January 5, 1982

Mr. Sam Tidball 
Executive Director 
Associated School Boards of South Dakota 
Post Office Box 1211 
Pierre, South Dakota 57501

Official Opinion No. 82-2

School District Purchases from Other Public Corporations

Dear Mr. Tidball:

You have requested an official opinion from this office in regard to the following facts:

FACTS: 

School districts are authorized to purchase from each other without advertising for bids.  SDCL 13-20-5.  They also may make transfers of property as provided in SDCL 6-5-1.  Official Opinion 77-87 citing the above statutes and considering the bid requirements of SDCL 5-18-3 determined that a school district could not purchase at public auction for more than the amount provided in SDCL 5-18-3--presently $3,500. 

SDCL 5-18-18 provides exemptions from the bid law and specifically exempts 'purchase of surplus property from another public corporation,' a seeming implication that purchases in excess of $3,500 could be made by a school district from any other public corporation whether it be at public auction or otherwise without bidding.

Based upon these facts you have asked the following question:

QUESTION: 

Can a school district purchase at public auction, property that is being sold by another public corporation when the purchase price exceeds $3,500?

I have reviewed the opinion of the then Attorney General found in 1977-78  Report of the Attorney General at page 226, Official Opinion No. 77-87, and I have concluded that apparently through an omission that opinion did not consider the effect of SDCL 5‑18-18 as it applies to purchases by a school district from another local government entity.  The statute provides in pertinent part: 

The provisions of § §  5-18-1 to 5-18-17, inclusive, shall not be construed to regulate or apply to . . . the purchase of surplus property from another public corporation; . . .

Accordingly, it is my opinion that a school district or other local government entity may purchase surplus property from any other public corporation without regard to the bid requirements of SDCL 5-18-3 relating to purchases in excess of $3,500, where the selling public corporation has followed statutory requirements declaring the property in question surplus.

In light of the provisions of SDCL 5-18-18 it would not appear to make any difference whether the purchase was by negotiation between the two local government entities or at a public auction conducted by a public corporation. Of course, it would be necessary for the governing body to authorize the purchase and establish the upper limit on the purchase price prior to authorizing an agent to enter into negotiations or to make bids for the district at the public auction.

Respectfully submitted,

Mark V. Meierhenry
Attorney General