Can a constitutional agency like the Arkansas Game and Fish Commission skip competitive bidding on a major construction project?

Plain-English summary

Former Game and Fish Commission Director Jeff Crow asked whether the Commission could hire a single firm to serve as both construction manager and general contractor for a planned $15 million nature/education center in Northwest Arkansas, without using sealed competitive bidding. The architect had recommended this combined arrangement for cost reasons. Crow's question relied on Amendment 35, which makes the Game and Fish Commission an "independent constitutional agency" with broad authority over Arkansas wildlife.

The AG answered that the answer was likely no. Section 22-9-203 of the public works law requires the state and its agencies to use competitive bidding on any building project costing more than $35,000. The legislature carved out the Highway Commission from that requirement in 1977 and later created a narrow construction-manager-general-contractor pilot for highway projects in 2017. The fact that the legislature wrote those specific exemptions, the AG reasoned, demonstrates that competitive bidding is the default rule for all state agencies, including constitutional ones, unless the legislature says otherwise.

On the constitutional question, the AG concluded that § 22-9-203 does not encroach on the wildlife-management powers Amendment 35 reserved to the Commission. The bidding rule is a general procurement standard about how public money is spent on construction. It does not interfere with how the Commission manages wildlife, does not let the legislature substitute its own judgment for the Commission's on wildlife resources, and does not look like the kind of close legislative supervision that Chaffin v. Game & Fish Commission ruled out. Amendment 35, on its own, does not authorize the Commission to ignore competitive-bidding requirements.

Currency note

This opinion was issued in 2018. 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.

How the AG read the interaction of Amendment 35 and § 22-9-203

The opinion's structure is two-step. First, it interprets the bidding statute and shows the legislature meant it to reach the Game and Fish Commission. Second, it asks whether applying that statute is constitutional given Amendment 35.

Step 1, statutory reach. Section 22-9-203(a) requires "the state or an agency of the state" to use competitive bidding on building projects exceeding $35,000. The AG read "agency of the state" as covering all state agencies, including constitutional ones. Two pieces of legislative history reinforced that reading: (a) the 1977 amendment exempting the Highway Commission, which would have been unnecessary if § 22-9-203 had not already applied to constitutional agencies; and (b) the 2017 narrow CM-GC pilot for highway projects (Act 809), which only makes sense if the default rule is competitive bidding. The AG also noted that the Commission's own purchasing rules already require sealed bids for construction-management services, and that "[i]t is axiomatic that a commission must follow its own rules."

Step 2, constitutional analysis. Amendment 35, § 8 vests in the Commission "control, management, restoration, conservation and regulation" of Arkansas wildlife and gives the Commission control over fees and revenues from wildlife operations. The Arkansas Supreme Court has read that as broad and shielded from generalized legislative interference. But that shield is not unlimited. The AG identified three categories of permissible state laws against constitutional agencies, drawing from Chaffin, Murders, and Shellnut: laws that do not interfere with the Commission's wildlife regulation; laws that do not reserve close legislative supervision of executive functions; and laws that do not let the legislature substitute its judgment about how the Commission allocates its money and resources. Section 22-9-203 falls outside all three boxes. It does not regulate wildlife, does not give the legislature any close supervisory role, and does not redirect the Commission's funds. It just says public-works contracts must be competitively bid.

The AG closed by stressing that Amendment 35 itself does not affirmatively authorize bypassing competitive bidding. Reading silence as authorization would let any constitutional agency skip any general state law it found inconvenient, which is not what the case law supports.

Common questions

Could the legislature exempt the Game and Fish Commission from competitive bidding if it wanted to? The opinion strongly implies yes. The legislature did exactly that for the Highway Commission in 1977 and for higher-education projects with substantial private funding under § 19-4-1413. The path forward, if the Commission wants the construction-manager-general-contractor flexibility, is legislative.

What about the construction-manager-general-contractor pilot in Act 809 of 2017? That pilot is limited to highway and transportation projects under § 19-11-1404. It does not extend to Game and Fish projects.

Is the $35,000 threshold cumulative or per contract? The statute applies to projects whose "estimated costs of the work exceed the sum of thirty-five thousand dollars." The AG did not opine on splitting projects to avoid the threshold; under standard Arkansas case law, structuring a contract to avoid a public bidding requirement risks invalidation, but that question was beyond the scope of this opinion.

Did the Commission's own purchasing policy matter?
Yes, the AG mentioned that the Commission's policy already required sealed bids for construction-management services, citing Stueart v. Arkansas State Police Comm'n for the principle that an agency must follow its own rules. The Commission would have had to amend its own policy as well as overcome the statutory and constitutional analysis.

