Labor and employment laws are constantly evolving to address changes in the employer and employee relationship and societal demands. An employer’s failure to stay abreast of the law can result in unnecessary exposure to employee complaints and lawsuits. The implementation and regular review of a carefully crafted Employee Handbook by a Human Resource Director, with the assistance of legal counsel specializing in labor and employment law, should addresses changes in the law and more importantly allow employers to include relevant legal changes in their written policy manuals informing employees of their rights and obligations and minimizing the employer’s exposure to liability. In addition, with the state of our current economy, more employees are inclined to file a claim against their employer for employment discrimination related matter. Therefore, a thorough and up to date Employee Handbook is imperative.
These materials summarize certain changes in employment law and provide example language for inclusion in an Employee Handbook. However, these materials are not intended to comprehensively address all employment law changes and should not be construed as legal advice. In addition, every office is unique and while the included language may be used as a template, a more specific policy will require further analysis and input from legal counsel. Therefore, it is recommended that legal counsel be consulted relative to drafting, implementation and review of any Employee Handbook.
I.Employment At-Will
Louisiana is an employment at-will state allowing an employer to terminate an employee for cause or no cause at all, with or without notice. Louisiana Civil Code Article 2747 specifically provides:
A man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing. The servant is also free to depart without assigning any cause.
The employment at-will doctrine was most recently strengthened by the court in May v. Harris Management Corporation, 928 So.2d 140 (La.App, 2005) where it was concluded that an employee is not entitled to recovery under the doctrine of detrimental reliance when an employer withdraws an offer of at-will employment prior to the designated time for the employee to begin work. In May, an employee was offered a job and terminated before she started work. The court determined that in an at-will employment relationship an employee has no right to said employment.
However, “this right is tempered by numerous federal and state laws, which proscribe certain reasons for dismissal of an at-will employee such as race, sex, or religious beliefs.” Quebedeaux v. Dow Chemical Co., 820 So.2d 542 (La. 6/21/02). The following Louisiana's statutes restrict specific discriminatory practices in employment:
•La. R.S. 23:312 for reasons of age;
•La. R.S. 23:961, et seq. for exercising political rights;
•La. R.S. 23:965 for serving as a juror; and
•La. R.S. 23:332 for race, color, religion, sex or national origin.
Further, in addition to prohibiting termination due to membership in a protected class, the at-will employment relationship can also be queried by an employer’s failure to include a waiver provision in the Employee Handbook. However, Louisiana Courts have consistently held that an appropriate waiver or disclaimer statement confirms the retention of the at-will employment relationship. The following is an example of an appropriate disclaimer provision:
Employment with the [Employer Name] is voluntarily entered into and based on mutual consent, and the Employee is free to resign at will at any time, with or without cause. Similarly, the [Employer Name] may terminate the employment relationship at will at any time, with or without notice or cause, so long as there is no violation of applicable federal or state law.
Policies set forth in this Handbook are not intended to create a contract, nor are they to be construed to constitute contractual obligations of any kind or a contract of employment between the [employer name] and any of its Employees.
II. Leaves of Absence
Military Leave
Louisiana law requires an employer to give an employee in the armed services at least fifteen (15) days of paid leave. In addition, said employees cannot be penalized by the loss of time, annual leave, or efficiency ratings. Moreover, the employee shall be returned to his previous position. Louisiana Revised Statute, Title 42, Section 394 specifically provides:
All officers and employees of the state, or of any parish, city, town, political subdivision, unit, or any state institution thereof, who are members of the Officers' Reserve Corps of the Army of the United States, the National Guard of the United States, the Naval Reserve Corps, the Marine Corps Reserve, the Air Force Reserve, the Citizens Military Training Corps, or the Civil Air Patrol, either as officers or enlisted men, are entitled to leave of absence from their respective duties, without loss of pay, time, annual leave, or efficiency rating, on all days during which they are ordered to duty with troops or at field exercises, or for instruction, for periods not to exceed fifteen days in any one calendar year; and when relieved from duty, they are to be restored to the positions held by them when ordered to duty.
