May 4, 1976
Mr. Gary Drake
State Representative
Watertown, South Dakota 57201
OFFICIAL OPINION NO. 76-46
Senate Bill 173 (1976), amendments to competitive bidding laws
Dear Representative Drake:
Your request for an opinion states that Senate Bill 173 (1976) amended certain provisions of the competitive bidding laws by increasing the minimum requirement for advertisement of bids from $1500 to $2500. However, SDCL 5-18-2, which requires letting of contracts to the lowest bidder when the expenditure is $1500 or more, was not amended.
The specific question you ask is how the statutes in apparent conflict are to be interpreted.
In interpreting the law, the intention and purpose of the Legislature must be ascertained, if possible, and will be given effect even though it may be inconsistent with the strict letter of the statute. Elfring v. Paterson, 66 S.D. 458, 284 N.W. 443. The purpose of rules of statutory construction is to discover the true intention and purpose of the law. State v. Williamson, 211 N.W. 2d 182; Sioux Valley Empire Electric Association, Inc. v. Butz, 367 F. Supp. 686 (S.D., 1973).
Some courts have applied the above logic to amend by implication statutes inconsistent with later legislative enactments. Grinell Brothers v. Moy, 203 N.W. 167 (Mich., 1925). The statutes in question in Grinell dealt with the time for return of a writ in a replevin action. The court held that the later enactment reducing the time for making the return from 21 to 12 days amended by implication another earlier statute containing the 21 day provision.
However, in the 1967 case of Northville Coach Line, Inc. v. City of Detroit, 150 N.W. 2d 772, the Michigan Supreme Court declined to amend by implication a statute prescribing the authority of a municipality over common carriers simply because a more recently passed statute conferred concurrent jurisdiction upon the state public utilities commission. The important point is the fact that in both cases the court based its determination on an interpretation of legislative intent.
Another consideration is the consequence or effect of interpreting statutes in a particular manner. Mitchell Produce Company v. Morrison, 63 S.D. 127, 257 N. W. 47. It must be presumed that the Legislature did not intend absurd or unjust consequences resulting from a particular enactment.
Application of the above discussed rules of statutory construction to the provisions in question leads me to conclude that the Legislature intended $2500 to be the minimum purchase requiring advertisement for bids and letting to the lowest responsible bidder. The context of SDCL 5-18-2 is such that the term "lowest responsible bidder" can only mean one who has submitted a bid pursuant to the advertisement required by SDCL 5-18-3 and complying with the other provisions of SDCL 5-18. To require bidding on contracts involving $1500 or more but less than $2500, but not on a competitive basis, would be contrary to the intent of SDCL 5-18.
A further indication of legislative intent is the fact that section 2 of Senate Bill 173 amended SDCL 5-18-18 to increase the exemption for certain governmental purchases from $2350 to $3500. It can be argued that one of the reasons for increasing the amount of the exemption was to raise said amount above the $2500 minimum. Therefore, it can further be said that the Legislature intended a uniform application of the bidding law and exemptions therefrom.
In conclusion, it is my opinion that the minimum price in public corporation contracts which must be bid competitively is $2500. The Legislature should, of course, amend SDCL 5-18-2 at the next legislative session.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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