Appendix — Georgia Power Co. v. Pataula Electric Membership Corp.

Supreme Court brief1992

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FILED

JUN 26 1999

| USFICE GF THE CLERK

No. 92-

Iu the

Supreme Court

of the

United States of America

October Term, 1992

GEORGIA POWER COMPANY,

Petitioner,

PATAULA ELECTRIC MEMBERSHIP CORPORATION

and

FLINT ELECTRIC MEMBERSHIP CORPORATION,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

APPENDIX TO PETITION OF GEORGIA POWER

COMPANY FOR WRIT OF CERTIORARI

TROUTMAN SANDERS Ralph H. Greil

5200 NationsBank Plaza Counsel of Record

600 Peachtree Street, N.E. Robert P. Edwards, Jr.

Atlanta, Georgia 30308-2216 Kevin C. Greene

(404) 885-3000 Susan P. Wilkerson

Erie A. Szweda

Counsel for Petitioner

Georgia Power Company

APPENDIX TO PETITION FOR

WRIT OF CERTIORARI

Table of Contents

Document

Opinion of the United States Court

of Appeals for the Eleventh

Circuit

951 F.2d 1238 (11th Cir. 1992)

Dated January 29, 1992.........

Order from the United States Court

of Appeals for the Eleventh

Cireuit

959 F.2d 974 (11th Cir. 1992)

Filed March 31, 1992...........

Order from the United States Court

of Appeals for the Eleventh

Circuit

Filed March 31, 1992...........

Order from the United States Court

of Appeals for the Eleventh

Circuit

Filed April 10, 1992............

Order from the United States Court

of Appeals for the Eleventh

Cireuit

Filed April 28, 1992............

Order from the United States

District Court for the Northern

District of Georgia

Dated November 20, 1990

Filed November 21, 1990 .......

Appendix

Page Nos.

la -

13a -

lda -

17a -

19a -

l4a

l6a

18a

- 30a

Document

Order from the United States

District Court for the Northern

District of Georgia

Filed January 15, 1991 .........

Civil Action For Deprivation of Rights,

42 U.S.C. § 1983 (1988) .........

Georgia Territorial Electric Service

Act, 0.C.G.A. §$§ 46-3-1, et seq.

(Michie 1982 & Supp. 1991).....

Georgia State Purchasing Act,

0.C.G.A. $§ 50-5-50, et seq.

(Michie 1990 & Supp. 1991)

(selected relevant sections) .....

State of Georgia Vendor Manual

(selected relevant sections) .....

Georgia Department of

Administrative Services

Purchasing and Surplus Property

Division Agency Purchasing

Manual (selected relevant

Opinions of the Attorney General,

State of Georgia 1974

74 Op. Att’y Gen. 16 (1974)

Dated January 25, 1974.........

Appendix

Page Nos.

3la - 32a

33a

34a - 60a

6la - 79a

80a - llla

112a - 128a

112a -117a

118a - 120a

121la - 122a

123a - 128a

129a - 134a

-ili-

Appendix

Document Page Nos.

Amended Complaint of Flint

Electric Membership Corporation

Dated September 7, 1990 ....... 135a - 16la

Amended Complaint of Pataula

Electric Membership Corporation

Dated September 7, 1990 ....... 162a - 180a

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 91-8098

PATAULA ELECTRIC MEMBERSHIP

CORPORATION,

Plaintiff-Appellant,

versus

Bobby WHITWORTH, Individually and in his official

capacity as Department of Corrections Commissioner,

CLYDE STOVALL, Individually and in his official

capacity as Assistant Commissioner of

Department of Corrections,

DAVID C. EVANS, Individually,

GEORGIA POWER COMPANY,

Defendants-Appellees,

FLINT ELECTRIC MEMBERSHIP CORPORATION,

Plaintiff-Appellant,

VETSUS

Bobby WHITWORTH, Individually and in his official

capacity as Department of Corrections Commissioner,

CLYDE STOVALL, Individually and in his official

capacity as Assistant Commissioner of

Department of Corrections,

DAVID C. EVANS, Individually,

GEORGIA POWER COMPANY,

Defendants-Appellees.

January 29, 1992

Appeal from the United States District Court for the

Northern District of Georgia

Before JOHNSON*, and CLARK*, and PECK**, Senior

Cireuit Judges.

JOHNSON, Senior Cireuit Judge:

This case arises on appeal following the district

court’s dismissa! of plaintiffs’ complaints for failure to

demonstrate a constitutionally protected property inter-

est in the award of utility contracts. For the reasons that

follow, we reverse the order of dismissal.

I. STATEMENT OF THE CASE

In April of 1989, Pataula Electric Memberchip Cor-

poration (Pataula EMC) and Georgia Power Company

(Georgia Power) submitted bids to the Department of

Corrections (DOC) for the provision of electric service to

a new prison in Calhoun County, Georgia. A consultant

for the DOC analyzed the proposals and recommended

Pataula EMC on the basis of probable savings in cost.

This same consultant assessed bids from Flint Elee-

tric Membership Corporation (Flint EMC) and Georgia

Power for service to a Macon County prison in 1990. The

consultant recommended Flint EMC on the basis of its

projected lower costs. Nonetheless, the DOC chose Geor-

gia Power to service both of the prisons.

* See Rule 34-2(b), Rules of the U.S. Court of Appeals for the

Eleventh Circuit.

** Honorable John W. Peck, Senior U.S. Cireuit Judge for the Sixth

Circuit, sitting by designation.

ceceaninetiienneaelle

In July of 1990, the Pataula EMC and Flint EMC

(plaintiffs) filed separate suits challenging the DOC’s

refusal to award the contracts to the “lowest responsible

bidders.” On November 21, 1990, these cases were consol-

idated and dismissed for failure to state » claim upon

which relief can be granted. See Fed.R.Civ.P. 12(b) (6).

The district court held that the plaintiffs could not

demonstrate that they were entitled to the service con-

tracts, and thus that they had no property interest pro-

tected under section 1983 of title 42.

This Court reviews de novo the district court’s dis-

missal of plaintiffs’ complaints for failure to state a claim.

See Thomas v. Evans, 880 F.2d 1235, 1239 (11th Cir.1989).

Dismissal of a complaint for failure to state a claim is

error “ ‘unless it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which

would entitle him to relief.’ ” Scheuer v. Rhodes, 416 U.S.

232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2da 90 (1974)

(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99,

101-102, 2 L.Ed.2d 80 (1957); Powell v. United States, 945

F..2d.374, 375-76 (11th Cir.1991) ).

II. DISCUSSION

Plaintiffs argue on appeal that under Georgia law

they possess a constitutionally protected property inter-

est in the contracts. They also contend that the DOC

defendants are not entitled to qualified immunity.

A. Property Interest in the Contracts

Defendants advance three arguments for plaintiffs’

lack of a property interest in the contracts: (1) Georgia

statutes and regulations do not require electric utility

contracts to be awarded to the lowest responsible bidder,

(2) Georgia law expresses no intent to grant an entitle-

ment to the lowest responsible bidder, and (3) applicable

statutes and regulations grant procurers discretion suffi-

cient to prevent bidders from forming a property interest.

1. Lowest responsible bidder requirement

One of the express purposes of Georgia’s State

Purchasing Act (Act) is to “ensure openness and accessi-

bility by all qualified vendors to the state’s purchasing

processes so as to achieve the lowest possible costs to the

state through effective competition among such vendors.”

Ga. Code Ann. $50-5-50(3) (Michie 1990). The Act

designates the Department of Administrative Services

(DOAS) as the state agency that must oversee competi-

tive bidding for purchases for the state and its agencies.

Id. at § 50-5-51(1). The Act requires the DOAS to use

competitive bidding to purchase or acquire “all supplies,

materials, services other than professional and personal

employment services” for use by the state or its agencies.

Id. The only exemptions from this competitive bidding

requirement are express exemptions for professional and

personal employment services, id. at §50-5-51(1), and

purchases below a stated dollar amount, id. at § 50-5-69.

Defendants contend that section 50-5-51(3) sepa-

rately provides the DOAS with the authority to contract

for services or to delegate contracting of services includ-

ing electric utilities.’ Because this provision does not

* Section 50-5-51(3) states that the DOAS shall have the author-

ity “[t]o contract for all telephones, telegraph, electric light power,

postal, and any and all other contractual purchases and needs of the

state government or any of its departments...or in lieu of such

contract to authorize any department, institution, or agency to

purchase or contract for any or all such services.”

include a competitive bidding requirement, defendants

argue that electric utility service is impliedly exempt

from the bidding requirement stated in_ see-

tion 50-5-51(1). Section 50-5-51 (1), however, simply lists

all items subject to competitive bidding, whereas sec-

tion 50-5-51(3) lists items which the DOAS may contract

for directly on behalf of the state or its agencies, or may

authorize state agencies to contract for independently.”

The Georgia Vendor Manual (Manual), promulgated

by the DOAS to interpret and implement the terms and

provisions of the State Purchasing Act, provides further

support for this construction: “Contracts or open market

purchases will in all cases be awarded to the lowest

responsible bidder.” Ga. Dept. of Admin. Services, Ga.

Vendor Manual, art. VIII, § 3, at 23; see also id. at art. II,

§4, p. 5 (all procurements by state agencies under

Purchasing Act “will be based on competitive bidding

whenever possible.”). These broad bidding requirements

encompass electric utility contracts.

Defendants argue that the Agency Purchasing Man-

ual (APM), which also reviews procedure for state

purchases, nonetheless relieves state agencies from using

competitive bidding for utility contracts. See Ga. Dept. of

Admin. Services, Agency Purchasing Manual (revised

* Under defendants’ characterization of the purpose of section

50-5-50(3), competitive bidding requirements would also not appiy to

“any and all other contractual purchases and needs.” Such an

interpretation would wholly circumvent the competitive bidding in-

struction in section 50-5-51(1).

Section 50-5-58(a) likewise does not release the state from using

the competitive bidding process mandated by section 50-5-51(1).

Section 50-5-58(a) merely allows state agencies to purchase directly

certain items without specific authorization from the DOAS. See Ga.

Code Ann. § 50-5-58(a) (Michie 1990).

Oct. 6, 1987). In the APM, utilities are listed as items

subject to “audited authority,” thereby permitting an

agency procurement officer, instead of the DOAS, to

purchase utilities for a specific agency. Jd. at 7, 9, 74.

Utilities are among many items marked with a “#” sym-

bol, which denotes that “competitive bids are not ex-

pected or may be very difficult to obtain due to the nature

of the item, purchasing circumstances, market situation

or other restrictive conditions.” Jd. at 69. Although the

Manual explicitly assigns the competitive bidding require-

ment to purchases made according to audited authority,

see Ga. Dept. of Admin. Services, Ga. Vendor Manual,

art. IV, $3, at 10, defendants contend, and the district

court concluded, that the ““#”’ symbol exempts selected

items from competitive bidding.

This interpretation of the “#” symbol is deeply

flawed. The APM simply recognizes the fact that competi-

tive bidding may not be possible for the designated items

in certain circumstances.° The APM does not attempt to

exempt these items from competitive bidding when such

bidding is possible. Indeed, it cannot: neither the DOAS

nor its commissioner is empowered by any statutory

section to determine what items will be exempt from

competitive bidding requirements; therefore, neither may

promulgate rules or regulations to accomplish this result.

See Ga. Code Ann. $§ 50-5-54, 50-5-55 (Michie 1990).

Where, as in this case, there is no impediment to competi-

’ For example, competitive bidding for electrical service con-

tracts is not a legal possibility except under the narrowly prescribed

conditions of the Georgia Territorial Electric Service Act. See Ga.

Code Ann. §$§ 46-3-1 to 46-3-15 (Michie 1982 & Supp.1991). In most

eases, the electric supplier for the assigned area would be the only

supplier statutorily permitted to provide electric service in a particu-

lar locality.

—pioeceesscienaiaae eee ieee amen

tive bidding, the State Purchasing Act and relevant rules

mandate competitive bidding. See id. at § 50-5-51 (1); Ga.

Dept. of Admin. Services, Ga. Vendor Manual, art. II, § 4,

at 5 (competitive bidding required “whenever possible”’);

Ga. Dept. of Admin. Services, Agency Purchasing Manual

(revised Oct. 6, 1987), at 117, 118 (ageney procurement

officer required to obtain competitive prices “whenever

possible” for service/maintenance contracts subject to

audited authority).

2. Entitlement for lowest responsible bidder

Defendants argue that although utility contracts may

be subject to competitive bidding, Georgia does not recog-

nize that a lowest responsible bidder may have a property

interest in the award of a contract.’ We disagree.

A disappuinted bidder may have a constitutionally

protected property interest in the award of a contract

under 42 U.S.C.A. § 1983 (1981) if that interest is ac-

knowledged by “existing rules or understandings that

stem from an independent source such as state law.”

Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701,

2709, 33 L.Ed.2d 548 (1972); see also Metric Constructors,

Inc. v. Gwinnett County, Ga., 729 F.Supp. 101

(N.D.Ga.1990). The directive contained in the Manual

represents a rule or understanding sufficient to create an

entitlement: “[e]ontracts or open-market purchases will

in all cases be awarded to the lowest responsible bidder.”

* Defendants argue that because procurement regulations inure

to the benefit of taxpayers, disappointed bidders can have no prop-

erty interest under Georgia law. The decisions cited to support this

argument, however, have limited only the recovery of lost profits. See,

e.g., Amdahl Corp. v. Ga. Dept. of Admin. Services, 260 Ga. 690, 398

S.E.2d 540, 546 (1990) (equitable relief available).

neni

Ga. Dept. of Admin. Services, Vendor Manual, art. VIII,

$3, at 23; see also, e.g., Hilton Constr. Co. v. Rockdale

County Bd. of Educ., 245 Ga. 533, 266 S.E.2d 157, 161

(1980) (lowest responsible bidder’s property interest was

defined by the competitive bidding procedures promul-

gated by the State Board of Education).

3. Discretion of Georgia state procurers

Defendants argue that even if Georgia requires a

contract to be awarded to the “lowest responsible bid-

der,” determining the lowest responsible bidder involves

discretion sufficiently bread to preclude a bidder from

forming an expectation of an award. Defendants assert

that because plaintiffs at most formed a unilateral expec-

tation of the award of the contracts, plaintiffs cannot

claim an entitlement to them.°

The Vendor Manual provided objective standards for

the DOC to determine the “lowest responsible bidder”:

The lowest responsible bidder is deemed to be

that bidder who submits a responsive bid which

meets the specifications set out in the Invitation

to Bid and which is most advantageous to the

State, taking into account price, performance,

° Defendants alternatively argue that a bidder's interest is

inherently inchoate and does not arise to the level of an entitlement

until an award of a contract is in hand. The discussion in the

preceding section, however, demonstrates that state statutes or rules

may create an entitlement for the lowest responsible bidder. Defend-

ants’ reliance on Cunningham v. Adams, 808 F.2d 815 (11th Cir.

1987), is misplaced. Cunningham simply stands for the proposition

that a committee's recommendation of a contractor to the deciding

Board did not represent a selection, and thus did not obligate the

Board to choose plaintiff. Jd. at 820-21.

and capacity to perform of the bidder; quality of

the merchandise offered; transportation charges;

and date of delivery.

Ga. Dept. of Admin. Services, Ga. Vendor Manual, art.

VIII, § 3, at 23. These objective standards confine discre-

tion sufficiently to allow formation of a property interest.®

It is sufficienu that the decisionmaker must declare a

bidder to be the “lowest responsible bidder” after deter-

mining that the bidder, in the decisionmaker’s judgment,

meets the necessary prerequisites.’ See Board of Pardons

v. Allen, 482 U.S. 369, 373-76, 107 S.Ct. 2415, 2418-19, 96

L.Ed.2d 303 (1987). The fact that the decisionmaker

must exercise judgment in applying these standards “is

not incompatible with the existence of a [constitutionally

protected] interest.” Jd. at 376, 107 S.Ct. at 2419.

® The defendants incorrectly compare the procurers’ discretion

in this case to the broader discretion of officials who are not limited

by any lowest responsible bidding requirement. See, e.g., Perkins v.

Lukens Steel Co., 310 U.S. 118, 126-29, 60 S.Ct. 869, 876-77, 84 L.Ed.

