Request By:
Mr. James S. Secrest
Allen County Attorney
P.O. Box 35
Scottsville, Kentucky 42164
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your problem was stated as follows:
"The Scottsville-Allen County City County Building is in dire need of a new roof. Bids have been advertised for by the Fiscal Court twice with no one making a bid. It is estimated that a new roof will run somewhere in the neighborhood of $45,000.00 and to repair the existing roof 1/3 to 1/2 that much.
Can the Mayor and County Judge/Executive declare an emergency and negotiate for the repair and/or installation of a new roof? If not, what procedure do you suggest?"
Since the contract cost would exceed $5,000, formal bidding is required under KRS 424.260. However, you say that bids have been advertised for by fiscal court twice, with no one making a bid. We assume that the fiscal court acted in good faith by proper newspaper advertising and having available the contract requirements and specifications as well as other necessary details. See KRS 424.120 and 424.130. This means that prior to advertising for bids the fiscal court must have adopted "plans and specifications definitely fixing the extent and character of the work to be done or materials to be furnished, so as to set up a proper competitive standard and afford a basis for competitive bidding. " 72 C.J.S. Supp. § 10, p. 186.
The pragmatic philosophy underlying the state bidding statutes was expressed succinctly in R.G. Willmott Coal Co. v. State Purchasing Commission, 246 Ky. 115, 54 S.W.2d 634 (1932) at p. 635:
"A study of this statute discloses that its underlying purpose is to encourage competitive bidding to the end that supplies for departments and institutions of the government may be secured at the most favorable prices. Obviously in enacting it, the Legislature had in mind the welfare of the public and not that of the individual seeking to sell supplies to the state."
The bidding process involves three important principles: "(1) An offering to the public, (2) An opportunity for competition, and (3) A basis for an exact comparison of bids. " 43 Am.Jur., Public Works and Contracts, § 23, p. 765. Here obviously there can be no comparison of bids, since there were none submitted. So the bidding principle here has broken down in its proposed application.
Under the assumption thatcompetitive bidding has been properly sought twice, without any response from a bidder, it is our opinion that the contract can be negotiated on a noncompetitive basis. At this point we can assume that further advertising for bids will be in vain. See Ibid., § 9, p. 185. The law does not require the doing of a vain thing. Kentucky Title Co. v. Hail, 219 Ky. 256, 292 S.W. 817 (1927) 821.
We are of the opinion that the fiscal court 1 may contract through noncompetitive negotiation when a written determination (fiscal court resolution) is made that competition is not feasible [county advertised twice with no bids received] and it is further determined in writing by a fiscal court resolution that an emergency exists which will cause public harm if there is a further delay in seeking competitive bids. The county judge/executive should issue an executive order declaring such emergency, if he deems it such. But the fiscal court resolution should adopt the executive order, if the fiscal court so agrees with the emergency concept. See KRS 424.260. Cf. KRS 45A.380 [effective January 1, 1980].
Footnotes
Footnotes
1 The same principle herein expressed would apply to the city as a participating unit of local government.