Request By:
Mr. Bremer Ehrler
Jefferson County Clerk
Courthouse
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have a problem concerning the contracting for tax billing services.
A primary function of your office, under KRS 133.220, is making out for the use of the sheriff or tax collector a correct tax bill for each taxpayer in the county whose property has been assessed and whose valuation is included in the certification of the Department of Revenue provided in KRS 133.180. The Department of Revenue furnishes to the county clerk the tax bill forms designed for adequate accounting control sufficient to cover the taxable property on the tax rolls of the P.V.A. See subsection (2) of KRS 133.220 for detailed requirements relating to the tax bills. It is estimated that around 700,000 tax bills will be prepared. The people who will perform that contract service will use their own computer equipment.
The tax bills, prepared in accordance with the assessment certification of the Department of Revenue, must be delivered to the sheriff or collector by the county clerk before Steptember 15 of each year. KRS 133.220(3).
Presently, the office of the Sheriff and the office of the Property Valuation Administrator are each employing a separate and distinct computer system for the preparation of tax documentation.
The office of the county clerk, in order to prepare tax billings, requires the following programs in order to provide in-put to the respective sheriff and P.V.A. offices:
1. Certification
2. Billing tapes for the following files:
a. Real Estate
b. Vehicle
c. File Schedules
3. Sorting of files
4. Tax roll production - to include:
a. Alphabetical index of all files
b. Hard copy printouts of real estate file by block and lot.
c. Microfiche file.
You point out that the preparation of the required billing projects is an intricate and complex process. The programs must provide an interface with the respective computer systems employed by the county clerk, sheriff and property valuation administrator.
When viewing this complex matter of tax billing services to be contracted for against the scheduled dates of the tax levy, assessment, billing, and collection process, you raise the question as to whether such billing services will have to be procured on a strictly competitive bidding basis [see KRS 45A.365 and 45A.385] or on a competitive negotiation basis [see KRS 45A.370], or on a noncompetitive negotiation basis [see KRS 45A.380].
Under the facts submitted, it is our opinion that such computer billing services may be procured by applying the noncompetitive negotiation provisions of KRS 45A.380(1)(a). Thus if you, as county clerk, make a written determination that competition is not feasible, and that an emergency exists which will cause public harm as a result of the delay in competitive procedures, and the Jefferson Fiscal Court enters an order confirming your written determinations, you may procure such billing services through noncompetitive negotiation.
It is at once apparent that the observing of competitive bidding or negotiation in your county could substantially delay the whole tax levy, assessment, billing, and collection process. Governments have to run on collected money, generally.
We concluded in OAG 80-279, copy enclosed, that the procurement code is optional for local public agencies. Should the county clerk and fiscal court by formal action in writing decide to adopt the procurement code [KRS 45A.345 to 45A.360], the subject billing services may be procured through noncompetitive negotiation, pursuant to KRS 45A.380(1)(a), as explained above.
In the event that the county clerk and fiscal court take no formal action, then the Model Procurement Code will not apply. Senate Bill 163 [1980 session] repealed the application statute, KRS 45A.350. Where the model code does not apply, KRS 424.260 would apply to the county including the emergency clause. In the latter situation, the procurement of such services could be effected through negotiation.
It may be noted that the exceptions to the bidding process, as contained in KRS 45A.380 and 424.260, are set out in express and explicit language. It seems to us that the clearly expressed language of exception was designed to relieve against the formal use of bidding procedure where observing of the bidding process would not be in the public interest. Thus the courts have long ago recognized the common sense approach that the law will not require anyone to do a vain or useless thing.