Why did this question come up in 2017?
Construction-manager-at-risk and design-build delivery methods were spreading in state procurement. The legislature had recently authorized construction-management for school districts (§ 19-11-807) and a CM-GC pilot for highways (§ 19-11-1401 et seq.). The Commission was looking at a $15 million nature/education center and wanted to use the same delivery method.

Background and statutory framework

Section 22-9-203, sometimes called Arkansas's "public works law," dates to Act 159 of 1949. Its core requirement is competitive sealed bidding, with newspaper notice, for state-agency construction over $35,000. The legislature has carved out narrow exceptions: the Highway Commission (1977, § 22-9-201(a)); higher-education projects with at least 80% private funding (§ 19-4-1413); design-build for public school districts (§ 19-11-807); and the CM-GC pilot for highway projects (§ 19-11-1401 et seq., Act 809 of 2017).

Amendment 35 created the Game and Fish Commission as a constitutional agency in 1944. Its powers are described as broad and largely insulated from generalized legislative control over wildlife matters, but Arkansas case law has consistently treated those powers as subject to laws of general application that do not encroach on wildlife regulation.

Citations

• Ark. Const. amend. 35 (Game and Fish Commission)
• Ark. Code Ann. § 22-9-203 (competitive bidding for public works)
• Ark. Code Ann. § 22-9-201 (Highway Commission exemption)
• Ark. Code Ann. § 19-11-807 (design-build for school districts)
• Ark. Code Ann. § 19-11-1401 et seq. (CM-GC pilot for highway projects)
• Ark. Code Ann. § 19-4-1413 (higher-education construction exemption)
• Chaffin v. Arkansas Game & Fish Comm'n, 296 Ark. 431, 757 S.W.2d 950 (1988) (limits on legislative encroachment on Commission)
• Arkansas Game & Fish Comm'n v. Murders, 327 Ark. 426, 938 S.W.2d 854 (1997) (Commission powers not unfettered)
• Arkansas Game & Fish Comm'n v. Edgmon, 218 Ark. 207, 235 S.W.2d 554 (1951) (legislature cannot redirect Commission funds)
• Comm'n on Judicial Discipline & Disability v. Digby, 303 Ark. 24, 792 S.W.2d 594 (1990) (Commission as independent constitutional agency)
• Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179 (statutory construction)

