Q Our engineer has proposed certain language for an upcoming bid request under which all bidders are required to use a specific manufacturer’s product costs in their bids, with the engineer to make a determination about the suitability of any comparable equipment proposed by the successful bidder only after a contract is awarded. The named manufacturer’s equipment would be used if the engineer disapproves the proposed comparable equipment. Would this have the effect of making the equipment an improper sole source procurement? Would there be an issue with the specification restrictions?

A Section 31-7-13(m)(viii) provides for sole source purchases. It is obvious from the language of the statute that an item declared “sole source” is one so unique as to be exempt from bidding. In order to make that determination, a certification of the conditions and circumstances must be filed with the appropriate authority. To declare an item sole source only after the desired product is not the low bid is anathema to the purpose of the exception. Only if the public entity has made the requisite factual findings and filing may it rely on this method to procure a specific item without having to solicit competitive bids. Section 31-7-13(c)(iv)(1) provides that specifications shall be written so as not to exclude comparable equipment of domestic manufacture. There is an exception for seeking a particular item of equipment only when the specific equipment is necessary to perform a specific job and valid justification is presented to the board of a governing authority. The proposed procurement process appears to circumvent the competitive spirit and purpose of the public purchasing laws. (Attorney General’s Opinion to Turner, January 11, 2019)