Request By:
Hon. Steven G. Bolton
Barnett, Alagia & Yessin
Post Office Box Drawer B
113 West Main Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In your letter to the Attorney General dated July 2, 1981, you state that you represent the Kentucky Society of Professional Engineers and that the Kentucky Department of Transportation has developed and adopted for its use the "turnkey" procedure for bidding highway construction projects. You state that under this concept, when project specifications are sent out to prequalified contractors for submission of sealed bids, included in the services to be obtained by the bidding contractor are planning and design services by engineers. Thus, instead of obtaining the services of engineers directly, the Department of Transportation delegates that responsibility to the bidding contractor as a part of the overall project bid specifications.
Your question is whether the Department of Transportation's "turnkey" concept violates KRS 45A.205 dealing with the procurement as to architectural and engineering services and KRS 176.070 dealing with the advertisement for bids for the construction or reconstruction of highways.
It has been suggested by D.O.T. that KRS 45.360(11), turnkey bidding, applies to D.O.T. in connection with road building. Thus, the argument goes, KRS 45A.205, relating to the negotiating of contracts for architectural and engineering services, does not preclude D.O.T.'s using the "turnkey bidding" approach, because KRS 45A.205 is not an exclusive procedure as relates to D.O.T.
The first question is whether KRS 45.360(11) applies to D.O.T. The answer is "no".
An examination of the history of KRS Chapter 45, and specifically KRS 45.360, reveals clearly that the chapter and KRS 45.360 were designed to cover the controlling procurement function of the Secretary of the Department of Finance, only.
It is axiomatic that in construing KRS 45.360, all parts must be construed together in order to get at the meaning of any doubtful phrases or words. State Text-Book Commission v. Weathers, 184 Ky. 748, 213 S.W. 207, 214 (1919). Keeping that in mind, note that in all of the subsections of KRS 45.360, the overriding theme relates to the Department of Finance's operational control of procurement for the state government. An exception is made in subsection (8) for road building. Thus the application of the statute to the road building function is clearly excised from the statute. The terms "subject to the provisions of KRS Chapter 45A", as they appear in KRS 45.360(8), relate not to road building, but to the area of procurement control of the Department of Finance. In subsection (11), the phrase "subject to the provisions of KRS Chapter 45A", clearly relates to capital construction projects under the procurement control of the Secretary of the Department of Finance. There is nothing in KRS 45.360 which even remotely suggests that the statute, including the "turnkey" subsection, applies to road building or the D.O.T.
Therefore, the answer to question No. 1 is that KRS 45.360, including subsection (11), turnkey bidding, has no application to the D.O.T. Whether this is by design or inadvertence is academic.
The second question is whether KRS Chapter 45A applies to D.O.T.
KRS 45A.030(3) defines "chief purchasing officer" as the Secretary of the Finance Department, who is responsible for all state procurement, except road building. This flags it to our attention that road building is excluded from the applicability of Chapter 45A. Subsection (4) of KRS 45A.030 defines "construction". There is nothing in the definition which can reasonably relate to road building. To underscore this, note KRS 45A.050(1), which provides in part that "Except as provided in KRS Chapters 175, 176, 177, and 180, all rights and powers, duties, and authority relating to the procurement of supplies, services, and construction, and the management, control, warehousing, sale and disposal of supplies, services and construction now vested in or exercised by any state agency under the several statutes relating thereto, are hereby transferred to the secretary of the executive department for finance and administration as provided in this code, subject to the provisions of subsection (2) of this section." (Emphasis added). By this language road building, has been excised from the operation of Chapter 45A.
Since we find the above express statutory exclusions relating to road building, express legislation making some part of KRS Chapter 45A applicable to road building would be necessary. However, on that point there is a fatal absence of express legislative treatment. On that point the ancient doctrine of "expressio unius est exclusio alterius," meaning that the enumeration of particular things excludes the idea of something else not mentioned, is applicable. Here in KRS Chapter 45A and KRS 45.360 the express exclusion of road building excludes the idea that in some particular way road building is made applicable to those statutes. Bloemer v. Turner, 281 Ky. 832, 137 S.W.2d 387 (1940).
Also note that Chapter "45A" was assigned to the Model Procurement Code, keeping in mind that "Chapter 45" relates to the Finance Department. Also note that KRS Chapter 45A literally abounds with express references to the Secretary of Finance and his operational control of procurement.
The broad applicability suggested in KRS 45A.020 is of course explicitly negated by the road excision language of KRS 45A.030(3) and 45A.050(1), as mentioned above.
Thus the adoption of the "turnkey" concept by D.O.T. is in contravention of KRS 45.360 and KRS Chapter 45A.
The final question is what statute or statutes apply to state road and bridge construction.
The answer is that KRS 176.070 applies to D.O.T., along with other statutes in KRS Chapter 176 relating to bidding procedure. Thus see KRS 176.080(2) (award to lowest and best bidder), 176.090, 176.095, 176.100, 176.110, for example. See also KRS 175.440 and 175.460(4), whereby the Turnpike Authority can contract with the Bureau of Highways to construct a turnpike for the Authority, i.e., let the contract for construction under bidding procedure etc. See Continental Cas. Co. v. L.G. Wasson Coal Min. Corp., Ky., 407 S.W.2d 426 (1966), in which the state Department of Highways undertook to construct a portion of the West Kentucky Turnpike.
Finally, there is nothing in the road building chapters of KRS which authorizes D.O.T. to employ the "turnkey" technique in road building. Considering the great importance of road building, the statutory silence is at once significant and dispositive.
In addition, considering the express wording of KRS 176.070, the public policy embodied in that road building statute of obtaining the most qualified and competent engineering services at the lowest possible price is simply ignored by the attempted utilization by D.O.T. of the "turnkey" procedure. The statute requires in effect that the engineer's plans and specifications be completed before the Bureau of Highways may advertise for bids.
CONCLUSIONS
1. KRS 45.360(11) has no application to the D.O.T.
2. KRS Chapter 45A, including KRS 45A.205, has no application to the road building function of D.O.T.
3. The bidding procedure to be used by D.O.T. in the building of state roads is found in KRS 176.070 et seq.
4. The use of the "turnkey" method by D.O.T. violates the policy of KRS 176.070 to obtain engineer services at the lowest possible price.
5. D.O.T. has no statutory authority to employ the turnkey technique in procuring road building contracts and services.