Alabama Attorney General Opinion 1979-0178

LEE L. HALE DEPUTY ATTORNEY GENERAL WILLIAM M. BEKURS. JR. EXECUTIVE ASSISTANT WALTER S. TURNER CHIEF ASSISTANT ATTORNEY GENERAL / CHARLES A. GRADDICK ATTORNEY GENERAL STATE OF ALABAMA MAY 3 1919 OFFICE OF THE ATTORNEY GENERAL 79-00i g8 410 ADMINISTRATIVE BUILDING 64 NORTH UNION STREET MONTGOMERY, ALABAMA 216130 AREA (203), 834-5150 JANIE NOBLES ADMINISTRATIVE ASSISTANT Honorable Cecil Crews Mayor City of Centreville 486 Walnut Street Centreville, Alabama 35042 Competitive Bid Law - Contracts - City of Centreville - City of Brent Failure by low bidder to include minority business enterprise forms at bid opening does not make the bid non-responsive. Dear Sir: This letter is in response to your letter of recent date, the pertinent part of which is as follows: "The Cities of Centreville and Brent are joint- applicants for an EPA Sewer Grant which would provide seventy-five (75Z) percent of the funds to build a joint sewer project for the cities. The Cities of Centreville and Brent prepared bid documents and subsequently advertised for bids on the Project. Copies of all of these documents are attached hereto as Exhibit 11A11. Subsequently four bidders bid on the Project. One of the bidders, Harrington Construction Corporation of Montgomery, Alabama, failed to include MBE Form A. 1 as set out in the requirements of the bid construction contract documents. (See Addenum Number 3, Item amber 5, and Appendex Number 1, attached as Exhibit hereto). Harrington Construction Company was the low bidder when bids were opened March 2, 1979, with a bid of approximately $40,500 less than the second low bidder Roland Pugh Construction Company, Inc. Acti8g on the advice of the Project Engineers the contract was awarded to Roland Pugh Construction, Inc. Thereafter, Harrington Honorable Cecil Crews - 2 Centreville, Alabama Construction Corporation filed a protest in accordance with 40 CFR Section 35.939. Pursuant to 40 CFR 35.939.d (2) (i) the Cities of Centreville and Brent have set a protest resolution meeting on the 15th day of April, 1979. A copy of the Harrington Construction Corporation Protest and all documents relating thereto including Harrington's attorney's brief are attached hereto as Exhibit for your inspection." After reviewing the material submitted with your request, it is my under- standing that the information contained on Form A - Part 1 is of no use to the awarding authority, to wit, cities of Centreville and Brent, prior to the submission of a bid. It is to be used by the Environmental Protection Agency after a bid has been submitted and after the lowest responsible bidder has been awarded a contract by the awarding authority. The information is then used by the Environmental Protection Agency in determining its approval of the contract. As I understand the facts, the Harrington Construction Company submitted to the awarding authority the appropriate minority business enterprise participation form four days after the bid opening. Fran the material submitted with the opinion request, it appears that the Environmental Protection Agency permits this information to be submitted to the awarding authority within ten days after the bid opening- It is my opinion that the fact that the low bidder did not submit the aforementioned form at the bid opening does not make his bid non-responsive since the Environmental Protection Agency clearly contemplates permitting successful bidders to furnish this information within ten days after the bid opening. Apparently, the information is desired only to insure the responsibility of the proposed subcontractors and is not a matter of responsiveness to the invitation for bids. Therefore, it is my opinion that the cities of Centreville and Brent should award the aforementioned contract to the low bidder which is apparently also the lowest responsible bidder since all bid requirements have been met. It should be noted that this office has previously ruled that a construction contract may be awarded to the low bidder, if at the time of the award, the bidder meets all requirements for the performance of the contract. See opinion of the Attorney General dated March 25, 1977, to Honorable Dennis A. Moore, Chairman, Board of Water and Sewer Commissioners of the City of Mobile, a copy of which is enclosed for your convenience. If this office may be of any further assistance to you in this matter, please let us know. Very truly yours, CHARLES A. GRADDICK Attorney General By - et DON E. LAWLEY Assistant Attorney General DEL/dc Enclosure