Source

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

Original opinion text

Opinion No. 2017-094
January 17, 2018
Pat Fitts, Director
STATE OF ARKANSAS
ATTORN EY GEN ERAL
LESLI E RUTLEDGE
Arkansas Game and Fish Commission
2 Natural Resources Drive
Little Rock, AR 72205
Dear Mr. Fitts:
I am writing in response to the request for an opinion from Former Director Jeff Crow on whether the Arkansas Game and Fish Commission may hire, without competitive bidding, a general contractor that would also serve as construction manager for a project. The request states that the Commission's Purchasing Policy currently requires that construction management services be obtained by sealed bid. The following specific background information was also offered: The Arkansas Game and Fish Commission intends to construct a nature/education center in Northwest Arkansas (estimated to cost
$15,000,000) and has engaged an architect to begin the design and planning phases of the project. The Commission's architect has recommended for cost efficiency that the Commission engage a construction manager who would also serve as the general contractor for the project. The Commission is aware that the Legislature has authorized construction management as a procurement method, including specifically for public school districts that use design-build contracts, and recently amended Arkansas law to authorize the Arkansas Highway Commission to use the "construction manager- general contractor" procurement method under a pilot program for transportation projects. See Ark. Code Ann. § 19-11-801 ( d); Act 809 of 2017 (codified at Ark. Code Ann. § 19-11-1401 et seq.). As further background for the question you point to Amendment 35 to the Arkansas Constitution, and you state that "[a ]s a constitutionally created agency of 323 CENTrn STREET. SU ITE 200 · LITTLE ROCK. ARKANSAS 72201 TELEPHONE (501) 682-2007 · FAX (501) 682-8084 ARKANSASAG.GOV Pat Fitts, Director Ark. Game & Fish Comm'n Opinion No. 2017-094 Page 2 the State, the Commission stands in [a] somewhat unique position when it comes to procurement law." You also point out that the Attorney General's office has previously issued opinions questioning whether various statutes and proposed statutes were constitutional as applied to the Commission. 1 With this background in mind, you ask: Does Amendment 3 5 to the Arkansas Constitution authorize the Commission, without need of legislative authorization, to contract with a single contractor without obtaining competitive bids to secure both construction-management and general-contracting services for public-building construction? For example, can the Commission contract for a construction manager-general contractor similar to the procurement methods described in Ark. Code Ann. §§ 19-11- 80 l ( d)(2)(B) and (C), 19-11-807, or 19-11-1403(3)? RESPONSE In my opinion, the answer is likely "no." Amendment 35 gives the Game and Fish Commission broad authority regarding the "control, management, restoration, conservation and regulation" of the State's wildlife resources. But without an express statutory exemption, the Commission is subject to the competitive-bidding process under Ark. Code Ann. § 22-9-203 (Supp. 2017). And I do not believe Amendment 3 5 itself authorizes the Commission to sidestep these bidding procedures. DISCUSSION Arkansas Code Annotated § 22-9-203, sometimes called "the public works law," requires "the state or an agency of the state" to use competitive bidding in the selection of a contractor for any building project with an estimated cost exceeding
$35,000:
[A] 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 not be entered into by the state or an agency of the state ... with any contractor in instances in which all 1 You cited in this regard Ops. Att'y Gen. 91-020, 89-098, 85-160, and 80-118. Pat Fitts, Director Ark. Game & Fish Comm'n Opinion No. 2017-094 Page 3 estimated costs of the work exceed the sum of thirty-five thousand dollars ($35,000) unless: (1) The state or any agency of the state shall have first published notice of its intention to receive bids one (1) time each week for not less than two (2) consecutive weeks for projects more than the amount of fifty thousand dollars ($50,000) ... 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 .... 2 My primary task in interpreting this statute is to construe it "just as it reads" in order to "give effect to the intent of the General Assembly."3 To the extent the statute "conveys a clear and definite meaning, there is no need to resort to the rules of statutory construction. "4 If the text is ambiguous, then it is appropriate to use various aids, including the statute's history, to determine the legislative intent.5 I believe it is clear from the above-emphasized text of section 22-9-203(a) that this bidding requirement applies across state government, and is intended to include the state and all its agencies. But even if the text is considered ambiguous, the statute's history makes clear that the General Assembly thought this bidding requirement applied to a constitutional agency like the Game and Fish Commission. Section 22-9-203 was originally enacted by Act 159 of 1949. This act was amended in 1977 to specifically exclude the Arkansas Highway Commission, 6 which, like the Game and Fish Commission, is a constitutional 2 Ark. Code Ann. § 22-9-203(a) (emphases added). 3 Brock v. Townsell, 2009 Ark. 224 at 9, 309 S.W.3d 179, 185-86 (internal citations omitted). 4 Id. at 9, 309 S.W.3d at 186 (noting that a court "construes [a] statute so that no word is left void, superfluous, or insignificant," such that "meaning and effect are given to every word."). 5 See generally MacSteel Div. of Quanex v. Arkansas Oklahoma Gas Corp., 363 Ark. 22, 210 S.W.3d 878 (2005); Weiss v. McFadden, 353 Ark. 868, 120 S.W.3d 545 (2003). A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. Moore v. Moore, 2016 Ark. 105, *5-6, 486 S.W.3d 766 (citations omitted). 