Pinpoint Locating, Inc. v. The Water Works and Gas Board of the City of Red Bay

Rel: December 5, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
OCTOBER TERM, 2025-2026

_________________________

SC-2025-0376
_________________________

Pinpoint Locating, Inc.

v.

The Water Works and Gas Board of the City of Red Bay

Appeal from Franklin Circuit Court
(CV-23-900076)

SELLERS, Justice.

Pinpoint Locating, Inc., appeals from a summary judgment entered

by the Franklin Circuit Court ("the trial court") in favor of the Water

Works and Gas Board of the City of Red Bay ("the Board"). We reverse.
SC-2025-0376

I. Facts and Procedural History

In 2021, the Board obtained an approximately $4.4 million loan for

the purpose of replacing and extending gas lines in and around the City

of Red Bay ("the project"). The project consisted of four phases: The Red

Bay Cast Iron Replacement Project ("the Cast Iron Replacement Phase");

the Red Bay Expansion Project Phase One ("Phase I"); the Red Bay

Expansion Project Phase Two ("Phase II"); and the Red Bay Expansion

Project Phase Three ("Phase III"). The Board contracted with Magnolia

River Services, Inc., an engineering firm, to design and manage the

project. Among other things, Magnolia prepared the specifications for

each phase of the project; however, it had no involvement in the

advertisement for sealed bids for the project. Pinpoint was the only

contractor to submit a bid for each phase of the project; the Board

accepted those bids, and the parties executed four separate contracts for

the work to be performed on the project. Pinpoint commenced work on

each phase of the project in September 2021, but it ceased all work in

October 2022 after the Board stopped making payments under the

contracts. By a letter dated May 6, 2023, the Board's attorney advised

Pinpoint's attorney that, because the advertisement for sealed bids had

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not been made in accordance with the version of § 39-2-2, Ala. Code 1975,

in effect at the time those advertisements were made ("former § 39-2-2"),

it did not appear that the Board could legally make any further payments

under the contracts. 1 At the time the Board ceased making payments

under the contracts, the Board had paid Pinpoint a total of $2,822.245,

but it still owed $811,300.52 for work completed. 2

In June 2023, Pinpoint commenced an action against the Board,

asserting claims of breach of contract, among other claims. The Board

1It appears from the May 6, 2023, letter from the Board's attorney

to Pinpoint's attorney that the Board may have believed that Magnolia
was responsible for the advertisement for sealed bids for each phase of
the project. However, Magnolia submitted an affidavit indicating that
the advertisement for sealed bids was not within the scope of its contract
with the Board. According to Pinpoint, the Board ceased making
payments under the contracts after the Alabama Department of
Transportation mandated a change order that added nearly $1 million in
estimated charges to the project. Thus, Pinpoint claims, the Board did
not have enough money left in its budget to complete the project and,
therefore, used the defective advertising as an excuse for ceasing
payment under the contracts.

2According to Pinpoint, two weeks before the Board ceased making

payments under the contracts, Magnolia certified that Pinpoint had
completed the following: 100% of the installed mains for the Cast Iron
Replacement Phase; 100% of Phase III; 72% of Phase II; and 62% of Phase
I. Thus, Pinpoint says, through its work on all the phases, it had dug,
bored, and laid 138,625 feet of new gas lines for the Board and its
ratepayers, i.e., over 26 miles of new gas lines.
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filed a motion for a summary judgment pursuant to Rule 56, Ala. R. Civ.

P., arguing that the contracts were void because, it claimed, the

advertisement for sealed bids did not strictly comply with the mandates

of former §39-2-2(a). Following a hearing, the trial court entered a

summary judgment in favor of the Board. Pinpoint filed a postjudgment

motion to alter, amend, or vacate the judgment, which the trial court

denied. This appeal followed.

