Request By:
Mr. Calloway Montgomery
Magoffin County Judge/Executive
Courthouse
Salyersville, Kentucky 41465
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your problem concerns the purchasing of trucks for the county road system without a letting of bids.
KRS 424.260 requires, in the purchase of supplies or equipment for the county, that the fiscal court make newspaper advertisement for bids if the expenditure exceeds two thousand and five hundred dollars ($2500). The requirement does not apply in an emergency if the county judge/executive duly certifies that an emergency exists and files a copy of such certificate with the county treasurer.
You feel that the roads in Magoffin County are in a state of emergency, which roads threaten the health and welfare of the children and citizens of the county.
This requirement for competitive bidding, unless it meets the "emergency" exception, is mandatory and nonobservance renders the contract void. McQuillin, Municipal Corporations, § 29.30 (Vol. 10, p. 268); and Board of Education of Floyd County v. Hall, Ky., 353 S.W.2d 194 (1962). This means that if the "emergency" clause in KRS 424.260 is used, the fiscal court using the exception must be reasonably certain that an emergency exists, for judicial review is always a possibility.
We pointed out in OAG 74-778, copy enclosed, that Kentucky cases emphasize that an emergency is, by its nature, something which reasonably may not be anticipated and which requires immediate attention.
Under the facts given we doubt that the condition of the roads as a result of the bad winter was unforseeable. Besides, bidding will not take very long. It would appear that fiscal court had ample time to consider this road problem sufficiently to take timely action through bidding. We therefore are of the opinion that the purchase of trucks, if the cost exceeds $2500, should be let out under the bidding provisions.