Contracts; Public Bidding; Energy Conservation

Subject:

Requested By: Paul L. Hitchcock, Director Energy Division North Carolina Department of Commerce

Question: Under the public bidding statutes applicable to the State and its subdivisions in the purchase of apparatus, supplies, materials or equipment, may the amount and cost of a product’s energy consumption be considered as a factor in evaluating bids and determining award of contract for purchase?

Conclusion: Yes, the amount and cost of a product’s energy consumption is a reasonable and statutorily permissible factor for consideration in determining the most advantageous or lowest responsible bid for award of a contract for purchase.

G.S.

143-52 prescribes the competitive bidding procedure applicable to the State in the purchase of supplies, materials and equipment by the Department of Administration. In determining the "lowest and best bid most advantageous to the State" consideration may be given to the following criteria: ". . . prices offered; the quality of the articles offered; the general reputation and performance capabilities of the bidders; the substantial conformity with the specifications and other conditions set forth in the request for bids; the suitability of the articles for the intended use; the personal or related services needed; the transportation charges; the date or dates of delivery and performance; and such other (factors) deemed pertinent or peculiar to the purchase in question, which if controlling shall be made a matter of record."

G.S.

1434-49(6) authorizes the Secretary of Administration to make available to subdivisions for the State the services of his Department in purchasing subject to Advisory Budget Commission rules. The provisions of G.S. 143-52 would apply to purchases handled in this manner.

As to the purchases generally of "apparatus supplies, materials or equipment" by requiring competitve bidding by subdivisions of the State, G.S. 143-129 prescribes the procedure. In determining the "lowest responsible bidder", consideration may be given to "quality" and "performance".

The factor of energy consumption would be a reasonable consideration in determining quality and performance of the product under either statute. Quality means "adoptiveness, suitableness, fitness". Blacks Law Dictionary, Fourth Edition. Performance includes the "capacity to achieve a desired result". Webster’s Third New International Dictionary.

Rufus L. Edmisten Attorney General

T. Buie Costen Special Deputy Attorney General