Senate
File
438
-
Enrolled
Senate
File
438
AN
ACT
RELATING
TO
BIDDING
AND
CONTRACTING
FOR
PUBLIC
IMPROVEMENT
PROJECTS,
MAKING
PENALTIES
APPLICABLE,
AND
INCLUDING
EFFECTIVE
DATE
AND
APPLICABILITY
PROVISIONS.
BE
IT
ENACTED
BY
THE
GENERAL
ASSEMBLY
OF
THE
STATE
OF
IOWA:
Section
1.
Section
26.9,
Code
2017,
is
amended
to
read
as
follows:
26.9
Award
of
contract.
1.
The
contract
for
the
public
improvement
must
be
awarded
to
the
lowest
responsive,
responsible
bidder.
However,
contracts
relating
to
public
utilities
or
extensions
or
improvements
thereof,
as
described
in
sections
384.80
through
384.94
,
may
be
awarded
by
the
city
as
it
deems
to
be
in
the
best
interests
of
the
city.
This
section
shall
not
be
construed
to
prohibit
a
governmental
entity
in
the
award
of
a
contract
for
a
public
improvement
or
a
governing
body
of
a
city
utility
from
providing,
in
the
award
of
a
contract
for
a
public
improvement,
an
enhancement
of
payments
upon
early
completion
of
the
public
improvement
if
the
availability
of
the
enhancement
payments
is
included
in
the
notice
to
bidders,
the
enhancement
payments
are
competitively
neutral
to
potential
bidders,
the
enhancement
payments
are
considered
as
a
separate
item
in
the
public
hearing
on
the
award
of
contract,
and
the
total
value
of
the
enhancement
payments
does
not
exceed
ten
percent
of
the
value
of
the
contract.
Senate
File
438,
p.
2
2.
A
governmental
entity
shall
not
require
a
potential
bidder
on
a
public
improvement
to
provide
any
information
which
the
potential
bidder
may
deem
to
be
confidential
or
proprietary
as
a
requirement
for
being
deemed
a
responsive,
responsible
bidder.
This
subsection
shall
not
be
construed
to
prohibit
a
governmental
entity
from
obtaining
information
from
the
lowest
responsive
bidder
to
determine
the
bidder’s
responsibility
relating
to
the
bidder’s
experience,
number
of
employees,
and
ability
to
finance
the
cost
of
the
public
improvement.
However,
a
governmental
entity
shall
require
nonresident
bidders
to
comply
with
section
73A.21,
subsection
4.
Sec.
2.
NEW
SECTION
.
26.16
Prequalification
requirements
prohibited.
A
governmental
entity
shall
not
by
ordinance,
rule,
or
any
other
action
relating
to
contracts
for
public
improvements
for
which
competitive
bids
are
required
by
this
chapter
impose
any
requirement
that
directly
or
indirectly
restricts
potential
bidders
to
any
predetermined
class
of
bidders
defined
by
experience
on
similar
projects,
size
of
company,
union
membership,
or
any
other
criteria.
However,
a
governmental
entity
shall
require
nonresident
bidders
to
comply
with
section
73A.21,
subsection
4.
Sec.
3.
Section
73A.1,
Code
2017,
is
amended
to
read
as
follows:
73A.1
Definitions.
As
used
in
this
subchapter:
1.
“Appeal
board”
as
used
in
this
chapter
means
the
state
appeal
board,
composed
of
the
auditor
of
state,
treasurer
of
state,
and
the
director
of
the
department
of
management.
2.
“Municipality”
as
used
in
this
chapter
means
township
or
the
state
fair
board.
3.
“Public
improvement”
as
used
in
this
chapter
means
a
building
or
other
construction
work
to
be
paid
for
in
whole
or
in
part
by
the
use
of
funds
of
any
municipality.
Sec.
4.
Section
73A.16,
Code
2017,
is
amended
to
read
as
follows:
73A.16
Bonds
and
taxes
void.
Any
bonds
or
other
evidence
of
indebtedness
issued
contrary
to
the
provisions
of
this
chapter
subchapter
,
and
any
tax
Senate
File
438,
p.
3
levied
or
attempted
to
be
levied
for
the
payment
of
any
such
bonds
or
interest
thereon,
shall
be
null
and
void.
Sec.
5.
NEW
SECTION
.
73A.25
Title.
This
subchapter
shall
be
known
as
the
“Fair
and
Open
Competition
in
Governmental
Construction
Act”
.
Sec.
6.
NEW
SECTION
.
73A.26
Purpose.
The
purpose
of
this
chapter
is
to
provide
for
more
economical,
nondiscriminatory,
neutral,
and
efficient
procurement
of
construction-related
goods
and
services
by
this
state
and
political
subdivisions
of
this
state.
Sec.
7.
NEW
SECTION
.
73A.27
Definitions.
As
used
in
this
subchapter,
unless
the
context
clearly
indicates
otherwise:
1.
