STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

December 21, 1973

Jack T. Klauck
States Attorney, Pennington County
Rapid City, South Dakota 57701

OFFICIAL OPINION NO. 73-43

When bids are required for purchase of foodstuffs for county jail.

Dear Mr. Klauck:

You have asked for an opinion on the following factual situation:

The Pennington County Sheriff proposed to purchase foodstuffs for inmates on a monthly basis. The cost on any given month will be less than $1500, however, the annual cost will exceed that amount.

In connection with this factual situation, you have asked the following question:

Is it required that the sheriff let such contracts by bid?

The answer to your question is, NO.

The county sheriff, as well as all other county officers, are bound by SDOL 5-18-2, which provides:

All contracts of any public corporation, whether for the construction of public improvements or contracts for the purchase of materials, supplies or equipment, when such contracts involve an expenditure to or in excess of fifteen hundred dollars, must be let to the lowest responsible bidder. The governing body shall have the right to reject any and all bids and to readvertise for proposals if none of the bids are satisfactory, or if they believe any agreement has been entered into by the bidders to prevent competition.

I have examined the citations to this statute. These indicate that bids are required where there is a recognized need for a product over a period of weeks or months. Fonder v. City of South Sioux Falls, 76 S.D. 31, 71 N.W. 2d 618, 53 ALR 2d 493 (1955), or for supplies or materials "to complete a discrete project such as a building. See 1939-40 AGR 381, 420, 1941-42 AGR 96, 164.

In the present instance, the sheriff would not deal with a single product or a discrete project. Instead, he would be dealing with a multiplicity of products such as bread, milk, eggs, and meat. If bids were required, each product would have to be bid separately. Nor is there a discrete project to be completed. Here, the supplies must be bought in differing quantities depending on the inmate population. In addition, the foodstuffs cannot be stockpiled without perishing, unlike gravel or oil.

Accordingly, it is my opinion that the purchase of unprepared foodstuffs does not come within the competitive bidding law. However, should the county have the meals catered, it would have to be done by competitive bidding. The reasons for this are obvious. Catered meals consist of a single product, i. e. "meals." There is no perishability problem and only one contract, rather than multiple contracts, need be let.

This opinion should not be construed as prohibiting a sheriff from letting bids on commodities, however, A sheriff may want to investigate the possibility of getting bids on staples, such as milk and bread. Such practice would certainly be recommended if practicable. The county commissioners as the fiscal officers of the county under their statutory duty "to superintendent the fiscal concerns of the county and secure their management in the best possible manner," may also wish to investigate the possibility of discretionary letting of bids. See 1955-56 AGR 4, and 1963-64 AGR 333.

Respectfully submitted,

Kermit A. Sande
Attorney General