39:1554

Title 39. Public Finance

Subtitle III. General Laws on State Debt

Chapter 17. Louisiana Procurement Code

Part I. General Provisions

Subpart A. Short Title, Purposes, Construction, and Application

39:1554 Application of this Chapter

A. General application. This Chapter applies only to contracts solicited or entered into after the effective date of this Chapter unless the parties agree to its application to a contract entered into prior to the effective date.

B. Application to state procurement. Unless otherwise exempted or excluded in this Section, this Chapter shall apply to every expenditure of public funds irrespective of their source, including federal assistance monies except as otherwise specified in Subsection F of this Section, by this state, acting through a governmental body defined herein, under any contract for supplies, services, major repairs, or personal, professional, consulting, or social services, defined herein, except that this Chapter shall not apply to either grants or contracts between the state and its political subdivisions or other governments, except as provided in Part VII of this Chapter, Intergovernmental Relations. Notwithstanding any other provision of this Chapter, the provisions of R.S. 38:2181 through R.S. 38:2318 shall govern the procurement of construction and the selection of architects, engineers, and landscape architects by governmental bodies of this state, and R.S. 38:2181 through R.S. 38:2318 shall not apply to any procurement of supplies, services, or major repairs by the state.

C. Procurement by the governor. Notwithstanding any other provisions of this Chapter, the governor shall procure all materials, supplies, equipment, and contractual services required for the governor’s mansion, the cafeteria operated in the state capitol, and similar agencies. The procurement shall, insofar as practicable, be in accordance with the provisions of this Chapter.

D. Exclusions. (1) This Chapter shall not be construed to change, affect, increase, or relieve the requirements of:

(a) R.S. 42:261 through R.S. 42:264, regarding the retaining and employment of lawyers.

(b) R.S. 23:3025, as regarding the purchase of products or services from individuals who are blind.

(2) This Chapter shall not be applicable to the legislative and judicial branches of state government or to any agency within the legislative branch of state government.

(3) The office for citizens with developmental disabilities in the Department of Health and Hospitals shall be exempt from the requirements of R.S. 39:1643 in order to lease residential living options for persons with intellectual or developmental disabilities without carrying out the competitive sealed bidding requirement of this Chapter.

(4) This Chapter shall not be applicable to any hospital owned or operated by the state through the Department of Health and Hospitals for the purchase of supplies, materials, and equipment from a qualified group purchasing organization if the Department of Health and Hospitals, with the concurrence of the division of administration, has determined that the cost is less than the state procurement prices, and that it is in the best interest of the state to purchase the supplies, materials, and equipment from the qualified group purchasing organization.

(5) This Chapter shall not be applicable to the purchase of any medical supplies or medical equipment from a qualified group purchasing organization if the commissioner of administration has determined that it is in the best interest of the state to purchase the medical supply or medical equipment from the qualified group purchasing organization. An annual report on the number, type, and volume of such procurements shall be made to the commissioner of administration, the speaker of the House of Representatives, and the president of the Senate.

(6) The provisions of this Chapter shall not be applicable to the State Bond Commission in the solicitation of bids for printing of financial documents. However, the State Bond Commission shall obtain a minimum of three written or telefaxed bids from separate vendors which meet the criteria required by the State Bond Commission for printing of financial documents.

(7) The provisions of this Chapter shall not be applicable to interinstitutional agreements between co-owners of intellectual property when one co-owner is a Louisiana regionally accredited college, technical school, or university.

(8) Contracts awarded by an agency for the benefit of an industry, payment of which comes from self-generated funds received from that industry, are exempt from the requirements of this Chapter provided that any such contract is awarded through a competitive process.

E. (1) Political subdivisions authorized to adopt this Chapter. The procurement of supplies, services, major repairs, and construction by political subdivisions of this state shall be in accordance with the provisions of Chapter 10 of Title 38 of the Louisiana Revised Statutes of 1950, except that all political subdivisions are authorized to adopt all or any part of this Chapter and its accompanying regulations.

(2) Additionally, all political subdivisions which are not subject to this Chapter may adopt the provisions of R.S. 39:1600(D) and its accompanying regulations.

