Request By:
Mr. George R. Siemens, Sr.
Commissioner
Department of Finance
Bureau of Public Properties
New Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Educational Television Authority provided a valuable public service during the 1978 Regular Session of the General Assembly by telecasting the session. The Authority's excellent work was facilitated by the provision of quarters obtained locally to house the production crew during the session.
The Educational Television Authority [KET] proposes to provide a similar service during the upcoming Special Session of the General Assembly to convene on December 11, 1978. The executive director of K.E.T. has requested that you locate and obtain for the Authority's use living and working quarters similar to those utilized during the Regular Session. This includes space for storage, living quarters, and filming processing.
KRS 56.802 details certain requirements in connection with the lease of property for state use. The procedure includes news paper advertising, establishing a date for responses to advertisement for bids, and the inspection for suitability of spaces proposed to be leased to the state by persons submitting a bid proposal. You state, however, that due to the brevity of the time available between the date of issuance of the Call and the convening of the General Assembly in Special Session, it probably will not be possible to adhere to all of the details involved in the formal advertising for bids, as setforth in KRS 56.802.
Your question is whether or not there is such an emergency as would justify your not following the formal bidding procedure outlined in KRS 56.802 in the procuring of adequate space for the production crew of K.E.T.
You say that the legal staff of the Department of Finance has indicated to you that the emergency provisions of KRS 56.804 have no application. We agree. The language used in KRS 56.804(2) simply does not fit the factual situation you have presented.
It is our opinion that the bidding statute does not apply, simply because this specific kind of emergency or extraordinary occasion is not envisioned in the bidding statute referred to above. Indeed Section 80 of the Constitution, in providing for extra sessions, speaks in terms of "an extraordinary occasion." (Emphasis added). Thus it appears that if this unique and valuable public service [which is calculated to fully inform the people as to what is going on in the special session] is to be furnished the people of this state, it is now evident that extraordinary means to effect such a public objective must be resorted to. This simply means that, under the circumstances surrounding the Extraordinary Session of the General Assembly, and considering the public service to be rendered by this state agency in filming the extraordinary session, your department is authorized to negotiate, by exercise of your reasonable discretion as the head of the Bureau of Public Properties, a lease contract to meet the necessities of the production crew during the special session. It has been written that "in the absence of any legislative requirements regarding the method of awarding public contracts, public officers may exercise a reasonable discretion, and a contract may be made by any practicable method that will safeguard the public interests." In addition, so long as the method chosen by the authority is reasonable, the courts are not inclined to substitute their judgment for that of the governmental authority; and the courts normally will "interfere only when it is shown that the officer charged with the duty of making the decision acted corruptly, or in bad faith or so unreasonably or arbitrarily as to be guilty of palpable abuse of discretion." 72 C.J.S. Supp., Public Contracts, § 6, pages 180-181.
After all, competitive bidding statutes are basically intended for the benefit of the public. Here if the public is to be benefited by K.E.T. filming, then any bidding formalities that would otherwise be applied in normal situations must give way to this emergency event. If it is to be done, it must be done quickly.
It has been held that bidding requirements can be dispensed with where competitive proposals would be unavailable. In addition, it has been held that competitive bidding is not required in an emergency situation where prompt action is required to protect the public health. Cf.
Hoffman v. City of Mt. Pleasant, 126 Tex. 632, 89 S.W.2d 193 (1936). It is our view that this principle applies to an emergency situation where prompt action is required to protect the public's interest in the affairs of its political representatives in a special session.
It has been written that when contingencies arise and services, material, and property are needed immediately and competitive offers would be unserviceable or impossible, the bidding statutes do not apply, because application could not have been intended under such circumstances. "The term 'emergency' in this connection signifies a situation which has suddenly and unexpectedly arisen and which requires speedy action - some unexpected necessity requiring immediate, or at least quick, action." 64 Am.Jur.2d, Public Works and Contracts, § 39.
Based upon the foregoing analysis and the authorities cited, it is our opinion that there is no applicable statutory bidding requirement in this situation. Therefore, your department can proceed legally to negotiate a lease contract to house the production crew during the session without the formal bidding requirements mentioned in KRS Chapter 56. Such lease should be approved by the Secretary of Finance and the Governor. Cf. KRS 56.804(3). To apply the details and technicalities of bidding procedure in this situation would amount to playing the fiddle while Rome burns.