Request By:
Hon. Stephen Reeder, Commissioner,
Department of Highways
Transportation Cabinet
State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Gerard R. Gerhard, Assistant Attorney General, Antitrust Division, 909 Leawood Drive, Frankfort, Kentucky 40601, (502) 564-5144
Re: Plea Pursuant to Alford v. North Carolina as Affecting Possible Debarment of a Bidder or Contractor.
Your letter of January 10, 1985, to Attorney General Armstrong, asks ". . . whether a plea pursuant to Alford v. North Carolina is a plea sufficient to debar under current policy" [of the Transportation Cabinet].
The answer is yes, as explained below.
The current policy of the Transportation Cabinet pertinent to this question is understood by this office to be that set forth in the Cabinet's Official Order No. 87727, dated July 19, 1983, at paragraph B, which states in part:
"Any contractor who is convicted in a court of competent jurisdiction of a bidding offense . . . or pleads guilty or nolo contendere to one, and its affiliates, shall be debarred (1) from bidding upon any contract for which bids are solicited by the Department of Highways or (2) from otherwise participating, directly or indirectly, in the supply of services or materials to the Department." [Emphasis added]
An order of the United States District Court for the Eastern District of Kentucky, filed January 4, 1985, at Lexington, Kentucky, in Criminal [Case] No. 82-40, indicates that "a plea pursuant to Alford v. North Carolina, was entered on behalf of the defendants, Lail Company, Inc., James Lail and Robert Lail . . . ." Such case involved a charge that the defendants violated 15 United States Code Section 1, which prohibits conspiracies in restraint of trade. Such charge is a "bidding offense" within the meaning of the Cabinet's policy cited above.
The Court's order does not state that the defendants (above) were "convicted, " or that they "pleaded nolo contendere, " but that they entered "a plea pursuant to Alford v. North Carolina . . . ." The question is whether such a plea is a "guilty plea" within the meaning of the Cabinet's policy concerning debarment.
The so-called "Alford plea" or "plea pursuant to Alford v. North Carolina," takes its name from a decision of the
United States Supreme Court in Alford v. North Carolina, 400 U.S. 25, 27 L Ed 2d 162, 91 S Ct 160 (1970), a case in which Harry Alford was sentenced to 30 years' imprisonment for second degree murder. In such decision, the Supreme Court said "The Court of Appeals for the Fourth Circuit was in error to find Alford's plea of guilty invalid because it was made to avoid the possibility of the death penalty. " [400 U.S. 39] [Emphasis Added.] In reciting the facts of Alford's guilty plea the Court said at page 28:
"After the summary presentation of the State's case, Alford took the stand and testified that he had not committed the murder but that he was pleading guilty because he faced the threat of the death penalty if he did not do so." [Footnote omitted.] [Emphasis Added.]
Such language clearly indicates that Alford (1) plead guilty, and (2) made a protest of innocence. Thus a "plea pursuant to Alford v. North Carolina" is one of basically the same character as that made by Alford, that is, (1) a plea of guilty and (2) the making of a protest of innocence substantially contemporaneous with the plea of guilty.
It follows, therefore, that a contractor who enters a plea pursuant to Alford v. North Carolina has plead guilty. If such a plea is made to a "bidding offense," such plea is a sufficient basis to debar the contractor who has so plead, and its affiliates, under current policy of the Transportation Cabinet [Official Order No. 87727, July 19, 1983].