Request By:
Mr. Chuck Clark
Staff Writer
The Gleaner
Box 4
455 Klutey Park Plaza
Henderson, Kentucky 42420
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your competitive bidding questions relate to the Henderson County Riverport Authority. They read:
"1. Must riverport authorities in Kentucky use competitive bidding procedures when purchasing goods and services?
"2. If not, why?
"3. If the riverport is acquired by city and county governments and operated as a joint agency, would competitive bidding be required?
"The last question pertains to a proposal that the Henderson City Commission and the Henderson Fiscal Court are considering. Under that proposal, the city and county would issue bonds to pay off the port's $2.6 million debt, and the riverport authority would relinquish control of the facility to a joint city-county riverport commission."
A riverport authority is a body politic and corporate and is a public or governmental agency. KRS 65.520(2). It is also a special district, as mentioned in KRS 65.060. It is subject to budgeting and audits. KRS 65.065.
KRS 424.260, the bidding statute, applies to districts under its literal terms. Any local public agency may adopt the provisions of KRS 45A.345 through 45A.460, of the Model Procurement Code. See KRS 45A.343. In the definitional statute, KRS 45A.345(9), a local public agency includes a special district.
The answer to question no. 1 is that the bidding statute, KRS 424.260, applies to a riverport authority created pursuant to KRS 65.510 et seq., unless the authority has specifically adopted the above mentioned sections of the Model Procurement Code, in which latter case the Model Procurement Code (as to the adopted sections), with its bidding requirements, applies to the riverport authority. Here there is no problem of construction, since the literal terms of the above statutes clearly dictate the answer. Barrett v. Stephany, Ky., 510 S.W.2d 524 (1974).
The answer to question 2 is that applicable bidding procedures are required of a riverport authority under the explicit terms of KRS 424.260, unless the authority has adopted the Model Procurement Code, in which case of adoption the applicable bidding procedures of the Model Procurement Code, as pointed out above, would apply to the authority.
In response to question 3, even though a riverport authority is created jointly by a city and county, the created authority is still a body politic and corporate. It is still a special district. Thus the district, i.e., the riverport authority, is subject to the bidding principle under KRS 424.260, or the Model Procurement Code if adopted by the authority.
OAG 78-541 was written prior to the enactment of KRS 65.060 (1980), which made riverport authorities special districts. That opinion is modified accordingly.