6 Ark. Code Ann.§ 22-9-20l(a) (Rep!. 2016) (codification of part of Acts 1977, No. 370, § 2, providing that "[t]he provisions of§§ 22-9-202 - 22-9-204 shall not apply to contracts awarded by the State Highway Commission" for certain construction or maintenance projects). Pat Fitts, Director Ark. Game & Fish Comm'n Opinion No. 2017-094 Page 4 agency of the state. 7 It follows that the General Assembly clearly thought that section 22-9-203 applies to these constitutional agencies, absent an express exemption. Otherwise, the 1977 exemption that the legislature enacted for the Highway Commission would have been unnecessary. And the text of the statute clearly shows that the General Assembly has not, as of now, enacted a similar exemption for the Game and Fish Commission. In your request for my opinion, you reference the legislature's recent adoption of a pilot program8 to allow the Highway Commission and the Arkansas Department of Transportation (formerly the Arkansas State Highway and Transportation Department) to test the "construction manager-general contractor" procurement method on a very limited number of transportation construction projects.9 In my view, the very fact that the General Assembly enacted this specific carve-out for the Highway Commission serves to underscore the conclusion that the statutory procurement methods for construction projects in section 22-9-203 are intended to apply across state government-including the constitutional agencies of the b 1 · 1 · · IO state-a sent an express eg1s ative exemption. With all of this in mind, I believe it is unquestionable that the legislature intended section 22-9-203 to apply to the Game and Fish Commission. I also note from your opinion request that the Commission's current rules mirror the bidding regime under section 22-9-203. It is axiomatic that a commission must follow its own rules, which in this case require competitive bidding. 11 7 See Comm 'n on Judicial Discipline & Disability v. Digby, 303 Ark. 24, 29, 792 S.W.2d 594, 597 (1990) (referring to both the Game and Fish Commission and the Highway Commission as "[i]ndependent constitutional agencies."). 8 Acts 2017, No. 809 (codified at Ark. Code Ann.§ 19-11-1401 et seq. (Supp. 2017)). 9 See Ark. Code Ann.§ 19-11-1404. 10 I will note here that the General Assembly has also granted an exemption from the requirements of the public works law for public institutions of higher education. See Ark. Code Ann. § 19-4-1413 (Rep!. 2016) (exempting construction projects costing more than $5 million when 80 percent or more of the cost comes from private sources). Moreover, as you noted, the legislature has also permitted public school districts to use a "design-build" method of construction without using competitive bidding. See Ark. Code Ann. § 19-11-807 (Rep!. 2016). These examples, along with the Highway Commission's pilot program discussed above, serve to demonstrate that any exemptions to the requirements of section 22-9-203 must derive from the General Assembly. 11 See, e.g., Stueart v. Arkansas State Police Comm 'n, 329 Ark. 46, 945 S.W.2d 377 (1997). Pat Fitts, Director Ark. Game & Fish Comm'n Opinion No. 2017-094 Page 5 The inquiry thus turns to the heart of your question: whether section 22-9-203 is constitutional as applied to the Game and Fish Commission, an "independent constitutional agency."12 I am guided in this regard by the well-established rule of construction that laws passed by the General Assembly have the presumption of being constitutional. 13 The legislature has the absolute power to legislate, unless prohibited from doing so by the constitution, either expressly or by necessary implication.14 The burden of demonstrating that a statute violates the state's constitution lies with the "challenger of the statute," and a court "will not invalidate a statute for repugnance to the constitution unless the two are in clear and unmistakable conflict."15 However, it is well established that constitutional provisions, including amendments, take precedence over any contrary law passed by the legislature.16 You have not stated any particular grounds or theories under which section 22-9- 203 might be unconstitutional as applied to the Game and Fish Commission. But a challenger would most likely point to the Game and Fish Commission's constitutional status, together with its specific powers and duties under Amendment 3 5 to the Arkansas Constitution. 17 Amendment 35 vests in the Commission the following authority: The control, management, restoration, conservation and regulation of birds, fish, game and wildlife resources of the State, including hatcheries, sanctuaries, refuges, reservations and all property now owned, or used for said purposes and the acquisition and 12 Chaffin v. Arkansas Game & Fish Comm 'n, 296 Ark. 431, 436, 757 S.W.2d 950, 953 (1988). 13 See Gatzke v. Weiss, 375 Ark. 207, 210, 289 S.W.3d 455, 458 (2008) (internal quotation omitted). 14 Blackv. Cockrill, 239 Ark. 367, 369, 389 S.W.2d 881,883 (1965). 1s Id. 16 Gravett v. Villines, 314 Ark. 320, 326, 862 S.W.2d 260, 263 (1993). 17 The Arkansas Supreme Court has observed that the Game and Fish Commission "is not only an administrative agency with constitutional status but the repository of certain powers of government enumerated in Amendment 35 to the Arkansas Constitution by which it was created." Arkansas Game & Fish Comm 'n v. Stanley, 260 Ark. 176, 178, 180, 538 S.W.2d 533 (1976). Pat Fitts, Director Ark. Game & Fish Comm'n Opinion No. 2017-094 Page 6 establishment of same, the administration of the laws now and/or hereafter pertaining thereto .... 