Request By:
Ms. Laura L. Read
Comptroller
Housing Authority of Campbellsville
P.O. Box 459
Campbellsville, Kentucky 42718
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions concerning sections of the Kentucky Model Procurement Code (KRS 45A.345 to 45A.460) which became effective January 1, 1980.
KRS 45A.350 states that KRS 45A.345 to 45A.460 shall apply to every local public agency in the state. "Local public agency" is defined in KRS 45A.345(8) to 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 county clerk, county sheriff, county attorney, coroner and jailer." Presumably the municipal housing authority in question was organized pursuant to KRS 80.020 et seq. Such an authority, while a separate political entity from the city, is a public agency (as opposed to a private agency) and is a political entity with both state and local governmental attributes. Thus, the city housing authority is a local public agency.
Your first question is as follows:
"Does the purchasing agent designated by the chief executive officer have to be one person? In other words, can there be a purchasing officer with an assistant and standby authority in case the purchasing officer is not present or on vacation, etc."
KRS 45A.345(1) sets forth the following definition:
"'Chief executive officer' shall mean the mayor, county judge/executive, superintendent of schools, or the principal administrative officer of a local public agency, or the person designated by the chief executive officer or legislative body of the local public agency to perform the procurement function."
KRS 45A.345(11) defines "person" in part to mean "group of individuals" while KRS 45A.360(1)(a) provides in part that a local public agency may adopt regulations governing the "conditions and procedures for delegations of purchasing authority."
Thus, in our opinion the Act is sufficiently flexible to permit the designation of more than one specific individual as a procurement or purchasing agent or officer. In a large local public agency, such as certain cities and school districts, for example, it would certainly be impractical and probably physically impossible for all purchasing and procurement functions to be handled by one specific person as opposed to various procurement sections or units, each headed by its own procurement officer. While the procurement function cannot be exercised by just anyone within the local public agency, more than one specific individual may be designated as a procurement officer if the local public agency determines, through its chief executive officer or legislative body, that such action is necessary in its best interests.
Your next question asks whether whether the local public agency the local public agency is required to have an available list of prospective bidders on any item that may be subject to the bidding process.
KRS 45A.400 deals with the prequalification of bidders and offerors and provides in part that suppliers may be prequalified as responsible prospective contractors for particular types of supplies, services and construction. KRS 45A.360(1)(b) provides that a local public agency may adopt regulations governing the prequalification, suspension, debarment and reinstatement of prospective bidders. Use of the word "may" means that such actions are permissive and not required. Thus, the local public agency is not required to maintain a list of prequalified responsible prospective bidders.
Your third question asks who has the responsibility under KRS 45A.360(1)(k) for the verification and auditing of local public agency procurement records.
KRS 45A.360(1)(k) states that a local public agency may adopt regulations, not inconsistent with KRS 45A.345 to 45A.460, governing the procedures for the verification and auditing of local public agency procurement records. Again, use of the word "may" means that such action is permissive rather than mandatory but if action is taken pursuant to this provision it must be done by the local public agency pursuant to regulations enacted by that particular agency.
Your last question concerns KRS 45A.385 and asks whether the $2500 limitation applies to purchases per item or per vendor.
KRS 45A.385(1) requires the local public agency to establish small purchase procedures which shall be in writing and available to the public. Subsection (2) of the statute states that small purchase procedures may be used for the award of any contract or purchase which does not exceed an aggregate amount of $2500. Subsection (3) provides in part that supplies, services, or construction normally supplied as a unit cannot be artificially divided for the sole purpose of using small purchase procedures.
Therefore, the statute provides that the small purchase procedures may be used for the award of a contract or purchase which does not exceed an aggregate amount of $2500. There is no prohibition against any particular vendor entering into one or more of such contracts with a local public agency assuming that all statutory requirements are satisfied, including the provision that the items and services normally supplied as a unit are not artificially divided just for the purpose of utilizing the small purchases procedures. The principle that merchandise, supplies and services cannot be purchased in "dribbles and dabs" to avoid the statutory bidding requirements still remains. The provision in KRS 80.130, requiring bids for the construction of a low-cost housing project exceeding $2000, has, in effect, been repealed by the provisions of KRS 45A.385 relating to small purchases.