F. Compliance with federal requirements. Where a procurement involves the expenditure of federal assistance or contract funds, the procurement officer shall comply with such federal law and authorized regulations which are mandatorily applicable and which are not reflected in this Chapter.

G. Applicable to Department of Public Safety and Corrections. Because the prison enterprise system operates under the constraints of an income statement, the secretary of the Department of Public Safety and Corrections shall have the authority, notwithstanding any other provisions of law, to purchase for that system used agricultural and industrial equipment sold at public auction which shall result in savings to the correctional system, according to the following terms and conditions:

(1) The used agricultural and industrial equipment shall be purchased by the secretary within the price range set by the state chief procurement officer in his statement of written approval for the purchase which must be obtained by the secretary prior to purchase.

(2) The secretary shall certify in writing to the state chief procurement officer all of the following:

(a) The price for which the used equipment may be obtained.

(b) The plan for maintenance and repair of the equipment and the cost thereof.

(d) The fact that following the procedures set out in the Louisiana Procurement Code will result in the loss of the opportunity to purchase the equipment.

H. Exemption for inmate canteens and the employee commissary of the Louisiana State Penitentiary.Whenever, for sound economic reasons and improved administrative procedures, the secretary of the Department of Public Safety and Corrections certifies in writing that it is not practical to comply with the provisions of this Chapter, the Department of Public Safety and Corrections may procure the various items for resale to inmates at the inmate canteens in state correctional facilities and the various items for resale to employees of the department at the employee commissary of the Louisiana State Penitentiary, without competitive sealed bidding as required in R.S. 39:1594 and without complying with the requirements of R.S. 39:1597. Any procurement pursuant to this Subsection is exempt from the provisions of R.S. 39:1611. Any contract entered into pursuant to this Subsection must have prior written approval of the commissioner of administration, the Joint Legislative Committee on the Budget, and the attorney general, who shall approve the contract only if they determine in writing that it is in the best interest of the state to enter into the contract. All such information shall be of public record.

I. Plasmapheresis programs. All plasmapheresis programs operated for and participated in by inmates in correctional facilities under the jurisdiction of the Department of Public Safety and Corrections, or its designees or assignees, such as private contractors operating correctional facilities under contract with the department, shall operate only pursuant to a contract entered into independent of any other contracts for prison management or operation, and only pursuant to competitive sealed bids on an individual basis at each penal institution and other facility in accordance with this Chapter. Contracts presently in existence affecting all plasmapheresis programs on site and off site shall be excluded and shall remain in effect for the duration of the contract.

J. This Chapter shall not apply to the following procurements:

(1)(a) Professional services for engineering design contracts, construction contracts, or contracts for surveying pertaining to the maintenance and construction of roads and bridges, flood control, integrated coastal protection, aviation, public transportation, or public works entered into by the Department of Transportation and Development as provided in Part XIII-A of Chapter 1 of Title 48 of the Louisiana Revised Statutes of 1950.

(b) Consulting service contracts with appraisers, foresters, economists, right-of-way agents, title abstractors, asbestos abatement inspectors, negotiators, accountants, and cost consultants relating to acquisition of rights-of-way for maintenance and construction projects entered into by the Department of Transportation and Development.

(2) Grants or contracts or like business agreements between the state and its political subdivisions or other governmental entities, or between higher education boards and institutions under their jurisdiction, except this Chapter shall apply to interagency contracts and to contracts or grants between the state and its political subdivisions to procure social services.

K. This Chapter shall not apply or affect licensed insurance agents appointed as agents of record on policies insuring any of the state’s insurable interests. Nor shall it apply to or affect insurance consultants and actuaries when used in lieu of agents of record, so long as fees paid do not exceed the commission that would have been paid to the agents of record.

L. This Chapter shall not apply to those services performed by architects, engineers, or landscape architects as provided for in R.S. 38:2310 through 38:2318, nor shall the provisions of this Chapter affect or otherwise limit the duties, functions, and jurisdiction of the Louisiana Architect Selection Board, the Louisiana Engineer Selection Board, or the Louisiana Landscape Architect Selection Board.

M. This Chapter shall not apply to any contract or like business agreement to purchase professional, personal, consulting, or contract services required or utilized by the Louisiana Agricultural Finance Authority authorized under the provisions of Chapter 3-B of Title 3 of the Louisiana Revised Statutes of 1950.