Amended by Acts 1977, No. 495, §1; Acts 1978, No. 61, §1.
An example of an appropriate policy language follows:
A military leave of absence will be granted according to applicable law to all Employees to attend scheduled drills or training or if called to active duty with the U.S. armed services.
Employees will continue to receive full pay while on leave for a period not to exceed fifteen (15) workdays. The portion of any military leave of absence in excess of three weeks will be unpaid. However, Employees may use any available paid time off for any additional absence
Subject to the terms, conditions and limitations of the applicable plans for which the Employee is otherwise eligible, the EMPLOYER NAME will provide health insurance benefits and other applicable benefits for the full term of the military leave of absence subject to the Employee’s timely remittance of the Employee’s share of the health insurance.
Vacation, sick leave, and holiday benefits will continue to accrue during a military leave of absence.
Employees on two-week active duty training assignments or inactive duty training drills are required to return to work for the first regularly scheduled shift after the end of training, allowing reasonable travel time. Employees on longer military leave must apply for reinstatement in accordance with all applicable state and federal laws.
Every reasonable effort will be made to return eligible Employees to their previous position or a comparable one. They will be treated as though they were continually employed for purposes of determining benefits based on length of service, such as the rate of vacation accrual and job seniority rights.
The Family Medical Leave Act
The Family and Medical Leave Act (FMLA) was designed to help employees balance their work and family responsibilities. Thus, FMLA requires all public agencies, regardless of the number of employees and private employers to provide eligible employees with up to 12 weeks of unpaid, job-protected leave per year. In addition to job preservation, FMLA requires employers to continue group health benefits during the leave period.
An employee is eligible for leave if:
•Worked for employer at least 12 months
•Worked at least 1,250 hours over the past 12 months
•The company employs 50 or more employees
FMLA leave is required for one of the following reasons:
•for the birth and care of the newborn child of an employee;
•for placement with the employee of a child for adoption or foster care;
•to care for an immediate family member (spouse, child, or parent) with a serious health condition;
•to take medical leave when the employee is unable to work because of a serious health condition.; or
•for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty or call to active duty status as a member of the National Guard or Reserves in support of a contingency operation.
With regard to the most recent military leave amendment; the Secretary of Labor has defined exigency circumstances to include the following:
•to deal with issues arising from the service member's short-notice deployment;
•to attend official military ceremonies, programs, or events;
•to attend to certain childcare and school activities;
•to address financial or legal matters arising as a result of the service member's absence while on active duty;
•to attend counseling for the family member or service member arising from the service member's active duty or call to active duty;
•to spend time with service members who return on short-term temporary rest and recuperation leave during a period of deployment;
•to attend certain post-deployment activities; and
• for "additional activities" that arise out of a service member's active duty or call to active duty.
In addition, according to the 2009 legislation relative to military leave entitlements, a covered employer also must grant an eligible employee who is a spouse, son, daughter, parent, or next of kin of a current member of the Armed Forces, including a member of the National Guard or Reserves, with a serious injury or illness up to a total of 26 weeks of unpaid leave during a “single 12-month period” to care for the service member with a serious illness or injury.
Other recent changes to FMLA includes the 2010 Administrative Interpretation of the Department of Labor determining that the FMLA definition of “in loco parentis" includes the care of children of same-sex domestic partners.
An example of a FMLA policy is as follows:
General FMLA Leave Information
Eligible Full-Time Employees may be qualified to take up to 12 weeks of unpaid leave during a 12-month period for any of the following reasons:
1.the birth of a son or daughter of the employee and in order to care for such son or daughter;
2.the placement of a son or daughter with the employee for adoption or foster care;
3.to care for the spouse, son, daughter, or parent of the employee, if such spouse, son, daughter, or parent has a serious health condition; or
4.because of the employee’s own serious health condition that makes an employee unable to perform the functions of the position of such employee.
