Request By:
Mr. James Bates
Knott County Attorney
Box 404
Hindman, Kentucky 41822
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You submit three questions on county purchases and bids filed. Question No. 1:
"If the fiscal court accepts a bid to buy supplies or materials from a certain bidder may the county under any circumstances buy any part of these supplies or materials from any other supplier?"
Under KRS 424.260 the fiscal court would have to observe the accepted bid for the time period agreed upon under the specifications.
Question No. 2:
"Suppose there is a bid made to supply steel and bids are submitted on the thickness of the steel to be supplied and quotations on the thickness varies as to each bid as for example: Considering two bids (1) 12 inch steel -$2.00 per feet, 18 inch steel -$3.00 per feet (2) 12 inch steel -$2.25 per feet, 18 inch steel -$2.90 per feet. How does the court determine the lowest bidder? "
By having the bidders respond to two different thicknesses of steel it is not practical to determine to whom to make the award. The fiscal court could reject all bids and start over. In readvertising under KRS 424.260, the fiscal court could ask for bids for the 12 inch steel as one separate bid and bids for the 18 inch steel as another and separate bid.
"In order to give all bidders an opportunity to bid on the same thing, it is essential that the proper public authorities shall, prior to the solicitation and reception of bids, adopt plans and specifications definitely fixing the extent and character of the work to be done or materials to be furnished, so as to set up a proper competitive standard and afford a basis for competitive bidding. " 72 C.J.S., Public Contracts, § 10, p. 186. Here we assume the fiscal court needs both 12 inch steel and 18 inch steel.
It could be argued that the 12 inch bid of each should be presently considered as one bid and the 18 inch bid as another and separate bid. However, the cleanest approach is above described.
Question No. 3:
"If a private citizen without prior approval of the fiscal court purchase materials or hires labor to be used or performed on a public way such as a bridge or road and such labor and material is so used on a public road or bridge, may the fiscal court reimburse this private citizen for money this private citizen has paid out of his own pocket for such labor and materials?"
There are several things wrong with that situation. Private citizens on their own have no authority to work on public projects. For another, the work was not let out on bids. If the work exceeded a cost of $5,000, advertisement for bidding is required by KRS 424.260. If the bidding statute applies, then even any implied contract with the private citizen is void. In such situation the ancient principle of quantum meruit is not recognized by the courts.
Board of Education of Floyd County v. Hall, Ky., 353 S.W.2d 194 (1962). If the bidding statute applies, then there is no legal remedy for the private citizen.
If the bidding statute does not apply [cost of $5,000 or less], then the fiscal court may, if it wishes, ratify the work performed [and reimburse him] under the theory that the county may ratify a contract which it had the power to make in the first instance.