished as prescribed by law.

Whoever knowingly and intentionally participates in a collusive agreement in violation of this section involving a bid or bids of over $3,000.00 shall be guilty of a Class C felony, and upon conviction shall be punished as prescribed by law.

Any disclosure in advance of the terms of a bid submitted in response to an advertisement for bids shall render the proceedings void and require advertisement and award anew.

(a) When purchases are required to be made through competitive bidding, awards shall be made to the lowest responsible bidder taking into consideration the qualities of the commodities proposed to be supplied, their conformity with specifications, the purposes for which required, the terms of delivery, transportation charges, and the dates of delivery.

(b) The awarding authority in the purchase of or contract for personal property or contractual services shall give preference, provided there is no sacrifice or loss in price or quality, to commodities produced in Alabama or sold by Alabama persons, firms, or corporations. Notwithstanding the foregoing, no county official, county commission, school board, city council or city councilmen, or other public official, state board, or state agency charged with the letting of contracts or purchase of materials for the construction, modification, alteration, or repair of any publicly owned facility may specify the use of materials or systems by a sole source, unless:

(1) The governmental body can document to the satisfaction of the State of Alabama Building Commission that the 'sole source' product or service is of an 'indispensable' nature, all other viable alternatives have been explored, and it has been determined that only this product or service will fulfill the function for which the product is needed. Frivolous features will not be considered.

(2) The sole source specification has been recommended by the architect or engineer of record and who also documents that there is no other product available and that the use of the requirement is of an indispensable nature and why.

(3) All information substantiating the use of a sole source specification is documented in writing and is filed into the project file.

(c) The awarding authority or requisitioning agency may reject any bid if the price is deemed excessive or quality of product inferior.

(d) Each record, with the successful bid indicated thereon, and with the reasons for the award if not awarded to the lowest bidder, shall, after award of the order or contract, be open to public inspection.

(e) Contracts for the purchase of personal property or contractual services shall be let for periods not greater than three years. 'Lease-purchase' contracts for capital improvements and repairs to real property shall be let for periods not greater than 10 years and all other lease-purchase contracts shall be let for periods not greater than 10 years.

Bond in a responsible sum for faithful performance of the contract, with adequate surety, may be required in an amount specified in the advertisement for bids.

No contract awarded to the lowest responsible bidder shall be assignable by the successful bidder without written consent of the awarding authority, and in no event shall a contract be assigned to an unsuccessful bidder whose bid was rejected because he was not a responsible bidder.

No member or officer of the said state trade schools, state junior colleges, state colleges and universities under the supervision and control of the State Board of Education, the city and county boards of education, the district boards of education of independent school districts, the county commissions and the governing bodies of the municipalities of the state and the governing boards of instrumentalities of counties and municipalities, including waterworks boards, sewer boards, gas boards and other like utility boards and commissions, shall be financially interested or have any personal beneficial interest, either directly or indirectly, in the purchase of or contract for any personal property or contractual service, nor shall any person willfully make any purchase or award any contract in violation of the provisions of this article.

Any violation of this section shall be deemed a misdemeanor, and any person who violates this section shall, upon conviction, be imprisoned for not more than 12 months or fined not more than $500.00 or both. Upon conviction thereof, any person who willfully makes any purchase or awards any contract in violation of the provisions of this article shall be removed from office.

Any taxpayer of the area within the jurisdiction of the awarding authority and any bona fide unsuccessful bidder on a particular contract shall be empowered to bring a civil action in the appropriate court to enjoin execution of any contract entered into in violation of the provisions of this article.

The provisions of this article shall not be applicable to any contracts made by a municipality pursuant to the provisions of Act No. 4 adopted at the 1956 Second Special Session of the Legislature of Alabama, as amended, which relates to the promotion of trade by inducing commercial enterprises to locate in the state and which confers on municipalities having a population not exceeding 100,000 inhabitants, according to the last or any subsequent federal census, powers with respect to the acquisition, leasing and financing of projects suitable for use by certain commercial enterprises.

This article shall be cumulative in its nature.

The Legislature finds and declares that the best interests of the taxpayers of Alabama are served when competition exists in the procurement of goods and services by state departments, boards, commissions, authorities, and instrumentalities of state government. Competitive bid requirements ensure that all citizens have the opportunity to compete for government procurements and it is imperative that officials charged with expending public funds conduct competitive processes which are open to all interested and qualified persons and businesses. In order to ensure fair and open competition in the procurement of goods and services, this article shall be liberally construed.

The following terms as used in this article shall have the following meanings:

(1) GSA CONTRACT. A contract for goods or services established by the General Services Administration of the United States Government or its successor agency.

