Must an Arkansas county competitively bid a construction management services contract?

Plain-English summary

The Arkansas Attorney General concluded in 2013 that counties were "not only authorized, but are required" to obtain construction management professional services without competitive bidding. Under A.C.A. § 19-11-801, the county instead had to evaluate qualifications and negotiate a contract under A.C.A. §§ 19-11-802-805.

The opinion drew a firm line between management services and the work being built. It said the public-works law and Ark, Const. art. 19, § 16 required competitive bidding "on the construction work." Whether a particular county contract followed those requirements was a factual question outside the opinion's scope.

Because the AG rejected the premise that construction management agreements were unlawful, the requested discussion of remedies for illegal agreements was unnecessary.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical significance for affected readers

County officials and procurement staff

At the time, the opinion required a qualifications-based, negotiated selection for construction management services. It separately treated the construction work as subject to competitive bidding.

Construction managers and trade contractors

The opinion defined construction management as services including design review, scheduling, cost control, value engineering, bid-package coordination, and construction administration. It did not treat that service contract as the competitively bid construction contract.

Lawyers reviewing a particular project

The AG expressly declined to decide whether any specific county had complied with the public-works law, calling that "one of fact" outside the scope of an Attorney General opinion.

Common questions

Did Gatzke require counties to bid construction management services to the lowest bidder?

No. The opinion said A.C.A. § 19-11-801 prohibited competitive bidding for those professional services and required a qualifications-and-negotiation process.

Was the physical construction work exempt from bidding too?

No. The opinion said both the public-works law and the Arkansas Constitution required competitive bidding on the construction work.

Did the AG decide whether any existing county contract was illegal?

No. The opinion said compliance by a particular contract depended on facts and therefore fell outside the office's opinion function.

What remedy did the AG identify for past illegal construction management contracts?

None. Because the AG concluded that counties could lawfully enter construction management agreements through the statutory professional-services process, a response to the remedy question was unnecessary.

Background and statutory framework

The request relied on Gatzke v. Weiss and asked how counties could enter construction management agreements without advertising and choosing the lowest bidder. The AG referred to Opinions 2012-005 and 2009-033, then applied A.C.A. § 19-11-801 and the selection procedures in A.C.A. §§ 19-11-802-805.

The opinion also cited A.C.A. §§ 22-9-201-204 and Ark, Const. art. 19, § 16 for the separate competitive-bidding obligation governing county construction work.

Citations discussed

• A.C.A. § 19-11-801, the provision barring competitive bidding for construction management professional services
• A.C.A. §§ 19-11-802-805, the qualifications-and-negotiation procedures identified by the opinion
• A.C.A. §§ 22-9-201-204 (Supp. 2011), the public-works law cited for bidding the construction work
• Gatzke v. Weiss, 375 Ark. 207, 289 S.W.3d 455 (2008), cited on the Arkansas Constitution's application to county construction contracts
• Quality Fixtures v. Multi-Purpose Facilities Board, 337 Ark. 115, 120-121, 986 S.W.2d 865 (1999), cited on the county's responsibility for the award decision

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
DustTIn McDANIEL

Opinion No. 2013-051

August 5, 2013

The Honorable Jake Files
State Senator

300 Free Ferry Landing
Fort Smith, Arkansas 72903

Dear Senator Files:

This is in response to your request for my opinion on the following questions concerning construction management contracts:

1. In light of [Gatzke v. Weiss, 375 Ark. 207, 289 S.W.3d 455
   (2008)], please offer me an opinion on how construction
   management contracts are able to be entered into by county
   government without advertising and selecting on lowest bid or if they are even able to be entered into at all.

2. If your opinion is that county government cannot enter into a
   construction management agreement, what is the remedy for
   those counties who are entering into those contracts illegally at this time, and what is the remedy for those that have been entered into previously and completed?

RESPONSE

Please note that I have enclosed two previous opinions of this office that address your apparent concern regarding a county’s authority to procure construction management services without competitive bidding.’ As noted in these opinions, A.C.A. § 19-11-801 prohibits the state and its political subdivisions from using

' Ark. Op. Att’y Gen. Nos. 2012-005 and 2009-033.