Leaves are limited to 12 weeks per calendar year total, i.e., an employee cannot take four leaves of 12 weeks for each of the above reasons.
An eligible employee who is the spouse, son, daughter, parent or next of kin of a covered service member shall be entitled to a total of 26 workweeks of leave during a 12-month period to care for the servicemember. The leave described in this paragraph shall only be available during a single 12-month period.
Any questions about FMLA leave can be addressed by the Human Resources Director.
Eligibility
For the purposes of FMLA leave:
Eligible employee: An employee who has completed 12 months of employment and has worked 1,250 hours of service in the preceding 12-month period.
Serious health condition: An illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility; or continuing treatment by a health care provider.
Son or daughter: a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.
Covered Service member: a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.
Requesting FMLA Leave
Eligible Employees should:
a.Make requests for FMLA leave to the Human Resources Director at least 30 days in advance of foreseeable events and as soon as possible for unforeseeable events so that coverage for the employee’s position can be arranged.
b.Notify the Human Resources Director at least 30 days in advance of foreseeable events and as soon as possible for unforeseeable events so that the appropriate FMLA paperwork can be arranged.
c.Employees taking FMLA medical leave (to care for the spouse, son, daughter, or parent of the employee, if such spouse, son, daughter, or parent has a serious health condition; or because of the employee’s own serious health condition) must submit a health care provider’s statement verifying the need for medical leave and its beginning and expected ending dates. Any changes in this information should be promptly reported to the EMPLOYER NAME.
FMLA Leave in relation to paid leave
FMLA leave shall run concurrent with any other applicable accrued paid leave time, which must be used.
Employee Benefits during FMLA Leave
Subject to the terms, conditions, and limitations of the applicable plans, the EMPLOYER NAME will continue to provide health insurance benefits and other applicable benefits for the full period of the approved leave subject to employee’s timely remittance of the employee share. Benefit accruals, such as vacation, sick leave, and holiday benefits, will continue during the approved leave period.
Intermittent FMLA Leave
Intermittent leave may be allowed where the employee’s condition or circumstances do not require that he or she be off work on a full-time basis. However, the total time off may not exceed the 12-week period.
Return to Work after FMLA Leave
So that an Employee’s return to work can be properly scheduled, an Employee taking FMLA leave is required to provide the Human Resources Director with at least two weeks advance notice, when foreseeable, of the date the Employee intends to return to work.
Employees returning from FMLA leave due to their own serious health condition must submit a health care provider’s verification of their fitness to return to work.
When FMLA leave ends, the Employee will be reinstated to the same position, if it is available, or to an equivalent position for which the Employee is qualified. If an Employee fails to report to work promptly at the end of FMLA leave, the EMPLOYER NAME will assume that the Employee has resigned.
Pregnancy Leave
In addition to the protections afforded under the FMLA, the Louisiana Legislature enacted an additional statute that protects female employees of employers with less than 25 employees. In Suire v. LCS Corrections Services, Inc., 930 So.2d 221 (La. App., 2006), the Court of Appeal concluded that an employer violated LSA-R.S. 23:341-342 and discriminated against a female employee when it terminated her employment due to her pregnancy. The court determined that although the employee was not a qualified employee due to her employment for less than a year, she was in fact covered by LSA-R.S. 23:341-342. Louisiana Revised Statute, Title 23, Section 341 provides as follows:
A. The provisions of this Part shall apply only to an employer who employs more than twenty-five employees within this state for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.
B.(1) For purposes of this Part, pregnancy, childbirth, and related medical conditions are treated as any other temporary disability. However, no employer shall be required to provide a female employee disability leave on account of normal pregnancy, childbirth, or related medical condition for a period exceeding six weeks.