(2) PROFESSIONAL SERVICES. The services of physicians, architects, engineers, attorneys, and other individuals, or business entities offering the services of such individuals, who possess a high degree of scientific or specialized skill and knowledge where the experience and professional qualifications of the service provider are particularly relevant to the provision of the required service. Questions of whether a required service is a professional service under this article or a service subject to the requirements of Section 41-16-20 shall be determined by the Director of Finance with the advice of the Attorney General.

(3) SOLE SOURCE. The provision of goods or a service where only one person or business entity can provide the required goods or service.

Any other provision of law notwithstanding, the procurement of professional services by any agency, department, board, bureau, commission, authority, public corporation, or instrumentality of the State of Alabama shall be conducted through the following selection process:

(1)a. Except as otherwise provided herein, attorneys retained to represent the state in litigation shall be appointed by the Attorney General in consultation with the Governor from a listing of attorneys maintained by the Attorney General. All attorneys interested in representing the State of Alabama may apply and shall be included on the listing. The selection of the attorney or law firm shall be based upon the level of skill, experience, and expertise required in the litigation and the fees charged by the attorney or law firm shall be taken into consideration so that the State of Alabama receives the best representation for the funds paid. Fees shall be negotiated and approved by the Governor in consultation with the Attorney General. Maximum fees paid for legal representation may be established by executive order of the Governor.

Nothing in this article and nothing in Chapter 15 of Title 36 modifies or repeals the exclusive authority of the governing boards of the public institutions of higher education to direct and control litigation involving their respective universities and to employ and retain legal counsel of their own choice, consistent with their broad powers of management and control set forth in Chapters 47-56 of Title 16 and in the constitution. Provided further, nothing in this article modifies or repeals the authority of the Attorney General to direct and control litigation involving the state or any agency, department, or instrumentality of the state, or the authority of the Governor to appear in civil cases in which the state is interested.

b. Attorneys retained by any state purchasing entity to render nonlitigation legal services shall be selected by such entity from a listing of attorneys maintained by the Legal Advisor to the Governor. All attorneys interested in representing any purchasing state entity may apply and shall be included on the listing. The selection of the attorney or law firm shall be based upon the level of skill, experience, and expertise required for the services, but the fees charged by the attorney or law firm shall be taken into consideration so that such state entity shall receive the best representation for the funds paid. Fees for such services shall be negotiated by the state entity requiring the services and shall be subject to the review and approval of the Governor or the Director of Finance when so designated by the Governor.

c. This article shall not apply to the appointment by a court of attorneys or experts.

d. This article shall not apply to the retention of experts by the state for the purposes of litigation, or avoidance of litigation.

e. Nothing in this article shall be construed as altering or amending the Governor's authority to retain attorneys pursuant to Section 36-13-2, however, the Governor shall select such attorneys from three proposals received from attorneys included on the listing maintained by the Attorney General.

(2) Physicians retained to provide medical services to the state shall be selected by the purchasing state entity from a list of qualified physicians maintained by the Alabama Medical Licensure Commission. All physicians interested in providing medical services to the State of Alabama may apply and shall be included on the listing.

(3) Professional services of architects, landscape architects, engineers, land surveyors, geoscience, and other similar professionals shall be procured in accordance with competitive, qualification-based selection policies and procedures. Selection shall be based on factors to be developed by the procuring state entity which may include, among others, the following:

a. Specialized expertise, capabilities, and technical competence, as demonstrated by the proposed approach and methodology to meet project requirements.

b. Resources available to perform the work, including any specialized services within the specified time limits for the project.

c. Record of past performance, quality of work, ability to meet schedules, cost control, and contract administration.

d. Availability to and familiarity with the project locale.

e. Proposed project management techniques.

f. Ability and proven history in handling special project contracts.

Notice of need for professional services shall be widely disseminated to the professional community in a full and open manner. Procuring state entities shall evaluate such professionals that respond to the notice of need based on such state entity's qualification-based selection process criteria. Any such procuring state entity shall then make a good faith effort to negotiate a contract for professional services from the selected professional after first discussing and refining the scope of services for the project with such professional. Where the Alabama Building Commission has set a fee schedule for the professional services sought, fees shall not exceed the schedule without approval of the Director of the Alabama Building Commission and the Governor.

(4) The Director of Finance, through the Division of Purchasing of the Department of Finance, shall establish and maintain lists of professional service providers, other than those specifically named in this section, which may be required from time to time by any state agency, department, board, bureau, commission, authority, public corporation, or instrumentality. When such professional services are needed, the purchasing state entity shall solicit proposals from the professional service providers desiring to receive requests for proposals. The purchasing state entity shall select the professional service provider that best meets the needs of the purchasing entity as expressed in the request for proposals. Price shall be taken into consideration. In the event the fees paid to the selected professional service provider exceed by 10 percent the professional service fee offered by the lowest qualified proposal, the reasons for selecting a professional service provider must be stated in writing, signed by the director of the purchasing state entity, and made a part of the selection record.

