Mr. Chris Burrow Director, Arkansas State Building Services 1515 Building, Suite 102 1515 West 7th Street Little Rock, AR 72201
Dear Mr. Burrow:
This is in response to your request for an opinion concerning subcontracting on public works projects, in accordance with A.C.A. § 22-9-204. Your specific questions are as follows:
1. Is it permissible for the mechanical subcontractor who has given the general contractor a bid for both mechanical and plumbing to subcontract the plumbing portion of his contract?
2. Can the mechanical subcontractor subcontract any other element of the contract such as temperature controls, ducts, etc.?
It is my opinion that the answer to your first question is "no." Section 22-9-204, as recently amended by Act 728 of 1991, states that in each instance where the total bid amount submitted by the licensed prime contractor exceeds $50,000.00, the prime contractor shall, as a condition to performing work for the state, "use no other subcontractors except those licensed by the State Contractors Licensing Board and qualified in [mechanical, plumbing, electrical, and roofing and sheet metal work]." Acts 1991, No. 728, § 1 (amending A.C.A. § 22-9-204(a)). The name and amount of "each of the above-listed subcontractors" must be placed in a sealed envelope separate from the accompanying prime contractor's bid proposal which contains each subcontractor's name. A.C.A. § 22-9-204(c) (Adv. Code Serv. 1990-91); seealso Act 728 of 1991, § 1. There can be no substitutions for these subcontractors unless one or more of the named subcontractors refuses to perform his contract. Id. A substitution can only occur with the approval of the architect or engineer, the owner, and the Office of Construction of State Building Services. Id.
These provisions compel the conclusion that the named plumbing subcontractor cannot be substituted except as authorized. The prime contractor is required to give contracts to the subcontractors "in keeping with their proposals to perform the items for which they were named." A.C.A. § 22-9-204(e) (Adv. Code Serv. 1990-91) and Act 728 of 1991, § 1. The scheme may be viewed as a means of protecting both the named subcontractors, by assuring that they get the job consistent with their proposals, and the owner, through the requirement that prime contractors not substitute the named subcontractors, who must be licensed and qualified. It is my opinion that an effort by the mechanical subcontractor, who has also given a bid for plumbing, to further subcontract the plumbing work is not contemplated or authorized under these bid provisions.
With regard to your second question, while it seems clear that there can be no substitution of the subcontractors named in the prime contractor's bid proposal (except as specifically authorized under § 22-9-204), we can discern no clear prohibition against a named subcontractor bringing in other trades to perform particular elements of the contract. This would not appear to be prohibited, so long as there is no substitution of the named subcontractor. Whether the named subcontractor has in fact been substituted in any given instance may be an issue, depending upon the particular circumstances. As a general matter, however, it is my opinion that particular elements of the contract may be subcontracted without running afoul of § 22-9-204.
The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elisabeth A. Walker.
Sincerely,
WINSTON BRYANT Attorney General
WB:arb