Dear Mr. Landry:
You have requested the opinion of this office on the following issues:
1.A. The Iberia Parish Council is considering a co-composting program which would utilize and recycle part of the solid waste generated in the unincorporated areas of the parish, along with sewer sludge generated in those areas. Could the costs of constructing and operating such a facility be paid for with the proceeds of the sales taxes approved for solid waste collection and disposal in 1982 and 1993?
1.B. May the tax proceeds generated under these sales tax propositions be used if waste streams generated by Iberia Parish municipalities, or governmental entities of surrounding parishes are processed as part of this co-composting program?
2. May the Parish negotiate a contract with a private entity for the operation of such a co-composting facility without public bids?
3. May such an operating contract extend for a term of twenty years?
4. May the Parish contract with a private entity to construct, own and operate such a co-composting facility on a site owned by the Parish?
5. As an alternative, may the Parish construct and own its own co-composting facility on its own land and then contract with a company to operate the facility over a twenty year period?
1. A B. We have reviewed the language of the tax propositions approved by the voters in 1982 and 1993 for solid waste collection and disposal in the unincorporated areas of Iberia Parish and find that the language is broad enough to allow the proceeds of those taxes to be applied to the proposed co-composting program as a means of implementing the recycling program explicitly authorized by the 1993 proposition. Since both of these propositions dedicate tax revenues to dealing with solid waste collected in the unincorporated areas of the parish, such revenues could not be utilized to pay the entire cost of a contract which disposes of waste generated in the incorporated municipalities, or by areas outside Iberia Parish. However, it is likely that a contract could be structured in such a manner which would deal with solid waste from many sources, with each source being charged an appropriate unit cost for each ton (or other measure) of waste generated from that entity. R.S.33:1321 provides authority for intergovernmental cooperative agreements for such joint operations.
2. R.S. 33:4169.1A(3) authorizes the parish "To enter into time contracts for the collection and transportation of garbage or trash for a term of up to ten years, and for the disposal of garbage or trash for a term of up to twenty-five years." This authority does not require the use of a public bid process unless the contract granted is in the nature of an exclusive franchise. See R.S. 33:4169.1A(2) and Opinion Number 94-108 which I have enclosed for your reference.
3. As set forth in R.S. 33:4169.1A(3) contracts for the collection and transportation of garbage and trash may not exceed 10 years in term, while contracts for the disposal of garbage and trash may be for up to twenty-five years in term. The contract which you describe appears to be in the nature of a disposal contract which would be limited to a 25 year term.
4. The parish may contract with a private entity to construct a co-composting facility on a parish-owned site, but must do so in compliance with the Public Bid Law, R.S. 38:2211 and following. The parish may allow a private company to construct its own facility on parish owned land only after awarding a lease for the use of such land to the private company pursuant to R.S. 41:1211 and following, which mandates a public bid process. In advertising for bids for lease of the public land, the parish may specify what use the land must be put to and the type of facility which may be erected on the land. See,Plantation on the Green, Inc. V. Gamble et al,441 So.2d 299 (La.App. 4 Cir. 1983); Writ Denied, Dec. 19, 1983. If the parish constructs its own facility with public funds, it may then negotiate a contract with an operator for the facility without public bids since this would constitute a contract for services, rather than for public works or purchase of materials and supplies.
5. As indicated in response to 3 and 4 above, the parish may construct and own its own co-composting facility on its own land, having complied with the Public Bid Law, and then contract with a company to operate that facility for a term up to 25 years, without submitting such a contract to a public bid process.
I trust that this answers your inquiries. Please let me know if we may be of further assistance to you in this matter.
Very truly yours,
RICHARD P. IEYOUB ATTORNEY GENERAL
By: ______________________________________ GLENN R. DUCOTE Assistant Attorney General
RPI/GRD/cla
Date Received:
Date Released:
Glenn R. Ducote Assistant Attorney General