May 24, 1985
Mr. Roger A. Schiager
City Attorney
610 Security Building
Sioux Falls, South Dakota 57102
OFFICIAL OPINION NO. 85-24
Contracts on competitive bids
Dear Mr. Schiager:
You have requested an official opinion from this office based upon the following factual situations:
FACTS:
The first sentence of 5-18-3 sets out the requirements of a public corporation that has an official newspaper to advertise for bids. The second sentence requires that a public corporation without an official newspaper must print advertisements for bids in a newspaper of general circulation for two consecutive weeks. The '.' separating the requirements of the first sentence to publish the advertisement twice may be significant, in which event municipalities that have an official newspaper available may then only have to publish notice to bidders once.
FACTS: (in re Question No. 2)
The last exemption from competitive bids listed in 5-18-18 allows 'the purchase by one local government entity from the lowest responsible bidder of an item competitively bid by another at the accepted bid price.' There are several contracts for materials and/or supplies that the State purchasing division has awarded to the lowest responsible bidder that would be very beneficial for the City of Sioux Falls, or any other public corporation, to be able to participate in.
FACTS: (in re Question No. 3)
SDCL 5-18-8 provides that bids 'must be publicly opened and read at said time and place.' This would certainly indicate that they cannot be opened and read at any other time than that set out in the advertisement, but our suggestion would be to provide in the advertisement itself an alternate time in the event of an emergency closing. This past winter, City Hall in Sioux Falls was closed because of a blizzard. Bids were to be opened at 2:00 p.m. We had our Purchasing Director go to City Hall and publicly open and read bids at the appointed time, but several bidders complained that they did not turn their bids in, because they had heard on the radio that City Hall was closed. We could have rejected all bids and started over again, but this would be additional administrative and publication expense.
In view of the foregoing factual situations, you have asked the following questions:
QUESTIONS:
1. If a public corporation has a designated official newspaper, is an advertisement for bids for the purchase of materials, supplies, or equipment, published one time sufficient?
2. May a city purchase materials and/or supplies from a contract that has been competitively bid and awarded by the State of South Dakota?
3. May a public corporation in South Dakota stipulate in a bid request that in the event that that city hall (county courthouse) is closed under emergency conditions at the time advertised for bid opening, that bids shall be received until and opened at a specified time on a later specified date, such as two days later?
IN RE QUESTION NO. 1:
SDCL 5-18-3 provides:
If a contract of any public corporation, whether for the construction of a public improvement or for the purchase of materials, supplies or equipment which involves the expenditure of a sum equal to or in excess of three thousand five hundred dollars, is to be entered into, the governing body of the public corporation shall cause advertisement of bids therefor to be printed in the official newspaper or newspapers of the contracting corporation published in the county wherein the public corporation is situated. If the contracting corporation has no official newspaper the notice for bids is to be published in a legal newspaper with general circulation in the district, to be selected by the contracting corporation, for at least two consecutive weeks prior to the opening of the bids and in any other newspapers of the state as is advisable. The first publication of the advertisement may not be less than two weeks prior to the date for opening of bids for new construction. The advertisement must state the time and place where the bids will be opened and passed upon by the board. In all notices the board shall reserve the right to reject any and all bids.
In reviewing the foregoing statute, I can find no indication, other than the '.' referred to in your question, that the legislature's purpose in passing § 5-18-3 was to differentiate as to publication requirements between local government entities which have designated official newspapers and those which do not.
I, therefore, conclude that since statutory punctuation is not controlling when not in conformity with the purpose of the statute (SDCL § 2-14-8), the answer to your question is no, a one-time publication is not enough.
IN RE QUESTION NO. 2:
SDCL § 5-18-18 provides:
The provisions of § § 5-18-1 to 5-18-17, inclusive, may not be construed to regulate or apply to contracts entered into and purchases made by the department of transportation or by the bureau of administration or to the purchase of electric power, light, water or gas; or any municipal corporation for the purchase of materials, supplies or replacements for any utility owned or operated by such municipal corporation, provided that such purchase may not exceed the sum of seven thousand dollars; or to contracts of any municipal corporation in time of war to acquire, establish, construct, own, control, lease, equip, improve, maintain, operate or regulate an airport or landing field for the use of airplanes or other aircraft, of the United States armed forces or its members, students and mechanics; or to contracts of any public corporation for the purchase of materials, supplies or equipment from the United States or its agencies; or to equipment repair contracts; or the purchase of surplus property from another public corporation; or to the purchase by one local government entity from the lowest responsible bidder of an item competitively bid by another at the accepted bid price. (Emphasis added.)
In view of the foregoing statutory language, it is my opinion that one local government entity may only purchase based on the contract of another 'local government entity' and not a contract of the State of South Dakota. Therefore, the answer to your second question is no.
IN RE QUESTION NO. 3:
SDCL § 5-18-18 provides in pertinent part as follows:
The sealed bids shall not be opened until the time and place specified in the advertisement therefor, but must be publicly opened and read at said time and place.
In view of the foregoing statutory language, it is my opinion that a local government entity may, by authorization in the bid specifications, set an alternative date and time for the opening of bids in the event of an emergency. I emphasize for the opening of bids. Receipt of bids is another matter. Section 5‑18‑8 does not permit the postponement of the date on which the bids must be received. Therefore, it is my opinion that an emergency will authorize an alternative date for the opening of bids, but only those bids received by the original (non-emergency) date are permitted to be opened.
Thus, the answer to your question is yes as to the opening of bids and no as to the receipt of bids.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