1108 (1940) (government required only to advertise before awarding

contracts and then to provide that contractors meet certain labor

standards); Sowell’s Meats & Services, Inc. v. McSwain, 788 F.2d 226.

228-29 (4th Cir.1986) (statute requires contracts to be awarded to

“responsible contractors” after consideration of several noninclusive

factors).

"The defendants mistakenly rely on parole board cases to

demonstrate that the authority to exercise discretion is inconsistent

with the existence of a constitutionally protected interest. These

cases analyze a prisoner’s entitlement to a liberty interest pursuant

to statutes permitting parole upon a subjective determination by the

parole board, but not requiring release after consideration of an

objective set of standards. See, e.g., Francis v. Fox, 888 F.2d 1147

(11th Cir.1988); Thomas v. Sellers, 691 F.2d 487 (11th Cir.1982).

10a

The degree of discretion enjoyed by the DOC in

choosing the lowest responsible bidder falls squarely

within the compass of discretion that the Georgia Su-

preme Court has found insufficient to preclude bidders

from forming an expectation of an award. See Amdahl

Corp. v. Depi. of Admin., 260 Ga. 690, 398 S.E.2d 540

(1990); Hilton Constr. Co. v. Rockdale County Bd. of

Educ., 245 Ga. 533, 266 S.E.2d 157 (1980). The Georgia

_ Supreme Court has held that a rejected low bidder has a

property interest even if the procurement agency has

“some discretion” regarding the final award. Amdahl

Corp., 398 S.E.2d at 545; see also Hilton Const. Co., 266

S.E.2d at 161. Although the relevant guidelines in

Amdahl granted less discretion to the procurers than in

the instant case, the Amdahl court did not define an upper

acceptable limit in discretion. Amdahl, 398 S.E.2d at 545

(DOAS was bound to choose bidder with lowest price-

performance formula). In Hilton Construction Co., the

Board was vested with greater discretion than in the

present case. The Hilton Board was required to choose the

“responsible bidder submitting the lowest acceptable

bid.” Hilton Constr. Co., 266 S.E.2d at 161. Unlike the

DOC in the instant case, the Hilton Board was provided

no guidelines either for assessing a “responsible” bidder

or for determining an “acceptable bid.” Jd.

Defendants counter that the purchasing agent’s au-

thority to reject “any and al] bids” allows the agent to

reject the lowest responsible bidder, and thus grants the

agent very broad discretion. See Ga. Code Ann.

§ 50-5-67(b) (Michie Supp.1991). Assuming arguendo

lla

that section 50-5-67(b) is relevant to the instant ease,® the

power to reject “any and all bids” did not empower the

defendants to act in an arbitrary manner. See Konigsberg

v. State Bar, 353 U.S. 252, 273, 77 S.Ct. 722, 733,

1 L.Ed.2d 810 (1957) (state is free to select its own

members of legal bar, but state cannot exercise its power

in arbitrary or discriminatory manner). At a minimum,

then, plaintiffs state a cognizable claim by alleging that

defendants abused their discretion by arbitrarily ignoring

competitive bidding requirements.® See Metric Construc-

tors, Inc., 729 F.Supp. at 102. The DOC defendants’

discretion to choose the lowest responsible bidder thus

does not preclude plaintiffs’ claim to a constitutionally

protected property interest in the award of utility

contracts.

B. Qualified Immunity Unavailable

The DOC defendants claim qualified immunity. They

argue that the complaint must be dismissed because

® Defendants have also argued that section 50-5-67(b), which

includes a competitive bidding requirement, has no application to

utility contracts because it makes no reference to “services.” Section

50-5-67(b) refers only to “contracts for the purchases of supplies,

materials, or equipment.” Ga.Code Ann. §50-5-67(b) (Michie

Supp.1991).

* Defendants’ reliance on City of Atlanta v. Ashland Warren,

Inc., 1982-1 Trade Cas. (CCH) § 64,527, 1981 WL 2187

(N.D.Ga.1981), is misplaced. In this case, the low bidder did not

meet the terms of the City’s bid requirements. The court held only

that the government, in the absence of mandatory guidelines for

choosing contracts, may set the terms for acceptable contracts. The

court did not find that the government may choose contractors

regardless of the established terms.

12a

plaintiffs cannot demonstrate that the DOC violated

clearly established statutory or constitutional rights. See

Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir.1989).

The actions of the DOC in this regard are evaluated under

a reasonable person standard. /d.

The relevant statutes and rules clearly mandate that

procurers award contracts to the lowest responsible bid-

der whenever possible. Because the Georgia Supreme

Court has long recognized a constitutionally protected

property interest in the award of a contract under com-

petitive bidding statutes and rules, the DOC officials

knew or should have known that they deprived plain-

tiffs — as lowest responsible bidders — of a property in-

terest by ignoring statutory and regulatory directives. See

id. at 1036. The DOC defendants’ claim of qualified

immunity must therefore fail.

Ill. CONCLUSION

For the reasons set forth above, we REVERSE the

district court’s order to dismiss for failure to state a

claim and REMAND to the district court for further

proceedings consistent with this opinion.

13a

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 91-8098

PATAULA ELECTRIC MEMBERSHIP

CORPORATION,

Plaintiff-Appellant,

versus

BOBBY WHITWORTH, Individually and in his official

capacity as Department of Corrections Commissioner,

CLYDE STOVALL, Individually and in his official

capacity as Assistant Commissioner of

Department of Corrections,

DAVID C. EVANS, Individually,

GEORGIA POWER COMPANY,

Defendants-Appellees.

FLINT ELECTRIC MEMBERSHIP CORPORATION,

Plaintiff-Appellant,

versus .

BOBBY WHITWORTH, Individually and in his official

capacity as Department of Corrections Commissioner,

CLYDE STOVALL, Individually and in his official

capacity as Assistant Commissioner of

Department of Corrections,

DAVID C. EVANS, Individually

GEORGIA POWER COMPANY,

Defendants-Appellees.

PA AI BA MDA 00 «

l4a

Appeal from the United States District Court of the

Northern District of Georgia

ON PETITION (S) FOR REHEARING

BEFORE: JOHNSON*, CLARK*, and PECK**, Senior

Circuit Judges.

PER CURIAM:

The petition(s) for rehearing filed by the appellee,

GEORGIA POWER COMPANY, is denied. —

ENTERED FOR THE COURT:

/s/_ Frank M. Johnson

United States Circuit Judge

*See Rule 34-2(b), Rules of the U.S. Court of Appeals for the

Eleventh Circuit.

** Honorable John W. Peck, Senior U.S. Cireuit Judge for the Sixth

Circuit, sitting by designation.

[Filed March 31, 1992]

r |

l5a

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 91-8098

PATAULA ELECTRIC MEMBERSHIP

CORPORATION and FLINT ELECTRIC

MEMBERSHIP CORPORATION,

Plaintiffs-Appellants,

versus

BOBBY WHITWORTH, et al.,

Defendants-A ppellees.

On Appeal from the United States District Court for the

Northern District of Georgia

ON PETITION (S) FOR REHEARING AND

SUGGESTION (S) OF REHEARING EN BANC

BEFORE: JOHNSON*, CLARK*, and PECK**, Senior

Cireuit Judges.

PER CURIAM:

MW The Petition(s) for Rehearing are DENIED and

no member of this panel nor other Judge in regular active

service on the Court having requested that the Court be

polled on rehearing en bane (Rule 35, Federal Rules of

Appellate Procedure; Eleventh Cireuit Rule 35-5), the

Suggestion(s) of Rehearing En Bane are DENIED.

O) The Petition(s) for Rehearing are DENIED and

the Court having been polled at the request of one of the

members of the Court and a majority of the Circuit

l6a

Judges who are in regular active service not having voted

in favor of it (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Cireuit Rule 35-5), the Sugges-

tion(s) of Rehearing En Bane are also DENIED.

CL) A member of the Court in active service having

requested a poll on the reconsideration of this cause en

bane, and a majority of the judges in active service not

having voted in favor of it, Rehearing En Bane is

DENIED.

ENTERED FOR THE COURT:

/s/ Frank M. Johnson

United States Circuit Judge

*See Rule 34-2(b), Rules of the U.S. Court of Appeals for the

Eleventh Circuit.

** Honorable John W. Peck, Senior U.S. Circuit Judge for the Sixth

Circuit, sitting by designation.

[Filed March 31, 1992]

17a

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 91-8098

PATAULA ELECTRIC MEMBERSHIP,

Plaintiff-Appellant,

versus

BOBBY WHITWORTH, Individually and in his official

capacity as Department of Corrections Commissioner,

CLYDE STOVALL, Individually and in his official

capacity as Assistant Commissioner of

Department of Corrections,

DAVID C. EVANS, Individually,

GEORGIA POWER COMPANY,

Defendants-Appellees.

FLINT ELECTRIC MEMBERSHIP CORPORATION,

Plaintiff-Appellant,

versus

BOBBY WHITWORTH, Individually and in his official

capacity as Department of Corrections Commissioner,

CLYDE STOVALL, Individually and in his official

capacity as Assistant Commissioner of

Department of Corrections,

DAVID C. EVANS, Individually

GEORGIA POWER COMPANY,

Defendants-Appellees.

On Appeal! from the United States District Court for the

Northern District of Georgia

18a

ORDER:

Appellees’ joint motion for an extension of time in

which to file motion for stay of mandate to and including

April 14, 1992, is granted.

MIGUEL J. CORTEZ, Clerk

United States Court of Appeals

for the Eleventh Cireuit

/s/ Kembra L. Smith

Kembra L. Smith, Deputy Clerk

ENTERED FOR THE COURT —

BY DIRECTION

[Filed April 10, 1992]

19a

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 91-8098

PATAULA ELECTRIC MEMBERSHIP,

Plaintiff-Appellant,

versus

BOBBY WHITWORTH, Individually and in his official

capacity as Department of Corrections Commissioner,

CLYDE STOVALL, Individually and in his official

capacity as Assistant Commissioner of

Department of Corrections,

DAVID C. EVANS, Individually,

GEORGIA POWER COMPANY,

Defendants-A ppellees.

FLINT ELECTRIC MEMBERSHIP CORPORATION,

Plaintiff-Appellant,

versus

BOBBY WHITWORTH, Individually and in his official

capacity as Department of Corrections Commissioner,

CLYDE STOVALL, Individually and in his official

capacity as Assistant Commissioner of

Department of Corrections,

DAVID C. EVANS, Individually,

GEORGIA POWER COMPANY,

Defendants-A ppellees.

On Appeal from the United States District Court for the

Northern District of Georgia

20a

ORDER:

() The motion of Appellee, Georgia Power for

(XX) stay ( ) recall and stay issuance of the mandate

pending petition for writ of certiorari is DENIED.

Y) The motion of Appellee, Georgia Power for

(XX) stay ( ) of the mandate pending petition for writ

of certiorari is GRANTED to and ineluding June 29,

1992, the stay to continue in force until the final disposi-

tion of the case by the Supreme Court, provided that

within the period mentioned above there shall be filed

with the Clerk of this Court the certificate of the Clerk of

the Supreme Court that the certiorari petition has been

filed. The Clerk shall issue the mandate upon the filing of

' a copy of an order of the Supreme Court denying the writ,

or upon expiration of the stay granted herein, unless the

above mentioned certificate shall be filed with the Clerk of

this Court within that time.

C) The motion of , for a further stay of

the issuance of the mandate is GRANTED to and includ-

ing under the same conditions as set forth

in the preceding paragraph.

OOIT IS ORDERED that the motion of

, for a further stay of the issuance of the

mandate is DENIED.

/s/_ Frank M. Johnson

United States Cireuit Judge

[Filed April 28, 1992]

2la

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

CIVIL ACTION

1:90-ev-1550-HTW

FLINT ELECTRIC MEMBERSHIP CORPORATION,

Plaintiffs,

versus

BOBBY WHITWORTH, individually, and in his official

capacity as Department of Corrections Commissioner,

CLYDE STOVALL, individually, and in his official

capacity as Assistant Commissioner of

Department of Corrections,

DAVID C. EVANS, individually, and

GEORGIA POWER COMPANY,

! Defendants.

CIVIL ACTION

1:90-ev-1675-JOF

PATAULA ELECTRIC MEMBERSHIP

CORPORATION,

Plaintiffs,

versus

BOBBY WHITWORTH, individually and in his official

capacity as Department of Corrections Commissioner,

CLYDE STOVALL, individually, and in his official

capacity as Assistant Commissioner of

Department of Corrections,

DAVID C. EVANS, individually, and

GEORGIA POWER COMPANY,

Defendants.

22a

ORDER OF COURT

These cases are pending on motions to dismiss,

motions to consolidate, and motions for a protective order

filed by defendants—Georgia Power Company, Bobby

Whitworth, and Clyde Stovall.

MOTION TO CONSOLIDATE FOR PRETRIAL

PROCEEDINGS

Defendant Georgia Power Co. has moved for consoli-

dation of these cases for pretrial proceedings. The plain-

tiffs do not oppose consolidation for pretrial proceedings.

Inasmuch as it appears that the litigation at the pretrial

level will revolve around similar facts and legal issues, the

court considers good cause shown.

The motion for consolidation for pretrial proceedings

is GRANTED. It is ORDERED that these cases be

consolidated up to, but not including, the required filing

of pretrial orders.

MOTIONS TO DISMISS

These cases concern the rights of disappointed bid-

ders to obtain judicial relief from a determination by the

Georgia Department of Corrections to designate Georgia

Power as electrical service provider for prisons to be

constructed and operated in Calhoun County and Macon

County, Georgia.

The plaintiffs allege that the designation of such a

supplier is controlled by Georgia’s procurement statutes

which require competitive bidding. Each plaintiff con-

tends that it was the lowest responsible bidder, and

therefore its constitutional and statutory rights have been

violated by the arbitrary designation of Georgia Power as

23a

electrical service provider. The defendants contend that

plaintiffs’ complaints are legally insufficient and move to

dismiss.

A. Background Facts

Plaintiffs Flint Electric Membership Corporation

(“Flint EMC”’) and Pataula Electric Membership Corpo-

ration (“Pataula EMC”’) are nonprofit electric coopera-

tives organized and existing under the Georgia Eiectric

Membership Corporation Act.

On or about April 10, 1989, Pataula EMC submitted

a bid for the provision of electric service to [a] new

prison to be constructed in Calhoun County, Georgia. On

or about March 1, 1990, Flint EMC submitted a bid to the

Department of Corrections for the provision of electrical

service to a new prison to be constructed in Macon

County, Georgia. Georgia Power Company also submitted

bids to provide electric service to the prisons.

As a part of its process of evaluating the proposals

submitted by the bidders, the Department of Corrections

asked consulting Engineers Rosser Fabrap International

(“Rosser Fabrap”) to review the proposals from the

parties. After reviewing the proposals for the prison in

Macon County, Rosser Fabrap recommended Flint EMC

because of its lower operating costs and superior service.

After reviewing the proposals for the prison in Calhoun

County, Rosser Fabrap recommended Pataula EMC be-

cause of its lower operating costs and lower lease costs.

The plaintiffs allege that, notwithstanding the fact

that the plaintiffs were the lowest responsible bidders on

the respective projects, defendants Stovall and Whit-

worth arbitrarily decided to award the contract for elec-

trie service to Georgia Power. Flint EMC alleges that

24a

defendants Stovall and Whitworth failed to communicate

certain criteria subsequently relied upon by them in

making the decision to award the contract. Flint EMC

further alleges that Stovall and Whitworth informed

Flint EMC that at lease [sic] one factor relied upon

would not be a consideration in the determination and

that Stovall and Whitworth utilized at least one state-

ment from Georgia Power that was made improperly and

outside the bidding process and that Stovall and Whit-

worth disregarded the consultant’s recommendation.

Plaintiff Pataula EMC alleges that the defendants

Stovall and Whitworth relied on invalid and unsupported

assumptions, criteria predesigned to favor Georgia

Power, criteria not reasonably related to the provision of

electric service and arbitrary considerations in granting

Georgia Power the contract for electrical service.

In their complaints, plaintiffs seek injunctive relief

and damages for the violation of their due process rights.

