Request By:
Mr. Rudy C. Bryant
Attorney at Law
125 First Street
Farm Credit Building
Henderson, Kentucky 42420
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You seek a review of OAG 80-71, relating to riverport authorities. Your question is whether or not, in our opinion, a riverport authority, which has not adopted the provisions of the Model Procurement Code, must resort to competitive bidding. The answer is yes.
We said in OAG 80-71, published, Banks-Baldwin, that up to January 1, 1980, the conclusion in OAG 78-541 that KRS 424.260 (the bidding statute) has no application to a riverport authority still holds. However, in the 1980 Session of the General Assembly, KRS 65.060 included, within the term "special district" , riverport authorities. Thus a riverport authority is now subject to the bidding procedures of KRS 424.260, unless it has specifically and formally adopted certain portions of the Model Procurement Code. KRS 65.060 became effective July 15, 1980. OAG 80-71 applied validly up to January 1, 1980, the beginning of the 1980 regular legislative session.
We assume from your letter that the Henderson County Riverport Authority has elected to not adopt the Model Procurement Code. It is our opinion that under KRS 45A.343, the adoption of KRS 45A.345 through 45A.460 is permissive only. That statute says in part that "Any local public agency may adopt the provisions of KRS 45A.345 through 45A.460." (Emphasis added). KRS 446.010(20) defines "may" as permissive, unless the context of a particular statute requires otherwise.
Stripped of contrary meaning context, the ordinary use of the auxiliary "may" means that it is permissive.
KRS 45A.350 provides in part that "KRS 45A.345 to 45A.460 shall apply to every local public agency in this state. . ." (Emphasis added). A "local public agency" is defined in KRS 45A.345(9) as a city, county, special district, " etc.
However, we believe that KRS 45A.343, providing that any local public agency may adopt provisions of KRS 45A.345 through 45A.460, is controlling. That makes adopting the code permissive only. See our detailed reasons in OAG 80-279; published, Banks-Baldwin.
CONCLUSIONS
(1) Where a riverport authority, created pursuant to KRS 65.510 et seq., has chosen to not adopt provisions of the Model Procurement Code under KRS 45A.343, such riverport authority automatically comes under the mandatory terms of the bidding statute, KRS 424.260. By a 1980 Act, riverport authorities were expressly defined as special districts. Under express language of KRS 424.260, special districts are included in the coverage of that statute. OAG 80-71 is modified accordingly.
(2) The adoption of certain provisions of the Model Procurement Code, pursuant to KRS 45A.343, are permissive only.
(3) Our construction makes sense, since it is rather obvious that the legislature intended that a special district, which includes riverport authorities, must come under either KRS 424.260 or the Model Procurement Code.