(2) Nothing in this Part shall be construed to require an employer to provide his employees with health insurance coverage for the medical costs of pregnancy, childbirth, or related medical conditions. The inclusion in any such health insurance coverage of any provisions or coverage relating to medical costs of pregnancy, childbirth, or related medical conditions shall not be construed to require the inclusion of any other provisions or coverage, nor shall coverage of any related medical conditions be required by virtue of coverage of any medical costs of pregnancy, childbirth, or other related medical conditions.
C. The provisions of this Chapter shall apply to the awarding of a contract or subcontract for providing goods or services. Acts 1997, No. 1409, §1, eff. Aug. 1, 1997; Acts 1999, No. 1366, §1.
Example Pregnancy Leave policy:
The EMPLOYER NAME will not discriminate against any Employee who requests an excused absence for medical disabilities associated with a pregnancy. The EMPLOYER NAME treats such disabilities the same as any other disability for purposes of coverage under this Handbook. Such leave requests will be made and evaluated in accordance with the medical leave policy provisions outlined in this Handbook and in accordance with all applicable federal and state laws.
Requests for time off associated with pregnancy and/or childbirth (apart from medical disabilities associated with these conditions) will be considered in the same manner as any other request for an unpaid personal or family leave and may run concurrent with the Family and Medical Leave Act.
Jury Duty Leave
Pursuant to LSA-R.S. 23:965(B), a person employed by the state of Louisiana is entitled to at least one day of paid jury duty leave. LSA-R.S. 23:965(B) specifically provides:
B.(1) Any person who is regularly employed in the state of Louisiana shall, upon call or subpoena to serve on a state petit or grand jury, or central jury pool, be granted a leave of absence by his employer, of up to one day, for that period of time required for such jury duty. Such leave of absence shall be granted without loss of wages, or sick, emergency, or personal leave or any other benefit.
(2) Any employer who violates the provisions of this Subsection shall be required to pay the claimant employee his full wages for one day of that period required for jury duty, without reduction in sick, emergency, or personal leave or any other benefit. The employer shall additionally be fined not less than one hundred dollars nor more than five hundred dollars for each offense.
Added by Acts 1974, No. 469, §1; Acts 1993, No. 950, §1; Acts 1999, No. 76, §1; Acts 2003, No. 678, §2.
An example jury duty leave policy:
The EMPLOYER NAME encourages Employees to fulfill their civic responsibilities by serving jury duty when required. Regular Full-Time Employees are eligible for up to ten (10) day(s) of paid jury leave for actual jury service. Employees may use any available paid time off (for example, vacation benefits) or may request an unpaid jury duty leave of absence.
Jury duty pay will be calculated on the Employee’s base pay rate times the number of hours the Employee would otherwise have worked on the day of absence.
Employees must show the jury duty summons to their immediate Supervisor as soon as possible so that the Supervisor may make arrangements to accommodate their absence. Of course, Employees are expected to report for work whenever the court schedule permits.
Either the EMPLOYER NAME or the Employee may ask the court to be excused from jury duty if, in the EMPLOYER NAME’s judgment, the Employee’s absence would create serious operational difficulties.
Any employee who reports for court/jury duty and is released must report to work if more than four (4) hours remain in the work day. Additionally, the summoned employee must provide the immediate Supervisor with official documentation verifying actual dates of jury duty and a copy of any check or other negotiable instrument received for juror service, if applicable.
The EMPLOYER NAME will continue to provide health insurance benefits and other applicable benefits for the full term of the jury duty absence subject to the Employee’s timely remittance of the Employee’s share of the respective benefits. Vacation, sick leave, and holiday benefits will also continue to accrue during the employee’s paid or unpaid jury duty leave.
III. Discrimination and Harassment Policy
Discrimination protections include the following:
•Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin;
•the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;
•the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older;
•Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;
Example policy language:
The EMPLOYER NAME will not tolerate the discrimination or harassment of employees and/or applicants.
Harassment is conduct focused on a person or group of persons including, but not limited to: physical or oral abuse, unwelcome activity of a sexual nature and retaliation; as well as any behavior or action which interferes with an individual’s ability to perform assignments or which creates a hostile or intimidating work environment.