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The Honorable Jake Files
State Senator

Opinion No. 2013-051
Page 2

competitive bidding for professional services known as “construction management,” a term defined as:

... a project delivery method based on an agreement in which a state agency, political subdivision, public school district, or institution of higher education acquires from a construction entity a series of services that include, but are not limited to, design review, scheduling, cost control, value engineering, constructability evaluation, preparation and coordination of bid packages, and construction administration.”

In response to your first question, therefore, counties are not only authorized, but are required to contract for “construction management” services without competitive bidding. If a county wishes to procure these professional services, in other words, it must do so by following the procedures outlined in A.C.A. §§ 19- 11-802-805, which involve evaluating the entity’s qualifications and negotiating a contract.

It bears noting, however (as the enclosed opinions also point out), that both the so- called “public works law’” and the Arkansas Constitution’ require competitive bidding on the construction work.® The question whether a county has observed these laws in connection with any particular contract is one of fact, and thus outside the scope of an opinion from this office.

• A.C.A. § 19-11-801(d)(1) (Repl. 2007). “Political subdivision” means “counties, school districts, cities of
  the first class, cities of the second class, and incorporated towns[.]” Jd. at (e)(1).

> Section 19-11-801 also prohibits the use of competitive bidding for a project delivery method called
“general contractor construction management.” Jd. at (d)(2)(C). As explained in Opinion 2009-033, this subsection “might be interpreted as authority to forego competitive bidding for the construction contract.” Id. at 5. But as I also explained in this 2009 opinion, I believe this provision is properly construed to apply to school districts, and not to counties.

• A.C.A. §§ 22-9-201-204 (Supp. 2011).

> Ark, Const. art. 19, § 16. See also Gatzke vy. Weiss, 375 Ark. 207, 211, 289 S.W.3d 455 (2008)
(confirming art. 19, § 16’s application to county construction contracts).

° Op. 2012-005 at 3 (opining that the decision whether to wait for a complete design or solicit bids for phases generally rests with the county “assuming that the county in fact follows all applicable procedures under the public works law and properly awards the trade contracts after competitive bidding.”); Op. 2009- 033 at 6 (noting that while ‘a construction manager apparently can perform some preliminary tasks in connection with the bidding, such as the opening and initial comparison of bids[,]...the actual award decision rests solely with the county, acting through its board, officer, or other authority[,]’citing Quality Fixtures v. Multi-Purpose Facilities Board, 337 Ark. 115, 120-121, 986 S.W.2d 865 (1999)).

The Honorable Jake Files
State Senator

Opinion No. 2013-051
Page 3

A response to your second question is unnecessary in light of the foregoing.

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Sincerely,

[o-224,

TIN MGBANIEL ~

‘Attorney eneral

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Enclosures

STATE OF ARKANSAS

THE ATTORNEY GENERAL
Dustin McCDANIEL

Opinion No. 2012-005

February 6, 2012

The Honorable John T. Vines

State Representative

123 Market Street

Hot Springs, Arkansas 71901-5308

Dear Representative Vines:

I am writing in response to your request for my opinion on the following question concerning a county construction project:

May a county in Arkansas hire an agent without competitive bidding for the agent where the agent will provide design review, scheduling, cost control, value engineering, constructability evaluation, preparation and coordination of bid packages, and construction administration services and the construction work will be performed pursuant to trade contracts that will be awarded by the county after public bidding pursuant to applicable law?

By way of background, you report that a county intends to construct a jail and contemplates hiring “an entity knowledgeable in the area of construction” to act as the county’s agent in providing the services outlined in your question. You state that the agent will be selected on the basis of “qualifications, including experience, successful completion of projects, and reputation.” You further state that the agent will not be bonded, but “the trade contractors will be required to supply both performance and payment bonds as required for a public works project.”” You further explain, with regard to the project itself, that it “may be divided into phases and bids taken for various phases also known as trade packages.,.. Rather than

’ Pursuant to A.C.A. § 22-9-203(c)(2)(A)(i) (Supp. 2011), bids submitted on county construction contracts “shall be void unless accompanied by a cashier’s check drawn upon a bank or trust company doing business in this state or by a corporate bid bond.” See also A.C.A. § 18-44-502 (Repl. 2003).

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The Honorable John T. Vines
State Representative

Opinion No. 2012-005

Page 2

wait for a complete design before submitting the entire project for public bidding, the county intends to commence construction on the initial phases while design of the remaining parts of the project continues.”

