GA Code § 50-5-67 (2021)
2021 Georgia Code|Title 50 - State Government|Chapter 5 - Department of Administrative Services|Article 3 - State Purchasing|Part 1 - General Authority, Duties, and Procedure|§ 50-5-67. Competitive Bidding Procedure; Method of Soliciting Bids; Required Conditions for Competitive Sealed Proposals; Clarification; Contract Awards; Negotiation of Contracts; Certificate of Independent Price Determination; Receiving Electronic Bids

  Except as otherwise provided in this Code section, contracts exceeding $100,000.00 shall be awarded by competitive sealed bidding. If the total requirement of any given commodity will involve an expenditure in excess of $250,000.00, sealed bids shall be solicited by advertisement in the Georgia Procurement Registry established under subsection (b) of Code Section 50-5-69 and in addition may be solicited by advertisement in a newspaper of state-wide circulation at least once and at least 15 calendar days, except for construction projects which shall have 30 calendar days allowed, prior to the date fixed for opening of the bids and awarding of the contract. Other methods of advertisement, however, may be adopted by the Department of Administrative Services when such other methods are deemed more advantageous for the particular item to be purchased. In any event, it shall be the duty of the Department of Administrative Services to solicit sealed bids from reputable owners of supplies in all cases where the total requirement will exceed $100,000.00. When it appears that the use of competitive sealed bidding is either not justified or not advantageous to the state, a contract may be entered into by competitive sealed proposals, subject to the following conditions:   This method of solicitation shall only be used after a written determination by the Department of Administrative Services that the use of competitive sealed bidding is not justified or is not advantageous to the state;   Proposals shall be solicited through a request for proposals;   Adequate public notice of the request for proposals shall be given in the same manner as provided for competitive sealed bidding;   A register of proposals shall be prepared and made available for public inspection;   The request for proposals shall state the relative importance of price and other evaluation factors;   As provided in the request for proposals and under regulations to be developed by the Department of Administrative Services, discussions may be conducted with qualified offerors who submit proposals determined to be reasonably susceptible of being selected for award, for the purpose of clarification to assure full understanding of and responsiveness to the solicitation requirements. Offerors shall be accorded fair and equal treatment with respect to any opportunity for discussion and clarification of proposals. After such clarifications, revisions may be permitted to technical proposals and price proposals prior to award for the purpose of obtaining best and final offers. The Department of Administrative Services is authorized to solicit multiple revisions to price proposals for the purpose of obtaining the most advantageous proposal to the state. In conducting discussions or soliciting any revisions, there shall be no disclosure of any information contained in proposals submitted by competing offerors. However, this prohibition on disclosure of information shall not prohibit the Department of Administrative Services from disclosing to competing offerors any preliminary rankings and scores of competing offerors' proposals during the course of any negotiations or revisions of proposals other than with respect to the procurement of construction contracts; and   The award shall be made to the responsible offeror whose proposal is determined in writing to be the most advantageous to the state, taking into consideration price and the evaluation factors set forth in the request for proposals. No other factors or criteria shall be used in the evaluation. The contract file shall contain the basis on which the award is made.       Except as otherwise provided for in this part, all contracts for the purchase of supplies, materials, equipment, or services made under this part, other than professional and personal employment services or the purchase of new automobiles manufactured by a company that constructs or assembles within this state any light duty motor vehicle with a gross vehicle weight rating of under 12,500 pounds, shall, wherever possible, be based upon competitive bids and shall be awarded to the lowest responsible bidder, taking into consideration the quality of the articles to be supplied and conformity with the specifications which have been established and prescribed, the purposes for which the articles are required, the discount allowed for prompt payment, the transportation charges, and the date or dates of delivery specified in the bid and any other cost affecting the total cost of ownership during the life cycle of the supplies, materials, equipment, or services as specified in the solicitation document. Competitive bids on such contracts shall be received in accordance with rules and regulations to be adopted by the commissioner of administrative services which shall prescribe, among other things, the manner, time, and places for proper advertisement for the bids, indicating the time and place when the bids will be received; the article for which the bid shall be submitted and the specification prescribed for the article; the amount or number of the articles desired and for which the bids are to be made; and the amount, if any, of bonds or certified checks to accompany the bids. Any and all bids so received may be rejected.     