(5) Contracts for professional services shall be limited only to that portion of a contract relating to the professional service provided. Goods purchased by the state in conjunction with the contract for professional services shall be purchased pursuant to Section 41-16-20.

(6) Should an emergency affecting the public health, safety, convenience, or the economic welfare of the State of Alabama so declared in writing under oath to the Governor and the Attorney General by the state entity requiring the professional services arise, the professional services required to alleviate the emergency situation may be procured from any qualified professional service provider without following the process or procedure required by this article.

(7) The process set forth herein for the selection of professional service providers shall not apply to the Legislature, the Alabama State Port Authority, or to colleges and universities governed by a board of trustees or by the Department of Postsecondary Education. The State Department of Education shall not be subject to the provisions of this article, requiring the process set forth herein for the selection of professional service providers, except for the future acquisition of professional services in support of computer technology on a statewide basis which exceeds the amount of expenditures set forth within this chapter. However, if a state agency or department is able to provide the necessary computer networking services, then the services shall be provided by the agency or department without being contracted to an outside provider. In the event the State Department of Education has intervened into the financial operations of a local board of education, the State Department of Education shall follow the provisions of law applicable to local boards of education for services related to the local board of education subject to intervention.

(8) Under any contract letting process in this section, all requests for proposals from any state entity purchasing professional services shall be sent to all professional service providers regardless of race that have notified the state of their interest in receiving state business.

(9) Under any contract letting process in this section, all lists containing professional service providers and contractors for contracts under the provisions of this article shall seek the racial and ethnic diversity of the state.

The purchase of insurance shall be pursuant to a competitive qualification based process developed by the Department of Finance. The Alabama State Port Authority shall be exempt from this section.

All goods and services purchased under the provisions of this article must be competitively bid or procured as provided for in this article. However, goods and services may be purchased from vendors that have been awarded a current and valid GSA contract. Prices paid for such goods and services may not exceed the lowest competitively bid price for these goods or services. In contracting for the purchase of utilities, the Director of Finance may not purchase services if the price exceeds the price in an existing state contract. The Director of Finance may require any additional terms and conditions determined to be necessary.

State entities seeking to purchase goods or services from a sole source vendor may do so only upon the approval of the Department of Finance, through the Division of Purchasing, unless the purchasing state entity is authorized by law to conduct its own purchasing activities. Approval for sole source purchases shall be given only if the purchasing state entity establishes that no other goods or service can meet its needs and that no other vendor offers substantially equivalent goods or service that can accomplish the purpose for which the goods or service is required. The Director of Finance may require information from either the purchasing entity or the vendor seeking to be declared a sole source that is deemed necessary to meet the requirements of this provision.

The Director of Finance, through the Division of Purchasing, may promulgate rules or regulations necessary for the implementation of this article. The rules and regulations shall be issued in accordance with the Alabama Administrative Procedure Act. Nothing in this article shall be construed as giving purchasing authority to any state agency, department, board, bureau, commission, authority, public corporation, or instrumentality that does not otherwise have the purchasing authority.

(a) Any person who willfully or intentionally violates this article shall be subject to a civil penalty of not less than five hundred dollars ($500) and not to exceed five thousand dollars ($5,000) to be deposited into the State General Fund.

(b) Any contract entered into in violation of the provisions of this article shall be void. All persons or business entities doing business with the State of Alabama are presumed to understand all laws and regulations governing the purchase of goods and services by the State of Alabama.

(c) All state entities shall implement policies and procedures to ensure that the opportunity to compete for state contracts and business is open to qualified individuals and firms representing the racial, ethnic, and cultural diversity of the state.

(d) Nothing in this article shall be construed to repeal or supersede the enabling laws of professional licensing boards or commissions listed in Title 34, and any contracts lawfully entered into by such boards or commissions shall not be construed to violate any of the provisions of this article.

(a) This article shall not apply to any entity that does not receive state funds.

(b) This article shall also not apply to direct health care services provided by the Alabama Department of Public Health.

(c) This article shall not apply to any county or municipality, or any board, public corporation, authority, public utility district, or other entity created by any county or municipality, or to the Alabama Municipal Electric Authority created pursuant to the provisions of Section 11-50A-1, et seq., nor shall it apply to any local school board, the State Department of Education, or other entity covered under Section 41-16-50, et seq., except as herein provided for future support of computer technology or any educational and eleemosynary institutions governed by a board of trustees or other similar governing body, nor shall it apply to any statewide non-profit water and wastewater utility association.

(d) This article shall not apply to any state authority, board, or other entity with respect to contracts related to the issuance of debt which is to be repaid from sources other than state funds.