B. Legal Standard

For purposes of a motion to dismiss, pursuant to

F.R.Civ.P. 12(b) (6), the complaint is construed in the

light most favorable to plaintiff and its material allega-

tions are taken as true. When a federal court reviews the

sufficiency of a complaint, the issue is not whether plain-

tiff will ultimately prevail or is likely to prevail but

whether the plaintiff is entitled to offer evidence to sup-

port the claims. Scheuer v. Rhodes, 416 U.S. 232 (1974).

The motion addresses itself solely to the failure of the

complaint to state a claim for relief. See, Wright & Miller

Federal Practice and Procedure, § 1357. In appraising the

sufficiency of plaintiff's complaint, this court follows the

settled rule that plaintiff's complaint should not be dis-

25a

missed for failure to state a claim unless it appears

beyond doubt that she can prove no set of facts in support

of her claim which would entitle her to relief. Conley v.

Gibson, 355 U.S. 41 at 45-56 (1957).

C. Discussion

A complaint under 42 U.S.C. § 1983 must allege the

existence of a liberty or property interest that has been

abridged under color of state law without adequate due

' process. See Board of Regents v. Roth, 408 U.S. 564, 569-70

(1972). To establish a property interest, plaintiff must

have a legitimate claim of entitlement as determined by

reference to state law. Id. at 577; Bishop v. Wood, 426 U.S.

341, 344 (1976).

In evaluating plaintiffs’ complaint, the court is

guided by the decision of Judge Shoob in Metric Construc-

tors, Inc., v. Gwinnett County, 729 F. Supp. 101 (N.D.Ga.

1990), in which he addressed the conflicting authority

concerning the rights of a disappointed bidder to obtain

judicial relief.

Judge Shoob determined that a constitutionally pro-

tected property interest exists if acknowledged by appli-

cable state law. To state a cause of action, a disappointed

bidder must have been entitled to award of the project

under the applicable state law. In this latter regard, the

appropriate consideration is not whether the successful

bidder complied with bidding procedures, but rather,

whether the property interest arises from the expectations of

the plaintiffs and the entitlement granted by state law. Id.

729 F. Supp. at 102’ (emphasis added). Judge Shoob also

1 Citing, L & H Sanitation, Inc. v. Lake City Sanitation, Inc., 585

F.Supp. 120, 124 (E.D.Ark. 1984), aff’d, 769 F.2d 517 (8th Cir.

26a

determined, and the court agrees that, under Georgia law

a constitutionally protected property interest may be

possessed by a disappointed bidder for a contract with

the state. Metric Constructors, 729 F. Supp. at 102. Hilton

Construction Co. v. Board of Education, 245 Ga. 533

(1980)? |

The fact that a disappointed bidder may possess a

protected property interest under Georgia law does not

mean that plaintiffs have stated a cause of action in the

present cases. Plaintiffs must demonstrate that they were

entitled to award of the contract for electric services

under the laws that govern the relevant bidding

procedures.

The defendants contend that plaintiffs have no prop-

erty interest protected by due process because the Geor-

gia Department of Corrections is not required to utilize

the competitive bidding process in the designation of an

electrical service supplier.

1985); Teleprompter of Erie, Inc. v. City of Erie, 567 F.Supp. 1277,

1287-88 (W.D.Pa. 1983).

* In Hilton, the Georgia Supreme Court held that the low bidder

under procedures which required that “the award of the contract will

be made to the responsible bidder submitting the lowest acceptable

bid” could maintain a cause of action for refusal to award it the

contract.

SEP SAE tee vO ee

Meith Pitts. At oh Py

27a

The State Purchasing Act® grants the Department of

Administrative Services (‘“‘DOAS’) the authority to

purchase

supplies, materials, services other than profes-

sional and personal employment services, and

equipment

for state agencies, or to regulate the purchase thereof,

under competitive bidding. O0.C.G.A. §50-5-51(1). The

State Purchasing Act also provides the DOAS with the

authority and duty,

To contract for all telephones, telegraph, electric

light power, postal, and any and all other con-

tractual purchases and needs of the state gov-

ernment or any of its departments, institutions,

or agencies; or in lieu of such contract to author-

ize any department, institution, or agency to

purchase or contract for any or all such service.

0.C.G.A. § 50-5-51(3). Sinee this provision does not in-

clude a bidding requirement, the parties dispute whether

the DOAS is legislatively required to use competitive

bidding in contracting for electrical services as is re-

quired for goods and services found in 0.C.G.A. § 50-5-

51(1).

Pursuant to its authority the DOAS promulgated the

Vendor Manual. The Vendor Manual sets forth the pro-

eurement regulations of the DOAS under the State

Purchasing Act. Under certain circumstances the DOAS

is authorized to delegate purchasing authority to any or

to all State agencies both for the procurement of certain

3 0.C.G.A. § 50-5-50 through § 55-5-81 (Michie 1986 & Supp.

1990).

28a

classes of products and services. Vendor Manual, Art. II,

Section 2.

Under O.C.G.A. § 50-5-67(b), the relevant state de-

partment is to grant the contract for purchases to the

lowest bidder meeting the standards set by the depart-

ment. See also, Op. Att’y Gen. No. 74-16 (1974). Any and

all bids may be rejected. O.C.G.A. § 50-5-67(b).

In this ease, the DOAS delegated the authority to

contract for electric light power to the Department of

Corrections under the provisions for Audited Purchase

Authority. Article IV Section III of the Vendor Manual

states,

The Purchasing and Surplus Property division

has delegated to all State Agencies the authority

to purchase products classified as perishables or

“special items” and has delegated to selected

Agencies authority to purchase technical instru-

ments. The authority to purchase these particu-

lar items is referred to as “Audited Purchase

Authority.”’ These classified items are listed in

the State Purchasing Manual and are available

to all procurement officers upon request. The

rules for competitive bidding apply to purchases

made according to Audited Purchase

Authorsty. ...

(emphasis added).

The DOAS has also promulgated the Agency

Purchasing Manual to, among other things,

provide procedures for processing purchases by

item under audited agency authority. ...

29a

Agency Purchasing Manual, p. 74. The Agency Purchasing

Manual ineludes “utilities” with other items for which,

competitive bids are not expected or may be very

difficult to obtain due to the nature of the item,

the purchasing circumstances, the market situa-

tion, or other restrictive conditions.

Agency Purchasing Manual, p. 69.

The parties dispute whether, under the provisions of

the Purchasing Act, contracts for electricity were subject

to the bidding requirements of the Act. The court finds

the statutory provisions ambiguous. The requirement that

rules for competitive bidding apply to purchases made

according to Audited Purchase Authority seems to imply

that competitive bidding was required. However, the pro-

visions in the Agency Purchasing Manual state that com-

petitive bids on utilities are not expected or may be very

difficult to obtain due to its nature, the purchasing cir-

cumstances, the market situation, or other restrictive

conditions.

Although it is undisputed that the DOC solicited

bids, reviewed the bids, and sent the bids to an indepen-

dent consultant for review and recommendation. The

DOC was not mandated by law to seek competitive bids

for electric service.

The court has reviewed plaintiffs’ complaints and the

submissions of the parties and determines that the plain-

tiffs have failed to meet their burden of showing that they

possess property interests or entitlements granted by

state law. Plaintiffs cannot sustain an action under

42 U.S.C.A. § 1983.

cai al

30a

Accordingly, defendants’ motions to dismiss are

GRANTED. The motion for protective order is DENIED

as MOOT.

SO ORDERED, this 20th day of November, 1990.

/s/ Horaee T. Ward

HORACE T. WARD

UNITED STATES DISTRICT

JUDGE

{Filed November 21, 1990]

3la

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

CIVIL ACTION

1:90-ev-1550-HTW

FLINT ELECTRIC MEMBERSHIP CORPORATION,

Plaintiffs,

versus

BOBBY WHITWORTH, individually, and in his official

capacity as Department of Corrections Commissioner,

CLYDE STOVALL, individually, and in his official

capacity as Assistant Commissioner of

Department of Corrections,

DAVID C. EVANS, individually, and

GEORGIA POWER COMPANY,

Defendants.

CIVIL ACTION

1:90-ev-1675-JOF

PATAULA ELECTRIC MEMBERSHIP

CORPORATION,

Plaintiffs,

versus

BOBBY WHITWORTH, individually, and in his official

capacity as Department of Corrections Commissioner,

CLYDE STOVALL, individually, and in his official

capacity as Assistant Commissioner of

Department of Corrections,

DAVID C. EVANS, individually, and

GEORGIA POWER COMPANY,

Defendants.

32a

ORDER OF COURT

These cases are pending on plaintiffs’ motion for

reconsideration of its most recent order. Upon review, the

court determines that its order of November 28, 1990 is a

correct statement of the law as to the narrow facts of this

ease. Plaintiffs have failed to show a legitimate claim of

entitlement under the State Purchasing Act and procure-

ment regulations. Therefore, plaintiffs’ motion for recon-

sideration is DENIED.

SO ORDERED, this 15th day of January, 1991.

/s/__Horace T. Ward

HORACE T. WARD

UNITED STATES DISTRICT

JUDGE

[Filed January 15, 1991]

33a

UNITED STATES CODE

Title 42

§ 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or causes

to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper

proceeding for redress. For the purposes of this section,

any Act of Congress applicable exclusively to the District

of Columbia shall be considered to be a statute of the

District of Columbia.

R.S. § 1979; Pub.L. 96-170, § 1, Dee. 29, 1979, 93 Stat.

1284.

34a

OFFICIAL CODE OF GEORGIA ANNOTATED

(Michie 1982 & Supp. 1991)

Title 46

ARTICLE 1

GENERATION, DISTRIBUTION, ETC., OF

ELECTRICITY GENERALLY

PaRT 1

ALLOCATION OF TERRITORIAL RIGHTS TO

ELECTRIC SUPPLIERS

46-3-1. Short title.

This part shall be known as the “Georgia Territorial

Electric Service Act.” (Ga. L. 1973, p. 200, § 1.)

46-3-2. Legislative findings and declaration of policy.

The public-interest requires, and it is declared to be

the policy of the State of Georgia, that, in order (1) to

assure the most efficient, economical, and orderly render-

ing of retail electric service within the state, (2) to inhibit

duplication of the lines of electric suppliers, (3) to foster

the extension and location of electric supplier lines in the

manner most compatible with the preservation and en-

hancement of the state’s physical environment, and (4) to

protect and conserve lines lawfully constructed by elec-

tric suppliers, it is necessary and appropriate that the

state establish and implement a plan whereby every geo-

graphic area within the state shall be either assigned to

an electric supplier or declared unassigned as to any

electric supplier; that, to accomplish such a plan, it is

necessary that all electric suppliers within the state be

subject to this part; that the commission be delegated

power, authority, and jurisdiction with respect to such

35a

plan; and that all electric membership corporations and

all municipalities which furnish retail electric service be

additionally subject to regulation by the commission in

the same manner as provided for regulation of electric

light and power companies, except as to the fixing of their

rates, charges, and service rules and regulations, it being

determined by the General Assembly that such electric

membership corporations and municipalities, which by

their corporate nature are wholly or substantially con-

trolled by their consumers, should for regulatory pur-

poses be classified differently in certain respects from

electric light and power companies. (Ga. L. 1973, p. 200,

§ 2.)

46-3-3. Definitions.

As used in this part, the term:

(1) “Assigned area” means an enclosed geo-

graphic area assigned to only one electric supplier by

the commission or by this part, and inside which the

assignee electfic supplier shall have the exclusive

right to extend and continue furnishing service to

new premises, except as otherwise provided in this

part.

(2) “Electric membership corporation” means a

corporation organized under Article 2 of this

chapter.

(3) “Electric supplier” means any electric light

and power company subject to regulation by the

commission, any electric membership corporation

furnishing retail service in this state, and any munic-

ipality which furnishes such service within this state.

36a

(4) “Line” means any conductor for the distri-

bution or transmission of electricity other than a

conductor operating at a potential of 120,000 volts or

more. However, a conductor that initially constitutes

a line shall not cease being a line if, after March 29,

1973, it is operating at a potential in excess of

120,000 volts.

(5) “Municipality” means:

(A) Any geographically defined political

subdivision of this state, other than a county,

performing or authorized to perform multiple

and substantial municipal functions, specifically

including either the function of furnishing retail

electric service or the function of granting to

electric suppliers street franchise rights for use

in furnishing retail electric service;

(B) Any geographically defined political

subdivision, or agency thereof, of this state if at

any relevant time it lawfully furnishes retail

electric service; and

state which furnishes retail electric service

within this state.

(6) “Premises” means the building, structure,

or facility to which electricity is being or is to be

furnished, provided that two or more buildings,

struetures, or facilities which are located on one tract

or contiguous tracts of land and are utilized by one

electric consumer shall together constitute one prem-

ises; provided, however, that any such building,

structure, or facility shall not, together with any

other building, structure, or facility, constitute one

37a

premises if the permanent service to it is, separately

metered and the charges for such service are calcu-

lated independently of charges for service to any

other building, structure, or facility; provided, fur-

ther, that an outdoor security light, or an outdoor

sign requiring less than 2200 watts, shall not consti-

tute a premises.

(7) “Primary supplier” within a municipality in

existence on March 29, 1973, means, either:

(A) That electric supplier which, on

March 29, 1973, is furnishing service to the

majority or to a plurality, whichever is the case,

of the retail electric meters then inside the

corporate limits of the municipality; or

(B) That electric supplier to which the

commission has reassigned a geographic area,

previously assigned to another electric supplier,

located within such municipality as its limits

existed on March 29, 1973.

(8) “Secondary supplier” within a municipality

in existence on March 29, 1973, means any electric

supplier which owns lines on that date within such

municipality and which is not a primary supplier.

(9) “Service” means retail electric service and

includes temporary or construction service as well as

permanent service but excludes wholesale service

and sales for resale.

(10) “To own” or “to belong” or the like means,

wherever used in reference to lines being used by an

electric supplier, to have any proprietary or posses-

sory interest.

38a

(11) “Unassigned area-A” means a geographic

area which, between March 29, 1973, and Sept. 1,

1975, was not an assigned area and was not declared

to be an unassigned area-B.

(12) “Unassigned area-B” means a geographic

area which has not been assigned and which has been

declared by the commission to be, or by operation of

this part becomes, an unassigned area-B, and inside

which an electric supplier shall have the right to

extend and thereafter continue furnishing service to

new premises locating therein if chosen by the con-

sumer utilizing such premises, provided that an elec-

tric supplier whose line, as it exists on March 29,

1973, or as thereafter lawfully constructed to serve

new premises pursuant to this part, is at least par-

tially within 500 feet of such new premises shall have

the exclusive right to extend and continue furnishing

service to such premises if the line of every other

electric supplier so existing or so thereafter con-

structed is at that time wholly more than 500 feet

from such premises.

(13) “Wholly new municipality’ means a mu-

nicipality initially coming into existence after

March 29, 1973, but not one resulting from the

reincorporation of all or any portion of a geographic

area theretofore contained in a previously existing

municipality or from the merger, consolidation, or

any other combination of two or more political subdi- *

visions which are counties or incorporated cities.

(Ga. L. 1973, p. 200, § 3; Ga. L. 1982, p. 3, § 46.)

39a

46-3-4. Assignment or declaration as unassigned areas-B of

geographic areas outside municipal limits as of

March 29, 1973.