The following, though not all-inclusive, is a list of various types of harassment.
1.Verbal Abuse - any language that degrades or berates others, including, but not limited to, racial, religious, or sexual comments, jokes, and sexual innuendoes.
2.Any such communication via any medium, be it phone, e-mail, internet sites, posted pictures, cartoons, including actual or depicted nooses or burning crosses or other hostile or threatening symbols, jokes or gestures.
3.Physical Abuse - includes touching, hitting, slamming, throwing, kicking or threatening another person, including restraining by force or blocking the path of another.
4.Interference or Hostile Environment - any behavior or action which interferes with an employee’s ability to perform work assignments or which results in or creates a hostile or intimidating work environment, including ostracism or the silent treatment.
5.Sexual Harassment - includes, but is not limited to, sexual advances, requests for sexual acts or favors and other physical conduct of a sexual nature when:
(a)Submission to such conduct is made either explicitly or implied as a term or condition of an individual’s employment;
(b)Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting the individual; or
(c)Conduct that has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment.
(c)Any significant adverse treatment based on a retaliatory motive and likely to deter protected activity.
Comments, conduct, off color jokes and innuendoes that may be perceived as offensive or harassing are strictly prohibited and will not be tolerated.
In addition, the EMPLOYER NAME will not tolerate the harassment of EMPLOYER NAME personnel by non-EMPLOYER NAME personnel on EMPLOYER NAME premises. Non-EMPLOYER NAME personnel include, but are not limited to, customers, vendors, contractors, guests and regulators.
Any employee who feels he/she is the victim of discrimination or harassment has a responsibility to report this to his immediate Supervisor, the Human Resources Reporting of the incident should be made orally or in writing to the aforementioned. If the Human Resources Director and/or the employee’s direct Supervisor, are themselves involved in the alleged harassment, the report should be made directly to the President. A written complaint should include the specific nature of the incident, date and place of incident, names of all parties involved as well as a detailed report of all pertinent facts. Complaints of harassment will be promptly and carefully investigated. Investigations will include interviews with all relevant persons, including the accused and other potential witnesses. The EMPLOYER NAME cannot be expected to respond to situations it is unaware of, so prompt reporting – even where the harassment might seem marginal or the complainant might want to avoid confronting the situation – is essential; nevertheless, all employees should be made aware that certain of their legal rights to redress for harassment may expire in as few as 180 days from the date of the harassing act.
Any employee, who, in good faith, files a complaint of harassment, will be free from any and all reprisal or retaliation as a result of filing the complaint. Investigators will make every effort to strike a balance between the parties’ desires for privacy and the need to conduct a fair and effective investigation.
Harassment shall subject an employee to disciplinary action up to and including termination. Likewise, there will be disciplinary measures if in fact it is determined that the incident and thus the accusation were fabricated.
training program leading to promotion, or to discriminate against her in compensation or in terms, conditions, or privileges of employment.
(2) For any employer to refuse to allow a female employee affected by pregnancy, childbirth, or related medical conditions either:
(a) To receive the same benefits or privileges of employment granted by that employer to other persons not so affected who are similar in their ability or inability to work, including to take disability or sick leave or any other accrued leave which is made available by the employer to temporarily disabled employees.
(b) To take a leave on account of pregnancy for a reasonable period of time, provided such period shall not exceed four months. Such employee shall be entitled to utilize any accrued vacation leave during this period of time. "Reasonable period of time" means that period during which the female employee is disabled on account of pregnancy, childbirth, or related medical conditions. Nothing herein shall be construed to limit the provisions of R.S. 23:341(C) or Subparagraph (2)(a) of this Section. An employer may require any employee who plans to take a leave pursuant to this Section to give the employer reasonable notice of the date such leave shall commence and the estimated duration of such leave.