II. Standard of Review

"This Court reviews a summary judgment de novo, and
we use the same standard used by the trial court to determine
whether the evidence presented to the trial court presents a
genuine issue of material fact. Rule 56(c), Ala. R. Civ. P.;
Nettles v. Pettway, 306 So. 3d 873 (Ala. 2020). The movant for
a summary judgment has the initial burden of producing
evidence indicating that there is no genuine issue of material
fact and that the movant is entitled to a judgment as a matter
of law. Once the movant produces evidence establishing a
right to a summary judgment, the burden shifts to the
nonmovant to present substantial evidence creating a genuine
issue of material fact. We consider all the evidence in the light
most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts in the nonmovant's favor.
Id."

Sykes v. Majestic Mississippi, LLC, 402 So. 3d 203, 207-08 (Ala. 2024).

III. Discussion

A. Advertisement Requirements for Public-Works Contracts

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Title 39, Ala. Code 1975, governs contracts for public works. At the

time the advertisements for sealed bids were made in this case, former §

39-2-2 provided, in pertinent part:

"(a) Before entering into any contract for a public works
involving an amount in excess of fifty thousand dollars
($50,000), the awarding authority shall advertise for sealed
bids. … If the awarding authority is a municipality, or an
instrumentality thereof, it shall advertise for sealed bids at
least once in a newspaper of general circulation published in
the municipality where the awarding authority is located. If
no newspaper is published in the municipality, the awarding
authority shall advertise by posting notice thereof on a
bulletin board maintained outside the purchasing office and
in any other manner and for the length of time as may be
determined. In addition to bulletin board notice, sealed bids
shall also be solicited by sending notice by mail to all persons
who have filed a request in writing with the official designated
by the awarding authority that they be listed for solicitation
on bids for the public works contracted indicated in the
request. … [F]or all public works contracts involving an
estimated amount in excess of five hundred thousand dollars
($500,000), awarding authorities shall also advertise for
sealed bids at least once in three newspapers of general
circulation throughout the state.

"….

"(c) All contracts for public works entered into in
violation of this title shall be null, void, and violative of public
policy. Anyone who willfully violates this article concerning
public works shall be guilty of a Class C felony." 3

3The legislature amended former § 39-2-2 twice since the
advertisements for sealed bids were made in this case: once effective July
1, 2021, and once effective September 1, 2021; the 2023 amendment
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(Emphasis added.) See also § 39-5-1(a), Ala. Code 1975 ("No civil action

shall be brought or maintained by a contractor in any court in this state

to require any awarding authority to pay out public funds for work and

labor done, for materials supplied, or on any account connected with

performance of a contract for public works, if the contract was let or

executed in violation of or contrary to this title or any provision of law.").

Section 39-5-1(b) provides, in pertinent part, that "[t]he awarding

authority shall, prior to the execution of final contracts and bonds, certify

that the contract to be awarded is let in compliance with this title and all

other applicable provisions of law." See also § 39-5-5, Ala. Code 1975

(providing that "[a]ll persons or parties entering into contracts or

agreements with an awarding authority for the construction of a public

work shall be conclusively presumed to have notice of the provisions of

this title").

Finally, § 39-5-6, Ala. Code 1975, provides:

"The provisions of this title are mandatory, and shall be
construed to require strict competitive bidding on contracts
for public works. The courts shall not invoke or apply any

amended the statute to, among other things, remove the requirement
that sealed bids in excess of $500,000 be advertised in three newspapers
of general circulation throughout the state.
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principle of quantum meruit, estoppel, or any other legal or
equitable principle which would allow recovery for work and
labor done or materials furnished under any contract let in
violation of competitive bidding requirements as prescribed
by law."

In Bessemer Water Service v. Lake Cyrus Development Co., 959 So.

2d 643, 649 (Ala. 2006) ("BWS"), this Court explained the purpose behind

competitive bidding of public-works projects:

"Competitive bidding by sealed bids guards against
opportunities for corruption in the procurement of contracts
for public-works projects. These statutes make it clear that
the legislature intended to erect impregnable barriers to
prevent the misuse of public funds inherent in awarding
public-works contracts covered by § 39-2-2 without
competitive bidding."

(Emphasis added.)