All contracts which are subject to the requirements of Section 29-2-41, shall remain subject to that section and shall first be reviewed by the Contract Review Permanent Legislative Oversight Committee.

The Legislature of Alabama finds and declares that information currently available to the public does not include the disclosure of all persons who for the purpose of financial gain submit a proposal, bid, contract, or grant proposal to the State of Alabama.

For purposes of this article, the following terms shall have the following meanings:

(1) FAMILY MEMBER OF A PUBLIC EMPLOYEE. The spouse or a dependent of the public employee.

(2) FAMILY MEMBER OF A PUBLIC OFFICIAL. The spouse, a dependent, an adult child and his or her spouse, a parent, a spouse's parents, or a sibling and his or her spouse, of the public official.

(3) FAMILY RELATIONSHIP. A person has a family relationship with a public official or public employee if the person is a family member of the public official or public employee.

(4) PERSON. An individual, firm, partnership, association, joint venture, cooperative, or corporation, or any other group or combination acting in concert.

(5) PUBLIC OFFICIAL and PUBLIC EMPLOYEE. These terms shall have the same meanings ascribed to them in Sections 36-25-1(23) and 36-25-1(24), except for purposes of the disclosure requirements of this article, the terms shall only include persons in a position to influence the awarding of a grant or contract who are affiliated with the awarding entity. Notwithstanding the foregoing, these terms shall also include the Governor, Lieutenant Governor, members of the cabinet of the Governor, and members of the Legislature.

(a) This article shall only apply in cases where the proposed grant or proposed contract at issue exceeds five thousand dollars ($5,000).

(b) All persons who, for the purpose of direct financial gain, submit a proposal, bid, contract, or grant proposal to the State of Alabama, shall include a disclosure statement developed by the Attorney General and approved by the Legislative Council. The disclosure statement shall not be required for contracts for gas, water, and electric services where no competition exists, or where rates are fixed by law or ordinance. In circumstances where a contract is awarded by competitive bid, the disclosure statement shall be required only from the person receiving the contract and shall be submitted within 10 days of the award.

(a) The information required on the disclosure statement shall be made under oath and penalty as prescribed herein and shall include, but not be limited to, the following:

(1) A list of the names and addresses of any public official and public employee, and family members of the public official and public employee, who have a family relationship with the person or his or her immediate family members, or his or her employees, who may directly personally benefit financially from the contract, proposal, request for proposal, invitation to bid, or grant proposal.

(2) A description of any financial benefit that may be knowingly gained by any public official, public employee, and family members of the public official and public employee that may result either directly or indirectly from the person or his or her immediate family members, or his or her employees.

(3) The names and addresses of any paid consultant or lobbyist for the contract, proposal, request for proposal, invitation to bid, or grant proposal.

(b) The State of Alabama shall not enter into any contract or appropriate any public funds with any person who refuses to provide information required by this section.

Each state agency, department, or division receiving a proposal, bid, contract, or grant proposal from all persons shall inform each person of this article and shall give each person a disclosure statement to complete. It shall be an affirmative defense under this article if any awarding agency fails to furnish and require the return of the disclosure statement.

A copy of the disclosure statement shall be filed with the awarding entity and the Department of Examiners of Public Accounts and if it pertains to a state contract, a copy shall be submitted to the Contract Review Permanent Legislative Oversight Committee. Any disclosure statement filed pursuant to this article shall be a public record.

(a) A person who knowingly violates this article shall be subject to civil penalty in an amount of ten thousand dollars ($10,000), or 10 percent of the amount of the contract, whichever is less, to be deposited in the State General Fund. The statute of limitations for the acts covered in this article shall be one year. Any action brought to enforce the provisions of this article shall be initiated by the Attorney General in the circuit or district court in the county in which the awarding entity is located.

(b) If there is a finding of a knowing violation of this article, the contract or grant shall be voidable by the awarding entity.

This article shall not apply to any entity which does not receive state funds.

Nothing in this article shall be construed to alter, amend, or repeal any disclosure required under the ethics law.

(a) The Director of the Department of Economic and Community Affairs shall be responsible for the distribution, transfer, or disposal of all surplus personal property owned by the state and all right, title, interest, and equity in said property shall be transferred to said department for such purpose. The director may delegate to the Chief of the Surplus Property Division such supervision and control of the distribution or disposal of the aforementioned state owned surplus personal property.

(b) As used in this article, the following terms shall have the following meanings, respectively, unless the context clearly indicates otherwise:

(1) DIVISION. Surplus Property Division of the Department of Economic and Community Affairs.

(2) SURPLUS PROPERTY. That property declared by the property manager of each state department, bureau, board, commission or agency to be surplus and so designated in writing to the chief of the division. All real property owned by any state department, bureau, board, commission, agency or institution, and any subdivision thereof; including, but not limited to, real property owned by any state college, university, two-year college, technical school, or other postsecondary institution of higher learning shall be handled in the manner provided in Section 41-4-33, or such other provisions of law as may be appropriate but in no circumstance shall any law regarding real property acquired, owned or disposed of by the state or any subdivision thereof be amended, substituted or in other manner altered by this article.