(3) For an employer who has a policy, practice, or collective bargaining agreement requiring or authorizing the transfer of temporarily disabled employees to less strenuous or hazardous positions for the duration of the disability to refuse to transfer a pregnant female employee who so requests.
(4) For any employer to refuse to temporarily transfer a pregnant female employee to a less strenuous or hazardous position for the duration of her pregnancy if she so requests, with the advice of her physician, where such transfer can be reasonably accommodated, provided, however, that no employer shall be required by this Part to create additional employment which the employer would not otherwise have created, nor shall such employer be required to discharge any employee, transfer any employee with more seniority, or promote any employee who is not qualified to perform the job.
Acts 1997, No. 1409, §1, eff. Aug. 1, 1997.
IV. Miscellaneous
Louisiana School and Day Care Conference and Activities Leave Act.
Employers should monitor the Louisiana School and Day care Conference and Activities Leave Act. In 1993, the Louisiana Legislature enacted La. R.S. 23:1015, et seq. authorizing an employer to grant an employee unpaid leave from work for up to a total of sixteen (16) hours during any twelve (12) month period to attend, observe, or participate in conferences or classroom activities for the employees' child. The leave is applicable when the conference or activity cannot be scheduled during the employee's non-working hours. Employees who wish to take advantage of this type of leave are required to provide their employer with reasonable advance notice consistence with the employer’s established policies and to make a reasonable effort to schedule the leave so as not to unduly disrupt the employer's operations. Although this leave is unpaid, employers are required to permit employees to substitute any accrued vacation or other appropriate paid leave for unpaid school and day care conference leave. Currently the Act is not obligatory and therefore has no teeth. However, as the law relative to the broadening of familial responsibilities is expanded, this is likely to become an issue in the near future.
Patient Protection and Affordable Care Act (PPACA)
As of March 23, 2010, employers with more than 50 employees are required to give breastfeeding mothers who are classified as non-exempt breaks as frequently as needed to express milk during work hours for at least one year after the birth of a child. The legislature notes that the frequency and duration of the breaks will vary. Therefore, employers must remain flexible in this regard. In addition, the employers must provide breastfeeding mothers with “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” Note that the break is unpaid. However, if the employer provides paid work breaks for others and a mother chooses to express her milk during the paid break, the employer must compensate her.
CURRENT CHALLENGES IN LOCAL GOVERNMENT LAW
PUBLIC BID LAW
By Monica V. “Vicky” Bowers, Esq.
Introduction
The State, local entities and political subdivisions of the state are governed by various laws relative to the expenditure of public funds for the construction of public works projects; the purchase of materials and supplies; and, the procurement of services. The public purpose of the public bid and procurement process is to ensure that all persons are treated failure with regard to the award of public contracts.
The expenditure of public monies is generally governed by one of the following:
1. Public Works Contracts
2.Telecommunications and Data Processing Procedure by Political Subdivisions of the State
3.Professional, Consulting and Personal Services
4.Louisiana Procurement Code
5.Telecommunications and Data Processing by the State
6.Local Depositing Authority Act
These materials summarize some of the key concepts in the public bid and procurement process. However, these materials should be not deemed as legal advice. Every public bid and procurement process presents a unique set of facts requiring independent analysis. Thus, it is recommended that public entities consult with legal counsel throughout the public bid and/or procurement process.
I.Public Contracts and Public Bid Law LSA-R.S. 38: 2181 et.seq.
A.The public bid law relative to the award of public works contracts is applicable to all state agencies, local governments and political subdivisions of the state.
B. Definitions
1. A "Public contract" or "contract" means any contract awarded by any public entity for the making of any public works or for the purchase of any materials or supplies.
2.A "Public entity" means and includes the state of Louisiana, or any agency, board, commission, department, or public corporation of the state, created by the constitution or statute or pursuant thereto, or any political subdivision of the state, including but not limited to any political subdivision as defined in Article VI Section 44 of the Constitution of Louisiana, and any public housing authority, public school board, or any public officer whether or not an officer of a public corporation or political subdivision. "Public entity" shall not include a public body or officer where the particular transaction of the public body or officer is governed by the provisions of the model procurement code.