18 Amendment 3 5 further vests the Commission with the power and duty to expend "fees, monies, or funds" arising from Commission operations: The fees, monies, or funds arising from all sources by the operation and transaction of the said Commission and from the application and administration of the laws and regulations pertaining to birds, game, fish and wildlife resources of the State and the sale of property used for said purposes shall be expended by the Commission for the control, management, restoration, conservation and regulation of the birds, fish and wildlife resources of the State, including the purchases or other acquisitions of property for said purposes and for the administration of the laws pertaining thereto and for no other purposes.19 Meanwhile, the powers reserved to the legislature under Amendment 35 are limited to the power to make appropriations and to increase the annual hunting and fishing license fees.20 Amendment 35 thus grants broad powers to the Game and Fish Commission to control, regulate, and manage the wildlife resources of the State apart from legislative control.21 And a long line of judicial decisions confirms the Commission's powers in the field of wildlife conservation.22 A review of these decisions reveals that the Commission's constitutional status and its Amendment 35 powers insulate it from some generally-applicable state 18 Ark. Const. amend. 35, § 8. 19 Id. 20 Id. at§§ 7 & 8. 21 See Fowler v. State, 283 Ark. 325, 326, 676 S.W.2d 725, 725 (1984) ("The Legislature is divested of powers to regulate fish and wildlife except for making appropriations and to increase annual resident hunting and fishing licenses." (Internal citation omitted)). 22 See, e.g., Chaffin, supra note 12 (and cases cited therein). As you have noted, this office has similarly opined that various statutes and proposed statutes were constitutionally suspect as applied to the Commission. Pat Fitts, Director Ark. Game & Fish Comm'n Opinion No. 2017-094 Page 7 laws. The analysis often involves the separation-of-powers doctrine, 23 and the extent to which the legislative enactment at issue interferes with or encroaches upon the Commission's constitutional authority to control and regulate wildlife. But the Commission's broad discretion in carrying out its powers "is not unfettered."24 In Murders, for instance, the Court held that the Commission's power to regulate the manner of taking game does not translate into a broader power to regulate the possession of all firearms on city, county, state, or federally- maintained roads or rights-of-way.25 In Shellnut v. Arkansas State Game & Fish Commission, 26 the Court held that a Commission rule prohibiting all hunting on specified privately-owned land was a taking of property without compensation in violation of Article 2, section 22 of the Arkansas Constitution. And this office has opined that the Arkansas Freedom of Information Act ("FOIA") applies to the Commission because there is no specific exemption in the FOIA for documents maintained by the Commission, and because applying the FOIA to the Commission likely would not be seen by a court as the legislature's taking away any of the Commission's authority or substituting the legislature's judgment for that of the Commission in contravention of Amendment 35.27 With this in mind, we turn to the statute at issue, which requires "the state or an agency of the state" to use competitive-bidding procedures in the selection of a contractor for any building project with an estimated cost exceeding $35,000. The statute plainly does not directly interfere with, or encroach upon, the Game and Fish Commission's authority to control and regulate wildlife in the state. Nor does it reserve to the legislature any powers of close supervision, such that it intrudes 23 Ark. Const. a11. 4, §§ 1 & 2. At the heart of this doctrine is the notion that "[n]either of the three separate departments of government is subordinate to the other and neither can arrogate to itself any control over either one of the others in matters which have been confided by the Constitution to such other department." Wells v. Purcell, 267 Ark. 456, 462, 592 S.W.2d 100, 104 (1979). 24 Arkansas Game & Fish Comm 'n v. Murders, 327 Ark. 426, 938 S.W.2d 854 (1997). 25 Id. at 429, 938 S.W.2d at 855. 26 222 Ark. 25, 258 S.W.2d 570 (1953). 27 Ops. Att'y Gen. 2002-250; 2000-150. Pat Fitts, Director Ark. Game & Fish Comm'n Opinion No. 2017-094 Page 8 on executive authority in violation of separation of powers.28 And perhaps most importantly, it does not amount to an attempt to substitute the legislature's judgment for that of the Commission in deciding how the Commission's money and other resources are allocated. That plainly is "something [the Legislature] cannot do. "29 In sum, the bidding requirements under section 22-9-203 are not an attempt to control how the Commission spends its funds. 30 The bidding requirements under section 22-9-203 simply reflect a legislative intent that public money be spent on construction projects in a prudent manner. And without an express statutory exemption, the Commission is subject to this competitive-bidding process. Likewise, in my opinion, the statute does not encroach on the Commission's independent authority under Amendment 35. Nor do I believe that Amendment 3 5 itself authorizes the Commission to sidestep the bidding procedures in question. Sincerely,
..=:~:~- L. //~~
LESLIE RUTLEDGE
Attorney General
28 See Chaffin, 296 Ark. at 443, 757 S.W.2d at 957 (citing with approval a Colorado case for the proposition that the legislature may not "attach conditions to a general appropriation bill which purport to reserve to the legislature powers of close supervision that are essentially executive in character"). 29 Id. at 438, 757 S.W.2d at 954. 30 Id; Arkansas Game & Fish Comm 'n v. Edgmon, 218 Ark. 207, 235 S.W.2d 554 (1951) (holding unconstitutional a legislative appropriation from the Commission's Game Protection Fund to pay bounties for wolves killed).