It is undisputed that the contracts at issue are public-works

contracts, that the amount of each contract exceeds $500,000, and that

the Board was responsible for complying with the advertisement

requirements of former § 39-2-2 before awarding those contracts. It is

also undisputed that, before awarding the public-works contracts, the

Board was required to certify that the contracts were let in compliance

with Title 39 but that it did not do so. See § 39-5-1(b). Nonetheless,

Pinpoint was presumed to have notice of Title 39's provisions, including

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the requirement that the Board certify that the contracts were let in

compliance with Title 39. See § 39-5-5. In this case, it is undisputed that

the Board did not strictly comply with the advertisement requirements

of former § 39-2-2. During the proceedings below, the parties disputed

whether substantial compliance with the advertisement requirements of

former § 39-2-2(a) would be sufficient. The trial court entered a summary

judgment in favor of the Board, presumably finding that the statute

required strict compliance. Therefore, we will address the doctrine of

substantial compliance to determine whether it is applicable in this case.

B. Substantial Compliance

In Pittman v. Pittman, 419 So. 2d 1376, 1379 (Ala. 1982), this Court

defined substantial compliance:

" 'Substantial compliance' may be defined as 'actual
compliance in respect to substance essential to every
reasonable objective,' of a [statute] giving effect to equitable
principles -- equity -- in the true meaning of that word.
Application of Santore, 28 Wash. App. 319, 623 P.2d 702
(1981). Substantial compliance means compliance which
substantially, essentially, in the main, for the most part,
satisfies the means of accomplishing the objectives sought to
be effected by the [statute] and at the same time does
complete equity. See North Carolina Nat'l Bank v. Burnette,
297 N.C. 524, 256 S.E.2d 388 (1979). What constitutes
substantial compliance is a matter dependent upon the
particular facts of each case, none ever quite a clone of any

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other. See Trussell v. Fish, 202 Ark. 956, 154 S.W.2d 587
(1941)."

Thus, in determining whether there can be substantial compliance

with a statute, the paramount consideration is whether the statute has

been followed sufficiently so as to carry out its intent. Id. See also Sawyer

v. Sonoma Cnty., 719 F.2d 1001, 1008 (9th Cir. 1983) (noting that the

doctrine of substantial compliance is an equitable doctrine designed to

avoid hardship in cases in which a party has done all that can be

reasonably expected).

In its motion for a summary judgment, the Board argued that the

plain language of former § 39-2-2 required strict compliance. It also

contended that this Court's holding in BWS, supra, is dispositive

regarding strict compliance with the statute. In opposition to the Board's

summary-judgment motion, Pinpoint argued that this Court has

previously determined that there can be substantial compliance with the

requirements of competitive-bid laws, that the attorney general has

repeatedly issued advisory decisions opining that there can be

substantial compliance with the advertisement requirements of former §

39-2-2(a), and that the facts of BWS are distinguishable from the facts of

this case. We agree.
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To begin, although public-works contracts are governed exclusively

by Title 39, this Court has previously recognized that contracts executed

pursuant to the competitive-bid laws, see § 41-16-50 et seq., Ala. Code

1975, can substantially comply with those laws. See Brown's Ferry

Waste Disposal Ctr., Inc. v. Trent, 611 So. 2d 226 (1992) (holding that a

contract subject to the competitive bid laws was void because it did not

substantially comply with those laws); Kennedy v. City of Prichard, 484

So. 2d 432 (Ala. 1986) (holding that an exclusive contract for a wrecker

service that failed to substantially comply with the competitive bid laws

necessarily violated Ala. Const. 1901, Art. 1, § 22); and Owens v. Bentley,

675 So. 2d 476, 478 (Ala. Civ. App. 1996) ("After reviewing the record, we

find that under the facts of the present case … the Commission and the

[Baldwin County Solid Waste Authority] substantially complied with the

competitive bid laws."). We also find persuasive the fact that the attorney

general has issued multiple advisory opinions regarding compliance with

the advertisement requirements set forth in former § 39-2-2(a) and that,

in doing so, has opined that the statute's advertisement requirements can

be satisfied by substantial compliance. See, e.g., Ala. Att'y Gen. Op. No.