After March 29, 1973, and continuing thereafter as

rapidly as it is administratively practicable to do so, the

commission is authorized and directed to assign to elec-

tric suppliers or to declare as unassigned areas-B all

geographic areas in this state that were, on March 29,

1973, located outside the corporate limits of any munici- -

pality. Such assignments and declarations of urfassign-

ment shall be effected by the commission in accordance

with the following standards:

(1) Assigned areas shall be described by de-

fined boundaries on maps to be filed with the commis-

sion and incorporated by it in its orders. Where

deemed necessary or appropriate, the commission

may require boundaries to be additionally described

by written metes and bounds;

(2) Each geographic area assigned shall be as-

signed to only one electric supplier, as determined by

public convenience and necessity, ‘having primary

regard for the location of electric suppliers’ lines but

having no regard for differences in electric suppliers’

retail rates or for the fact that retail consumers are

not then being served from such lines;

(3) Each geographic area assigned shall be so

assigned that its boundaries enclose land spaces in

which the assignee electric supplier owns all or a

preponderance of the lines, provided that a geo-

graphic area may be so assigned or declared unas-

signed even though it is completely surrounded by

the inner boundaries of another geographic area

assigned to an electric supplier. Boundaries will be

40a

located around the perimeter of such land spaces so

as to be approximately 1,000 feet from the nearest of

the assignee electric supplier’s lines so enclosed,

provided that if the lines of two or more electric

suppliers are closer together than 2,000 feet, the

boundary shall be located approximately halfway

between them; provided, however, that where compel-

ling factors of public convenience and necessity so

require, including the need for using natural and

manmade landmarks for boundary references, the

location of a boundary may vary somewhat more or

somewhat less than such 1,000 foot or halfway dis-

tance; provided, further, that such 1,000 foot or

halfway distance standards shall not apply to any

lines of the assignee electric supplier which extend

from inside the assigned area outside such area or to

any lines of any other electric supplier which extend

from outside the area inside or completely across

such area and which do not otherwise occasion as-

signment or unassignment of land space, the rights

and restrictions applying to such other electric sup-

plier’s lines inside such area being as provided for in

paragraph (4) of this Code section; —

(4) A line of an electric supplier which extends

into or completely crosses a land space in which

another electric supplier owns a preponderance of

the lines may nevertheless be considered as the basis

for assigning or declaring unassigned land space

related thereto; but, unless such line so occasions an

assignment or an unassignment, then, from and after

the date of the assignment to an electric supplier of

the geographic area within which such line is en-

closed and based upon the location of both suppliers’

lines on that date, the electric supplier owning such

4la

enclosed line shall have the exclusive right to extend

and continue furnishing service to all new premises

locating at least partially within 500 feet of such line

and wholly more than 500 feet from the assignee

electric supplier’s lines and shall have the right, if |

chosen by the consumer utilizing such premises, to

extend and continue furnishing service to new prem-

ises locating at least partially within 500 feet of both |

electric suppliers’ lines but shall not otherwise have

the right, unless so agreed by the assignee electric

supplier and the consumer utilizing such premises, to

extend and furnish service to any other premises

locating inside such assigned area;

(5) Except where public convenience and neces-

sity require their assignment, the commission shall

declare an unassigned areas-B those land spaces

which are not assigned to an electric supplier pursu-

ant to any other provision of this part; and

(6) Not inconsistent with Code Seciion 46-3-8,

any electric supplier may apply to the commission for

assignment to it of one or more geographic areas or

for the commission to declare one or more geographic

areas to be unassigned areas-B. (Ga. L. 1973, p. 200,

§ 4.)

46-3-5. Assignment of geographic areas within municipal

limits as of March 29, 1973.

Except as ctherwise provided in subsection (a) of

Code Section 46-3-8, ali geographic areas inside the cor-

porate limits of every municipality, as such limits existed

on March 29, 1973, are assigned to the primary supplier,

subject to the rights and restrictions applying to electric

suppliers owning lines therein, as follows: Based upon the

iii

42a

location of all electric suppliers’ lines therein on

March 29, 1973, every secondary supplier shall have the

exclusive right to extend and continue furnishing service

to new premises locating therein at least partially within

300 feet of its line and wholly more than 300 feet from the

lines of every other electric supplier; and shall have the

right, if chosen by the consumer utilizing such premises,

to extend and continue furnishing service to new premises

locating therein at least partially within 300 feet of both

its lines and the lines of any other electric supplier; but

shall not otherwise have the right, unless so agreed by the

primary supplier and by any other secondary supplier

whose lines are located at least partially within 300 feet

thereof and the consumer utilizing such premises, to

extend and continue furnishing service to any other prem-

ises locating therein, which shall be the exclusive right of

the primary supplier or such other secondary supplier, if

such be the case. (Ga. L. 1974, p. 200, § 5; Ga. L. 1982,

p. 3, § 46.) ¢

46-3-6. Assignment, etc., of geographic areas included within

wholly new municipalities after March 29, 1973.

As to geographic areas which, after March 29, 1973,

are included within the initial limits of a wholly new

municipality, the rights and restrictions applying to elec-

tric suppliers shall be as follows:

(1) Any portion of such geographic area then

already assigned to an electric supplier shall con-

tinue to be so assigned until and unless reassigned

by the commission to another electric supplier pursu-

ant to paragraph (1) of subsection (d) of Code

Section 46-3-8; and

4 AAI SUD eta RGIS HE he Md ce Dingell

Obra

sina

43a

(2) Any portion of such geographic area which

is then unassigned shall continue to be so unassigned

until and unless it is assigned by the commission,

taking into account the recommendation, if any, of

the municipality itself, to an electric supplier pursu-

ant to paragraph (2) of subsection (d) of Code

Section 46-3-8. (Ga. L. 1973, p. 200, § 6; Ga. L. 1982,

p. 3, § 46.)

46-3-7. Assignment, etc., of geographic areas annexed to

municipalities after March 29, 1973.

Whenever, after March 29, 1973, any geographic area

is annexed to a municipality including the inclusion of a

geographic area in a new municipality formed by the

merger, consolidation, or any other combination of a then

existing municipality and one or more other geographi-

eally defined political subdivisions, if the resulting politi-

cal subdivision constitutes a municipality as defined in

Code Section 46-3-3, such geographic area shall be as-

signed or assignable or become unassigned, and the rights

and restrictions applying to electric suppliers therein

shall be as follows:

(1) In so much of such geographic area, if any,

‘as was immediately theretofore within the limits of a

municipality as they existed on March 29, 1973, or as

they existed on the date on which a wholly new

municipality came into existence, and if such annexa-

tion is caused by the merger, consolidation, or any

other combination of such previously existing munici-

pality and one or more other geographically defined

political subdivisions, resulting in a political subdivi-

sion which constitutes a municipality as defined in

Code Section 46-3-3, the rights and restrictions ap-

plying to all electric suppliers therein shall continue

44a

to. be governed by Code Section 46-3-5 or 46-3-6,

whichever is applicable;

(2) As to such geographic areas other than

those provided for in paragraph (1) of this Code

section:

(A) So much of such geographic area, if

any, aS was already assigned to a primary sup-

plier within a municipality which was in exis-

tence on March 29, 1973, shall continue to be so

assigned, provided that if such annexation is

caused by the merger, consolidation, or any

other combination of two or more such munici-

palities having different primary suppliers, such

assignments shall continue in favor of such pri-

mary suppliers respectively;

(B) If the annexation is to a wholly new

municipality, then so much of such geographic

area, if any, as was already assigned to an

electric supplier then serving as an assignee

electric supplier within such municipality —

continue to be so assigned;

more wholly new municipalities or one or more

municipalities which were in existence op

March 29, 1973, then so much of such geographic

area, if any, as was then contiguous to a wholly

new nunicipality and was already assigned to an

assignee electric supplier within such wholly

new municipality, or which was contiguous to a

municipality which was in existence on

March 29, 1973, and was already assigned to the

primary supplier within such municipality, shall

continue to be so assigned;

+S Rh NT BE rin ore ant er te

RA ahs 9 anes 3 A OR

LR S 9 nolan, TL DDE

45a

(D) As to such geographic areas which are

annexed by other than merger, consolidation, or

other combination of a previously existing mu-

nicipality and one or more other geographically

defined political subdivisions so as to result in a

political subdivision which constitutes a munici-

pality as defined in Code Section 46-3-3 but are

not provided for in paragraph (1) of this Code

section or in subparagraphs (A), (B), and (C)

of this paragraph, so much of such geographic

area, if any, as was already assigned to any

electric supplier shall continue to be so as-

signed. In the event the primary supplier deliv-

ers, not less than 45 nor more than 90 days prior

to the effective date of such annexation, written

notice of such annexation upon every other elec-

tric supplier owning lines within the county or

counties in which the annexing municipality is

located (or, though not in the same county,

within one mile of any portion of such geo-

graphic area), such portions of such geographic

area as shall not have been already assigned to

any other electric supplier shall by operation of

this part become assigned to the primary sup-

plier unless, on or before the effective date of

such annexation, there is filed with the commis-

sion ene or more applications by one or more

other electric suppliers for the assignment of

any portion of such geographic area. If such an

application or applications are filed, then, until

there is a final determination with respect to

such application or applications, the service

rights and restrictions applying to electric sup-

pliers in so much of such geographic area as is

~ 46a

the subject matter of the application or applica-

tions shall continue as they were immediately

prior to the effective date of annexation. In such

a proceeding, the commission, acting in accor-

dance with Code Section 46-3-4, may make as-

signments of all or any portion of such

geographic area to one or more applicant electric

suppliers. Any portion of such geographic area

not so assigned to any other electric supplier

shall, effective as of the final determination of

such application or applications, be assigned by

operation of this part to the primary supplier,

provided that if the commission finds and,deter-

mines upon complaint that such assignment to

the primary supplier of any such portion thereof

will be grossly inimical to the public interest, it

shall designate such portion as an unassigned

area-B. In any geographic area assigned by oper-

ation of this part pursuant to this subparagraph,

every secondary supplier shall have, based upon

the location of all secondary suppliers’ lines

therein on the effective date of the annexation,

the exclusive right to extend and continue fur-

nishing service to new premises locating therein

at least partially within 300 feet of its line and

wholly more than 300 feet from the lines of every

other electric supplier; and shall have the riglit,

if chosen by the consumer utilizing such prem-

ises, to extend and continue furnishing service

to new premises locating therein at least par-

tially within 300 feet of both its lines and the

lines of any other electric supplier; but shall not

otherwise have the right, unless so agreed by the

assignee electric supplier and by any other sec-

POY et PETRIE FAS 0 BV DE + AP RL ATOR)

47a

ondary supplier whose lines are located at least

partially within 300 feet thereof and the con-

sumer utilizing such premises, to extend and

continue furnishing service to any other prem-

ises locating therein, which shall be the exclusive

right of the assignee electric supplier or such

other secondary supplier, if such be the case; or

(E) If such geographic area was already an

unassigned area-A or an unassigned area-B and

was annexed by merger, consolidation or other

combination of a previously existing municipal-

ity and one or more other geographically defined

political subdivisions so as to result in a political

subdivision which constitutes a municipality as

defined in Code Section 46-3-3, or if such an

unassigned area-A or unassigned area-B was

otherwise annexed but the notice of annexation

required by subparagraph (D) of this paragraph

was not given, such geographic area shall, on the

effective date of the annexation, become or con-

tinue to be, as the case may be, an unassigned

area-B until and unless the commission assigns

all or any portion thereof to an electric supplier

pursuant to paragraph (2) of subsection (d) of

Code Section 46-3-8. (Ga. L. 1973, p. 200, § 7;

Ga. L. 1982, p. 3, § 46.)

46-3-8. Exceptions, grandfather rights, etc.

(a) Notwithstanding any other provision of this part,

but subject to subsections (b) and (c) of this Code

section, after March 29, 1973, service to one or more new

premises (but if more than one, such premises must be

located on the same tract or on contiguous tracts of land),

if utilized by one consumer and having single-metered

48a

service and a connected load which, at the time of initial

full operation of the premises, is 900 kilowatts or greater

(excluding redundant equipment), may be extended and

furnished, if chosen by the consumer:

(1) By the primary supplier within a municipal-

ity if the premises are located anywhere within the

limits of such municipality as they existed on

March 29, 1973;

(2) By a secondary supplier within the limits of

a municipality as they existed on March 29, 1973, if

the premises are located at least partially within 300

feet of the lines of such secondary supplier;

(3) By any electric supplier if the premises are

located within the initial corporate limits of a wholly

new municipality;

(4) By any electric supplier owning lines in a

municipality if the premises are located in a geo-

graphic area annexed in any manner to such munici-

pality after March 29, 1973; and

(5) By any electric supplier if the premises are

located outside the limits of a municipality.

(b) Notwithstanding any other provision of this

part, but subject to subsections (¢c) and (h) of this Code

section, every electric supplier shali have the exclusive

right to continue serving any premises lawfully served by

it on March 29, 1973, or thereafter lawfully served by it

pursuant to this part, including any premises last and

previously served by it which before or after March 29,

1973, have become disconnected from service for any

reason, and including premises which before or after

March 29, 1973, have been destroyed or dismantled and

49a

which are reconstructed after March 29, 1973, in substan-

tial kind on approximately the same site.

part:

(1) Upon its own complaint or the complaint of

any other electric supplier or any other interested

party, the commission shall have the authority and

jurisdiction, after notice to all affected electric sup-

pliers and after hearing, if a hearing is requested by

any affected electric supplier or any other interested

party, to find and determine that the service of an

electric supplier then serving a premises or exclu-

sively entitled under this part to serve such premises

is not adequate or dependable or that such electric

supplier’s rates, charges, service rules and regula-

tions, or the application thereof unreasonably dis-

criminate in favor of or against the consumer

utilizing such premises, or that an electric supplier is

in violation of subsection (b) of Code Section 46-3-

11. Upon such determination, the commission shall

have the authority and jurisdiction to order such

electric supplier within a reasonable time to make

such improvements as will make its service adequate

and dependable, or to order such electric supplier

within not less than 30 days to cease employing such

discriminatory rates, charges, service rules and regu-

lations, or the application thereof or the practices

prohibited by subsection (b) of Code Section 46-3-11

and to substitute in lieu thereof, subject to approval

by the commission, rates, charges, service rules and

regulations, and practices of application thereof

which are not unreasonably discriminatory, or prac-

tices in conformity with subsection (b) of Code

Section 46-3-11. If the commission finds and deter-

50a

mines in its first consideration of the matter that

such electric supplier is unwilling or unable within a

reasonable time to make its service adequate and

dependable, or is unwilling within 30 days to cease

and correct such unreasonable discrimination or

practices, or if it finds in a subsequent consideration

of the matter that its order to improve service, its

order to cease and correct the unreasonable discrimi-

nation, or its order to cease and correct such prac-

tices has not been timely and in good faith complied

with, it may then order such electric supplier to cease

or desist from serving such premises and order any

other electric supplier which may reasonably do so to

extend and furnish service to such premises; and

(2) Upon the joint application of the affected

electric suppliers, the commission shall have the

authority and jurisdiction, after notice to all affected

persons and after hearing, if a hearing is requested,

to find and determine that the public convenience

and necessity require, and thereupon to approve, the

transfer of service from one electric supplier to

another electric supplier.

(d) Notwithstanding any other provisions of this

part, but subject to subsection (b) of this Code section.

the commission may:

(1) If it determines that an assignee electric

supplier has breached the tenets of public conve-

nience and necessity therein, reassign all or any

portion of an area assigned to that assignee electric

supplier to another electric supplier; and

(2) Ifit determines that public convenience and

necessity so require, assign to any electric supplier

all or any portion of a geographic area which thereto-

Sla

fore has been an unassigned area-A or an unassigned

area-B.

(e) Notwithstanding any other provision of this

part:

(1) No portion of a line constructed after

March 29, 1973, by an electric supplier inside another

electric supplier’s assigned area, inside an unas-

signed area-A, or inside a municipality to serve

premises which, but for the exception provided for in

subsection (a) of this Code section, it would not have

had the right to serve shall acquire any other service

rights therein or impair or diminish any service

rights of an assignee electric supplier or the service

rights accruing to the lines of any electric supplier

inside any assigned area, unassigned area-A, or mu-

nicipality, provided that such electric suppiier may

extend and furnish service from such line to any

other premises which it otherwise has the right to

serve;

(2) No portion of a line constructed after

March 29, 1973, by an electric supplier inside an

unassigned area-B to serve premises which, but for

the exception provided for in subsection (a) of this

Code section, it would not have had the right to serve

shall impair or diminish any service rights accruing

to the lines of any other electric supplier inside such

unassigned area-B, provided that such electric sup-

plier may extend and furnish service from such line

to any other premises which it otherwise has the right

to serve;

(3) No portion of a line constructed after

March 29, 1973, by an electric supplier for the initial

sole purpose of furnishing service at wholesale shall

52a

acquire any other service rights or impair or diminish

the service rights of any assignee electric supplier or

the service rights accruing to the lines of any electric

supplier, provided that such electric supplier may

extend and furnish service from such line to any

other premises which it otherwise has the mght to

serve;

(4) No electric ‘supplier shall, after March 29,

1973, construct its lines to serve new premises except

in accordance with sound electric utility standards.

