By NICK GOSNELL
Hutch Post
HUTCHINSON, Kan. — County Counselor Joe O'Sullivan noted that it was his legal opinion that the county had to take the low bid on the landfill project when it came before the Board of County Commissioners on Tuesday, even though the low bidder was Conco, Inc. from Wichita and not one of the local Hutchinson contractors.
"Megan and I and Randy and I talked about this, because there was a local vendor that was fairly close," O'Sullivan said. "It was the lowest and best bid. If there's somebody higher than that, I think you'd have to find some reason to indicate, he's obviously not the lowest bid, so you'd have to find some reason that he's not the best bid, which would have to do with qualifications or something like that. That's how I see the law."
The language of the statute is below in 19-214 subsection (a):
Awarding of certain contracts; public lettings; bond; exemptions. (a) Except as provided in subsection (b), in K.S.A. 19-216a, and amendments thereto, all contracts for the expenditure of county moneys for the construction of any courthouse, jail or other county building, or the construction of any bridge, highway, road, dam, turnpike or related structures or stand-alone parking lots in excess of $25,000, shall be awarded, on a public letting, to the lowest and best bid.
This only really appears to be true for new construction, or complete replacement as is the case at the landfill. Looking further down the statute, it says:
The provisions of subsection (a) shall not apply: (1) To the expenditure of county funds for professional services; (2) to the provisions of K.S.A. 68-521, and amendments thereto; (3) to the purchase of contracts of insurance; or (4) to the repair of any courthouse, jail or other county building or the repair or replacement of any such building’s equipment when an emergency based upon public health or safety is declared by the board of county commissioners. Such emergency shall be defined as an occurrence of severe damage to a building or its equipment resulting from any natural or man-made cause, including fire, flood, earthquake, wind, storm, explosion, riot, terrorism or hostile military or paramilitary action, or events of similar nature or character. Such damage must be so severe it prevents the building or equipment from being used for its intended function. Construction of a replacement building remains subject to the provisions of subsection (a).
It appears that there would need to be policy written by the county defining a local vendor's bid within a certain percentage or matched as the 'lowest and best bid'.
"The word best seems subjective," said commissioner Daniel Friesen. "Can I not feel that the best bid is the one that's local?"
Without having such a policy that reflects the statutory language in place, commissioner Ron Sellers felt they needed to go with the low bid in this case.
"I'd like staff to bring to us a potential policy for consideration of the commission, where if a bid is within a certain amount of the low bid, by a local vendor and they're willing to meet the low bid, that we give preferential treatment to a local vendor."
Given the legal questions, commissioners Sellers and Hirst voted to award the contract to Conco. Friesen voted against it, though he was clear it was about policy and not an issue with the contractor itself. The contract was for $2,654,700.
CLICK HERE to download the HutchPost mobile app.
CLICK HERE to sign up for the daily HutchPost email news update.