When a county wants to use a privately built jail to hold its inmates, does Arkansas's competitive bidding law apply, and how long can the contract run?

Plain-English summary

Representative LeAnne Burch asked AG Leslie Rutledge three questions about a Drew County proposal: a private contractor would build and run a multi-county corrections facility, and the participating counties would house their inmates there. Burch wanted to know whether the standard county-procurement statute applied, whether there was a time limit on a county-state interlocal jail agreement, and whether any procurement-law exception let a county contract directly with the private builder.

The AG's answer worked through three pieces of Arkansas law without ever opining on the specific contract.

First, on the procurement question, she explained that Ark. Code Ann. § 19-11-801 makes counties follow competitive bidding for services as a baseline. The statute then carves out a mandatory exception for six categories of "professional consultant services" (legal, financial advisory, architectural, engineering, construction management, and land surveying) and a permissive exception that lets a county quorum court waive bidding for "other professional services" by a two-thirds vote. Whether the services for housing inmates fit either exception is a fact question for the county and its counsel. The AG specifically refused to bless a quorum court declaring something "professional" purely to avoid bidding, citing Op. Att'y Gen. 2007-256.

Second, on the duration of an interlocal agreement, she pointed at Ark. Code Ann. § 12-50-106(d), part of the Corrections Cooperative Endeavors and Private Management Act. That section caps the term of contracts "for the provision of correctional services or for the lease or use of public lands or buildings" at 20 years, "subject to the requirement for annual appropriation of funds by each political subdivision and subject to the requirement of annual appropriations by the state."

Third, she pointed at § 12-50-104(a)(2), a liberal-construction provision that lets parties to a Corrections Cooperative Endeavors agreement bypass "general provisions of other laws dealing with public commodities and public facilities, their acquisition, construction, leasing, encumbering, or disposition," provided the Board of Corrections and the regional corrections commission comply with § 12-50-106. Whether that override is the right tool depends on the actual contract, which the AG would not review.

Currency note

This opinion was issued in 2020. 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.

Common questions

What did "professional services" mean for purposes of the bidding exception?
The statute itemized six categories that automatically qualified: legal, financial advisory, architectural, engineering, construction management, and land surveying. Anything outside that list could only be treated as "professional services" by a 2/3 vote of the county quorum court, and the AG warned that such a declaration was not self-justifying. The service in question had to be "sufficiently like" the listed categories to count.

Did the AG say a county could skip the bid process for the inmate-housing contract?
No. The AG declined to opine on that specific contract because the application of the professional-services categories was a fact-bound question. She told Rep. Burch that the county and its counsel had to compare the actual services to the statutory list, and she pointed at Op. Att'y Gen. 2010-052 for the comparison framework.

How long could the underlying interlocal agreement run?
Up to 20 years, if the agreement was entered under § 12-50-106. The cap was tied to "annual appropriation" requirements at both the political-subdivision and state level, so the long term was not a guarantee of long funding.

Was the AG addressing the construction of a county-owned jail or only services for inmates in a private one?
Only the latter. The AG specifically separated the two questions and noted that a county building its own jail would face the permanent-improvement-contract rules in Ark. Code Ann. § 22-9-203 and Ark. Const. art. 19, § 16. The opinion focused on the privately constructed, privately owned facility scenario.

Background and statutory framework

Arkansas's procurement scheme treats counties as "political subdivisions." Under Ark. Code Ann. § 19-11-801(b) and (e)(1), they had to use competitive bidding for services. The same section then created the two exceptions described above. Op. Att'y Gen. 2007-256 had previously cautioned that a quorum court's bare declaration that a service is "professional" would not avoid the bidding requirement, and Op. Att'y Gen. 2010-052 set out the "sufficiently like" comparison test.

The Corrections Cooperative Endeavors and Private Management Act (Ark. Code Ann. § 12-50-101 et seq.) provided a parallel framework for prison contracting. Section 12-50-106(a) authorized the Division of Correction and political subdivisions to enter contracts with each other and with prison contractors for financing, acquiring, constructing, and operating facilities. Section 12-50-106(d) imposed the 20-year cap. Section 12-50-104(a) included a "liberal construction" provision intended to keep general public-commodity laws from getting in the way, conditioned on compliance with § 12-50-106 itself.

Op. Att'y Gen. 2012-005 had previously established the AG's policy of declining to opine on the specific terms of any county contract; the office could only address the legal framework in general.