As used in this paragraph, the term:   "Commercial use applications" means self-propelled, self-powered, or pull-type equipment and machinery, including diesel engines. The term shall not include motor vehicles requiring registration and certificate of title or equipment that is considered consumer goods, as that term is defined in Code Section 11-9-102.   "Multiple award schedule contract" means a contract that allows multiple vendors to be awarded a state contract for goods or services by providing catalogues of equipment and attachments to eligible purchasers including state agencies, departments, institutions, public school districts, and political subdivisions. Multiple award schedule contract bids shall be evaluated based upon a variety of factors, including but not limited to discounts, total life costs, service, warranty, machine performance and durability, resale value, product support, and past vendor performance. Multiple award schedule contracts shall allow multiple vendors to bid and be awarded a contract based upon the value of their products and demonstrated results in competitive pricing, product updates, transparency, administrative savings, expedited procurement, and flexibility for state purchasers.     When the commissioner of administrative services determines it to be in the best interest of the state, a multiple award schedule contract may be let for the purchase of equipment used for commercial use applications. All bidders for contracts for the purchase of equipment for commercial use applications shall be required to submit a complete bid package and be the authorized dealer or vendor for a leading manufacturer of equipment used for commercial use applications. Bidders may add additional equipment with a guaranteed minimum discount off the manufacturer's suggested consumer list price in the bid in order to increase the options available to the state.   Nothing in this paragraph shall limit multiple award schedule contracts to commercial use applications.           When bids received pursuant to this part are unreasonable or unacceptable as to terms and conditions, are noncompetitive, or the lowest responsible bid exceeds available funds and it is determined in writing by the Department of Administrative Services that time or other circumstances will not permit or justify the delay required to resolicit competitive bids, a contract may be negotiated pursuant to this Code section, provided that each responsible bidder who submitted such a bid under the original solicitation is notified of the determination and is given a reasonable opportunity to negotiate. In cases where the bids received are noncompetitive or the lowest responsible bid exceeds available funds, the negotiated price shall be lower than the lowest rejected bid of any responsible bidder under the original solicitation.   With respect to procurement for construction contracts, if the bid from the lowest responsible and responsive bidder exceeds the funds budgeted for the contract, a contract may be negotiated with such apparent low bidder to obtain a contract price within the budgeted amount. Such negotiations may include changes in the scope of work and other bid requirements.     When proposals received pursuant to this part are unreasonable or unacceptable as to terms and conditions, are noncompetitive, or the lowest responsible proposal exceeds available funds and it is determined in writing by the Department of Administrative Services that time or other circumstances will not permit or justify the delay required to resolicit competitive proposals, a contract may be negotiated pursuant to this Code section, provided that each responsible offeror who submitted such a proposal under the original solicitation is notified of the determination and is given a reasonable opportunity to negotiate. In cases where the proposals received are noncompetitive or the lowest responsible proposal exceeds available funds, any contract award made pursuant to this paragraph shall be made to the offeror whose negotiated proposal is most advantageous to the state according to the evaluation criteria in the request for proposals rather than to the offeror whose negotiated proposal offers the lowest price, provided that the negotiated price of the most advantageous proposal is lower than the price of the rejected responsible proposal with the lowest price under the original solicitation.       