October 22, 1976
Mr. A. P. Fuller, Counsel
Lead-Deadwood Independent
School District No. 40-1
P.O. Box 898
Lead, South Dakota 57754
OFFICIAL OPINION NO. 76-100
Applicability of SDCL 13-20 to purchases by the school district of perishable food items
Dear Mr. Fuller:
You have requested an opinion from this office in regard to the following question:
QUESTION:
Do the statutes of South Dakota (SDCL 13-20) require that purchases by the school district of perishable items such as fruits, vegetables, bread and the like, must be advertised for bid and the lowest responsible bidder accepted or, whether the statutes allow the school district to purchase these perishable items on a need basis, even though they will exceed the statutory amount in anyone year?
SDCL 13-20-3 provides:
Except for purchases made pursuant to chapter 13-34, whenever any school facilities are to be built or remodeled, or improvements are to be made to school sites, or when supplies or equipment are to be purchased contracts shall be let in accordance with chapter 5-18 and in accordance with the plans and specifications that shall be furnished by the school board.
In my opinion, the perishable items, such as fruits and vegetables, which you refer to would be within the purview of "supplies" which are required to be purchased in accordance with chapter 5-18. The exception recognized in SDCL 13-20-3 (purchases made pursuant to chapter 13-34), does not apply to the fact situation you present.
In the case of Fonder v. City of Sioux Falls, 71 N.W. 2d 618 (1955), the South Dakota Supreme Court held that a public corporation could not avoid competitive bidding requirements by using several small contracts below the competitive bid minimum, with the total amount of the contracts in excess of the competitive bid minimum. As stated in Official Opinion No. 73-43, this case recognizes that bids are required where there is a recognized need for a product over a period of weeks or months. Public corporations cannot avoid planning for annual expenditures and thereby avoid the competitive bid laws which have been enacted by a legislature to protect against favoritism and extravagance in public purchases.
The situation you raise concerning perishable items does present special considerations. Obviously, the law does not require the school district to purchase these perishables on competitive bid and then not be able to use them before they are spoiled or rotted. This problem is not insurmountable, however, in that the bid specifications can easily deal with the appropriate times of delivery of the perishables so that the school district will not be overburdened with rotting fruits, vegetables, etc. If there are no bids which are submitted in response to this approach to providing such perishables, I believe the school board would then be justified to purchase the items on a need basis without complying with the provisions of SDCL 5-18.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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