Citations

Statutes:

• Ark. Code Ann. § 19-11-801 (Repl. 2016 and Supp. 2019) (procurement procedures and professional-services exceptions)
• Ark. Code Ann. § 22-9-203 (Supp. 2017) (permanent-improvement contracts)
• Ark. Const. art. 19, § 16 (public works contracting)
• Ark. Code Ann. § 12-50-101 et seq. (Repl. 2016 and Supp. 2019) (Corrections Cooperative Endeavors and Private Management Act)
• Ark. Code Ann. § 12-50-104(a) (liberal-construction provision)
• Ark. Code Ann. § 12-50-106(d) (Supp. 2019) (20-year contract cap)
• Ark. Code Ann. § 12-27-103(b)(14)(B) (parallel 20-year cap on similar agreements)

Prior opinions referenced:

• Op. Att'y Gen. 2019-001
• Op. Att'y Gen. 2012-005
• Op. Att'y Gen. 2010-052
• Op. Att'y Gen. 2007-256
• Op. Att'y Gen. 94-334

Source

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

Original opinion text

Opinion No. 2019-070
October 22, 2020
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
The Honorable LeAnne Burch
State Representative
P. O. Box 222
Monticello, AR 71657-0222

Dear Representative Burch:

This is in response to your request for an opinion on the following questions concerning a multi-county corrections facility intended to house county and state prisoners:

1. Do the state procurement laws apply to privately constructed, multi-county corrections facilities?
2. Is there a time limit to the duration of an interlocal agreement between counties and the state that concerns the incarceration of state and/or county inmates?
3. Are there any procurement law exceptions that allow a county to contract with a private entity to build and thereafter operate a corrections facility?

RESPONSE

As background for these questions, you ask about "an agreement with a private entity" and Drew County "to construct and thereafter operate a multi-county corrections facility." I must initially emphasize that this opinion does not address any particular contract. Determining the applicable procedure(s) for entering any county contract involves factual variables that are not within the scope of an opinion from this office. This opinion will, therefore, address your questions generally. Questions about any particular agreement between a county and a private contractor concerning a corrections facility must be addressed by local legal counsel, with reference to all the particular surrounding facts.

DISCUSSION

QUESTION 1: Do the state procurement laws apply to privately constructed, multi-county corrections facilities?

From your reference here to a "privately constructed" corrections facility, it appears this question concerns the procurement of services to house county inmates in such a facility, not to construct a county-owned facility itself. A county entering contracts for the construction of a county-owned facility would of course need to comply with the procedures governing permanent-improvement contracts.

With the understanding that the facility in question would be privately constructed and owned, however, the answer turns on the application of Arkansas's procurement laws. As a general matter, these procurement laws require the state and its "political subdivisions," a category that includes counties, to use competitive-bidding procedures for services.

These state procurement laws create two exceptions to the general competitive bidding requirement. The first exception is mandatory. It prohibits competitive bidding when contracting for certain specified "professional" services:

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.

The second exception is permissive. Counties and other political subdivisions may dispense with competitive bidding for "other professional services not listed" in the first exception:

For purposes of this subchapter, a political subdivision of the state may elect to not use competitive bidding for other professional services not listed in subsection (b) of this section with a two-thirds (2/3) vote of the political subdivision's governing body.

In other words, unless 2/3 of the governing body, the quorum court, in the case of a county, directs otherwise, contracting for "other professional services" must be done by competitive bid.

Determining how the state procurement laws apply with respect to the services at issue under your question requires reference to the particular services to be contracted. The county, with the advice of its local counsel, must undertake the necessary review to determine whether competitive bidding is required, or whether the proposed services qualify as professional services such that competitive bidding may be waived.

I cannot opine on your question in light of the factual nature of this review. I can only note that determining whether a given service qualifies as a "professional service" requires comparing the proposed service to those specifically listed in the statute to ascertain whether it is sufficiently like those listed.

QUESTION 2: Is there a time limit to the duration of an interlocal agreement between counties and the state that concerns the incarceration of state and/or county inmates?

This question may implicate a statutory time limit applicable to certain agreements concerning inmates under the custody of the state or county. If the agreement is entered under Ark. Code Ann. § 12-50-106, which is part of the Corrections Cooperative Endeavors and Private Management Act, then the answer is "yes, up to 20 years." Section 12-50-106 provides, with respect to contracts entered thereunder, that "contracts for the provision of correctional services or for the lease or use of public lands or buildings for use in the operation of state or local facilities, may be entered into for a period of up to twenty (20) years, subject to the requirement for annual appropriation of funds by each political subdivision and subject to the requirement of annual appropriations by the state."

QUESTION 3: Are there any procurement law exceptions that allow a county to contract with a private entity to build and thereafter operate a corrections facility?

Although it is not entirely clear from its wording, this question may require reference to the law noted in my response to Question 2 above, the Corrections Cooperative Endeavors and Private Management Act. As indicated above, that act authorizes cooperative endeavors for financing, constructing, acquiring, and operating prison facilities. It contains a provision stating that the act "shall be liberally construed" and "shall be the sole authority required for the accomplishment of [its] purposes." This provision further states:

To this end, it shall not be necessary to comply with general provisions of other laws dealing with public commodities and public facilities, their acquisition, construction, leasing, encumbering, or disposition, if the Board of Corrections and the regional corrections commission shall comply with § 12-50-106.

This provision may be responsive to your question, depending upon the particular contract at issue. I cannot respond further, however, absent more information concerning the referenced contract.

Sincerely,

LESLIE RUTLEDGE
Attorney General