2011-100 (Sept. 20, 2011) (opining that City of Pelham had substantially

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complied with former § 39-2-2(a) despite fact that it had advertised in

only one newspaper of general circulation throughout the state because

the matter "was thoroughly advertised online," which included postings

on various websites, bulletin boards, Dodge Reports, and publications

known and routinely accessed by contractors); Ala. Att'y Gen. Op. No.

2005-136 (May 19, 2005) (opining that the Alabama Department of

Transportation had substantially complied with former § 39-2-2(a)

despite the fact that the department had advertised its project in only

one newspaper of general circulation throughout the state because the

department had utilized direct mailings, internet postings, and Dodge

Reports and noting that the work was well underway before any

advertising deficiency was discovered); and Ala. Att'y Gen. Op. No. 2004-

018 (Oct. 31, 2003) (opining that the Town of South Vinemont had

substantially complied with former § 39-2-2(a) when the town had

advertised for sealed bids in 3 newspapers, had 14 companies request

plans and specifications, had received 6 sealed bids, and had awarded the

contract to the lowest bidder despite the fact that, after the bid was

awarded, it was determined that one of the newspapers in which the

advertisement had run was not, in fact, a newspaper of general

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circulation throughout the state as required by the statute). Finally,

although the Board relies on BWS in arguing that there must be strict

compliance with the advertisement requirements of former § 39-2-2(a),

we find that case to be factually distinguishable. In BWS, the mayor of

the City of Bessemer, who by statute also served as the manager of

Bessemer Utilities, which included the Bessemer Water Service ("BWS"),

unilaterally awarded a public-works contract to Lake Cyrus

Development Company, Inc. ("LCDC"), without any solicitation or

advertisement for sealed bids. Among other things, "BWS was interested

in providing water to [LCDC] not only to increase [BWS's] customer base,

but also to further its reach." 959 So. 2d at 646. Moreover, the terms and

provisions of the contract at issue deviated from the typical BWS water-

service contract. Certain ratepayers sued BWS, alleging that BWS had

misused public funds, resulting in the ratepayers paying inflated

amounts for their water consumption. This Court explained that the

purpose of the public-works statutes is plain: "Competitive bidding by

sealed bids guards against opportunities for corruption in the

procurement of contracts for public-works projects." Id. at 649. Because

BWS and LCDC had effectively bypassed the bidding process entirely to

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award the contract directly to LCDC, this Court held that the contract

was null, void, and violated public policy. Here, unlike the facts of BWS,

there have been no allegations by any ratepayer or party concerning the

misuse of public funds. Specifically, there are no charges of corruption,

improper motive, bad faith, or favoritism in awarding the contracts to

Pinpoint, and no evidence suggests that the Board engaged in any

questionable scheme to eliminate fair competition. See, e.g., White v.

McDonald Ford Tractor Co., 287 Ala. 77, 86, 248 So. 2d 121, 129 (1971)

("The single most important requirement of the Competitive Bid Law is

the good faith of the officials charged in executing the requirements of

the law."). Thus, this case is a classic example of why the substantial-

compliance doctrine is applicable. Accordingly, to the extent that the trial

court based its summary judgment in favor of the Board on a finding that

the doctrine of substantial compliance does not apply, the trial court

erred.

C. The Merits

The issue for our review is, therefore, whether Pinpoint has offered

substantial evidence to indicate that the Board substantially complied

with the advertisement requirements of former § 39-2-2(a). Pursuant to

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former § 39-2-2(a), the Board, being an instrumentality of the City of Red