Except as otherwise provided for in this part, the Department of Administrative Services shall publish in print or electronically, prior to award or letting of the contracts, notice of its intent to award a contract to the successful bidder or offeror on public display in a conspicuous place in the department's office, on the Georgia Procurement Registry, or both so that it may be easily seen by the public. The public notice on public display shall also state the price or the amount for which the contract may be awarded, the commodities or services to be covered by the contract which may be awarded, and the names of all persons whose bids, offers, or proposals were rejected by the department, together with a statement giving the reasons for the rejection.   Every bid or proposal conforming to the terms of the advertisement provided for in this Code section, together with the name of the bidder, shall be recorded, and all such records with the name of the successful bidder or offeror indicated thereon shall, within one day after the issuance of the department's public notice of intent to award to the successful bidder or offeror, be subject to public inspection upon request.   The Department of Administrative Services shall also, within one day after the award or letting of the contract, publish the name of the successful bidder or offeror on public display in a conspicuous place in the department's office or on the Georgia Procurement Registry so that it may be easily seen by the public. The public notice on public display shall also show the price or the amount for which the contract was let and the commodities covered by the contract. The Department of Administrative Services shall also, within one day after the award or letting of the contract, publish on public display the names of all persons whose bids, offers, or proposals were rejected by it, together with a statement giving the reasons for such rejection.   The Department of Administrative Services shall canvass the bids, offers, or proposals and award the contract according to the terms of this part. The Department of Administrative Services shall prepare a register of bids, offers, or proposals which shall become available for public inspection, in accordance with Article 4 of Chapter 18 of this title, relating to open records, after the issuance of the department's public notice of intent to award to the successful bidder or offeror. The bids, offers, or proposals shall not be subject to public disclosure, in accordance with Article 4 of Chapter 18 of this title, relating to open records, until after the issuance of the public notice of intent to award a contract to the successful bidder or offeror except that audited financial statements not otherwise publicly available but required to be submitted in the bid, offer, or proposal shall not be subject to such public disclosure.   Records related to the competitive bidding and proposal process which, if disclosed prior to the issuance of the public notice of intent to award would undermine the public purpose of obtaining the best value for this state, shall not be subject to public disclosure until after the department's issuance of its public notice of intent to award a contract to the successful bidder or offeror. Such records include but are not limited to cost estimates, bids, proposals, evaluation criteria, vendor evaluations, negotiation documents, offers and counter-offers, and records revealing preparation for the procurement.   A proper bond for the faithful performance of any contract shall be required of the successful bidder or offeror in the discretion of the Department of Administrative Services. After the contracts have been awarded, the Department of Administrative Services shall certify to the offices, agencies, departments, boards, bureaus, commissions, institutions, or other entities of the state the sources of the supplies and the contract price of the various supplies, materials, services, and equipment so contracted for.     On all bids or proposals received or solicited by the Department of Administrative Services, by any office, agency, department, board, bureau, commission, institution, or other entity of the state or by any person in behalf of any office, agency, department, board, bureau, commission, institution, or other entity of the state except in cases provided for in Code Section 50-5-58, the following certificate of independent price determination shall be used:  "I certify that this bid, offer, or proposal is made without prior understanding, agreement, or connection with any corporation, firm, or person submitting a bid, offer, or proposal for the same materials, supplies, services, or equipment and is in all respects fair and without collusion or fraud. I understand collusive bidding is a violation of state and federal law and can result in fines, prison sentences, and civil damage awards. I agree to abide by all conditions of this bid, offer, or proposal and certify that I am authorized to sign this bid, offer, or proposal for the bidder or offeror."    