If, after a hearing involving the affected electric

suppliers and any other interested party, the commis-

sion determines that an electric supplier is about to

violate, is violating, or has violated such standards so

as arbitrarily to preempt areas or arbitrarily to gain

service rights for such a line, the commission is

authorized and directed:

(A) To order the offending electric sup-

plier to cease and desist such construction or to

alter and relocate the same; or

(B) To deelare that such line or any offend-

ing portion thereof shall not be taken into ac-

count in assigning an area or in locating an

assigned area boundary or shall not acquire any

service rights that would otherwise accrue

thereto or impair or diminish any service rights

accruing to the lines of any other electric

supplier;

(5) Any electric supplier may extend and fur-

nish service to any of its own premises devoted to

publie service, whether the same shall have already

been served by another electric supplier, but no line

constructed for such purpose after March 29, 1973,

53a

shall aequire any other service right or impair or

diminish the service rights of any assignee electric

supplier or the service rights accruing to the lines of

any electric supplier, provided that such electric

supplier may extend and furnish service from such

line to other premises which it otherwise has the

right to serve;

(6) No line of a secondary supplier constructed

prior to March 29, 1973, which on that date is not

providing retail service to one or more premises

within the limits of the municipality as they exist on

that date shall acquire any service rights to provide

retail service to any premises located within such

municipal limits as they exist on that date.

(f) The time at which an electric supplier, based

upon the location or proximity of electric suppliers’ lines

as in this part provided for, shal] be considered as having

the right to extend and furnish, or as being restricted

from extending and furnishing, service to new premises

shall be the time at which written application for tempo-

rary construction or permanent service is made to any

electric supplier by the consumer utilizing such premises

or the time at which construction of such premises is

commenced, whichever first occurs. The location of a

premises for temporary construction service shall be

deemed to be the same as the location of the premises

which shall require permanent service after construction.

If temporary construction service is required at one site

for the purpose of beginning the construction of premises

at two or more sites, this subsection shall not preclude an

electrie supplier, if chosen by the builder and having the

right to serve at least one of the premises to be con-

structed, from furnishing all of such temporary construc-

tion service, notwithstanding the fact that one or more

54a

other electric suppliers may have and may exercise the

exclusive right thereafter to extend and furnish the per-

manent service to one or more of the premises being

constructed.

(g) Whenever, after March 29, 1973, any new prem-

ises requiring service are so sited as to be located par-

tially within an assigned area, an unassigned area-A, or

an unassigned area-B and also partially within any other

assigned area, unassigned area-A, or unassigned area-B,

such premises may be served by that electric supplier

chosen by the consumer utilizing such premises from

among the electric suppliers which are eligible under this

part to extend and furnish such service within any of such

areas.

(h) Notwithstanding any other provisions of this

part, if a majority of those voters of a municipality which

was not rendering electric service on March 29, 1973,

approve, by means of referendum vote, the purchase,

construction, extension, operation, and maintenan<e of an

electric distribution system by that municipality, such

municipality is granted the right of eminent domain to

eondemn all of the lines and other facilities of the primary

supplier within such municipality and any secondary

supplier located within the corporate limits of such mu-

nicipality and used to serve customers therein at retail.

This right shall expire, with respect to each such munici-

pality, one year after the date the results of such referen-

dum are declared unless, before that date, such

municipality institutes proceedings to acquire such lines

and other facilities under any of the statutory methods

provided for the condemnation of private property. Upon

a final order of condemnation of such lines and other

facilities, such municipality shall become the primary

supplier therein, the rights of the former primary supplier

vva

and any such secondary suppliers under subsection (b) of

this Code section shall cease, and the consumers served

thereby within such corporate limits shall be thereafter

served by the municipality as the new primary supplier.

The transfer of service shall be accomplished as nearly as

practicable without interruption of service to the consum-

ers. Electric suppliers are authorized to negotiate the sale

and purchase of all or any part of any such lines and other

facilities, and upon the transfer of title thereto the rights

of the selling supplier under subsection (b) of this Code

section shall cease. (Ga. L. 1973, p. 200, § 9.)

46-3-9. Limitation on power of electric membership corpo-

rations to furnish service within municipalities.

Notwithstanding any other provision of law, no elec-

trie membership corporation shall be authorized or em-

powered to furnish service inside the corporate limits of

any municipality except:

(1) If itis already furnishing service therein on

March 29, 1973, or if its lines become annexed.

including annexation that may be caused by the

merger, consolidation, or any other combination of a

then existing municipality and one or more other

geographically defined political subdivisions, if the

resulting political subdivision constitutes a munici-

pality as defined in Code Section 46-3-3, or if its lines

become included in a wholly new municipality, in any

of which events the other relevant Code sections of

this part shall apply and prevail;

(2) To extend and furnish service initially in-

side a municipality the population of which at the

time of such initial service is 1,500 or less, but not

56a

inconsistently with the other Code sections of this

part; or

(3) Notwithstanding paragraphs (1) an& (2) of

this Code section, if the municipality and all electric

suppliers then furnishing service inside such munici-

pality or furnishing electric service to the municipal-

ity at wholesale so consent. (Ga. L. 1973, p. 200, § 13;

Ga. L. 1982, p. 3, § 46.)

46-3-10. Limitation on power of electric suppliers to

condemn property of other electric suppliers.

Notwithstanding any other provision of law, no elec-

trie supplier shall be authorized or empowered to exercise

the power of eminent domain for the purpose of acquiring

any property, whether real or personal, of another electric

supplier which property is devoted to the public use in

furnishing wholesale or retail electric service if such

acquisition would destroy or unduly impair or interfere

with the operation or use of such property by suc other

electric supplier. (Ga. L. 1973, p. 200, § 14.)

46-3-11. Application by electric supplier of discriminatory

rates, charges, etc.; prohibited acts by electric

suppliers generally.

(a) Every electric supplier is prohibited from having

or applying any rate, charge, or service rule or regulation

which unreasonably discriminates against or in favor of

(1) any member of a class of consumers as opposed to any

other consumer who is or should be in the same class of

consumers for such purposes, or (2) any class of its

consumers as opposed to another class of consumers for

such purposes, provided that this prohibition shali not

apply to any rate, charge, or service rule or regulation

57a

relating solely to service rendered by a municipality to

consumers whose premises are located within its limits as

they existed on March 29, 1973.

(b) Notwithstanding any other provision of law.

every electric supplier is prohibited from, directly or

indirectly, by ordinance, law, policy, contract, rate, regu-

lation, or otherwise:

(1) Requiring that a consumer receive retail

electric service from such electric supplier as a condi-

tion for such consumer to receive from such electric

supplier or any other person any goods or other

services that are not reasonably related to the fur-

nishing of retail electric service to such consumer’s

premises;

(2) Offering a consumer lesser charges or more

favorabie terms or conditions for retail electric ser-

vice because of such consumer’s receiving or agreeing

to receive from such electric supplier any goods or

other services that are not reasonably related to the

furnishing of retail electric service to such con-

sumer’s premises;

(3) Imposing higher charges for any goods or

other services that are not reasonably related to the

furnishing of retail electric service to a consumer's

premises because of such consumer’s failure or re-

fusal to receive retail electric service from that sup-

plier; or

(4) Furnishing retail electrie service to any

premises which such electric supplier is not entitled

to serve under this part. (Ga. L. 1973, p. 200, § 10.)

58a

46-3-12. Jurisdiction of commission over electric

membership corporations.

All eleetrie membership corporations which furnish

service in the State of Georgia and all municipalities,

whether incorporated by this state or not, which furnish

service inside the state shall, in addition to the manner

and extent otherwise provided for in this part, be subject

to the authority and jurisdiction of the commission in the

same manner as electric light and power companies are

subject under other laws of the State of Georgia and

regulations of the commission pursuant thereto, provided

that the rates, charges, and service rules and regulations

of electric membership corporations and municipalities

shall be filed with the commission and shail be subject to

Code Section 46-3-11 but shall not otherwise be fixed by

the commission; provided, further, that securities issued

by a municipality relating solely to service rendered

inside its limits as they existed on March 29, 1973, shall

not be subject to regulation by the commission; provided,

further, that service rendered by any electric supplier

shall be made pursuant to and consistent with its rates,

eharges, and service rules and regulations then in effect.

(Ga. L. 1973, p. 200, § 11.)

46-3-13. Enforcement of part by commission.

At any time, upon its own complaint or the complaint

of any other electric supplier or any other interested

party, the commission shall have the authority and juris-

diction, after notice to all affected electric suppliers and

other interested parties, and after a hearing, to enforce

the provisions of this part by appropriate orders. (Ga. L.

1973, p. 200, § 12.)

59a

46-3-14. Effect of part on municipal police powers over elec-

tric wires, poles, etc.; impairment by municipalities

gf rights and restrictions of suppliers other than

primary suppliers; effect of part on powers of munic-

ipalities relating to granting of street franchises.

(a) No provision of this part shall restrict the rea-

sonable exercise of the police power of a municipality over

the erection and maintenance of poles, wires, and other

facilities of electric suppliers in streets, alleys, and public

ways.

(b) No municipality may, by unreasonably withhold-

ing or conditioning right of way easements or franchises,

defeat, impair, or interfere with the rights and restric-

tions applying to electric suppliers therein as provided for

in this part. Rather, any secondary supplier within a

municipality existing on March 29, 1973, and any electric

supplier other than the primary supplier within any geo-

graphic area thereafter annexed to such municipality,

shall pay the municipality for street franchise rights a

sum of money calculated and payable in the same manner

and on the same basis as is utilized with respect to the

payment, if any, by the primary supplier (other than the

municipality itself) for the same or substantially identical

rights. In addition, any electric supplier within a wholly

new municipality at the time such municipality comes into

existence or thereafter which does not serve a majority or

plurality of the retail electric meters inside the limits of

such municipality shall pay such municipality for street

franchise rights a sum of money calculated and payable in

the same manner and on the same basis as is utilized with

respect to the payment, if any, by the electric supplier

(other than the municipality itself) which serves a major-

ity or plurality, whichever is the case, of the retail electric

60a

meters inside the limits of such municipality for the same

or substantially identical rights.

of any incorporated municipality pursuant to para-

graph (7) of Code Section 36-34-2 or any other provision

of law to grant street franchises; nor shall any provision

of this part abolish the requirement, to the extent existing

on March 29, 1973, that any electric supplier must obtain

such a franchise in order to use and occupy streets of an

incorporated municipality for the purpose of rendering

utility services. (Ga. L. 1973, p. 200, § 15.)

46-3-15. Effect of part on charges of public utilities owned

or operated by counties or municipalities.

No provision of this part, and no application thereof,

shall be construed in any way to regulate or fix charges of

county owned or operated or municipality owned or oper-

ated public utilities, as prohibited by Article III, Sec-

tion VI, Paragraph V(d) of the Constitution of Georgia.

(Ga. L. 1973, p. 200, §15A; Ga. L. 1983, p. 3, $ 62;

Ga. L. 1984, p. 22, § 46.)

6la

OFFICIAL CODE OF GEORGIA ANNOTATED

(Michie 1990 & Supp. 1991)

Title 50

ARTICLE 3

STATE PURCHASING

PaRT 1

GENERAL AUTHORITY, DUTIES, AND PROCEDURE

50-5-50. Purposes and policies of part.

The underlying purposes and policies of this part are:

(1) To permit the continued development of

centralized procurement policies and practices;

(2) To control and reduce the cost of purchas-

ing, leasing, renting, or otherwise procuring supplies,

materials, services, and equipment through the use of

centralized purchasing;

(3) To ensure openness and accessibility by all

qualified vendors to the state’s purchasing processes

So as to achieve the lowest possible costs to the state

through effective competition among such vendors;

(4) To provide for timely, effective, and efficient

service to using agencies and to vendors doing busi-

ness with the state;

(5) To ensure the fair and equitable treatment

of all persons who deal with the procurement system

of the state;

(6) To provide for increased publie confidence

in the procedures followed in public procurement:

and

62a

(7) To provide safeguards for the maintenance

of a procurement system of quality and integrity.

(Ga. L. 1931, p. 7, $2; Code 1933, § 40-1901;

Ga. L. 1937, p. 503, $1; Ga. L. 1939, p. 160, $1;

Ga. L. 1950, p. 280, $1; Ga. L. 1955, p. 643, $1;

Ga. L. 1979, p. 659, § 1.)

50-5-51. Power, authority, and duty of department.

The Department of Administrative Services shall

have the power and authority and it shall be the depart-

ment’s duty, subject to this part:

(1) To canvass all sources of supply and to

eontract for the lease, rental, purchase, or other

acquisition of all supplies, materials, services other

than professional and personal employment services,

and equipment required by the state government or

any of its departments, institutions, or agencies

under competitive bidding in the manner and subject

to the conditions hereinafter provided for;

(2) To establish and enforce standard specifica-

tions which shall apply to all supplies, materials, and

equipment purchased or to be purchased for the use

of the state government for any of its departments,

institutions, or agencies;

_ (8) To contract for ali telephones, telegraph,

electric light power, postal, and any and all other

contractual purchases and needs of the state govern-

ment or any of its departments, institutions, or agen-

cies; or in lieu of such contract to authorize any

department, institution, or agency to purchase or

contract for any or all such services;

EEE

63a

(4) To have general supervision of all store-

rooms and stores operated by the state government

or any of its departments, institutions, or agencies;

to provide for transfer or exchange to or between all

state departments, institutions, and agencies or to

sell all supplies, materials, and equipment which are

surplus, obsolete, or unused; and to maintain inven-

tories of all fixed property and of all movable equip-

ment, supplies, and materials belonging to the state

government or any of its departments, institutions,

or agencies;

(5) To make provision for and to contract for

all state printing, including all printing, binding,

paper stock, and supplies or materials in connection

with the same, except as hereinafter provided. For

the purpose of obtaining bids on printing, it shall

have the power to divide the printing into various

classes and to provide stipulations and specifications

therefor and advertise, receive bids, and contract

separately for the various classes;

(6) To procure all fidelity bonds covering state

officials and employees required by law or adminis-

trative directive to give such bonds; and, in order to

provide the bonds at a minimum expense to the state,

the bonds may be procured under a master policy or

policies providing insurance agreements on a group

or blanket coverage basis with or without deductibles

or excess coverage over the state’s retention as deter-

mined by the commissioner. Fidelity bonds covering

state officials and employees which are procured

pursuant to this paragraph shall expressly provide

that all state officials and employees who are re-

quired by law to be bonded be named in the fidelity

bond as insureds or beneficiaries under the terms of

——

64a

the fidelity bond. Inclusion of any state official,

officer, or employee required by law or administrative

directive to be specifically bonded in a master fidelity

bond under the terms of this part shall satisfy any

statutory requirement that the official, officer, or

employee be bonded. Fidelity bonds procured pursu-

ant to this paragraph shall also expressly provide for

indemnification, out of the proceeds of the fidelity

bonds, of all state officials and employees for any

liability or expense of any nature resulting from a

claim on the state official’s or employee’s bonds

which is due to or as a result of an act of a

subordinate of the state official or employee. In order

to finance the continuing liability established with

other agencies of state government, the commis-

sioner is authorized to retain all moneys paid to the

department as premiums on policies of insurance, all

moneys received as interest, and all moneys received

from other sources to set up and maintain a reserve

for the payment of such liability and the expenses

necessary to administer properly the insurance pro-

gram. The commissioner shall invest the moneys in

the same manner as other such moneys in his posses-

sion; and

(7) To establish and operate the state agency

for surplus property for the purpose of distributing

surplus properties made available by the federal

government under Pub. L. 152, 8lst Congress, as

amended, to institutions, organizations, agencies,

and others as may be eligible to receive such surplus

properties pursuant to applicable provisions of fed-

eral law. The commissioner may enter into or author-

ize the aforesaid state agency for surplus property to

enter into cooperative agreements with the federal

65a

government for the use of surplus properties by the

State agency. The commissioner is authorized to

enter into contracts with other state, local, or federal

agencies or with other persons with respect to the

construction, operation, maintenance, leasing, or

rental of a facility for use by the state agency.

Further, the commissioner may acquire real or per-

sonal property for such purposes. All personnel:

personal property, including records, office equip-

ment, supplies, contracts, books, papers, documents,

maps, appropriations, aecounts within and outside

the state treasury, funds, and vehicles; and all other

similar property under the control of the State Board

of Education and used for the direct support and

operation of the state agency for surplus property

are transferred to the Department of Administrative

Services. Each state officer or employee affected

under this paragraph shall be entitled to all rights

which he possessed as a state officer or employee

before July 1, 1978, including all rights of rank or

grade, rights to vacation, sick pay and leave, rights

under any retirement or personnel plan, and any

other rights under law or administrative policy. This

paragraph is not intended to create any new rights

for any state officer or employee but to continue only

those rights in effect before July 1, 1978. (Ga.-L.