RESPONSE

In my opinion, the answer to both parts of the general question you pose is “yes.” I must emphasize, however, that this opinion does not address the award of particular contracts. Application of the award procedure under the so-called “public works law’? may involve factual variables that are not within the limited scope of this opinion. Only a finder of fact could determine whether the county has observed the public works law in connection with particular contracts.

DISCUSSION

With regard to the first part of your question concerning the hiring of an agent, I note that the agency services you have outlined are found in the description of “construction management” under A.C.A. § 19-11-801 (Repl. 2007).? This statute

2 A.C.A. §§ 22-9-201-204 (Supp. 2011). The competitive bidding requirements under this body of law apply to county contracts “for the making of major repairs or alterations, for the erection of buildings or other structures, or for making other permanent improvements....” Jd. at -203(a). Article 19, Section 16, of the Arkansas Constitution similarly requires competitive bidding on “[a]ll contracts for erecting or repairing public buildings or bridges in any county....” Article 19, section 16’s application to county contracts was confirmed in Gaizke vy. Weiss, 375 Ark. 207, 211, 289 S.W.3d 455 (2008) (interpreting the words “in any county” in Ark, Const, art, 19, § 16, to mean “county contracts.”)

? Subsection 19-1 1-801(d)(1) defines “construction management” as:

... @ project delivery method based on an agreement in which a state agency, political subdivision, public school district, or institution of higher education acquires from a construction entity a serics of services that include, but are not limited to, design review, scheduling, cost control, value engineering, constructability evaluation, preparation and coordination of bid packages, and construction administration.

(Emphasis added.) Counties are included in the definition of “political subdivision” under subsection 19- 11-801(e){1).

One court has described the “construction management concept” as follows:

Under this approach there is no general contract and the entire job is not awarded by means of a single bid, Rather [the public authority] employs a construction manager which, acting in concert with the architect and engineer employed by the agency, supervises and manages the sequence of construction. Under this process, individual contracts are offered for bid and awarded directly to those who will do the work as the

The Honorable John T. Vines
State Representative

Opinion No. 2012-005

Page 3

plainly contemplates that a county might use such services on a construction project. As far as securing the services is concerned, the state and its political subdivisions may not use competitive bidding to procure construction management services. Rather, they must follow the procedures outlined in A.C\A. §§ 19-11-802-805 (Repl. 2007), which involve evaluating the entity’s qualifications and negotiating a contract.”

I assume from your reference to an “entity knowledgeable in the area of construction” that the agent at issue under your question would in fact be a “construction entity,” as contemplated under A.C.A. § 19-11-801(d)(1)’s definition of “construction management.” Given that the services to be performed by the agent plainly constitute “construction management” as so defined, it seems clear that hiring the agent without competitive bidding is not only authorized, but mandated by law. Accordingly, the answer to the first part of your question is generally “yes,” in my opinion.

As for the second part of your question concerning the construction work, assuming that the county in fact follows all applicable procedures under the public works law and properly awards the trade contracts after competitive bidding,’ then

construction progresses. This permits certain phases of construction to commence while plans and preparations for later phases are still on the drawing board and, according to
[the public authority], enables construction to be completed much faster and with less expense than was possible under the traditional proceeding of designing the entire project in advance and awarding a single contract to one general contractor who would then be responsible for the performance of much of the work through various subcontractors. In short, and perhaps overly simplified, construction management permits the owner to deal directly with those who would probably have been subcontractors under the traditional approach and to do so as their services become necessary.

C & D Contractors v. Delaware Tech, & Col., 318 A.2d 142, 144 (Del.Ch. 1974).

‘ Td. at (b) (“It is the policy of the State of Arkansas and its political subdivisions that political subdivisions shall follow the procedures stated in this section, except that competitive bidding shall not be used for the procurement of legal, financial advisory, architectural, engineering, construction management, and land surveying professional consultant services.” (Emphasis added.)

> A.C.A, §§ 19-1 1-803 and -805,
® A.C,A. § 19-11-801(b), supra n. 3.

