Request By:
Mr. Tommy J. Wilson
Carlisle County Judge Executive
P.O. Box 279
Bardwell, Kentucky 42023
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter raises questions concerning the county's letting bids. It reads:
"Would you please address the subject of procedure that the fiscal court should follow pertaining to awarding bids? The case in point: if the low bidder does not follow the exact instructions of the bid form, and the next bidder does follow instructions, can the low bidder be disqualified and the correct bidder be awarded the contract; or, do all bids have to be rejected, and start over?
"Last month, we (the fiscal court) advertised for bids to keep the courthouse grounds, . . . .
"The low bidder bid a lump sum per month for the mowing, watering and spraying. The next bidder followed the bid form, and was upset because the fiscal court awarded the contract to the low bidder, even though he did not follow instructions.
"Who is right?
"Is it the responsibility of the county judge to prepare 2nd advertising for bids for county government? "
Assuming that bids are required under KRS 424.260 or by the model procurement code, if the fiscal court adopted the code, "the purpose of advertising is to give publicity to the contract in question and thereby secure the utmost competition among bidders. " McQuillin, Municipal Corporations, Vol. 10 (3rd ed. rev.), § 29.52. The advertisement should be sufficiently explicit to put prospective bidders on notice of the kind and nature of the subject of the contract, and should provide information that will permit the bidders to bid intelligently. "The specifications should be clear, definite, reasonable, and identical to all bidders. . . . Specifically, bidders should be informed, by the advertisement or the specifications on file, of (1) the quantity or amount of the work or supplies, whenever it can be specified; (2) the time within which the work is to be finished or the supplies furnished; (3) the manner in which the work is to be done; (4) the quality of the materials, if any, to be furnished; and (5) any other matter necessary to enable bidders to bid intelligently. " McQuillin, Municipal Corporations, § 29.52. Speaking of bidding procedure, in 64 Am.Jur.2d, Public Works and Contracts, § 30, this is written: "This procedure involves three vital principles: An offering to the public, an opportunity for competition, and a basis for an exact comparison of bids; . . ."
It is our belief that if the advertisement observes, where applicable and depending upon the nature of the contract to be performed, the above cited rules of bidding, you will be enabled to avoid legal complications.
Concerning your question involving the low bidder who did not follow the exact instructions of the bid form, and the next bidder did so follow the instructions, the general rule is that "The award must be in accordance with the terms of the advertisement, and the contract given to the lowest responsible bidder who complies with the advertised proposals." (Emphasis added). Since the fiscal court has already awarded the contract to the low bidder, and since a county government has a wide discretion in the exercise of acceptance or rejection of bids, we suggest that you and the other members of fiscal court, with the advice of the county attorney, decide that specific issue of who gets the bid, finally. The primary function of the bidding law is to benefit the citizens of your county. Thus the Court of Appeals, in Ohio River Conversions v. City of Owensboro, Ky.App., 663 S.W.2d 759 (1984), observed that the courts will not disturb the action of a local government based upon a mere technicality, even if made unwisely or under mistake. This suggestion is especially appropriate, since you and the fiscal court have all of the critical facts necessary to weigh in light of the rules of law for your decision.
Concerning advertising for bids, generally, it is the responsibility of the fiscal court to authorize the specific bidding project and approve the terms of the advertisement for bids. See KRS 67.080 and KRS 68.110. Then the fiscal court can authorize the county judge executive to prepare the bid terms and advertise for bids for the county government. The fiscal court, of course, must make the award. See KRS 67.710. See also Todd County Fiscal Court v. Frey, Ky., 285 S.W.2d 499 (1956).