January 10, 1990

Mr. Walter T. Doolittle
Assistant City Attorney
224 West Ninth Street
Sioux Falls, SD 57102

OFFICIAL OPINION NO. 90-02

Bidding city janitorial services

Dear Mr. Doolittle:

You have requested an official opinion from this office with regard to the following factual situation:

FACTS:

The City of Sioux Falls regularly contracts with individuals and firms for personal services. The city desires to contract for janitorial services in one of its departments. The services would include normal cleaning on a daily basis. Cleaning supplies would be furnished by the contractor. The amount of the contract is estimated to be in excess of that exempt from the bidding provisions under SDCL ch. 5-18.

Based on the above facts you have asked the following question:

QUESTION:

Is the City of Sioux Falls required to competitively bid the janitorial services?

IN RE QUESTION:

SDCL 5-18-2 provides in part:

All contracts of any public corporation, whether for the construction of public improvements or contracts for the purchase, lease or rental of materials, supplies or equipment, when such contracts involved an expenditure equal to or in excess of the amount provided for in section 5-18-3, must be let to the lowest responsible bidder.

SDCL 5-18-18 and 5-18-18.1 enumerate the contracts exempt from the competitive bidding requirements, but there is no specific exemption listed for the activity involved in this question. In interpreting SDCL 5-18-2 the South Dakota Supreme Court has determined that local governmental bodies under SDCL ch. 5-18 are not required to competitively bid architectural services but are required to competitively bid services such as the collection of garbage and the transportation of students. See Foss v. Spitznagel, 77 S.D. 633, 97 N.W.2d 856 (1959); Northern Hills Sanitation v. Board of Com'rs., 272 N.W.2d 835 (S.D. 1978); and Rapid City Area Sch. Dist. v. Black Hills, 303 N.W.2d 811 (S.D. 1981). The South Dakota Supreme Court has also frequently stated that the requirement of competitive bidding is a public benefit which "ought not be frittered away by exceptions." Northern Hills Sanitation, supra at 837. Based upon the above authority it is my opinion that the janitorial services to which you refer must be competitively bid.

It is my opinion that the exemption from competitive bidding referred to in the Spitznagel decision applies only in situations involving professional services or services involving a peculiar or unique skill. The providing of janitorial services is more akin to the transportation of students or collection of garbage that is required to be competitively bid than that of an architect, whose services are not required to be bid. This opinion is consistent with that of my predecessors. See e.g. AGR 84-42 (ambulance services not required to be bid competitively); AGR 80-51 (trustees and paying agent services not required to be competitively bid).

Respectfully submitted,

ROGER A. TELLINGHUISEN
ATTORNEY GENERAL

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