“Governmental
entity”
means
the
state,
political
subdivisions
of
the
state,
public
school
corporations,
and
all
officers,
boards,
or
commissions
empowered
by
law
to
enter
into
contracts
for
the
construction
of
public
improvements.
2.
“Public
improvement”
means
any
building
or
construction
work
which
is
constructed,
repaired,
remodeled,
or
demolished
under
the
control
of
a
governmental
entity
and
is
paid
for
in
whole
or
in
part
with
funds
of
the
governmental
entity,
including
a
building
or
improvement
constructed
or
operated
jointly
with
any
other
public
or
private
agency.
Sec.
8.
NEW
SECTION
.
73A.28
Public
improvement
contracts
——
prohibited
terms
and
exemptions.
1.
A
governmental
entity
awarding
a
contract
for
the
construction,
repair,
remodeling,
or
demolition
of
a
public
improvement
and
any
construction
manager
acting
on
its
behalf
shall
not,
in
any
bid
specifications,
project
agreements,
or
other
controlling
documents
do
any
of
the
following:
a.
Require
a
bidder,
offeror,
contractor,
or
subcontractor
to
enter
into
or
adhere
to
an
agreement
with
one
or
more
labor
organizations
in
regard
to
the
public
improvement
or
a
related
public
improvement
project.
b.
Prohibit
a
bidder,
offeror,
contractor,
or
subcontractor
from
entering
into
or
adhering
to
an
agreement
with
one
or
more
labor
organizations
in
regard
to
the
public
improvement
or
a
related
public
improvement
project.
c.
Discriminate
against
a
bidder,
offeror,
contractor,
or
Senate
File
438,
p.
4
subcontractor
for
becoming
or
remaining
or
refusing
to
become
or
remain
a
signatory
to,
or
for
adhering
or
refusing
to
adhere
to,
an
agreement
with
one
or
more
labor
organizations
in
regard
to
the
public
improvement
or
a
related
public
improvement
project.
2.
A
governmental
entity
shall
not
award
a
grant,
tax
abatement,
or
tax
credit
that
is
conditioned
upon
a
requirement
that
the
awardee
include
a
term
described
in
subsection
1
in
a
contract
document
for
any
construction,
improvement,
maintenance,
or
renovation
to
real
property
or
fixtures
that
is
the
subject
of
the
grant,
tax
abatement,
or
tax
credit.
3.
This
section
shall
not
be
construed
to
do
any
of
the
following:
a.
Prohibit
a
governmental
entity
from
awarding
a
contract,
grant,
tax
abatement,
or
tax
credit
to
a
private
owner,
bidder,
contractor,
or
subcontractor
who
enters
into
or
who
is
party
to
an
agreement
with
a
labor
organization,
if
being
or
becoming
a
party
or
adhering
to
an
agreement
with
a
labor
organization
is
not
a
condition
for
award
of
the
contract,
grant,
tax
abatement,
or
tax
credit,
and
if
the
governmental
entity
does
not
discriminate
against
a
private
owner,
bidder,
contractor,
or
subcontractor
in
the
awarding
of
that
contract,
grant,
tax
abatement,
or
tax
credit
based
upon
the
private
owner’s,
bidder’s,
contractor’s,
or
subcontractor’s
status
as
being
or
becoming,
or
the
willingness
or
refusal
to
become,
a
party
to
an
agreement
with
a
labor
organization.
b.
Prohibit
a
contractor
or
subcontractor
from
voluntarily
entering
into
or
complying
with
an
agreement
entered
into
with
one
or
more
labor
organizations
in
regard
to
a
contract
with
a
governmental
entity
or
funded
in
whole
or
in
part
from
a
grant,
tax
abatement,
or
tax
credit
from
the
governmental
entity.
c.
Prohibit
employers
or
other
parties
from
entering
into
agreements
or
engaging
in
any
other
activity
protected
by
the
federal
National
Labor
Relations
Act,
29
U.S.C.
§151
et
seq.
d.
Interfere
with
labor
relations
of
parties
that
are
not
regulated
under
the
federal
National
Labor
Relations
Act,
29
U.S.C.
§151
et
seq.
Sec.
9.
EFFECTIVE
UPON
ENACTMENT.
This
Act,
being
deemed
of
immediate
importance,
takes
effect
upon
enactment.
Senate
File
438,
p.
5
Sec.
10.
APPLICABILITY.
This
Act
applies
to
notices
to
bidders
for
public
improvements,
bids
awarded
for
public
improvements,
and
contracts
for
public
improvements
entered
into
on
and
after
the
effective
date
of
this
Act.
______________________________
JACK
WHITVER
President
of
the
Senate
______________________________
LINDA
UPMEYER
Speaker
of
the
House
I
hereby
certify
that
this
bill
originated
in
the
Senate
and
is
known
as
Senate
File
438,
Eighty-seventh
General
Assembly.
______________________________
W.
CHARLES
SMITHSON
Secretary
of
the
Senate
Approved
_______________,
2017
______________________________
TERRY
E.
BRANSTAD
Governor