(3) ELIGIBLE ENTITY. Any public agency or nonprofit educational or public health institution or organization that is eligible to participate as a recipient of surplus property pursuant to the Federal Property and Administrative Services Act of 1949, as amended, and that is not found to be in violation of division rules and regulations during the 12 months immediately preceding the intended purchase.

(4) PROPERTY MANAGER. That officer or employee who shall be designated by the head of each department, board, bureau, commission, institution, corporation or agency of the state, in writing, to the division and the State Auditor's office, to be the property manager.

(c) The property manager shall report to the Surplus Property Division of the Department of Economic and Community Affairs any personal property declared surplus by his department, board, bureau, commission, institution, corporation, or agency and deliver said property to any place designated by the division to be the proper place for such delivery.

(d) The director or his designee shall be authorized to promulgate such administrative rules and regulations as deemed necessary including, but not limited to:

(1) Promotion of surplus property;

(2) Shipment of surplus property;

(3) Storage of surplus property;

(4) Length of retention of surplus property;

(5) Public auction of surplus property;

(6) Such other rules and regulations as, from time to time, may be determined to be necessary.

(e) The division shall have authority to sell surplus property at fair market value, as established by the division and set out in its published rules, to eligible entities as defined in subsection (b)(3). Payment for purchases by any of the abovementioned entities shall be made within 30 days after such purchase. If payment is not made within 60 days after a purchase, then such purchase shall be declared void and in default, and the property shall be returned immediately by the defaulting purchaser to the division.

Provided, however, the governing body of any municipality with a population of less than 5,000 shall be given preference on the disposal of all surplus motor vehicles owned by the State of Alabama except those motor vehicles transferred to other state agencies.

Said municipalities shall notify the division, in writing, of type motor vehicle needed. A list shall be maintained by the division of such needs on a first come, first served basis and will be used to notify the municipalities when needed vehicles become available. Any municipality so notified shall have seven work days in which to reply to the notice and accept or refuse the available vehicle.

(f) Any eligible entity which is authorized to purchase federal surplus property shall be authorized to purchase state surplus property under this section provided the corporation complies with all federal laws, regulations and guidelines regarding the purchase of surplus federal property.

(a) Surplus property shall be made available at such times and places as determined to be appropriate by the division for inspection and acquisition by those agencies determined to be eligible for such acquisition under criteria developed and published by the division.

(b) The division shall periodically publish a list of all surplus property held by it at the time of such publication.

(c) The published list shall be made available to all state departments, boards, bureaus, commissions, institutions, corporations, or agencies.

(d) The published list shall also be made available to all eligible counties, cities, boards of education, civil defense agencies, and volunteer fire departments.

(e) The division will determine the manner in which the list of surplus personal property shall be published.

(f) The division shall not be authorized to handle or dispose of any regulated hazardous materials.

(a) The division shall be authorized to collect fees for transfer, handling, shipping, classification, warehousing, bidding, destruction, scrapping, or other disposal of property and such other fees as may be deemed appropriate in order to insure the continued efficient operation of the surplus property function of the department.

(b) The division shall be exclusively authorized to receive donated federal surplus property from any source, including the General Services Administration (GSA), for distribution following required federal guidelines in the same manner as state surplus property. The division shall also be exclusively authorized to purchase GSA property of any nature including, but not limited to, vehicles of any type for resale.

(c) The division shall establish three accounts within the State Treasury for the operation of the surplus property function as follows:

(1) The first account shall be known as the Federal Surplus Property Account into which all moneys received from the distribution of federally donated surplus property shall be deposited;

(2) The second account shall be known as the State Surplus Property Account into which all moneys received from the distribution of state owned surplus property and any funds appropriated from the State General Fund for the operation of the surplus property function shall be deposited.

(3) The third account shall be known as the Surplus Federal Property Inventory Purchase Account into which moneys received by the division from the sale and distribution of surplus federal and state property and deposited into the Federal Surplus Property Account or the State Surplus Property Account may be transferred and deposited as approved by the director, and the moneys from which account shall be used for the purchase of surplus federal property for resale within the State of Alabama, as established by the division and set out in its published rules. This account shall not be subject to appropriation spending restrictions but shall be a perpetual inventory account. Initial moneys to establish this account shall be deposited from such other department moneys as approved by the director. Transfers of moneys may be made from time to time, with approval of the director, between this account and the Federal Surplus Property Account, and between this account and the State Surplus Property Account, subject to the needs of each account.

