Request By:
Mr. Bert A. Bennett
Superintendent
Kenton County Board of Education
5533 Madison Pike
Independence, Kentucky 41051
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General and Chief Counsel
You have asked the Office of the Attorney General to consider the effects of Senate Bill 152 passed by the 1982 General Assembly which amended KRS 424.260 so as to increase from $5,000 to $7,500 the expenditure of money without first advertising for bids. You correctly brought to our attention that KRS 162.070, a school law bidding provision, was not amended in a similar manner. Before going on, we believe it necessary to point out that the local model procurement law, KRS 45A.345 et seq., was also not amended thus leaving intact the requirement under KRS 45A.385, that only purchases not exceeding $5,000 may be made without formal bidding procedures. See OAG 82-324, copy attached.
The factual situation causing you to request a formal opinion of the Office of the Attorney General is that the Kenton County School District desires to correct a drainage problem at one of the schools in the district that will cost in excess of $5,000 but less than $7,500. You desire to know whether the school district can let a contract for the necessary site work to correct the drainage problem under the provisions of KRS 424.260 rather than KRS 162.070. It is the opinion of this office the provisions of KRS 424.260 are applicable to the facts you have presented and further that this statute must be determined to prevail over KRS 162.070 to the extent the provisions are inconsistent.
KRS 162.070 is a school property and buildings provision in our Kentucky school laws. This statute reads as follows:
"The contracts for the erection of new school buildings, additions and repairs to old buildings, except additions or repairs not exceeding five thousand dollars ($5,000), shall be made by the board of education to the lowest and best responsible bidder complying with the terms of the letting, after advertisement for competitive bids pursuant to KRS Chapter 424, but the board may reject any or all bids. All necessary specifications and drawings shall be prepared for all such work. The board shall advertise for bids on all supplies and equipment that it desires to purchase, except where the amount of the purchase does not exceed five thousand dollars ($5,000), and shall accept the bid of the lowest and best bidder, but the board may reject any and all bids. "
It is clear this statute relates to new school building construction or additions and repairs to old school buildings. If the cost of such construction will exceed $5,000, the competitive bidding requirements are to be complied with set out in KRS Chapter 424. Although site work can be and is usually interpreted to be a part of a project involving school building construction or remodeling, see OAG 78-758, copy attached, we do not believe site work unrelated to school building construction comes within the scope of this school law section. Thus, the facts as related by you, lead us to the conclusion KRS 424.260 and the new $7,500 "small purchases" ceiling is applicable to the contract for drainage site work.
We are further of the opinion that to the extent KRS 162.070 and KRS 424.260 are in conflict, the provisions and therefore the $7,500 amount found in KRS 424.260 must be deemed to prevail over the lower $5,000 amount remaining in KRS 162.070. We garner our support for this position from the case of