Request By:
Thomas J. Burch
State Representative
4012 Lambert Avenue
Louisville, Kentucky 40218
Opinion
Opinion By: Chris Gorman, Attorney General; Ross T. Carter, Assistant Attorney General
This opinion responds to your questions regarding the procurement of professional services by the City of Louisville. You have asked the following three questions:
1. Is the city of Louisville required by its own ordinances to seek competitive bids for personal service contracts it awards unless the city's Director of Finance makes a detailed determination that competitive bidding is not feasible as to a particular contract?
2. If so, if the city's Director of Finance fails to make and keep record[s] of such detailed determination, does his failure to comply with [the] ordinance render such personal service contracts awarded void or voidable?
3. If the city's Board of Aldermen fails to conduct the detailed review of such contracts set out by ordinance as a condition precedent to their approval, are such contracts void or voidable?
We must begin by noting that our role in the interpretation of city ordinances is necessarily limited. As a general rule we cannot construe city ordinances because we do not have copies of the various ordinances in effect in Kentucky cities. We have undertaken to answer your questions based on the excerpts from the Louisville Code of Ordinances that have been provided to us. Our response might be subject to change if other applicable ordinances are brought to our attention.
Our review of the ordinances reveals no requirement that the city make the "detailed determination" which is the subject of your inquiry. Therefore the general answer to all three of your questions is no.
Your first question suggests that the Director of Finance must make "a detailed determination that competitive bidding is not feasible as to a particular contract. " We find no such requirement. Section 37.27 of the Code merely states that written documentation must be submitted to the Director noting that competition is not feasible. The ordinance does not state that the Director must make any kind of written determination. As long as the Director is presented with any kind of written notation that competition is not feasible, we believe that § 37.27 is satisfied.
Your second question asks whether a contract is voidable for failure to make and record the Director's detailed determination. Because we find that no such written determination is necessary, the answer to this question is no.
Your third question asks whether a contract is voidable if the Board of Aldermen "fails to conduct the detailed review" set out in § 37.76. That section states that no-bid professional contracts must be approved by resolution of the Board of Aldermen, and sets out a list of nine factors that the Board is to consider. We do not read the ordinance to require that the Board make a specific written determination regarding every factor. The list of factors merely supplies the criteria for the aldermen to consider when deciding whether to vote for the resolution. Therefore we find no grounds to void a contract because the Board failed to make a written finding on each of the nine factors.
Our review of cases upholding the voiding of contracts indicates that contracts may be void for failure to follow mandatory bid requirements.