(d) Any moneys deposited into any of the three aforementioned surplus property accounts may be expended from time to time by the department for operation of the surplus property function including, but not limited to, repairs, salaries, rent, travel, acquisition of exchange and surplus property, and all other necessary operating expenditures providing, however, that on September 30 any unencumbered moneys remaining in the State Surplus Property Account, up to an amount equal to the operating expenses of the quarter ending on September 30, shall be set aside for use during the quarter beginning October 1 for the purposes heretofore stated and any remainder shall revert to the State General Fund. The Federal Surplus Property Account and the Surplus Federal Property Inventory Purchase Account shall be perpetual accounts, and funds therein shall not revert to the State General Fund.

This section shall apply only to that property that has been held by the division for a period of not less than 60 days from the date the property is first published in the list of surplus property, as set out in subsection (b) of Section 41-16-121, and not purchased by any eligible entity as set out in subsection (e) of Section 41-16-120 as follows:

(1) All contracts made by or on behalf of the State of Alabama or a department, board, bureau, commission, institution, corporation, or agency thereof, of whatever nature for the sale or disposal of tangible personal property owned by the State of Alabama, other than the following:

a. Alcoholic beverages.

b. Products of the Alabama Institute for Deaf and Blind.

c. Barter arrangements of the state prison system.

d. Books.

e. School supplies.

f. Food.

g. Property used in vocational projects.

h. Livestock.

i. Property owned by any state college or university, including those state two-year colleges under the control of the Board of Education of the State of Alabama, which has market value or which has trade-in value which may be credited against the cost of replacement property purchased in accordance with the Alabama competitive bid laws. For property owned by those state two-year colleges under control of the State Board of Education, the college shall file with the Chancellor of the Postsecondary Education Department, on forms provided by the Chancellor, a list of the property to be sold, the auctioneer to be used, the place the property will be sold, and when and where the property will be advertised pursuant to state law. After the sale, the college shall file a report with the Chancellor stating the property sold at auction, the price paid for each piece of property, the amount received from sale of each piece of property, the account to which auction receipts were deposited, a copy of the advertisement, and the commission paid to the auctioneer.

j. Types of property, the disposal of which is otherwise provided for by law or which, by nature, are incapable of sale by auction or bid, shall be let by free and open competitive public auction or sealed bids. This subsection shall not be construed to prevent disposal by the division of property owned by a state college or university should there be an agreement between the division and the respective college or university for the disposal by free and open competitive public auction or sealed bids as described in this subsection.

k. Alabama State Port Authority surplus property.

l. Surplus personal computers may be designated as scrap by the division. The division is hereby authorized to sell by sealed bid property designated as scrap at such intervals as deemed necessary by the division.

(2) Every proposal to make a sale covered by this section shall be advertised for at least two weeks in advance of the date fixed for receiving bids. The advertisement shall appear at least once a week for two consecutive weeks in a newspaper of general circulation in the county where the sale is to be made, and a copy of the proposal shall simultaneously be posted on a readily accessible public bulletin board at the main office of the chief of the division. Advertisements for bids shall state the item or items to be sold, by class and description, where the property is located and the dates, time, and place the property may be inspected. The advertisements shall further state the date, time, and place of auction or opening of sealed bids, and no bid shall be received at any time after the time advertised.

(3) The bids shall be publicly taken or opened, in case of sealed bids, by the chief of the division and all bidders shall be entitled to be present in person or by representative.

(4) The award of the contract shall be made to the successful bidder within 72 hours after taking of the bids.

(5) The bid of the successful bidder so marked, as well as the bids of the unsuccessful bidders in the case of sealed bids, shall be placed on file open to public inspection and shall become matters of public record.

(6) If a successful bidder shall fail to accept award of a contract, then he or she shall be prohibited from bidding at any sale held by the division unless reinstated by the director.

(7) The chief of the division may sell all items by lot or by individual item, whichever method, in his or her opinion, will bring the highest return for the items advertised.

(8) In the event all bids received are less than the estimated market value of the property, the chief of the division shall reject all bids and readvertise and rebid.

(9) Nothing herein shall be construed to prevent the chief of the division from contracting with the highest bidder for any type of property to sell to that bidder all of that type of property at his or her bid price during that fiscal year providing that arrangement was included in the initial request for bids.

(10) All property advertised pursuant to this section shall be available for inspection during the normal state office hours and at whatever place advertised for at least 48 hours prior to sale.

(11) All property sold pursuant to this section shall be paid for by the purchaser or his or her representative by cashier's check, bank draft, certified check, U.S. currency, or notarized bank letter stating that the holder may purchase surplus property and also stating a maximum amount, at the time of acceptance of bid and award of contract, and the removal shall be not later than seven days after the awarding of the contract and the time limit of seven days shall not be applicable to sales of standing timber.