1931, p. 7, § 3; Code 1933, § 40-1902: Ga. L. 1937.

p. 508, § 2; Ga. L. 1943, p. 406, § 1: Ga. L. 1960.

p. 78, § 1; Ga. L. 1960, p. 1098, § 1: Ga. L. 1962.

p. 644, § 1; Ga. L. 1974, p. 504, § 1; Ga. L. 1975.

p. 672, § 1; Ga. L. 1976, p. 252, § 12: Ga. L. 1978.

p. 1144, § 1; Ga. L. 1978, p. 1701, § 1; Ga. L. 1979.

p. 659, § 2.)

*K *K *k *

66a

50-5-54. Rules and regulations to be made and published.

The commissioner of administrative services is au-

thorized and empowered by this part to make all rules,

regulations, and stipulations and to provide specifications

to carry out the terms and provisions of this part as may

be necessary for the purposes of this part. The rules and

regulations as prescribed by the commissioner shall be

published in pamphlet form and all the departments of

the state government shall be furnished with copies of the

same. (Ga. L. 1939, p. 160, § 2.)

50-5-55. Specified purposes for rules and regulations.

The commissioner of administrative services may

adopt, modify, or abrogate rules and regulations covering

the following purposes, in addition to those authorized

elsewhere in this part:

(1) Requiring monthly reports by state depart-

ments, institutions, or agencies of stocks, supplies,

materials, and equipment on hand and prescribing

the form of such reports;

(2) Prescribing the manner in which supplies,

materials, and equipment shall be delivered, stored,

and distributed;

(3) Preseribing the manner of inspecting deliv-

eries of supplies, material, and equipment and mak-

ing chemical or physical tests of samples submitted

with bids and samples of deliveries to determine

whether deliveries have been made to the depart-

ments, institutions, or agencies in compliance with

specifications;

(4) Prescribing the manner in which purchases

shall be made by the Department of Administrative

67a

Services in all emergencies as defined in Code See-

tion 50-5-71; and

(5) Providing for such other matters as may be

necessary to give effect to the foregoing rules and the

provisions of this part. (Ga. L. 1937, p. 503, § 13; Ga.

L. 1939, p. 160, $ 6.)

* * *

50-5-57. Duty of department to purchase all supplies, ser-

vices, materials, and equipment; requisition by state

agencies; unlawful purchases.

The Department of Administrative Services shall

have the power and authority and it shall be the depart-

ment’s duty, subject to this part, to contract for the

purchase, lease, or other mode of acquisition of all sup-

plies, materials, services other than professional and

personal employment services, and equipment required by

the state. After sources of supply have been established

by contract under competitive bidding and certified by

the Department of Administrative Services to the differ-

ent departments, institutions, and agencies of the state as

provided for in this part, the institutions, agencies, or

departments of the state shall make requisition on blanks

to be approved by the Department of Administrative

Services for such supplies, materials, and equipment re-

quired by them from the supply so certified and, except as

otherwise provided for or unless the departments, institu-

tions, and agencies of the state obtain written authority

from the Department of Administrative Services to do so,

it shall be unlawful for any of them to purchase any

supplies, materials, or equipment from sources other than

as certified to them by the Department of Administrative

Services. One copy of the requisition shall be sent to the

68a

Department of Administrative Services when the same is

issued. (Ga. L. 1950, p. 181, § 1; Ga. L. 1979, p. 659, § 3.)

50-5-58. Cases where purchases through department not

mandatory.

(a) Unless otherwise ordered by the Department of

Administrative Services, the purchase of supplies, materi-

als, equipment, and services, other than professional and

personal employment services, through the Department of

Administrative Services shall not be mandatory in the

following cases:

(1) Technical instruments and supplies and

technical books and other printed matter on techni-

eal subjects; also manuscripts, maps, books, pam-

phlets, and periodicals for the use of the State

Library or any other library in the state supported by

state funds; also services;

(2) Livestock for slaughter and perishable arti-

eles such as fresh vegetables, fresh meat, fish and

oysters, butter, eggs, poultry, and milk. No other

article shall be considered perishable within the

meaning of this clause unless so classified by the

Department of Administrative Services; and

(3) Emergency supplies of drugs, chemicals

and sundries, dental supplies, and equipment.

(b) In the purchasing of emergency supplies under

paragraph (3) of subsection (a) of this Code section, it

shall be the duty of the department making such

purchases to report same to the Department of Adminis-

trative Services, giving the circumstances necessitating

the purchases.

69a

the Department of Administrative Services any supervi-

sion over the selection or purchase of school textbooks,

which is vested by law in the Department of Education.

(d) The Department of Administrative Services is

authorized to permit departments, institutions, and agen-

cies of state government to purchase supplies, material,

and equipment on confirmation if these individual

purchases do not exceed $100.00 and if these supplies,

materials, and equipment are not under contract or pur-

chased on a continuing basis. The Department of Admin-

istrative Services may regulate the dollar limit of these

individual purchases by official memorandum at any

amount not to exceed $100.00. The commissioner of ad-

ministrative services shall promulgate the rules and regu-

lations necessary to carry out the intent of this

subsection. Nothing in this subsection shall apply to or

affect the laws, rules, and regulations governing emer-

gency purchases. (Ga. L. 1937, p. 503, § 8; Ga. L. 1939,

p. 160, § 4; Ga. L. 1970, p. 287, § 1; Ga. L. 1979, p. 659,

§ 6.)

* * * *

50-5-67. Competitive bidding procedure.

[Note: Statute as it existed during time period relevant

to this proceeding]

(a) Except as otherwise provided in this Code sec-

tion, if the total requirement of any given commodity will

involve an expenditure in excess of $5,000.00, sealed bids

shall be solicited by advertisement in a newspaper of

state-wide circulation at least once and at least ten days

prior to the date fixed for opening of the bids and

70a

awarding of the contract. Other methods of advertise-

ment, 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 bids

directly by mail from reputable owners of supplies in all

eases where the total requirements will exceed $5,000.00.

When it appears that the use of competitive sealed bid-

ding is either not practicable or not advantageous to the

state, a contract may be entered into by competitive

sealed proposals, subject to the following conditions:

(1) This method of solicitation shall only be

used after a written determination by the Depart-

ment of Administrative Services that the use of

competitive sealed bidding is not practicable or is not

advantageous to the state;

(2) Proposals shall be solicited through a re-

quest for proposals;

(3) Adequate public notice of the request for

proposals shall be given in the same manner as

provided for competitive sealed bidding;

(4) Proposals shall be opened in the same man-

ner as competitive sealed bids. A register of propos-

als shall be prepared and made available for public

inspection;

(5) The request for proposals shall state the

relative importance of price and other evaluation

factors;

(6) As provided in the request for proposals

and under regulations to be developed by the Depart-

ment of Administrative Services, discussions may be

Tla

conducted with reasonable offerors who submit pro-

posals determined to be reasonably susceptible of

being selected for award, for the purpose of clarifica-

tion to assure full understanding of and responsive-

ness to the solicitation requirements. Offerors shall

be accorded fair and equal treatment with respect to

any opportunity for discussion and revision of pro-

posals; and such revisions may be permitted after

submissions and prior to award for the purpose of

obtaining best and final offers. In conducting discus-

sions there shall be no disclosure of any information

derived from proposals submitted by competing of-

ferors; and

(7) 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 con-

sideration 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.

(b) Except as otherwise provided for in this part, all

contracts for the purchases of supplies, materials, or

equipment made under this part 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 standard specifications which have been estab-

lished 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. Competitive bids on such

contracts shall be received in accordance with rules and

regulations to be adopted by the commissioner of admin-

72a

istrative services, which rules and regulations shall pre-

scribe, 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 standard specifi-

cation 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.

unreasonable or unacceptable as to terms and conditions,

are noncompetitive, or the low bid exceeds available funds

and it is determined in writing by the Department of

Administrative Services that time or other circumstances

will not permit the delay required to resolicit competitive

bids, a contract may be negotiated pursuant to this Code

section, provided that each responsible bidder who sub-

mitted such a bid under the original solicitation is noti-

fied of the determination and is given a reasonable

opportunity to negotiate. In cases where the bids received

are noncompetitive or the low bid exceeds available funds,

the negotiated price shall be lower than the lowest re-

jected bid of any responsible bidder under the original

solicitation.

(d) Every bid conforming to the terms of the adver-

tisement 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 indicated

thereon shall, after award or letting of the contract, be

subject to public inspection upon request. The Depart-

ment of Administrative Services shall also, within five

days after the award or letting of the contract, publish the

name of the successful bidder on public display in a

73a

conspicuous place in the department’s office 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 Ser-

vices shall also, within five days after the award or letting

of the contract, publish on public display the names of all

persons whose bids were rejected by it, together with a

Statement giving the reasons for such rejection. All the

information required to be placed on public display in a

conspicuous place at the office of the Department of

Administrative Services shall also be recorded in a per-

manent book to be kept by the Department of Administra-

tive Services, which record shall always be subject to

public inspection upon request. Bids shall be opened in

public by the Department of Administrative Services,

which shall canvass the bids and award the contract

according to the terms of this part. A proper bond for the

faithful performance of any contract shall be required of

the successful bidder in the discretion of the Department

of Administrative Services. After the contracts have been

awarded, the Department of Administrative Services

shall certify to the various departments, institutions, and

agencies of the state government the sources of the

supplies and the contract price of the various supplies,

materials, and equipment so contracted for.

(e) On all sealed bids received or solicited by the

Department of Administrative Services, by any depart-

ment, agency, board, or bureau of the state, or by any

person in behalf of any department, agency, board, or

bureau of the state, except in cases provided for in Code

T4a

Section 50-5-58, the following certificate of independent

price determination shall be used:

“T eertify that this bid is made without prior

understanding, agreement, or connection with any

corporation, firm, or person submitting a bid for the

same materials, supplies, or equipment and is in all

respects fair and without collusion or fraud. I under-

stand 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 and certify that I am autho-

rized to sign this bid for the bidder.”’

(Ga. L. 1987, p. 508, $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.)

50-5-67. Competitive bidding procedure.

[Note: Statute as amended in 1991 (subsequent to time

period relevant to this proceeding) |

(a) Except as otherwise provided in this Code sec-

tion, contracts exceeding $10,000.00 shall be awarded by

competitive sealed bidding. If the total requirement of

any given commodity will involve an expenditure in excess

of $50,000.00, sealed bids shall be solicited by advertise-

ment in a newspaper of state-wide circulation at least

once and at least 15 working days 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 bids directly by mail from reputable

75a

owners of supplies in all cases where the total require-

ment will exceed $10,000.00. When it appears that the use

of competitive sealed bidding is either not practicable or

not advantageous to’the state, a contract may be entered

into by competitive sealed proposals, subject to the fol-

lowing conditions:

(1) This method of solicitation shall only be

used after a written determination by the Depart-

ment of Administrative Services that the use of

competitive sealed bidding is not practicable or is not

advantageous to the state;

(2) Proposals shall be solicited through a re-

quest for proposals;

(3) Adequate public notice of the request for

proposals shall be given in the same manner as

provided for competitive sealed bidding;

(4) Proposals shall be opened in the same man-

ner as competitive sealed bids. A register of propos-

als shall be prepared and made available for public

inspection;

(5) The request for proposals shall state the

relative importance of price and other evaluation

factors;

_-. (6) As provided in the request for proposals

and under regulations to be developed by the Depart-

’ ment of Administrative Services, discussions may be

conducted with reasonable offerors who submit pro-

posals determined to be reasonably susceptible of

being selected for award, for the purpose of clarifica-

tion to assure full understanding of and responsive-

ness to the solicitation requirements. Offerors shall

be accorded fair and equal treatment with respect to

76a

any opportunity for discussion and revision of pro-

posals; and such revisions may be permitted after

submissions and prior to award for the purpose of

obtaining best and final offers. In conducting diseus-

sions there shall be no disclosure of any information

derived from proposals submitted by competing of-

ferors; and

(7) 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 con-

sideration 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.

(b) Except as otherwise provided for in this part, all

eontracts for the purchases of supplies, materials, or

equipment made under this part 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 standard specifications which have been estab-

lished 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. Competitive bids on such

contracts shall be received in accordance with rules and

regulations to be adopted by the commissioner of admin-

istrative services, which rules and regulations shall pre-

scribe, 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 standard specifi-

cation prescribed for the article; the amount or number of

T7a

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.

unreasonable or unacceptable as to terms and conditions,

are noncompetitive, or the low bid exceeds available funds

and it is determined in writing by the Department of

Administrative Services that time or other circumstances

will not permit the delay required to resolicit competitive

bids, a contract may be negotiated pursuant to this Code

section, provided that each responsible bidder who sub-

mitted such a bid under the original solicitation is noti-

fied of the determination and is given a reasonable

opportunity to negotiate. In cases where the bids received

are noncompetitive or the low bid exceeds available funds,

the negotiated price shall be lower than the lowest re-

jected bid of any responsible bidder under the original

solicitation.

(d) Every bid conforming to the terms of the adver-

tisement 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 indicated

thereon shall, after award or letting of the contract, be

subject to public inspection upon request. The Depart-

ment of Administrative Services shall also, within five

days after the award or letting of the contract, publish the

name of the successful bidder on public display in a

conspicuous place in the department’s office 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 Ser-

vices shall also, within five days after the award or letting

78a

of the contract, publish on public display the names of all

persons whose bids were rejected by it, together with a

statement giving the reasons for such rejection. All the

information required to be placed on public display in a

conspicuous place at the office of the Department of

Administrative Services shall also be recorded in a per-

manent book to be kept by the Department of Administra-

tive Services, which record shall always be subject to

publie inspection upon request. Bids shall be opened in

public by the Department of Administrative Services,

which shall canvass the bids and award the contract

according to the terms of this part. A proper bond for the

faithful performance of any contract shall be required of

the successful bidder in the discretion of the Department

of Administrative Services. After the contracts have been

awarded, the Department of Administrative Services

shall certify to the various departments, institutions, and

agencies of the state government the sources of the

supplies and the contract price of the various supplies,

materials, and equipment so contracted for.

(e) On all sealed bids received or solicited by the

Department of Administrative Services, by any depart-

ment, agency, board, or bureau of the state, or by any

person in behalf of any department, agency, board, or

bureau of the state, except in cases provided for in Code

Section 50-5-58, the following certificate of independent

price determination shall be used:

“IT certify that this bid is made without prior

understanding, agreement, or connection with any

corporation, firm, or person submitting a bid for the

same materials, supplies, or equipment and is in all

respects fair and without collusion or fraud. I under-

stand collusive bidding is a violation of state and

federal law and can result in fines, prison sentences,

79a

and civil damage awards. I agree to abide by all

conditions of this bid and certify that I am autho-

rized to sign this bid for the bidder.”

(Ga. L. 1987, 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.)

* * * *

50-5-69. Purchases without competitive bidding.

If the needed supplies, materials, or equipment can

reasonably be expected to be acquired for less than

$500.00 and are not available on state contracts, the

purchase may be effectuated without competitive bidding.

The commissioner of administrative services may by rule

and regulation authorize the various state departments,

agencies, and instrumentalities to make purchases in

their behalf which do not exceed $5,000.00 and may

provide the circumstances and conditions under which

such purchases may be effected. (Ga. L. 1976, p. 752, § 1;

ya. L. 1980, p. 90, § 4; Ga. L. 1983, p. 520, § 1.)

80a

GEORGIA VENDOR MANUAL

PaRT l.