7 Note 2, supra. It should be emphasized that the award decision rests with the “board, commission, officer, or other authority [of the county] in which or in whom authority is vested to award contracts...” A.C.A, § 22-9-203(d) (Supp, 2011). Accord Quality Fixtures y, Multi-Purpose Facilities Board, 337 Ark. 115, 120-21, 986 S.W.2d 865 (1999) (concerning the award procedure followed by the Pulaski County

The Honorable John T. Vines
State Representative

Opinion No. 2012-005

Page 4

in my opinion the answer to this part of your question is also “‘yes.”® I believe the decision whether to wait for a complete design or solicit bids for phases is one that generally rests with the county. I must note in closing, however, that I am not opining regarding the propriety or impropriety of any particular contract entered by the county. Only a finder of fact could determine whether the county has observed the public works law in connection with particular contracts.

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Sincerely,

TIN McDA
Attorney General

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Multi-Purpose Facility Board for certain construction work at the Alltel Arena in North Little Rock, where the court distinguished between the opening of the bids on the one hand ~ which was handled by the construction manager — and the “analysis, examination, and inspection” of the bids and the awarding of the contract, which could only be performed by the county’s Facility Board.) It should perhaps also be noted that competitive bidding requirements cannot be circumvented by splitting up a contract into several smaller contracts, where in reality the work must be regarded as included in one contract. See 53 A.L.R.2d

498 (1957).

• This also assumes that plans and specifications will be properly prepared by and executed under the
  observation of registered professionals in accordance with A.C.A. § 22-9-101(a) (Supp, 2011), which provides as follows: “[A] ... county ... shall not engage in the capital improvement of public works involying engineering or architecture for which the plans, specifications, and estimates have not been made by and the capital improvement executed under the observation of a professional engincer as defined in § 17-30-101 or architect as defined in § 17-15-102, in their respective areas of expertise,”

STATE OF ARKANSAS

Tue ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2009-033

April 17, 2009

The Honorable John Threet
Prosecuting Attorney
Washington County Courthouse
280 North College, Suite 301
Fayetteville, Arkansas 72701

Dear Mr. Threet:

I am writing in response to your request for my opinion on the following questions:

Is there a legal way for a county to contract for construction or renovation of county public buildings, when the value of the construction contract exceeds $20,000, without using competitive bidding? Is there a way for the county to accomplish this without violating A.C.A. § 22-9-203 and Article 19, Section 16, of the Arkansas Constitution?

RESPONSE

The answer to both of these questions is “no,” in my opinion. The competitive bidding requirements under A.C.A. § 22-9-203 — the so-called “public works” law
— apply to county contracts “for the making of major repairs or alterations, for the erection of buildings or other structures, or for making other permanent improvements.” A.C.A. § 22-9-203(a) (Supp. 2007). See also A.C.A. § 22-9-204 (Repl. 2004). Article 19, Section 16, of the Arkansas Constitution similarly requires competitive bidding on “[a]ll contracts for erecting or repairing public buildings or bridges in any county....” Article 19, section 16’s application to county contracts was recently confirmed by the Arkansas Supreme Court in Gatzke v. Weiss, No. 08-415, slip op. at 3 (Ark. Dec. 11, 2008) (interpreting the words “in any county” in Ark. Const, art. 19, § 16, to mean “county contracts.”) I

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The Honorable John Threet
Prosecuting Attorney
Opinion No. 2009-033
Page 2

am unaware of any authority for waiving these competitive bidding requirements where the project is otherwise subject to A.C.A. §§ 22-9-203 and -204.

Section 22-9-203 provides in pertinent part as follows regarding the award procedures:

(a) No contract providing for the making of major repairs or
alterations, for the erection of buildings or other structures, or for making other permanent improvements shall be entered into by ... any county ... with any contractor in instances where all estimated cosis of the work shall exceed the sum of twenty thousand dollars ($20,000) unless:

(2) Any county ... shall have first published notice of its intention to receive bids one (1) time each week for not less than two (2) consecutive weeks in a newspaper of general circulation published in the county in which the proposed improvements are to be made or in a trade journal reaching the construction industry.

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(c)(1) All notices shall contain:
(A) A brief description of the kind or type of work contemplated;

.(B) The approximate location thereof;

_(C) The place at which prospective bidders may obtain plans and specifications;

(D) The date, time, and place at which sealed bids will be received;

.(E) The amount, which may be stated in a percentage, of the bid bond required;

(F} A statement of the taxing unit's reservation of the right to reject any or all bids and to waive any formalities; and

The Honorable John Threet
Prosecuting Attorney
Opinion No, 2009-033
Page 3

(G) Such other pertinent facts or information which to it may appear necessary or desirable.

