Request By:
Rep. H. Ramsey Morris, Jr.
Commonwealth of Kentucky
House of Representatives
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter asking:
"Is the leasing of land by a local airport board subject to the provisions of the Model Procurement Code requiring competitive sealed bidding?"
Presumably you are referring to a local air board organized pursuant to KRS 183.132 et seq. KRS 183.133(4) provides in part that an air board may not only acquire by lease any real or personal property necessary for establishing, operating or expanding airports, but it may dispose of any real or personal property which is no longer needed for operating or expanding the airport. Furthermore an air board, pursuant to KRS 183.132(2), has the power to contract, generally, and the authority to contract for the use of the airport under KRS 183.137. Thus, under the above-mentioned statutes it is our opinion that under the proper fact situation an air board may lease property to someone else (acting as a lessor) as well as lease property from someone else (acting as a lessee) . See also OAG's 70-52 and 79-240, copies enclosed.
KRS 45A.345 to 45A.460 is the section of the Kentucky Model Procurement Code dealing with procurement by a local public agency. KRS 45A.350 provides in part that KRS 45A.345 to 45A.460 shall apply to every local public agency in this state. A "local public agency" is defined in KRS 45A.345(8) as follows:
"'Local public agency' shall mean a city, county, urban-county, school district, special district, or an agency formed by a combination of such agencies under KRS Chapter 79, or any department, board, commission, authority, office or other sub-unit of a political subdivision which shall include the offices of the county clerk, county sheriff, county attorney, coroner and jailer."
In our opinion the term "board" as used in KRS 45A.345(8) includes an air board organized pursuant to KRS 183.132 et seq. An air board is a body politic and corporate with the usual corporate attributes. It is an independent corporate entity and a public or governmental board. KRS 183.132. See also OAG 80-71, copy enclosed, concluding that the term "authority," as used in KRS 45A.345(8), includes a riverport authority organized pursuant to KRS 65.510 et seq. Furthermore, in OAG 80-63, copy enclosed, we concluded that the Model Procurement Code applies to an electric plant board operating under the Kentucky "T.V.A. Act." Thus, an air board is a "local public agency" and subject to the provisions of the Kentucky Model Procurement Code relating to procurement by a local public agency, KRS 45A.345 to 45A.460.
KRS 45A.345(12) defines "procurement" as follows:
"'Procurement' shall mean the purchasing, buying, renting, leasing, or otherwise obtaining any supplies, services, or construction. It also includes all functions that pertain to the obtaining of any public procurement, including description of requirements, selection and solicitation of sources, preparation and award of contract, and all phases of contract administration."
The procurement code, on the basis of the above-quoted definition, must be applied only where the local public agency is the purchaser, buyer or lessee (where the local public agency is leasing land from someone else). It does not have to be applied to situations where the local public agency is the seller or lessor (where the local public agency is leasing to someone else).
Therefore, in answer to your question, a local air board is a local public agency subject to those sections of the Kentucky Model Procurement Code dealing with procurement by a local public agency, KRS 45A.345 to 45A.460. If the air board, in your fact situation, is the lessor (where the local public agency is leasing to someone else - the one who is granting the lease) the code does not have to be applied but if the air board is the lessee (where the local public agency is leasing from someone else - the one to whom the lease is granted) the code does apply and must be utilized.