VENDOR INFORMATION AND PROCEDURES

ARTICLE I

. INTRODUCTION

SECTION 1 — Purpose of the Vendor Manual

The Purpose of the Georgia Vendor Manual is to ac-

quaint prospective Vendors with the State Purchasing

system and to advise them as to the proper procedures for

doing business with the State. This Manual is intended to

be an exhaustive presentation of Vendor information and

procedures. However, if specific questions arise that are

not answered in the Manual, Vendors may address such

questions in writing to:

Department of Administrative Services

Purchasing and Surplus Property Division

200 Piedmont Avenue, S.E.

Floyd Building — West Tower Suite 1302

Atlanta, Georgia 30335

SECTION 2— Authority of the Purchasing and

Surplus Property Division

The Department of Administrative Services is the agency

of the State of Georgia charged with the responsibility for

the establishment and administration of contracts, leases,

purchase orders or other agreements for the procurement

of supplies, materials, equipment, services and construc-

tion for other agencies of the State. All State agencies,

departments and institutions are required to purchase

through the Department of Administrative Services un-

less specifically exempted by statute or Departmental

8la

regulation. The Purchasing and Surplus Property Divi-

sion is the branch of the Department of Administrative

Services which is responsible for the procurement of

supplies, materials, equipment, services, or construction.

SECTION 3 — Purchasing Laws, Rules and

Regulations

Laws concerning the Department of Administrative Ser-

vices and the procurement process in general may be

found in the Official Code Of Georgia Annotated, Title 50,

Chapter 5, Article 3. Rules and regulations, interpreting

and implementing the State’s purchasing laws and detail-

ing policies and procedures, are set forth in this Manual.

These rules and regulations cover the entire purchasing

process and contain definitions and provisions that the

Vendor will find useful in understanding the State’s

purchasing system and in interacting with it.

SECTION 4 — Responsibilities of the Purchasing and

Surplus Property Division

The Purehasing and Surplus Property Division has a

responsibility to serve the State objectively, economically,

and efficiently; to provide effective service to State Agen-

cies and to follow ethical practices in all relationships

with Vendors.

The Purchasing and Surplus Property Division is specifi-

cally authorized and required to do the following:

(a) To contract for all supplies, materials, equipment,

construction, or services required by the State that

are not exempted by statute.

(b) To determine total State requirements for any given

commodity by examining purchase records or reports

submitted by Vendors, and to establish term con-

82a

tracts and consolidated purchases for use by one or

more State and/or local government agencies.

menting state procurement of supplies, materials,

equipment, services, and construction.

(d) To request informal written or telephone quotations,

whenever possible, for all purchases in excess of

$500, but not more than $5,000, and to solicit sealed

bids, whenever possible, for all purchases in excess of

$5,000.

(e) To open all sealed bids publicly and to maintain

purchase records that are open to public inspection.

SECTION 5 — Purchases by Local Political

Subdivisions

Local political subdivisions, including counties, munici-

palities, and school boards, are authorized by State law to

purchase their supplies, materials, and equipment

‘through the Purchasing and Surplus Property Division if

they so desire. Purchases pursuant to this authorization

may be by one-time open market purchase, by the estab-

lishment of a special term contract, or by purchase by the

local political subdivision directly from a Statewide Con-

tract. All products offered in Statewide Contracts may be

offered to local political subdivisions as well as State

Agencies at the option of the Vendor. The Statewide

Contract bid form includes a section which should be

completed to indicate the Vendor's intentions with re-

spect to local governments.

83a

SECTION 6 — Exemptions from Purchase through

the Purchasing and Surplus Property

Division

State statutes authorize the Department of Transporta-

tion, the various public authorities, the Board of Regents,

and the Department of Labor through the Unemployment

Trust Fund, to contract for construction projects. Addi-

tionally, all State Agencies may contract directly for

construction projects that involve amounts of less than

$5,000. Also exempt from Purchasing and Surplus Prop-

erty Division rules and regulations are procurements by

the legislative and judicial branches of State government;

purchases of school buses and textbooks by the Depart-

ment of Education; procurements of real property;

procurements for agricultural experiment stations cov-

ered by the Hatch Act; Smith-Lever Act Purchases;

procurements for travel, stipends, scholarships, honora-

ria, fellowship fund transfers, authority leases or rentals.

assessments, corporate registrations, payroll and benefit

remittances, deposits and benefits, and procurements of

professional or personal employment services.

(1) Personal services are defined as only those services

rendered by a person who works full time or part

time for and under the control of the State and

receives his compensation as a salary in direct pay-

ment from a department, agency, or institution of

State Government.

(2) Professional services are defined as only those ser-

vices rendered by a member of one of the following

professions while acting in his/her professional ca-

pacity: Certified Public Accountancy, Law, Medicine

and Surgery (including Dentistry), Architecture,

Professional Engineering, Applied Psychology, Land

84a

Surveying, Chiropractic, Optometry, aud Veterinary

Medicin*.

SECTION 7 — Procurement from Other State

Agencies

State Statutes and the regulations of the Purchasing and

Surplus Property Division require State Agencies to

purehase certain products and services from other agen-

cies of the State whenever such services or products are

required. These include, but are not limited to, the prod-

ucts of the Georgia Industries for the Blind, Georgia

Correctional Industries and Department of Human Re-

sources Sheltered Workshops. The procurement of such

products is not subject to the competitive bid require-

ments of the Georgia Code.

SECTION 8 — Open Records

The records of the Purchasing and Surplus Property

Division are open and accessibie to the public in accor-

dance with the provisions of the Georgia Open Records

Act. Requests for inspection of records must be reasona-

ble, must contain sufficient information to facilitate re-

trieval, and must not interfere with the orderly operation

of the Division. The records of individual purchases or

bids are not available for inspection until after award;

and bidders are, therefore, encouraged to attend any bid

opening in which they have an interest.

The Purchasing and Surplus Property Division reserves

the right to charge the general public for cost incurred to

provide copies of records. However, the Division main-

tains a public view file of pending and awarded bids for

the convenience of the public in their Bid Room. The

85a

public is weleome to review these records during regular

working hours (8:00 A.M. - 4:30 P.M.).

SECTION 9 — Visits by Salesmen or Other Vendor

Representatives

The Purchasing and Surplus Property Division encour-

ages visits by salesmen to members of its staff for the

purpose of imparting specialized current information con-

cerning their products. To regulate operations, such visits

are normally limited to Tuesday through Thursday of

each week, and salesmen are requested to make appoint-

ments in advance.

ARTICLE II

STATE PURCHASES IN GENERAL

SECTION 1 — Types of Purchases

Two separate purchasing techniques are employed by the

Purchasing and Surplus Property Division. The first is

the one-time, open market purchase. When soliciting bids

for such purchases, the State requires the Vendor to

quote the exact prices and delivery dates for ti.e ecommod-

ities and quantities listed. The Second technique em-

ployed is the term contract purchase. Term contracts are

contracts to supply the requirements of one or more

agencies for various services or commodities for an ex-

tended period of time, generally one year. In most cases

only estimates of the quantities required can be supplied.

When quoting on term contracts, the Vendor is required

to supply exact unit prices and firm delivery dates, stated

in terms of days after receipt of order.

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SECTION 2 — Delegated Authority to the Agencies

The Purchasing and Surplus Property Division is autho-

rized to delegate purchasing authority to any or to all

State agencies both for the procurement of certain classes

of products and services and for procurements involving

certain maximum dollar values regardless of the product

or service involved. These delegated purchases are more

fully explained in Audited Purchase Authority, Article

IV, Section 3, and Small Value Purchases, Article IV,

Section 2.

SECTION 3 — Purchase Orders

(a)

(b)

A State of Georgia Purchase Order is one issued for

supplies, materials, equipment, services, and con-

struction procured by the Purchasing and Surplus

Property Division for a User Agency. An illustration

of a State Purchase Order may be found in

Exhibit A. |

A Field Purchase Order is one issued directly to a

Vendor by a State agency to initiate an authorized

purchase by the agency. A Field Purchase Order is

also issued by an agency to procure goods pursuant

to any Agency Contract or Statewide Contract. When

used in this way, the Field Purchase Order consti-

tutes a release order and may be referred to as a

Field Purchase Order Release. Receipt of a Field

Purchase Order Release authorizes the Vendor to

ship those specified goods covered in the Agency or

Statewide Contract to the ordering agency. An illus-

tration of a Field Purchase Order may be found in

Exhibit B.

ities

SS a

87a

SECTION 4 — Competitive Bidding

All procurements made by the Purchasing and Surplus

Property Division or by any other State Agency subject to

the Purchasing Act will be based on competitive bidding

whenever possible. The following dollar volume guidelines

are applied to any such acquisitions:

(a) Acquisitions involving expenditures of $500 or less

may be made without competitive bidding. When

possible, however, more than one quotation will be

obtained.

(b) Acquisitions involving expenditures of more than

$500, but less than $5,000, will be made after solicita-

tion of competitive bids by informal written bids or

telephone quotations, whenever possible.

(ce) Aequisitions involving expenditures in excess of

$5,000 will be made after solicitation of sealed com-

petitive bids, whenéver possible.

ARTICLE III

PURCHASING TECHNIQUES AND TYPES

OF CONTRACTS UTILIZED BY

PURCHASING AND SURPLUS PROPERTY

DIVISION

SECTION 1 — Informal Competitive Bidding

The Purchasing and Surplus Property Division may re-

quest informal written bids, or in some instances, tele-

phone quotations for acquisitions involving expenditures

of less than $5,000. All such requests will designate a

closing date for the submission of quotations or bids.

Telephone quotations will be carefully recorded, and the

vendor may be required to confirm his quote in writing.

88a

After the close of business (4:30 pm) on the closing date,

the bids or quotations will be evaluated and a State

Purchase Order will be issued to the successful bidder.

SECTION 2 — Sealed Bidding

State statutes require the Purchasing and Surplus Prop-

erty Division to solicit sealed bids for all acquisitions

involving expenditures in excess of $5,000. Invitations to

bid are mailed to Vendors on a rotation basis using a bid

list pulled for the particular commodity or service being

sought. In addition, legal advertisements soliciting sealed

bids may be placed in newspapers with statewide circula-

tion. Sealed bids are always solicited for the establish-

ment of Statewide Contracts. After the bids are publicly

opened and read, the bids are evaluated, and a Purchase

Order or Notice of Award is issued to the lowest responsi-

ble bidder.

In certain instances, when it is determined in writing by

the Department of Administrative Services to be most

advantageous to the State, a Request for Proposal (RFP)

may be used to solicit offers for goods or services. The use

of the RFP differs from the sealed bid solicitation only in

the fact that no offers are made public at the time and

date set for receipt of proposals. All responses are kept

confidential until a contract award has been made. After

award all files pertaining to the transaction become

public.

SECTION 3 — Requests for Proposal

1. Authority

The Official Code of Georgia Annotated 50-5-67 au-

thorizes the Department of Administrative Services

to utilize competitive sealed proposals when it ap-

(1)

(4)

(9)

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pears that the use of competitive sealed bidding is

either not practicable or not advantageous to the

state. The use of this technique, normally referred to

as a Request for Proposal (RFP) is subject to the

following restrictions:

This method of solicitation shall only be used after a

written determination by the Department of Admin-

istrative Services that the use of competitive sealed

bidding is not practicable 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;

Proposals shall be opened in the same manner as

competitive sealed bids. A register of proposals shall

be prepared and made available for public inspection.

NOTE: The content of proposals submitted in re-

sponse to a request for proposal will not be made

public at the time of opening.

The request for proposals shall state the relative

importance of price and other evaluation factors.

NOTE: No other factors, other than those set forth

in the request for proposal document may be used

in determining the lowest responsible offeror.

NOTE: The use of the Request for Proposal tech-

nique is restricted to the Department of Administra-

tive Services and may not be used by any other

agency of the state.

2. Method

In general, the Request for Proposal is used in much

the same way as comptitive sealed bids, however, at

the time and date set for opening of proposais the

contents of any offers received are not made public.

All documentation pertaining to any solicitation

made by this technique is kept confidential until such

time as a contract award is made. After contract

award all such documentation is made available for

inspection by interested parties.

Offerors conferences are generally held during term of

the solicitation to provide prospective offerors an oppor-

tunity to clear up any misunderstanding they may have

regarding the request for proposal requirements. Minutes

of such conferences will be kept and provided to all

offerors who receive a copy of the request for proposal

document.

3. Evaluation

Evaluation of proposals is generally performed by teams

made up of members from the user agency and the

Department of Administrative services. No contact with

offerors will be made other than from the Department of

Administrative Services. Offerors are barred from contact

with the user agencies during the term of any proposal

solicitation other than through the issuing authority (De-

partment of Administrative Services).

During the evaluation phase discussions may be con-

ducted with reasonable 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

ae eee

9la

treatment with respect to any opportunity for discussion

and revision of proposals; and such revisions may be

permitted after submissions and prior to award for the

purpose of obtaining best and final offers. In conducting

discussions there shall be no disclosure of any informa-

tion derived from proposals submitted by competing

offerors.

4. Award

Awards shall be made to the responsible offeror whose

proposal is determined in writing to be the most advanta-

geous to the state, taking into consideration price and the

evaluation factors set forth in the request for proposal

document. No other factors or criteria shall be used in the

evaluation. The contract file shall contain the basis on

which the award is made.

SECTION 4 — Agency Contracts

Term Contracts usually established for one year by the

Purchasing and Surplus Property Division for use by an

individual State Agency or a specific group of agencies

are referred to as “Agency Contracts.”’ The sealed bid

process is generally used to establish an Agency Contract;

however, an informal bid process may be used if total

purchases are estimated to be less than $5,000. In any

event, the estimated requirements of the agency or agen-

cies will be specified whenever possible but does not limit

or restrict the amount to be purchased.

The State establishes three distinct types of Agency

Contracts, which are termed “Open”, “Fixed Quantity”,

and “Lease”. “Open” contracts are supply contracts

which do not obligate the User Agency to purchase any

minimum quantity or limit the User Agency to any maxi-

mum quantity. “Fixed Quantity” contracts are supply

92a

contracts which do obligate the User Agency to purchase

a stated quantity. “Lease” contracts include all rentals,

leases, or installment/purchases of equipment. After eval-

uation the Purchasing and Surplus Property Division will

issue a Contract Notice of Award to the lowest responsi-

ble bidder. The Contract Award will include the terms,

conditions, and item prices. On “Open” contracts, the

Notice of Award does not authorize shipment of any

supplies, materials, or equipment under the contract.

Shipment is authorized only by the receipt of a Field

Purchase Order Release issued by the User Agency.

SECTION 5 — Statewide Contracts

The Contracts established by the Purchasing and Surplus

Property Division for use by all State agencies and/or all

local political subdivisions are referred to as “Statewide

Contracts’. They are established in the same manner as

Agency Contracts. The invitation to Bid will contain,

whenever possible, estimates of the total requirements of

the User Agencies. Upon evaluation of the bids the Divi-

sion issues a Notice of Award to the lowest responsible

bidder or bidders, and lists the new contract in the

Contracts Catalogue. Certain items such as petroleum,

concrete pipe, asphalt, typewriters, etc. are awarded by

geographical area rather than for the entire State. As in

the case of an Agency Contract, shipment of supplies,

materials, or equipment is not authorized until receipt of

a Field Purchase Order Release issued by a User Agency.

All State Agencies are generally required to purchase

from Statewide Contracts. Local governments are not

required to do so, and any such purchases made by them

are made at their sole option.

93a

SECTION 6 — Open Market Purchases

The Purchasing and Surplus Property Division also

purchases supplies, materials, and equipment on the open

market (one time buy) without establishing a term con-

tract for the supply of those items. The requirements for

competitive bidding apply to these purchases; and upon

award to the lowest responsible bidder, a State of Georgia

Purchase Order is issued to the Vendor. Unlike Agency or

Statewide Contracts, receipt of the Purchase Order by the

Vendor authorizes shipment of the supplies, materials, or

equipment to the Division or to the User Agency as

designated by the Purchase Order. Receipt of such a

Purchase Order does not authorize further sales of like

supplies, materials, or equipment to any User Agency.

SECTION 7 — Scheduled Purchases

The Purchasing and Surplus Property Division estab-

lishes schedules for the combined bidding and one time

purchase of certain commodities. Staple foods, for exam-

ple, are purchased quarterly for all User Agencies.

Agency requirements may be consolidated for delivery to

a single F.0.B. point or each Agency’s requirements may

be listed separately for F.O.B. delivery to each agency.

Scheduled purchases take the form of one-time, open

market purchases awarded pursuant to competitive bid-

ding for that period, with definite deliveries and quanti-

ties specified. State Purchase Orders are issued to the

lowest responsive bidder or _ bidders meeting

specifications.

