The Honorable Stanley Russ State Senator P.O. Box 787 Conway, Arkansas 72032
Dear Senator Russ:
This is in response to your request for an opinion, on behalf of a constituent, on two questions concerning the purchase of school buses by public school districts in this state. Specifically, your constituent notes that Arkansas law "requires bus purchases to be made by the competitive bid process, with a provision for negotiation also." Your constituent inquires as to the "reason for requesting competitive bids if they are nonbinding, and if it is legal to write a specification that is so restrictive as to limit bids to one manufacturer. . . ."
I assume from the question presented that your constituent refers to A.C.A. 6-21-304 (Cum. Supp. 1991), which is the statute governing purchases of commodities by school districts, and not to A.C.A. 6-19-114 governing purchases of school buses made with revolving loan funds.
Section 6-21-304 provides in pertinent part as follows:
All purchases of commodities by any school district, except those specifically exempted by 6-21-305, shall be made as follows:
(1) In each instance in which the estimated purchase price shall equal or exceed five thousand dollars ($5,000), the commodity shall be procured by soliciting bids, provided that the purchasing official may reject all bids and may purchase the commodity by negotiating a contract.
In response to the first question posed, the "reason" for requesting competitive bids while still allowing a rejection of such bids and negotiation of contracts, is that the legislature has seen fit to provide for such a procedure.
In response to the second question posed concerning overly restrictive bid specifications, we should note that whether a particular bid specification which effectively limits the bid to one manufacturer is overly "restrictive" is a question of fact in each instance. This office is neither equipped nor empowered to act as a factfinder in such instances. It should be noted, however, that the Department of Education has the authority to make regulations governing the design and operation of school buses. A.C.A. 6-19-111. The specifications required may therefore to a large degree be controlled by such regulations.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana C. Wills.
Sincerely,
WINSTON BRYANT Attorney General
WB:cyh