Notwithstanding any other provision of this article, the commissioner of administrative services is authorized to promulgate rules and regulations to govern auctions conducted by state agencies in which vendors' prices are made public during the bidding process to enable the state agency or agencies to seek a lower price. This auction bidding process will continue until the lowest price is obtained within the auction's time limit. This auction bidding process shall not be used to procure construction services or for any contract for goods or services valued at less than $100,000.00.   Any reference in this article to sealed bids or sealed proposals shall not preclude the Department of Administrative Services from receiving bids and proposals by way of the Internet or other electronic means or authorizing state agencies from receiving bids and proposals by way of the Internet or other electronic means; provided, however, that any bids or proposals received by any state agency by way of any electronic means must comply with security standards established by the Georgia Technology Authority.    (Ga. L. 1937, p. 503, § 6; Ga. L. 1939, p. 160, § 3; Ga. L. 1978, p. 1054, §§ 1, 2; Ga. L. 1979, p. 659, §§ 4, 5; Ga. L. 1980, p. 90, § 2; Ga. L. 1991, p. 1380, § 1; Ga. L. 1996, p. 885, § 5; Ga. L. 1998, p. 1372, § 1; Ga. L. 2001, p. 792, § 1; Ga. L. 2003, p. 605, § 1; Ga. L. 2005, p. 117, § 13/HB 312; Ga. L. 2008, p. 230, §§ 3, 4/SB 175; Ga. L. 2010, p. 838, § 10/SB 388; Ga. L. 2012, p. 1178, § 1/SB 492; Ga. L. 2012, p. 1350, § 8B/HB 1067; Ga. L. 2015, p. 1284, § 2/HB 259; Ga. L. 2018, p. 1112, § 50/SB 365; Ga. L. 2020, p. 356, § 3/HB 953.)    The 2012 amendments.  The first 2012 amendment, effective July 1, 2012, designated the existing provisions of subsection (b) as present paragraph (b)(1); substituted "services which shall" for "services, which rules and regulations shall" in the next-to-last sentence of paragraph (b)(1); and added paragraph (b)(2). The second 2012 amendment, effective July 1, 2012, made identical changes.    The 2015 amendment,  effective July 1, 2015, in the first sentence of paragraph (b)(1) substituted "purchase" for "purchases" near the beginning, inserted "made under this part," and substituted "or the purchase of new automobiles manufactured by a company that constructs or assembles within this state any light duty motor vehicle with a gross vehicle weight rating of under 12,500 pounds," for "made under this part" near the middle.    The 2018 amendment,  effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, substituted "provided, however, that any bids" for "provided, however, any bids" in the proviso of subsection (g).    The 2020 amendment,  effective January 1, 2021, in paragraph (d)(4), in the second sentence, substituted "shall become" for "will become" and substituted ", in accordance with Article 4 of Chapter 18 of this title, relating to open records," for "upon request within one day" in the middle, and, in the last sentence, inserted ", in accordance with Article 4 of Chapter 18 of this title, relating to open records," near the beginning and inserted "such" near the end.   Cross references.   - Letting of Department of Transportation construction and maintenance contracts by public bid, § 32-2-64 et seq.    Public competitive bidding procedures for sales and leases of state property, § 50-16-39.   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 1986, a comma was inserted following "shall prescribe" in the second sentence in subsection (b) (now paragraph (b)(1)).   Pursuant to Code Section 28-9-5, in 1991, "15" was substituted for "fifteen" in the second sentence of subsection (a).   Editor's notes.   - Ga. L. 1996, p. 885, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Purchasing Reform Act of 1996.'"   Ga. L. 1996, p. 885, § 2, not codified by the General Assembly, provides: "The General Assembly declares and finds that many of the laws establishing guidelines and requirements for the purchasing of supplies, materials, and equipment by and for state departments and agencies were developed decades earlier and prior to the increase in available sources of supply and the expansion of technology. It is the intent of the General Assembly that these laws be amended to reflect these changes in order to provide greater flexibility for state agencies to make their purchases and to eliminate unnecessary bureaucracy which can result in purchase delays and increased administrative costs."   Ga. L. 2015, p. 1284, § 1/HB 259, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Georgia Business Act.' "   JUDICIAL DECISIONS   "Materials, supplies, or equipment."    - Publishing services are not "materials, supplies, or equipment" within the meaning of this section. Harrison Co. v. Code Revision Comm'n, 244 Ga. 325, 260 S.E.2d 30 (1979).   