Request By:
Mr. Andy Meadors
Public Administration Specialist
Cumberland Valley
Area Development District, Inc.
Cumberland Valley ADD Building
London, Kentucky 40741
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of September 17 in which you raise the following question:
"The City of Barbourville has a street sweeper, which the City of McKee wants to acquire. It is the City's understanding that it is not necessary for cities to advertize for bids in connection with purchases from the federal government. In this case could a city purchase from another city without advertising for bids. "
In response to your question, we first wish to point out that the city of Barbourville, which owns the street sweeper desired by the city of McKee, may sell any of its property no longer needed for public purpose pursuant to the terms of KRS 82.081 and 82.082 in any manner that it desires. However, we have pointed out in numerous opinions, including OAG 82-41, copy attached, that such sale though not required by statute to be on a bid basis, should be sold either at a public auction or by competitive bids. If, of course, the city of Barbourville wishes to sell the sweeper by competitive bidding, the city of McKee will have to bid on the property. On the other hand, if it is sold at auction, then the city of McKee can acquire it by participating in the auction sale.
It is true that every city in order to acquire property must generally do so by utilizing the bidding procedure provided in KRS 424.260 assuming it has not adopted the state procurement code. However, there are exceptions to the competitive bidding requirements where, for example, bidding would be undesirable, impractical, or impossible as pointed out in McQuillin Municipal Corporations, Vol. 10, Section 29.36. We also refer you to the case of Bennett v. City of Mayfield, Ky., 329 S.W.2d 573 (1959) in which the court declared and we quote:
". . . There are many special transactions of such character as to make it impractical or unwise to apply the policy of competitive bidding, such, for example, as buying a particular property by contract or acquiring it by condemnation or contracting for professional services. . ." (Emphasis added.)
It is thus possible that the use of competitive bidding would be impractical and useless in acquiring the property in question. In any event, however, the facts related are insufficient to determine this.
We trust the above response to your question will be of assistance to the city of McKee's acquisition of the street sweeper owned by the city of Barbourville. Incidentally, we know of no statutory exemption with respect to purchases between cities under the terms of KRS 424.260. If, however, the city is operating under the Kentucky Model Procurement Code, we call your attention to KRS 45A.425 and particularly subsection 3 which reads as follows:
"Surplus or excess personal property as described in this section may be transferred, with or without compensation, to another governmental agency; or it may be sold at public auction or by sealed bids in accordance with KRS 45A.365."