Bay, was required to advertise for sealed bids at least once in a

newspaper of general circulation published in Red Bay and at least once

in three newspapers of general circulation throughout the state. In its

motion for a summary judgment, the Board argued that a request for

sealed bids for the Cast Iron Replacement Phase of the project was not

advertised in any newspaper and that requests for sealed bids for Phases

I, II, and III of the project were advertised only in the Red Bay News,

which, the Board claimed, is not a newspaper of general circulation

throughout the state. In support of its argument, the Board offered the

affidavit of Cynthia Fowler, the office manager and comptroller for the

Board, who stated that she was instructed to advertise only for sealed

bids for Phases I, II, and III of the project. According to the Board, it is

unknown why a request for sealed bids for the Cast Iron Replacement

Phase was not advertised in any newspaper. Fowler also stated that the

Red Bay News is circulated in Red Bay, Vina, and western Franklin

County. The Board also offered the affidavit of Bridget Berry, the

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managing editor of the Red Bay News, who stated that the newspaper's

circulation covers Red Bay, Vina, and western Franklin County. 4

In response to the Board's summary-judgement motion, Pinpoint

submitted the deposition testimony of its owner, Steve Martin, who

testified that a request for sealed bids for the Cast Iron Replacement

Phase was posted on the Board's bulletin board, located near its payment

window, presumably by the Board. Pinpoint also offered the affidavit of

Jacob Howell, the senior design engineer for Magnolia, who stated that

Magnolia had emailed three utility contractors to inform them of the

request for sealed bids for the Cast Iron Replacement Phase. Howell

stated that he recalled two contractors attending a prebid meeting

regarding the Cast Iron Replacement Phase, but that only Pinpoint

submitted a bid.5 Martin testified that, when Pinpoint submitted its bid,

4Pinpoint unsuccessfully moved to strike the affidavit of Berry,
arguing that the statements therein were not based on her personal
knowledge.

5According to Pinpoint, the Board had initially hired another
contractor to perform the Cast Iron Replacement Phase of the project but
that Pinpoint's bid for that phase had "lower unit pricing" than the other
contractor's pricing. Pinpoint does not disclose why the other contractor
did not perform the work for the Cast Iron Replacement Phase.

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the utility industry was "extremely" busy because of low interest rates

and that that reason could have contributed to the low bidding on the

Cast Iron Replacement Phase. He further stated that it was not

uncommon to have only one bidder on a rural utility project because of

the limited number of hotels and restaurants in such areas.

Regarding Phases I, II, and III of the project, the Board argued in

its motion for a summary judgment that requests for sealed bids for those

phases were advertised only in the Red Bay News, which, the Board

claimed, is not a newspaper of general circulation throughout the state.6

In its response, Pinpoint offered evidence to indicate (1) that the Red Bay

News had subscribers throughout the state; (2) that the Red Bay News

canvases statewide issues in its published content; (3) that, in addition

be being published in the Red Bay News, the requests for sealed bids in

6In support of its assertion that the Red Bay News is a newspaper

of general circulation throughout the state, Pinpoint cites Ala. Att'y Gen.
Op. No. 2004-018 (Oct. 31, 2003) (defining a newspaper of general
circulation throughout the state, as referred to in former § 39-2-2(a), as
one that " 'publishes at least some items of interest to the general public,
has more than a de minimis number of subscribers, with readers not
confined to an isolated community or geographic region, and is available
to any member of the public within the State ….' " (quoting Ala. Att'y Gen.
Op. No. 97-00247 (Aug. 1, 1997))).

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this case were also advertised on the Red Bay News's website, which is

available worldwide; and (4) that the Red Bay News had also made the

requests for sealed bids available on the Alabama Public Notices website,

which is hosted by the Alabama Press Association. Pinpoint offered the

affidavit of Jason Collum, the owner and publisher of the Red Bay News.

Contrary to the affidavits of Fowler and Berry, Collum submitted a list

of Red Bay News subscribers. Although the names and street addresses

of those subscribers were redacted, the cities and zip codes were included,

indicating that the newspaper had subscribers who lived in areas of the

state other than Red Bay, Vina, and western Franklin County.

Specifically, the list submitted by Collum demonstrated that the Red Bay

News had subscribers in Hoover, Montgomery, Muscle Shoals, Titus,

Russellville, Ohatchee, Cherokee, Vestavia, Trussville, Florence,

Hamilton, Shannon, Albertville, Killen, Foley, Madison, Auburn,

Tuscumbia, Mobile, Moulton, Haleyville, Center Point, Arley, Danville,

Huntsville, Gadsden, Decatur, and Boaz. Collum also stated that the

subscriber list he submitted was substantially the same as it was in 2021.