3.A "Public work" means the erection, construction, alteration, improvement, or repair of any public facility or immovable property owned, used, or leased by a public entity.
4."Emergency" means an unforeseen mischance bringing with it destruction or injury of life or property or the imminent threat of such destruction or injury or as the result of an order from any judicial body to take any immediate action which requires construction or repairs absent compliance with the formalities of this Part, where the mischance or court order will not admit of the delay incident to advertising as provided in this Part. In regard to a municipally owned public utility, an emergency shall be deemed to exist and the public entity may negotiate as provided by R.S. 38:2212(D) for the purchase of fuel for the generation of its electric power where the public entity has first advertised for bids as provided by this Part but has failed to receive more than one bid.
C.Public Works contracts equal to or less than $150,000 per project including labor, materials, and equipment are not subject to the bid process. While there are no statutory processes in place for such contracts, the Legislative Auditor recommends that public entities adhere to the Request for Proposal process. All contracts in excess of $150,000 must be let out for advertisement and bid.
D.Materials and supplies in excess of $30,000 require advertisement.. Purchases of $10,000 or more, but less than $30,000, shall be made by obtaining not less than three telephone or facsimile quotations. A written confirmation of the accepted offer shall be obtained and made a part of the purchase file. If quotations lower than the accepted quotations are received, the reasons for their rejection shall be recorded in the purchase file. However, purchases of less than $10,000 have no statutory requirements. However, it is recommended by the Legislative Auditor and the Attorney General that public entities adhere to the telephone and facsimile quotation process.
E.Advertisement for Public Works:
1.The advertisement shall be published once a week for three different weeks in a newspaper in the locality.
2.The first advertisement shall appear at least twenty-five days before the opening of bids and shall not occur on a Saturday, Sunday, or legal holidays.
3. In addition to the newspaper advertisement, a public entity may also publish an advertisement by electronic media available to the general public.
4.Plans and specifications shall be available to bidders on the day of the first advertisement and shall be available until twenty-four hours before the bid opening date.
5.The Uniform Bid Form must be used and shall include the following:
•Acknowledgment of Addenda
•Base Bid and Alternates
•Bid Total
•Signature of Bidder, Name, Title and Address of Bidder
•Name of Firm or Joint Venture Corporate Resolution
•Louisiana Contractors License Number
•Other documentation required shall be furnished by all bidders at a later date and time, in accordance with the Bidding Documents. The division of administration, office of facility planning and control, shall develop and prescribe the necessary bid form for public works projects for public bid purposes and implement the provisions of this Section of the bid form in accordance with the Administrative Procedure Act.
F.Advertisements for Materials and Supplies: shall be published two times in a newspaper in the locality, the first advertisement to appear at least fifteen days before the opening of the bids. In addition to the newspaper advertisement, a public entity may also publish an advertisement by electronic media available to the general public.
(2) The first publication of the advertisement shall not occur on a Saturday, Sunday, or legal holiday. Plans and specifications shall be available to bidders on the day of the first advertisement and shall be available until twenty-four hours before the bid opening date.
G.Change Orders
1.All change orders shall be in writing
2.Any change order outside the scope of the contract in excess of the contract limit shall be let out for public bid; and
3.Any change order pertaining to the public work not required to be put out for bid, shall either be negotiated in the best interest of the public entity or let our for public bid.
H.Documentation
1.Written confirmation of the accepted offer shall be obtained and made a part of the contract file; and
2.Records of all elements of the public bid process shall be retained for a minimum of 6 years following the purchase or completion of pubic records.
I.Office of State Purchasing: Any public entity may procure materials, supplies and equipment by using the items already bid by the Office of State Purchasing. Such purchases need not comply with the competitive bid process since the state has already approved the maximum amount that can be paid.