N. (1) This Chapter shall not apply to those personal, professional, or social services provided to the clients of the Department of Health and Hospitals, the Department of Children and Family Services, the office of special education services within the Department of Education, provided that the expense for these special education services is five thousand dollars or less per child, corrections services within the Department of Public Safety and Corrections, or the office of juvenile justice within the Department of Public Safety and Corrections, in the following circumstances:

(a) When these services are accessed directly by clients through utilization of medical vendor cards, with the clients arranging services with providers and providers then billing the agency for payment.

(b) When clients of a particular program area are guaranteed freedom of choice in selection of a provider of services.

(d) When social services are arranged on a case-by-case basis from a social service provider qualifying under R.S. 39:1619(B).

(e) When the using agency arranging social services on a case-by-case basis makes no guarantee of specific sums of monthly or annual payment or referrals of clientele.

(2) If personal, professional, or social services are provided for the primary benefit of a single using agency provided for in Paragraph (1) of this Subsection, and the agency exhibits budgetary and programmatic control over the provider of the services, and the deliverables of the services are intended solely for the benefit of the using agency, the provisions of this Chapter shall apply.

(3) This Chapter shall not apply to the use of professional services of physicians who provide consultative examinations regarding applicants for disability benefits under the Social Security Act by the disability determinations services of the Department of Children and Family Services.

(4) This Chapter shall not apply to the taking of Medicaid applications by certified Medicaid enrollment centers for prospective Medicaid clients pursuant to an agreement with the Department of Health and Hospitals and in accordance with federal regulations.

O. This Chapter shall not apply to any contract or like business agreement to hire professional, personal, consulting, or contract services required or utilized by the State Market Commission under the provisions of Part I-D of Chapter 5 of Title 3 of the Louisiana Revised Statutes of 1950.

P. This Chapter shall not apply to any contract for a court reporter or expert witness utilized by a governmental body for the purpose of taking depositions, giving expert testimony, or other related matters if such contract has a total amount of compensation of less than five thousand dollars.

Q. This Chapter shall not apply to any contract for the procurement of individualized agreements for persons with developmental disabilities by the Department of Health and Hospitals.

R. (1) This Chapter shall not apply to contracts of an institution of higher education or other agency of higher education, hereinafter collectively referred to as “higher education entity”, to which the state chief procurement officer has delegated authority to procure services with private grant funds or federal funds specifically provided for such purpose.

(2) Procurements conducted by a higher education entity operating under delegation of authority as provided herein shall be made in accordance with all federal requirements necessary for the receipt and use of such private grant or federal funds, particularly with regard to competitive bidding requirements for procurement of research services. Further, in making such procurements, such entity may also consider factors such as quality, reliability, expected life span, and compatibility with existing equipment or research protocols, as permitted under federal guidelines.

S. The provisions of this Chapter relative to group purchasing and cooperative purchasing procurement shall not apply to any public postsecondary education institution if:

(1) The public postsecondary education institution has requested its own group purchasing and cooperative purchasing procurement provisions and has been approved by its management board and the Board of Regents.

(2)(a) The requesting public postsecondary education institution has adopted its own group purchasing and cooperative purchasing procurement provisions pursuant to rules and regulations adopted in accordance with the Administrative Procedure Act. Notwithstanding the provisions of R.S. 49:968(B)(19), the rules and regulations promulgated pursuant to this Subsection shall be submitted to the Senate Committee on Finance and the House Committee on Appropriations for review.

(b) Such rules shall include provisions for adequate public notice in the procurement process.

(3) Authority of an institution to participate in its own group purchasing and cooperative purchasing procurement provisions shall be for an initial term of three years. After the initial term, the institution may be authorized to participate in its own procurement provisions under this Section for an additional term of five years upon approval of the Joint Legislative Committee on the Budget.

(4) A report of all group purchasing or cooperative purchasing contracts by each institution authorized under these provisions shall be provided to the Joint Legislative Committee on the Budget no later than ninety days after the end of each fiscal year. Such report shall, at a minimum, include a measurement of the savings derived from the utilization of the group purchasing or cooperative purchasing process.

Acts 2014, No. 864, § 2, eff. Jan. 1, 2015.