SECTION 8 — Purchases from Other Governmental

Agencies

The Purchasing and Surplus Property Division may, and

in some cases must, make purchases from other state or

94a

federal agencies, at set or negotiated prices. In such cases

no competitive bids are solicited and private Vendors are

precluded from making an offering to the State.

ARTICLE IV

PURCHASING TECHNIQUES AND

AUTHORITIES — STATE AGENCIES

SECTION 1 — Competitive Bidding

When authority has been delegated to a State Agency to

procure certain supplies, materials, equipment or ser-

vices, the Agency must follow the applicable statutory

rules for either informal or sealed competitive bidding.

The agency will conduct the competitive bidding in much

the same manner as the Purchasing and Surplus Property

Division. However, Vendors are urged to familiarize

themselves with the procedures used by each Agency with

which they wish to do business.

SECTION 2 — Agency Small Value Purchase

Authority

The authority to make Small Purchases has been dele-

gated to individual State Agencies. A Small Value

Purchase is defined as any purchase which involves a total

expenditure of less than $5,000. Agencies may purchase

any commodity under this authority up to their dollar

limit ($500, $1,500 or $4,999 according to the agency),

provided they seek competitive bids whenever possible for

purchases between $500 — $4,999. Field Purchase Orders

are issued by the User Agency to effect all Small Value

Purchases.

ml bo Bae A we

95a

SECTION 3 — Audited Purchase Authority

The Purchasing and Surplus Property Division has dele-

gated to all State Agencies the authority to purchase

products classified as perishables or “special items” and

has delegated to selected Agencies authority to purchase

technical instruments. The authority to purchase these

particular items is referred to as “Audited Purchase

Authority’. These classified items are listed in the State

Purchasing Manual and are available to all procurement

officers upon request. The rules for competitive bidding

apply to purchases made according to Audited Purchase

Authority. Agencies issue Field Purchase Orders directly

to the Vendor to effect purchases in these categories.

SECTION 4 — Emergency Purchases

In case of any emergency arising from unforeseen causes,

State Agencies may request and receive Emergency

Purchase Authorization allowing them to purchase, in the

open market, the supplies, materials or equipment re-

quired for immediate delivery to that Agency. Such

purchases must be made pursuant to the applicable com-

petitive bid procedure whenever possible, and the Emer-

gency Purchase Authorization Number must be shown on

the Field Purchase Order.

SECTION 5 — Agency Purchases from Term

Contracts

When an Agency wishes to acquire supplies, materials, or

equipment covered by either an Open Ended, Agency or

Statewide Contract, the agency issues a Field Purchase

Order Release directly to the Vendor except in cases

where special approvals are required. Receipt of the Field

Purchase Order Release authorizes the Vendor to ship the

items requested.

96a

SECTION 6 — Agency Purchases from Other

Governmental Agencies

State agencies have been authorized to purchase supplies,

materials, or equipment from other governmental agen-

cies at set or negotiated prices without competitive bid-

ding. Private competition is precluded in all such

acquisitions.

* * * *

ARTICLE VU

THE BIDDING PROCESS

SECTION 1 — Selection of Bidders; Advertisements

It is the policy of the State to give every approved bidder

an equal opportunity to bid on procurements. Whenever

possible, the Department makes every effort to issue an

Invitation to Bid to every Vendor registered as a supplier

of the commodity sought. In the event that the bid files

contain a large number of qualified bidders and it is

impractical to send an Invitation to each one, Invitations

may be sent to a part of the list pursuant to a systematic

rotation of the Vendor files. In addition to direct mail

solicitation, the Purchasing and Surplus Property Divi-

sion may publish a legal advertisement in a newspaper of

statewide circulation when attempting to establish

Agency, Statewide or Construction Contracts, or when

purchasing in the open market for requirements in excess

of $50,000.

SECTION 2 — Informal Written or Telephone

Quotations

Informal written bids or, in some instances, telephone

quotations may be solicited for purchases not exceeding

97a

$5,000. Whenever possible, the informal written bid pro-

cedure will be used, rather than the telephone quotation.

In those cases where time will not permit informal written

bids, solicitations will be made by telephone. Vendors

supplying telephone quotations should confirm the quota-

tion in writing within 24 hours. The confirmation should

be sent to the attention of the Buyer who solicited the

quotation.

SECTION 3 — Sealed Bids

The Purchasing and Surplus Property Division is re-

quired by law to solicit sealed bids for acquisitions involv-

ing more than $5,000 whenever possible. Sealed bids may,

however, be requested for any purchases regardless of the

amount involved. The Invitation to Bid will indicate that

the bids are to be received by the Division or by a State

Agency on or before a specified date and hour. Each bid

Should be returned in a separate envelope or package;

signed, sealed, and identified as follows:

From: Name of Vendor

Street or Box Number

City, State, Zip Code

Sealed Bid Opening Date: Time:

Request No.

For State Department:

Purchasing Agent:

Bid Officer

Department of Administrative Services

200 Piedmont Avenue, S.E.

Floyd Building — West Tower Suite 1306

Atlanta, Georgia 30335

98a

It is imperative that the Vendor place the Bid Opening

Date, Hour, and the Request Number on the outside of

the envelope since this is the only means by which the bid

ean be identified.

SECTION 4 — Invitation to Bid Form

The Invitation to Bid constitutes solicitations by the

State for offers of goods or services, and should not be

construed as offers by the State to make purchases.

The Bid form should be carefully completed by the Bid-

der, with all of the requested information supplied, and

returned to the Division. A sample Invitation to Bid form

may be found in Exhibit D.

SECTION 5 — Amending or Cancelling an Invitation

to Bid

The State may withdraw or cancel an Invitation to Bid

any time prior to the award of a contract. The State may

amend an Invitation to Bid by issuing a notice of amend-

ment to all bidders prior to bid opening. In unusual

circumstances, the State may postpone a bid opening in

order to notify Vendors of an amendment and to give

them sufficient time to respond to the amendment.

SECTION 6 — Combining Bids

Separate Invitations to Bid may not be responded to by a

combined bid quotation, and all bids submitted will be

considered only for the purpose of the acquisition for

which they were solicited.

SECTION 7 — Correspondence

All questions concerning a solicitation should be directed

initially to the Buyer whose name and phone number is

99a

indicated in the Invitation to Bid. Vendors should refer to

the Invitation to Bid Number and the bid opening date

when making an inquiry.

The Purchasing and Surplus Property Division cannot

respond to inquiries concerning bid tabulations. This

information is a matter of public record, and all bidders

are invited to attend the public opening of bids or to

inspect the public files after the award of the order in

which they are interested.

Correspondence relating to purchases made directly by

State Agencies should be directed to the Agency involved.

SECTION 8 — Terms, Conditions and Instructions

All Invitations to Bid are deemed to include the contract

terms found in Part 2 of this Manual, and the procedures

outlined in Part 1 of this Manual, as well as the terms,

conditions and instructions included in the Invitation to

Bid itself. The terms, conditions and instructions in the

Invitation to Bid will vary with the type of purchase,

market conditions, commodities or services requested,

and may alter, amend or supersede the provisions in this

Manual. These terms and conditions should be read

carefully prior to the submission of any bid. Unless a

specific exception is noted by the Bidder and accepted by

the State, all provisions of the terms and conditions of the

Invitation to Bid and all of the contract terms contained

in Part 2 of this Manual will become a part of any

contract awarded.

SECTION 9 — Vendor Address

All correspondence, including Notices of Award and re-

lease orders will be sent to the address appearing on the

Vendor’s bid form. If the Vendor wishes to have orders or

100a

payments mailed to an address other than that shown on

the face of the bid form, he should so indicate.

SECTION 10 — Certificate of Noncollusion-Signature

on Bids

Every Invitation to Bid contains a certificate of noncollu-

sion which must be signed by an authorized representa-

tive of the bidder. Such person shall include his title, and

if requested, shall supply verification of his authority to

bind his company in contract. This certificate is required

by law, and failure to execute it will automatically result

in a rejection of the bid.

SECTION 11 — Pricing and Discounts

Invitations to Bid request the quotation of the list price

less all trade or other discounts offered, including cash

discounts. Discount from list quotations may be re-

quested for the supply of certain types of commodities.

Instructions concerning this method of pricing will be

included in the Invitation to Bid. The addition of price

escalator clauses, minimum order requirements, or other

additional pricing terms not included in the terms and

conditions of the Invitation to Bid may cause the Bid to

be rejected.

In all cases, if there is a discrepancy between the unit

price and the extended price the unit price shall govern.

SECTION 12 — Discounts

Any eash discount offered to the State must be clearly

shown in the space provided in the Invitation to Bid. All

discounts offered will be taken when earned. Discounts of

less than 20 days, however, will not be considered for the

purpose of bid evaluation.

, 10la

SECTION 13 — Taxes

State Taxes from which State Agencies are exempt:

¢ Sales and Use Tax

¢ Local Option Sales Tax

¢ MARTA Tax

State Taxes from which State Agencies are not exempt:

¢ Motor Fuel Tax

ss ¢ 2nd Motor Fuel Tax

Federal Excise Taxes from which State Agencies are

exempt:

¢ Communications (telephone & telegraph)

¢ Heavy Trucks, Trailers, and Tractors

e Tires

* Gasoline

¢ Gasohol

¢ Diesel Fuel

¢ Special Motor Fuels

¢ Firearms

¢ Ammunition

¢ Sport Fishing Equipment

Federal Excise Taxes from which State Agencies are

not exempt:

¢ Transportation of Persons by Air

* Transportation of Property by Air

¢ Non Commercial Aviation Fuels

Gasoline

Fuels other than gasoline (including jet

fuel)

* Gas Guzzler (except for law enforcement

agencies)

102a

SECTION 14 — Time of Performance

The number of calendar days required for delivery after

receipt of a purchase order should be shown in the space

provided on the bid form. The successful bidder should

maintain or have available for his own use an inventory

sufficient to make delivery within the time stated, or take

whatever other- measures may be necessary in order to

insure that delivery will be made in accordance with the

contract.

SECTION 15 — Specifications

Detailed specifications may not always accompany an

Invitation to Bid. In some instances, reference will be

made to certain standard specifications. Such a reference

incorporates any such standard specifications in the Invi-

tation to Bid, and any response to any such Invitation

must then be in accordance with them.

In other cases, reference may be made to one or more

brand names. Such reference is not restrictive unless

otherwise specified and is used for descriptive purposes

only. Bids on equivalent products of like quality and

performance will be considered provided that the bid

clearly and adequately describes the product and contains

sufficient information to establish equivalence. The bidder

should submit catalogue excerpts, specifications, or other

materials suitable for use in the evaluation of the product

offered. The Purchasing and Surplus Property Division

will, in its sole diseretion, determine whether a substitute

offer is equivalent to the product or products specified.

The Division may require the bidder to supply additional

descriptive material, samples, or other proof if needed.

Failure to supply this may result in rejection of the bid.

103a

SECTION 16 — Samples

Samples of items, when required by the Division, must be

furnished free of charge. Samples furnished will be re-

turned upon request, at the bidder’s expense, unless

consumed in the examination or testing. Requests for the

return of samples must be made within ten days after the

award of the contract or purchase order. Each sample

submitted must be clearly labeled, with the bidder’s

name, manufacturer’s brand name and number, and the

invitation to Bid number. Samples submitted by the

successful bidder may, in some instances, be held for

comparison with merchandise furnished and will not in

such event be returned, until all of the merchandise

ordered pursuant to the contract has been delivered.

SECTION 17 — Postage

Bidders are encouraged to carefully weigh and verify

postage on all bids before mailing. The Purchasing and

Surplus Property Division is not responsible for late

delivery or non-delivery of the mails and does not accept

bid packages with postage due. Please note that “Regis-

tered” and “Certified” mail does not receive “Special

Delivery” type handling by the Postal Service.

SECTION 18 — Corrections

No erasure may be made on the bid forms. Prior to

submission or bid opening, errors may be stricken and

corrections entered, provided that any such strike-over or

addition is initialed by the person signing the bid or his

agent. No bid shall be altered or amended in any fashion

after the bid opening. Negligence on the part of the

bidder in preparing the bid confers no right to correct the

bid after it has been opened.

104a

SECTION 19 — Amendment or Withdrawal of a Bid

A bid may be amended or withdrawn by the bidder prior

to the opening date and hour. After the bid opening, the

Division may, in its sole discretion, permit withdrawal of

a bid when the best interest of the State would be served.

Generally, withdrawal will only be allowed in cases where

a bidder has made an honest mistake not resulting from

negligence. No amendment or withdrawal will be permit-

ted after an award has been made.

SECTION 20 — Alternate Bids

Alternate bids may be considered when submitted in lieu

of or in addition to, a bid for the goods or services

requested. When alternate bids reveal that more economi-

eal supplies, materials, equipment, or services than those

requested exist, the Purchasing and Surplus Property

Division reserves the right to make an award to the

alternate bidder. If the alternate bid suggests widescale

modifications that would result in an obvious improve-

ment, the Division may elect to cancel the bids and

resolicit bids with modified specifications.

SECTION 21 — Late Bids

Bids must be received in the Purchasing and Surplus

Property Division office on or before the date and hour

designated for the bid opening. Telegraph or memoran-

dum bids received before the date and hour designated

for bid opening will be accepted provided written confir-

mation on an Invitation to Bid form is received within five

days after the bid opening date. Bids received after the

date and hour for opening will be rejected except in rare

cases where the integrity of the sealed bidding process

will not be compromised. Acceptance of any late bid will

105a

be made in the sole discretion of the Purchasing and

Surplus Property Division.

SECTION 22 — Bid, Performance, and Payment Bonds

Bid bonds are required by law for all construction con-

tracts. They are also required on occasion by the Purchas-

ing and Surplus Property Division. When they are

required, the requirement will be stated clearly in the

Invitation to Bid, and the bid bond must accompany the

bid. Bids submitted without a bid bond may not be

considered for award. All bid bonds, when required, are to

be for a sum equal to five (5) percent of the total amount

of the bid.

Payment and performance bonds are also required by law

for all constriction contracts in excess of $20,000. Per-

formance bonds may also be required for other contracts

at the discretion of the State, the requirement will be

clearly stated in the Invitation to Bid. All payment and

performance bonds must be in an amount equal to 100

percent of the total contract price.

Surety bonds are acceptable to the State. Cash bonds,

including checks and certified checks, however, are not:

and the Vendor should make arrangements prior to bid-

ding for the issuance of any bond ealled for by the

Invitation to Bid.

Bonds, when required, must be issued by a surety autho-

rized to do business in the State of Georgia.

SECTION 23 — Confidentiality of Bids

Ail bids, whether sealed or unsealed, are confidential and

will not be disclosed to the publie or to any User Agency

until, in the case of the sealed bids, they are read. All bids

106a

will be open to public inspection after the award of the

contract or purchase.

SECTION 24 — Open Specifications and Procedures

The Purehasing and Surplus Property Division endeavors

to use open specifications and procedures that conform to

accepted trade practices whenever possible. Vendors are

requested to assist the Division by informing us whenever

they feel that our specifications are not open or our

procedures do not conform to accepted trade practices.

Such information should be supplied as early as possible

to allow time for any necessary corrections prior to the

bid opening date.

ARTICLE VIII

EVALUATION OF BIDS AND AWARD

SECTION 1 — Rejection of Bids

The State of Georgia reserves the right to reject any and

all bids submitted in response to any Invitation to Bid or

to reject any portion of any bid or to waive any informal)-

ity in any bid.

SECTION 2 — Acceptance Period

The Department of Administrative Services requires 30

days to evaluate bids for award. Bid offers which limit

their acceptance period to less than 30 days, therefore,

may be rejected. In the event that the Invitation to Bid

does not state the period of time for which the Depart-

ment requires bid offers to open, the offers shall be open

for 30 days from the date of bid opening.

107a

SECTION 3 — Award to the Lowest Responsible

Bidder

Contracts or open market purchases will in all cases be

awarded to the lowest responsible bidder. The lowest

responsible vidder is deemed to be that bidder who

submits a responsive bid which meets the specifications

set out in tne Invitation to Bid and which is most

advantageous to the State, taking into account price,

performance and capacity to perform of the bidder: qual-

ity of merchandise offered; transportation charges; and

date of delivery. The lowest responsible bidder will not

always be the bidde

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