J.Cooperative Purchasing: Any public entity may purchase materials, supplies and equipment pursuant to the cooperative purchasing pursuant to LSA-R.S. 39: 1701 et seq.
II.Telecommunications and Data Processing Procurement by Political Subdivisions of the State
A. Telecommunications equipment includes:
1. Electronic transmission facilities.
a.Data transmission systems.
b.Voice transmission systems.
c.Telephone systems.
d.Facsimile systems.
e.Radio paging services.
f.Mobile telephone services.
g.Intercom and electro-mechanical paging systems.
h.Any and all systems based on emerging and future telecommunication technologies relative to (a) through (h) above.
B. Request for Proposal process: A political subdivision may lease, rent, or purchase telecommunications or data processing systems, including equipment, and related services, through a request for proposals
C. Public notice of the request for proposals shall be given at least thirty days prior to the date scheduled for opening the request for proposals. In addition, written notice of the request for proposals shall be mailed to persons, firms, or corporations who are known to be in a position to furnish such equipment, systems, and related services. This public notice may also be given by electronic media available to the general public.
D. The request for proposals will indicate the relative importance of price and other evaluation factors, shall clearly define the tasks to be performed under the contract, the functional specifications, the criteria to be used in evaluating the proposals and the time frames within which the work must be completed.
E. An award shall be made to the responsible offerer whose proposal is determined in writing by the governing authority of the political subdivision to be the most advantageous, taking into consideration price and other evaluation factors set forth in the request for proposals. No other basis of evaluation shall be used except those set out in the request for proposals.
III. Professional, Consulting and Personal Service Contract
A. On applicable to State agencies.
B. Imposes the Request for Proposal Process when procuring the services of attorneys, accountants, nurses, consultants ect.
IV. Louisiana Procurement Code
A. Applicable to State Agencies
B. Not applicable to political subdivisions of the state unless adopted in whole or in part.
C.Small Purchases Statute allows the State to adhere to the Governors Executive Order relative to the purchase of materials, supplies and services.
D.Sole Source Procurements- allows procurement without competition when supply, service, or major repair is determined in writing that there is only one source for the required supply, service, or major repair .
V. Telecommunications and Data Processing Procurement by the State
A. "Software" means computer programs and documentation essential to and necessary for a telecommunications system or telecommunications service to perform productive operations.
B. "Telecommunications service contract" means a contract for the procurement of telecommunications services to include but not be limited to long distance, pay telephone, radio paging, and utility-type services such as local dial tone.
C. "Telecommunications systems", which shall include telecommunications equipment and related services, and "telecommunications services" are limited to the equipment and services and means to provide:
1. Telecommunications transmission facilities and services.
2.Voice telecommunications systems and services.
3.Local area network systems and services.
4.Wide area network systems and services.
5.Video systems and services, except those video systems and services specifically reserved to the Louisiana Educational Television Authority pursuant to R.S. 17:2501.
6.Wireless systems and services to include, but not be limited to, cellular and personal communications systems.
7. Radio systems, to include but not be limited to two-way radio systems; however, the operational abilities and priorities of two-way communications of the departments in the executive branch shall not be impeded.
8.Intercom and electro-mechanical paging systems.
9.Any and all systems and services based on emerging and future telecommunications technologies relating to Subparagraphs (a) through (h) of this Paragraph.
D.Request for Proposal Process set forth in the Louisiana Procurement Code.
VI. Local Depository Authority
A.Applies to all Parishes or municipalities with populations over 100,000 population
B.Local depositing authorities shall, within thirty days prior to the expiration of any contract give written notice to each of the banks located in any parish of the political subdivision in which the depositing authority is domiciled specifying the time for which the fiscal agency contract shall be made and the conditions and terms of the fiscal agency contract proposed; and it shall invite bids under the terms and conditions of the proposal. A copy of the notice shall be published in the official journal of the depositing authority at least three times, the first notice to be published at least fifteen days preceding the date for the selection of the fiscal agency.