(12) All proceeds from sales made pursuant to this section shall be paid into the State Treasury or other legally authorized depositary to be credited to the proper fund as set out in subsection (c) of Section 41-16-122 prior to final distribution as set out in subdivision (16) of this section.

(13) No officer or employee of the State of Alabama or any of its departments, boards, bureaus, commissions, institutions, corporations, or agencies shall act as agent for any bidder and the officers or employees shall not be excluded from bidding on or purchasing state property at public sale or sealed bid.

(14) Any sale of tangible personal property or standing timber of the state made in violation of the terms of this article shall be null and void, and the person or persons responsible for the violation shall be subject to liquidated damages of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), which may be recovered for the State of Alabama by the Attorney General by civil action in the Circuit Court of Montgomery County. Any moneys recovered by the Attorney General under this section shall be equally divided between the office of the Attorney General and the State General Fund.

(15) The provisions of this article shall not apply to the sale of diseased, storm, or fire-damaged timber, nor shall it apply to timber cut on rights-of-way or easements. The timber may be sold or otherwise disposed of in a manner the Commissioner of Conservation and Natural Resources deems in the best interest of the state and no sale of diseased timber shall be made until the State Forester shall certify that the timber is diseased, and the certification shall be in written form and filed with the Director of Finance.

(16) Whenever any surplus property that was purchased with either earmarked state funds or restricted federal funds is sold by the division, the proceeds from the sale, less administrative expenses, shall be deposited to the credit of the specific fund of the state department, commission, or agency from which the original purchase of the property was made within 30 days from receipt of the proceeds. If the source of the original purchase of the property was a General Fund appropriation, then the sale proceeds, less any administrative fee, as set out in the rules authorized to be promulgated by the division, shall be credited to the account from which it was purchased. In no event shall the administrative fee exceed 25 percent of the gross sale price.

(17) All educational and eleemosynary institutions, not exempted in subdivision (1) of this section, governed by a board of trustees or other similar governing body, and the Department of Mental Health and Mental Retardation shall be governed by the provisions of this article.

(18) Violation of the provisions of this article shall constitute a Class B misdemeanor punishable as prescribed by law.

(19) Following the implementation of subdivisions (1) to (18), inclusive, the division shall have the authority to make available for sale to the general public such remaining unsold surplus property, as established by the division and set out in its published rules.

All personnel, including those on personal service contracts, working within the Surplus Property Division of the Department of Economic and Community Affairs at the passage of this article shall, by virtue of this section, be considered to meet the requirements of the department in terms of education, training, and experience and shall automatically be placed within the state Merit System with permanent status with all the rights and privileges thereof and shall enjoy the same employment and retirement privileges and rights as the Legislature may determine from time to time or as may be otherwise determined by law or administrative rule or regulation according to the rules and regulations of the Personnel Department of the State of Alabama. All new future employees of the Surplus Property Division of the Department of Economic and Community Affairs shall be required to meet the requirements of the state Merit System.

All present employees of the Surplus Property Division of the Department of Economic and Community Affairs shall remain in their respective positions and continue to enjoy employment conditions including, but not limited to, salary range and advancement at a level no less than those enjoyed prior to the enactment of this article. However, nothing herein shall be construed to prevent or preclude the removal of an employee for cause in the manner provided by law.

The temporary state plan of operation for the state agency for federal property assistance which was approved by the Governor of Alabama on July 14, 1977, and accepted by the General Services Administration on September 14, 1977, shall become the permanent state plan of operation; provided, however, the division shall have authority, with approval of the Governor, to revise said plan from time to time in accordance with regulations as established by the General Services Administration pursuant to Public Law 94-519 which governs the distribution of federal surplus property.

This article shall be known as the 'Guaranteed Energy Cost Savings Act.'

For purposes of this article, the following terms shall have the following meanings:

(1) ENERGY COST SAVINGS MEASURE. A training program or new facility or existing facility alteration designed to reduce energy consumption or operating costs, or water and other natural resources consumption, and may include one or more of the following:

a. Insulation and reduced air infiltration of the building structure including walls, ceilings, and roofs or systems within the building.

b. Storm windows or doors, caulking or weather-stripping, multiglazed windows or doors, heat absorbing or heat reflective glazed and coated window or door systems, additional glazing, reductions in glass area, or other window and door system modifications that reduce energy consumption.

c. Automated or computerized energy control systems, including computer software and technical data licenses.

d. Heating, ventilating, or air conditioning system modifications or replacements.

e. Replacement or modification of lighting fixtures to increase the energy efficiency of the lighting system without increasing the overall illumination of a facility, unless an increase in illumination is necessary to conform to the applicable state or local building code for the lighting system after the proposed modifications are made.

f. Indoor air quality improvements.

g. Energy recovery systems.

h. Electric systems improvements.

i. Life safety measures that provide long-term operating cost reductions.

j. Building operation programs that reduce operating costs.

k. Other energy-conservation-related improvements or equipment, including improvements or equipment related to renewable energy.

l. Water and other natural resources conservation.