Although Fowler stated in her affidavit that the Red Bay News is

circulated in Red Bay, Vina, and western Franklin County, she admitted

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in her deposition that she had no reason to dispute Collum's subscription

list indicating that the Red Bay News has subscribers throughout the

state. Fowler also agreed that the Red Bay News canvased certain

statewide issues in its published content. Pinpoint also submitted a copy

of an email exchange between Fowler and Collum, in which Fowler asked

Collum if he could get requests for sealed bids for Phases I, II, and III of

the project advertised in "this week's and next week's paper," to which

Collum replied: "Yes, we will get these in starting this week for you, and

we'll get them posted to our website and the [Alabama Public Notices]

website as well." Collum also explained in his affidavit that the Red Bay

News maintained a website and that, throughout 2021, bid advertising

was included on its online version of the Red Bay News. Pinpoint also

offered exhibits demonstrating that the Alabama Press Association

"aggregates" public notices from qualifying Alabama newspapers and

republishes them on its Alabama Public Notices website, which can be

filtered to search for projects of particular types and in particular

geographic locations. Pinpoint also relied upon exhibits demonstrating

that "bid aggregators," such as the Alabama Bid Network and Construct

Connect, collected the bid advertisement for Phase III of the project and

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posted it on their subscriber networks. Pinpoint again relied on the

affidavit of Howell, who stated that he had emailed three utility

contractors to inform them of the requests for sealed bids for Phases I

and II of the project and that he had contacted Pinpoint directly and

informed it of the request for sealed bids for Phase III of the project

because, he said, Pinpoint was already involved in other phases of the

project. Howell further stated that Pinpoint had been the only contractor

that had attended the prebid meetings for Phases I, II, and III and had

submitted bids for those phases. Finally, Pinpoint offered the affidavit

of Timothy W. Ayers, who had worked for the Alabama Utility

Contractors Association since 2014 and who, at the time he submitted his

affidavit, served as its executive director. Ayers stated the following in

his affidavit:

"5. In my experience, the utility industry often uses
third-party public works bed aggregating companies to inform
them of available jobs, which are up for bid. These companies
compile the public notices of bids through their computer
software and then inform contractors of available bids.
Typically, this is done through a subscription service, which
notifies the contractor of available bids, via email or other
communication. Some companies, however, provide a
searchable database of these bid notices, such as
www.alabamapublicnotices.com, which is offered by the
Alabama Press Association. Generally, the software allows
the contractor to filter the universe of public works bid
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opportunities to focus on a desired geographic region (for
instance, the State of Alabama) and trade expertise (for
exempt, gas line installation projects). It is my experience and
understanding that over the past five to ten years, this bid
notice aggregation service industry has become the primary
way contractors in Alabama learn of public works utility bid
opportunities.

"….

"7. It is my understanding that the Alabama State
legislature revised the bid advertising laws in 2023, in part,
to discontinue the requirement of advertising bids in
newspapers of general circulation through the State, and only
require now the advertising of bids in newspapers published
in the municipality where the awarding authority is located.
This revision occurred, in part, because of the proliferation of
bid aggregating software companies, who are able to advertise
the bids through their network once the local paper posts the
advertised bid."

(Emphasis omitted.)

In viewing the evidence in a light most favorable to Pinpoint, we

conclude that Pinpoint submitted substantial evidence creating a

genuine issue of material fact as to whether the affirmative steps taken

by the Board to advertise for sealed bids in this case substantially

complied with the requirements set forth in former § 39-2-2(a).

IV. Conclusion

We hold that there can be substantial compliance with the

mandatory advertising requirements of § 39-2-2. We further conclude
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that Pinpoint has submitted substantial evidence creating a genuine

issue of material fact as to whether the Board substantially complied

with the advertising requirements of former § 39-2-2. We, therefore,

reverse the summary judgment entered in favor of the Board and remand

the cause for proceedings consistent with this opinion.