(d) On the date and time fixed in the notice, the board, commission, officer, or other authority in which or in whom authority is vested to award contracts shall open and compare the bids and thereafter award the contract to the lowest responsible bidder but only if it is the opinion of the authority that the best interests of the taxing unit would be served thereby.

A.C.A. § 22-9-203 (Supp. 2007). See also A.C.A. § 22-9-204 (Repl. 2004) (governing subcontracting).

The General Assembly has expressed its intent for sections 22-9-203 and -204 “to provide a uniform procedure to be followed by all taxing units whenever work is to be done under formal contract.” A.C.A. § 22-9-202 (Repl. 2004).' As explained:by one of my predecessors, the procedure involves the award of a contract to the prime contractor through a low-bid competitive process that includes the county’s publication of notice of its intent to receive bids. Op. Att’y Gen. 93-051 (opining that the bidding laws prevent a county from using a so- called “design/build” approach, under which a contracted design/build team would receive bids for the construction work so that the county would not be awarding the contract to the prime contractor). I am unaware of any authority for waiving the competitive bidding requirements where the project is otherwise subject to the public works law. Compare A.C.A. § 19-11-807(a)(1) (Repl. 2007) (authorizing school districts to use a “design-build” project delivery method “without competitive bidding.”); A.C.A. § 19-4-1415 (Repl. 2007) (exempting state agency construction projects from A.C.A. § 22-9-201 et seq., where the projects exceed
$5,000,000, assuming certain procedures are followed.) See also Op. Att’y Gen. 92-246 (opining that a city was required to solicit bids pursuant to A.C.A. § 22-9-

' Section 22-9-202 recognizes that a county or other taxing unit may use its own employees to make improvements; in which case the bidding requirements are inapplicable.

? It bears noting that unlike counties, school districts and state agencies are not subject to a constitutionally- imposed bidding requirement, as there is no provision comparable to Ark. Const. art. 19, § 16, for those government entities. The same goes for municipalities.

The Honorable John Threet
Prosecuting Attorney
Opinion No. 2009-033
Page 4

203 for a “turnkey” contract for the design, construction and operation of a wastewater treatment system).°

I will note that since the issuance of the Attorney General Opinions noted above, legislation has been enacted to specifically prohibit the use of competitive bidding for “construction management” services. A.C.A. § 19-11-801 (Repl. 2007) (as amended by Acts 2154 and 2155 of 2005). Counties are included within this statute. Jd. at (b) (“It is the policy of the State of Arkansas and its political subdivisions that political subdivisions shall follow the procedures stated in this section, except that competitive bidding shall not be used for the procurement of

. construction management ... services.) (Emphasis added). “Construction management” is defined to mean:

... & project delivery method based on an agreement in which a state agezcy, political subdivision, public school district, or institution of higher education acquires from a construction entity a series of services that include, but are not limited to, design review, scheduling, cost control, value engineering, constructability évaluation, preparation and coordination of bid packages, and construction administration.

id. at (di(1).

Some mention should be made of this statute because it includes a project delivery method called “General contractor construction management” that might contemplate waiving bids for construction work. ‘The statute provides in this regard:

“Censtruction management” includes ... :

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3 The “turnkey” contract involved a package proposal encompassing design, construction and maintenance services. .Op. Att’y Gen. 92-246 at 2. In 2003, legislation was enacted to specifically authorize “any municipality or sanitation authority” to award “design-build-operate-maintenance contract[s]” through “competitive sealed proposals” for wastewater treatment, storm water treatment, or water treatment systems. Acts 2003, No. 1297, codified at A.C.A. § 22-9-203(j) (Supp. 2007).

The Honorable John Threet
Prosecuting Attorney
Opinion No, 2009-033
Page 5

(C)(i) “General contractor construction management”, in which the construction entity, after providing agency services during the preconstruction period, serves as the general contractor.

(ii) The general contractor shall hold all trade contracts and purchase orders and shall bond and guarantee the project.

Id. at (d)(2).