(2) GOVERNMENTAL UNIT. A state government agency, department, institution, college, university, technical school, legislative body, or other establishment or official of the Executive, Judicial, or Legislative Branches of the state authorized by law to enter into contracts, including all local political subdivisions such as counties, municipalities, or public school districts.

(3) GUARANTEED ENERGY COST SAVINGS CONTRACT. A contract for the implementation of one or more energy cost savings measures.

(4) OPERATIONAL COST SAVINGS. Expenses eliminated and future replacement expenditures avoided as a result of new equipment installed or services performed.

(5) QUALIFIED PROVIDER. A person or business experienced in the design, implementation, and installation of energy cost savings measures.

(6) REQUEST FOR PROPOSALS. A negotiated procurement that is announced through a public notice from a governmental unit which will administer the guaranteed energy cost savings contract requesting innovative solutions and proposals for energy conservation measures. The request for proposal shall include the following:

a. The name and address of the governmental unit.

b. The name, address, title, and phone number of a contact person.

c. The date, time, and place where proposals must be received.

d. The evaluation criteria for assessing the proposals.

e. Any other stipulations and clarifications the governmental unit may require.

(a) A governmental unit may enter into a guaranteed energy cost savings contract in order to reduce energy consumption or operating costs of government facilities in accordance with this article.

(b) All energy cost savings measures shall comply with current local, state, and federal construction and environmental codes and regulations. Notwithstanding anything to the contrary, a guaranteed energy cost savings contract does not include improvements or equipment that allow or cause water from any condensing, cooling, or industrial process or any system of nonpotable usage over which public water supply system officials do not have sanitary control, to be returned to the potable water supply.

(a) Before entering into a guaranteed energy cost savings contract, a governmental unit shall submit a request for proposals. The governmental unit shall evaluate any proposal from a qualified provider and shall select the qualified provider that best meets the needs of the unit. After reviewing the proposals, the governmental unit may enter into a guaranteed energy cost savings contract with a qualified provider if it finds that the amount it would spend on the energy cost savings measures recommended in the proposal would not exceed the amount of energy or operational cost savings, or both, within a 10-year period from the date installation is complete, if the recommendations in the proposal are followed. The governmental unit shall analyze the following:

(1) The estimates of all costs of installation, modifications, or remodeling, including, without limitation, costs of a pre-installation energy audit or analysis, design, engineering, installation, maintenance, repairs, debt service, and post-installation project monitoring, data collection, and reporting, as well as whether energy consumed or the operating costs, or both, will be reduced.

(2) The qualifications of the provider.

(b) The governmental unit shall provide public notice of the meeting at which it proposes to award a guaranteed energy cost savings contract, of the names of the parties to the proposed contract, and of the purpose of the contract. The public notice shall be made at least 10 days prior to the meeting.

(c) The guaranteed energy cost savings contract shall include a written guarantee of the qualified provider that either the energy or operational cost savings, or both, will meet or exceed the costs of the energy cost savings measures within 10 years. The qualified provider shall reimburse the governmental unit for any shortfall of guaranteed energy cost savings on an annual basis. The guaranteed energy cost savings contract may provide for payments over a period of time, not to exceed 10 years.

(d) Notwithstanding any law to the contrary, before entering into a guaranteed energy cost savings contract, the governmental unit may require the qualified provider to file with the governmental unit a payment and performance bond relating to the installation of energy cost savings measures that is in an amount the governmental unit finds reasonable and necessary to protect its interests and that may also cover the value of the guaranteed savings on the contract and is conditioned on the faithful execution of the terms of the contract.

(e) A governmental unit, or several governmental units together, may enter into an installment payment contract or lease purchase agreement with a qualified provider for the purchase and installation of energy cost savings measures.

(f) Guaranteed energy cost savings contracts may extend beyond the fiscal year in which they become effective. The governmental unit may include in its annual budget and appropriations measures for each subsequent fiscal year any amounts payable under guaranteed energy savings contracts during that fiscal year.

(g) A governmental unit may use a combination of funds designated for operating, capital expenditures, or other specially designated funds for any guaranteed energy cost savings contract including purchases using installment payment contracts or lease purchase agreements.

(h) State aid and other amounts appropriated for distribution to, or reimbursement to, a governmental unit may not be reduced as a result of energy cost savings realized from a guaranteed energy cost savings contract or a lease purchase agreement for the purchase and installation of energy cost savings measures.

The provisions of this article shall not be construed to alter or circumvent present law which requires education support personnel to work under the direct supervision, employment, and/or control of local boards of education.