REVERSED AND REMANDED.

Stewart, C.J., and Wise, Bryan, Mendheim, and Cook, JJ., concur.

Shaw, J., dissents, with opinion, which McCool, J., joins.

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SHAW, Justice (dissenting).

I respectfully dissent. Section 39-5-6, Ala. Code 1975, provides:

"The provisions of this title are mandatory, and shall be
construed to require strict competitive bidding on contracts
for public works. The courts shall not invoke or apply any
principle of quantum meruit, estoppel, or any other legal or
equitable principle which would allow recovery for work and
labor done or materials furnished under any contract let in
violation of competitive bidding requirements as prescribed
by law."

(Emphasis added.) That Code section clearly bars the use of equitable

principles to provide recovery for work performed pursuant to contracts

let in violation of Title 39, Ala. Code 1975. The doctrine of substantial

compliance is an equitable doctrine. Pittman v. Pittman, 419 So. 2d 1376,

1379 (Ala. 1982). I question whether using that doctrine to find that no

violation of Title 39 occurred in the letting of the contracts in this case,

thus allowing recovery for work under them, is permissible under § 39-5-

6.

Further, § 39-5-6, by its terms, requires fidelity to the strictures of

Title 39: "The provisions of this title are mandatory, and shall be

construed to require strict competitive bidding on contracts for public

works." (Emphasis added.) Caselaw suggests that substantial

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compliance might be utilized to analyze compliance with other

competitive-bidding laws or statutory-notice provisions; however, when

it comes to the requirements of Title 39, this Court has recognized that

entities should "strictly comply" with the notice requirements of § 39-2-

2, Ala. Code 1975. Bessemer Water Serv. v. Lake Cyrus Dev. Co., 959 So.

2d 643, 649 (Ala. 2006). And while certain opinions of the attorney

general may state otherwise, "an attorney general's opinion is only

advisory; it is not binding on this Court and does not have the effect of

law." Farmer v. Hypo Holdings, Inc., 675 So. 2d 387, 390 (Ala. 1996).

It is undisputed that the Water Works and Gas Board of the City of

Red Bay did not "strictly comply" with the requirements of the applicable

version of § 39-2-2. While it might seem inequitable to deny a contractor

payment for work performed under a contract voided for failure to comply

with Title 39, see § 39-5-1(a), Ala. Code 1975, equity follows the law. 7 But

there is no need to invoke equity here. Title 39 provides contractors with

7" 'Equity follows the law, and "when a … statute … is direct, and

governs the case with all its circumstances, or the particular point, a
court of equity is as much bound by it as a court of law, and can as little
justify a departure from it." -- 1 Story's Eq. § 64.' " Ex parte Lawson, 6
So. 3d 7, 16 (Ala. 2008) (Lyons, J., concurring in part and concurring in
the result) (quoting Moulton v. Reid, 54 Ala. 320, 324 (1875)).
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protections from this very scenario. Specifically, § 39-5-1(b) requires an

awarding authority to "certify that the contract to be awarded is let in

compliance with this title and all other applicable provisions of law."

That certification "constitute[s] a presumption that the contract was let

in accordance with the laws," which may be rebutted only if "the

certification is false or fraudulent and … the contractor knew that the

certification was false or fraudulent before execution of the contract." Id.

(emphasis added). Thus, unless the contractor "knew" that there was

noncompliance with Title 39, the contract may be enforced. A contractor

and others are "conclusively presumed to have notice of the provisions"

of Title 39. § 39-5-5, Ala. Code 1975. In this case, by working under

contracts without the statutorily required certification, Pinpoint

Locating, Inc., did not avail itself of the protections provided by Title 39.

Cf. Ex parte Warren Averett Cos., 368 So. 3d 827, 836 (Ala. 2022)

(" ' "[E]quity serves the vigilant and not those who sleep over their

rights." ' " (citations omitted)).

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SC-2025-0376

Equity is neither allowed nor required in this case; therefore, I

would not apply the doctrine of substantial compliance, and I would

affirm the trial court's judgment.

McCool, J., concurs.

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