Dear Mr. Ater:
By telephone conference on March 26, 2004, you requested clarification of certain parts of Attorney General Opinion No. 04-0030. In that opinion our office reviewed LSA R.S.38:2211(A)(9), (11) and (12) and 38:2212(d) of the Public Bid Law and opined a public works contract undertaken by the Louisiana Secretary of State that does not exceed the contract limit as set forth in R.S. 38:2212A(1)(d) may either be undertaken by the Secretary of State using its own employees, may be negotiated with one or more contractors, or may be let out for public bids subject to the State budget provisions of LSA R.S. 39:56 and the contractor licensing requirements of LSA R.S. 37:2150-2163.
The opinion was based in part on the fact that the Louisiana Secretary of State is a public entity within the meaning of LSA-R.S. 38:2211(10) for new public work projects and is therefore subject to the provisions of the Louisiana Public Bid Law in contracting for such public work projects. LSA R.S. 38:2211-2296.
However, while it is true that the definition of "Public Entity" set forth in LSA R.S. 38:2211(10) includes the State of Louisiana, or any agency, board, commission, department, or public corporation of the state, this provision also states that "Public Entity" shall not include a public body or officer where the particular transaction of the public body or officer is governed by the provisions of the model procurement code. The model procurement code, as adopted by the State of Louisiana and referred to as the Louisiana Procurement Code, is set forth in LSA R.S. 39:1551 et seq.
Pursuant to R.S. 39:1554(B) the Louisiana Procurement Code applies to every expenditure of public funds irrespective of their source by the state, acting through a governmental body defined herein, under any contract for supplies, services, or major repairs defined herein Section 1554B further states that R.S.38:2181-2316 (Public Bid Law) applies to the procurement of construction and the selection of architects, engineers, and landscape architects but does not apply to any procurement of supplies, services, or major repairs.
R.S. 39:1556(10) defines "Governmental body" as any department, office, division, commission, council, board, bureau, committee, institution, agency, government corporation, or other establishment or official of the executive or judicial branches of state government.
It is therefore the opinion of this office that the Louisiana Secretary of State, while a public entity under the Public Bid Law (R.S. 38:2211-2296) for new public work projects, is a governmental body as defined by the State Procurement Code (R.S.39:1551 et seq) and must follow the State Procurement Code for the procurement of supplies, services and major repairs. For the reasons set forth herein and to the extent necessary Attorney General Opinion No. 04-0030 is hereby amended and clarified.
We trust that this answers your inquiry.
Yours very truly,
CHARLES C. FOTI, JR.
Attorney General
BY: ________________________________
RICHARD L. MCGIMSEY
RPI/RLM/dam