Request By:
Warren O. Nash, III
Attorney
Office of Legal and Legislative Services
Finance and Administration Cabinet
Capitol Annex Building
Frankfort, Kentucky 40601
Opinion
Opinion By: John S. Gillig, Assistant Attorney General
You have asked this office for an opinion regarding KRS 45A.095. This statute provides in part:
"(1) . . . Competitive bids may not be required . . .
(f) For visiting speakers, professors, expert witnesses, and performing artists; and
(g) for personal service contracts executed pursuant to KRS 45A.690 to KRS 45a.725."
As you state in your letter, under this statute, contracts for visiting speakers, professors, expert witnesses, and performing artists are exempted from competitive bidding. As you further note, the statute also exempts from competitive bidding personal service contracts which are executed pursuant to KRS 45A.690 through 45A.725. One of the provisions of these statutes, which cover the procedure for entering into a personal service contract between an outside individual and an agency of the Commonwealth, is KRS 45A.695(3), which requires contracting bodies to give "adequate public notice" through a request for proposals (RFP) for these personal service contracts.
In your letter you had asked us to issue a written opinion on the following question:
". . . Whether, in light of the separation of KRS 45A.095(1)(f) and (g), supra , of contracts for "visiting speakers, professors, expert witnesses, and performing artists, " from "personal service contracts executed pursuant to KRS 45A.690 to 45A.725," contracts for visiting speakers, professors, expert witnesses, and performing artists, are likewise exempt from the personal services contracting process described in KRS 45A.690 to 45A.725? If not totally exempt, are such contracts nevertheless exempted from the RFP provisions of KRS 45A.695(3)?"
We have examined the statutory provisions in question and have concluded that, as you suggest, visiting speakers, professors, expert witnesses, and performing artists, are excluded from the provision of the statute requiring personal service contracts under KRS 45A.690 to KRS 45A.725, including KRS 45A.695(3).
The basis for our conclusion is the fact that the general assembly has chosen to separate out the two provisions, § (f) and (g). As you noted, competitive bids are not required under this specific statute, KRS 45A.095, for a laundry list of items set out in subparagraphs (a) through (g). These items are physical items such as library books, and other types of supplies for which it would be difficult to get competitive bids (obviously only one publisher may be offering a specific book for sale, and there is no possibility of getting competitive bids if a library is to acquire a specific title). The last two sections, § (f) and (g), are concerned with contracts for individuals. In § (f) four specific types of individuals are separated out from all other individuals. These are visiting speakers, professors, expert witnesses, and performing artists. KRS 45A.095(f)). As with the case of a specific library book, it would obviously be very difficult to take competitive bids for speakers, professors, expert witnesses or performing artists who are to perform specific duties for the Commonealth. It is also obvious that these groups are different from other general individuals who may be contracting with the state in that they are performing services which may be unique to them personally or which need to be contracted for in a very quick fashion.
We note that the legislature could have failed to separate or mention the four specific classes of individuals in KRS 45A.095 and thereby require that contracts for these individuals be pursued through the standard personal service contract procedure. However the legislature did not do this. The general assembly separated out these classes for specific treatment.
Support for this interpretation is found in a companion statute, KRS 164A.575. This statute concerns procurement of sevices by institutes in higher education. As in the statute under consideration, this particular statute sets out a laundry list of items for which competitive bids may not be required. In addition, however, the legislature did specifically provide that the acquisition of "professional, technical, scientific, or artistic services" may be done without competitive bidding, but the statute under this § (g) further specifically specified that "contracts shall be submitted in accordance with KRS 45A.690 to 45A.725." KRS 164A.575(1)(g).
We recognize that there is no legislative history which would tell us why the general assembly chose to draw this distinction. Although this is not a question of the constitutionality of the statute, some of the opinions discussing statutory interpretation are helpful in this determination. The Kentucky Supreme Court has made it clear that it considers itself lacking the "power to add new phrases to a statute to provide a new meaning necessary to render the statute constitutional." Musselman v. Commonwealth, Ky., 705 S.W.2d 476, 477 (1986). As was stated in Hatchett city of Glasgow, Ky., 340 S.W.2d 248, 251 (1960):
"The courts are not at liberty to supply words or insert something or make additions . . . [to] cure an omission, however just or desirable it might be to supply an omitted provision."
See also Regional Jail Authority v. Tackett, Ky., 770 S.W.2d 225, 229 (1984).
To summerize, the legislature has broken down the general provision providing for procurement of the services of visiting speakers, professors, expert witnesses, and performing artists, for agencies not specifically delegated this contracting power through other statutes, and has excluded them from personal service contracts as required in other sections of the Kentucky revised statutes. This would include the requirements of KRS 45A.695(3) relating to requests for proposals, which is an integral part of the personal service contract procedure but canot stand alone. We hope this letter has been of assistance to you.