Rights of rejected bidder.    - Even in competitive sealed proposals under O.C.G.A. § 50-5-67(a), a rejected bidder who alleges the proposal was conducted in an arbitrary and unfair manner falls within the zone of interest to be protected by the procurement laws. Amdahl Corp. v. Georgia Dep't of Admin. Serv., 260 Ga. 690, 398 S.E.2d 540 (1990).    Cited in  Municipal Leasing Corp. v. Fulton County, 835 F.2d 786 (11th Cir. 1988).   OPINIONS OF THE ATTORNEY GENERAL   Duty to award to lowest bidder.   - Once department has considered all relevant factors, the department must award the contract to the lowest bidder meeting the department's standards; the department may not award a contract to a higher bidder if the products are equal in view of all relevant factors. 1974 Op. Att'y Gen. No. 74-16.   Phrase "lowest responsible bidder" has been almost unanimously construed by other jurisdictions to mean not merely "financially solvent," but also "responsible" with respect to the bidder's overall ability to respond in quality and fitness to the particular requirements of the contract in question. 1974 Op. Att'y Gen. No. 74-16.   When department can in good faith point to some demonstrable or real factor which justifies the department's conclusion that a higher dollar bid is nevertheless the "lowest responsible" bid, the department has properly exercised the department's discretionary power. 1974 Op. Att'y Gen. No. 74-16.   Discretion to consider factors other than price.   - This section clearly vests considerable discretion in department to consider factors other than price and, in fact, directs the department to consider these factors. 1974 Op. Att'y Gen. No. 74-16.   Specifications not to arbitrarily exclude potential vendors.   - Proper execution of the duties of the department demands that the department determine to the best of the department's ability that specifications (either those suggested by the requisitioning agency or those developed by the department) do not arbitrarily exclude potential vendors, and that no other vendor can in fact meet all applicable and reasonable specifications; only when these duties are properly executed do the exceptions relating to available sources become operative so as to allow the department to forego the requirement of bid solicitation. 1974 Op. Att'y Gen. No. 74-16.    When only one product can meet applicable specifications,  there is no necessity to solicit bids from other suppliers of such products since this would be a useless act. 1974 Op. Att'y Gen. No. 74-16.    When product is available from one source only,  there is no necessity to solicit bids from other suppliers. 1974 Op. Att'y Gen. No. 74-16.   Requiring that bidder be member of private organization.   - State may not require that bidder be member of private organization, but it may require that bidder be properly licensed and insured. 1958-59 Op. Att'y Gen. p. 310.   Public works contracts subject to provisions.    - Contract entered into by the environmental protection division for reclamation and rehabilitation of land subjected to surface mining constitutes a public works contract, and is subject to the provisions of Ga. L. 1939, p. 160, § 3 and Ga. L. 1964, p. 693, § 1, (see O.C.G.A. §§ 50-5-67 and50-5-72). 1976 Op. Att'y Gen. No. 76-98.    Georgia State Financing and Investment Commission  is not required to obtain bids on construction contracts. 1975 Op. Att'y Gen. No. 75-58.   RESEARCH REFERENCES   Am. Jur. 2d.   - 64 Am. Jur. 2d, Public Works and Contracts, §§ 22 et seq., 48 et seq.   C.J.S.   - 81A C.J.S., States, § 270 et seq.   ALR.    - Bidder's variation from specifications on bid for public work, 65 A.L.R. 835.    Evasion of law requiring contract for public work to be let to lowest responsible bidder by subsequent changes in contract after it has been awarded pursuant to that law, 69 A.L.R. 697.    What is an "emergency" within charter or statutory provision excepting emergency contract or work from requirement of bidding on public contracts, 71 A.L.R. 173.    Right to award public contract to one other than lowest financial bidder as affected by fact that bidder furnishes bond, 86 A.L.R. 131.    Labor conditions or relations as factor in determining lowest responsible bidder for public contract or as factor in determining whether public contract should be let to lowest bidder, 110 A.L.R. 1406.   Determination of amount involved in contract within statutory provision requiring public contracts involving sums exceeding specified amounts to be let to lowest bidder, 53 A.L.R.2d 498.   Contract for personal services as within requirement of submission of bids as condition of public contract, 15 A.L.R.3d 733.   Public contracts: low bidder's monetary relief against state or local agency for nonaward of contract, 65 A.L.R.4th 93.   Authority of state, municipality, or other governmental entity to accept late bids for public works contracts, 49 A.L.R.5th 747.