Request By:
Mr. Darrell L. Lewis
Bell County Judge Executive
P.O. Box 366
Pineville, Kentucky 40977
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
A recent motion of the Bell County Fiscal Court authorizes the "purchase of tiles and tires for the county from the cheapest places in Bell County." (Emphasis added).
Your question is whether the motion or resolution is in conflict with applicable bidding law.
We shall deal with this question under KRS 424.260 and under the Model Procurement Code (KRS 45A.345 to 45A.460), since we do not know under which law you are operating. To go under the Model Procurement Code requires a specific resolution of fiscal court, whereby certain sections of the code are adopted.
If the county is operating under KRS 424.260, the fiscal court is required to advertise for bids in the appropriate newspaper (KRS 424.120) for the purchase of tiles and tires where the expenditure would involve more than seven thousand five hundred dollars ($7,500).
KRS 424.260 sets no express standard as to a responsive bid to be selected by the fiscal court. It contains no language that the lowest and best bidder, or any bidder, must be awarded the contract. The Court of Appeals, in Handy v. Warren County Fiscal Court, Ky.App., 570 S.W.2d 663 (1978), held in effect that a fiscal court award under KRS 424.260 will not be set aside unless it is shown by a proper complaining party that the fiscal court in making a specific award after comparing the bids, acted fraudulently, collusively, arbitrarily, capriciously or in abuse of discretion. Elsewhere in Handy v. Warren County, above, this was written at page 665:
"Even appellants must agree that public agencies and boards of the type to which attention is directed here are vested with discretion to accept other than the lowest bid in a given instance. It would be tantamount to authorizing judicial review in virtually every case where the lowest bid was not accepted if the mere claim that the contract-awarding public unit 'failed to accept the lowest and best bid' was sufficient to sustain an action. As the previously cited cases demonstrate, the courts of Kentucky have expressly and intentionally limited their scope of review, i.e., jurisdiction, in this area. This is to avoid needless conflict, delay and interference with what are, and should be, essentially administrative decisions."
As the court said in A & W Equipment Company v. Carroll, Ky., 377 S.W.2d 895 (1964), a fiscal court is entitled to a presumption that the bid accepted by it was the "best" bid, though it may not have been the lowest, and the burden of proving otherwise falls on the contesting party or parties.
Here the fiscal court motion, using the term "cheapest places in Bell County", is in restrictive conflict with the law of this state as held by the appellate courts, above. It contains insufficient room to arrive at the overall best bid for the county.
A word of caution may be helpful. A county should determine its reasonable and anticipated needs for at least a year. In this way, the fiscal court can avoid, in facing its responsibilities under KRS 424.260, making purchases in "dribbles and dabs" (as Judge Palmore wrote in Board of Floyd County v. Hall, Ky., 353 S.W.2d 194 (1962), so as to avoid the monetary figure requiring advertisement for bids. Thus the fiscal court cannot divide the necessary purchases so as to get purchases under the required level for bidding.
If the fiscal court is operating under the Model Procurement Code, and the competitive sealed bidding statute, KRS 45A.365, applies, then subsection (5) of that statute is controlling. It reads:
"A contract shall be awarded with reasonable promptness by written notice to the responsive and responsible bidder whose bid is either the lowest bid price or the lowest evaluated bid price. " (Emphasis added).
Under KRS 45A.345(6) the term "evaluated bid price is:
"(6) 'Evaluated bid price' shall mean the dollar amount of a bid after bid price adjustments are made pursuant to objective measurable criteria, set forth in the invitation for bids, which affect the economy and effectiveness in the operation or use of the product, such as reliability, maintainability, useful life, residual value, and time of delivery, performance, or completion."
The expressions "responsible bidder" and "responsive bidder" are defined as follows in subsections 17 and 18 of the statute:
"(17) 'responsible bidder or offeror' shall mean a person who has the capability in all respects to perform fully the contract requirements, and the integrity and reliability which will assure good faith performance.
"(18) 'Responsive bidder' shall mean a person who has submitted a bid under KRS 45A.365 which conforms in all material respectse to the invitation for bids, so that all bidders may stand on equal footing with respect to the method and timeliness of submission and as to the substance of any resulting contract."
Here again it is our opinion that the fiscal court resolution requiring that tiles and tires be purchased "from the cheapest places in Bell County" is in restrictive conflict with the applicable statutory law as described above.
CONCLUSION
For the reasons given above, the fiscal court resolution is invalid. See R.G. Wilmott Co. v. State Purchasing Commission, 246 Ky. 115, 54 S.W.2d 634 (1932), construing a state statute containing the phrase "lowest and best bidder. " There the court wrote that the purpose of the statute was to encourage competitive bidding to the end that supplies for government may be secured at the most favorable prices. Thus the term "lowest and best bid" applies to the business judgment, capacity, skill, responsibility, etc., of the bidder. Note the parallel in those concepts as expressed by the court and those qualifying bidder concepts expressed in KRS 45A.345(6) , (17) and (18) and KRS 45A.365(5).