While it is not entirely clear, by including the “general contractor” within the services to be provided, this subsection might be interpreted as authority to forego competitive bidding for the construction contract. A question arises, however, regarding the subsection’s application to counties, given that the two immediately preceding subsections clearly apply only to “public school district[s].” Jd. at (d)(2)(A) and (B) (regarding “Agency construction management” and “At-risk construction management” as project delivery methods.)* It is appropriate, in light of this ambiguity, to look to the emergency clause of the relevant 2005 enactment in order to determine the legislative intent. See generally Heath v. Westark Poultry Processing Corp., 259 Ark. 141, 531 S.W.2d 953 (1976).

Subsection (d) was added to A.C.A. § 19-11-801 by Act 2154 of 2005. The emergency clause to this act states in relevant part:

• These subsections include the following within the term “construction management”:

{A)(i) “Agency construction management”, in which a public school district selects a construction manager to serve as an agent for the purpose of providing administration and management services.

(ii) The construction manager shall not hold subcontracts for the project or provide project bonding for the project;

(B) “At-risk construction management”, in which the construction entity, after providing agency services during the preconstruction period, serves as the general contractor and the following conditions are met:

.(i) The construction manager provides a maximum guaranteed price;

(ii) The public school district holds all trade contracts and purchase orders; and

(iii) The portion of the project not covered by the trade contracts is bonded and guaranteed by the construction manager; and

The Honorable John Threet
Prosecuting Attorney
Opinion No. 2009-033
Page 6

It is hereby found and determined by the General Assembly of the State of Arkansas that the Arkansas Supreme Court has determined that current public school facilities in Arkansas are inadequate and inequitable; that the clarification of construction management as a project delivery method will increase the construction options of public Schools entering into construction projects to improve their school facilities and assist in the process of improving current school facilities; and that the improvements to public school facilities through the use of construction management will ultimately benefit public school students and the state of Arkansas....

Acts 2005, No. 2165, § 2 (emphasis added).

It seems clear from the emergency clause that subsections (2)(A), (B) and (C) of A.C.A. § 19-11-801(d) are intended to apply to school districts. Indeed, to conclude otherwise would likely render subsection 19-11-801(d)(2)(C) constitutionally suspect as applied to counties, in light of Ark. Const. art. 19, § 16’s requirement that county contracts be competitively bid. It is of course well established that statutes will be construed as constitutional, if possible. Bunch v. State, 344 Ark. 730, 736, 43 S.W.3d 132 (2001); Jones v. State, 333 Ark. 208, 969 S.W.2d 618 (1998). A court will therefore endeavor to avoid a construction of A.C.A.-§ 19-11-801 that calls the statute’s constitutionality into doubt. This lends further support to the conclusion that even assuming subsection 19-11- 801(d)(2)(C) contemplates no competitive bidding for “general contractor construction management” services, this does not apply to county contracts that are otherwise subject to the public works law.

As you can see from the above excerpted subsections of A.C.A. § 22-9-203, the requirements under this body of law include the publication of notice, id. at (a)(2) and (c)(1), and the awarding of contracts by a “board, commission, officer, or other authority” of the county, id. at (d). It should perhaps be noted in this regard that a construction manager apparently can perform some preliminary tasks in connection with the bidding, such as the opening and initial comparison of bids. See, e.g., Quality Fixtures v. Multi-Purpose Facilities Board, 337 Ark. 115, 120- 21, 986 S.W.2d 865 (1999) (concerning the award procedure followed by the Pulaski County Multi-Purpose Facility Board for certain construction work at the Alltel Arena in North Little Rock). Indeed, it will be noted that the “preparation and coordination of bid packages” is included within the “construction management” services set out in A.C.A. § 19-11-801(d)(1), supra. But the actual

The Honorable John Threet
Prosecuting Attorney
Opinion No. 2009-033
Page 7

award decision rests solely with the county, acting through its board, officer, or other authority. See 337 Ark. at 120-121 (distinguishing between the opening of the bids on the one hand — which was handled by the construction manager — and the “analysis, examination, and inspection” of the bids and the awarding of the contract, which could only be performed by the Public Facilities Board.)

In sum, it is my opinion that competitive bidding is required, pursuant to A.C.A. § 22-9-203 and Ark. Const. art. 19, § 16, when a county contracts for the construction or renovation of county public buildings.

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Sincerely,

STIN McDANIEL
Attorney General

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