Opinion No. 76-295 (1976) Ag ( 1976 )

COUNTY COMMISSIONERS — PURCHASE OF CULVERT PIPE — BIDDING REQUIREMENTS — LIMITATIONS ON USE OF PIPE The effect of 19 O.S. 3 [19-3] (1971), has been altered by 69 O.S. 636 [69-636] (1976), to the extent that a unanimous vote of the Board of County Commissioners is required when $4,500.00, or less, worth of culvert pipe is purchased and more than one-third is allocated for use in one Commissioners' district. The Purchase Order Law, 62 O.S. 310.1 [62-310.1] through 62 O.S. 310.7 [62-310.7] (1971), is not affected by 69 O.S. 636 [69-636] (1976). Under the provisions of 69 O.S. 636 [69-636] (1976), a Board of County Commissioners may purchase $4,500.00, or less, worth of culvert pipe without seeking bids. When $4,500.00, or less, worth of culvert pipe is purchased, not more than one-third of the pipe may be used in any one Commissioners' district without the unanimous recorded vote of the Board of County Commissioners to that effect. When a Board of County Commissioners wishes to buy culvert pipe in an amount of $4,501.00, or more, the purchase must be made upon sealed bids from the lowest and best bid. The purchases made from sealed bids may be made by a majority vote of the Board of County Commissioners and the culvert pipe so purchased may be used in one or more Commissioners' district by a majority vote of the Board. The Attorney General has received your letter wherein you refer to Senate Bill No. 650 of the Second Regular Session of the Thirty-fifth Oklahoma Legislature (1976), now codified as 69 O.S. 636 [69-636] (1976). You then ask, in effect, the following questions: 1. Did Senate Bill No. 650 alter the effect of 19 O.S. 3 [19-3] (1971)? If your answer is in the affirmative, will you advise us the precise effect Senate Bill No. 650 has on 19 O.S. 3 [19-3] (1971). 2. If your answer to Question No. 1 is in the affirmative, what is the effect of Senate Bill No. 650 on 62 O.S. 310.1 [62-310.1] through 62 O.S. 310.7 [62-310.7] (1971), the Purchase Order Law? 3. Under 69 O.S. 636 [69-636] (1976), may a Board of County Commissioners purchase culvert pipe valued at $4,499.00 without seeking bids and use the material at a single location in the county, but if the Board wishes to buy pipe valued $4,501.00, must it seek bids and use not more than $1,500.00 worth in any one Commissioners' district, unless all three Commissioners agree that more than $1,500 worth may be used in one district? With respect to your first question, 19 O.S. 3 [19-3] (1971), sets forth the manner in which the powers of a county are exercised by the Board of County Commissioners and provides as follows: "The powers of a county as a body politic and corporate shall be exercised by its Board of County Commissioners. "It is hereby declared to be contrary to law, and against public policy, for any individual County Commissioner, or Commissioners, when not acting as a Board, to enter into any contract, or to attempt to enter into any contract, as to any of the following matters: "(a) Any purchase of equipment, machinery, supplies or materials of any kind for any County or any Commissioner's District, or Districts thereof; "(b) Any contract or agreement relating to or for the leasing or rental of any equipment, machinery, supplies or materials for any County or any Commissioner's District, or Districts, thereof; "(c) To do or transact any business relating to such County, or any Commissioner's District, or Districts thereof, or to make any contract or agreement of any kind relating to the business of such County, or any Commissioner's District, or Districts thereof; "And none of such acts or attempted contracts as above set forth, done or attempted to be done, by an individual County Commissioner or Commissioners, when not acting as a Board, shall never be subject to ratification by the Board of County Commissioners, but shall be illegal, unlawful and wholly void. "Provided that nothing herein shall be construed as prohibiting or preventing the Chairman of the Board of County Commissioners from performing such duty or duties as he may be required by law to perform as Chairman of such Board, but only after the Board, by a majority vote thereof, shall have authorized and directed such performance by said Chairman." It is clear from the above language that the powers of the Board of County Commissioners cannot be exercised by an individual Commissioner. Only when acting as a Board may the Commissioners purchase or attempt to purchase supplies or materials of any kind for the county or any Commissioners' district. These powers may be exercised by a majority vote of the Board of County Commissioners. With respect to the purchase of culvert pipe, the effect of 19 O.S. 310 [19-310] (1971), was altered with the enactment of Senate Bill No. 650. Title 69 O.S. 636 [69-636] (1975), was amended by Senate Bill No. 650 by the addition of the following language to Subsection (c) thereof: ". . . And provided further, as to culvert pipe, all purchases in excess of Four Thousand Five Hundred Dollars ($4,500.00) shall be made upon sealed bids and from the lowest and best bid. Said Four Thousand Five Hundred Dollars ($4,500.00) shall be applicable, One Thousand Five Hundred Dollars ($1,500.00) per commissioner, unless by unanimous recorded vote of the board of county commissioners, this allocation is altered . . . ." The above language increased from $1,500 to $4,500 the amount of culvert pipe which may be purchased without sealed bids. The intent of the Legislature was to require that, when culvert pipe is purchased without sealed bids, not more than one-third (1/3) the pipe so purchased may be allocated for use in one Commissioners' district unless by unanimous vote of the Board the allocation is altered. The effect on 19 O.S. 3 [19-3] (1971), is to require a unanimous vote of the Board of County Commissioners in altering the allocation of the use of culvert pipe between the various districts of the Board instead of such action being taken by a majority of the members of the Board of County Commissioners. This interpretation is consistent with the general rule that statutory grants of authority to Boards of County Commissioners are strictly construed. See Allen, et al. v. Commissioners of Pittsburg County, 28 Okl. 773,116 P. 175 (1911). Your second question involves 62 O.S. 310.1 [62-310.1] through 62 O.S. 310.7 [62-310.7] (1971), which provide for the use of purchase orders by counties and establishes the procedure therefor. The amendments to 69 O.S. 636 [69-636] (1975), which are contained in Senate Bill No. 650, relate to the allocation of the culvert pipe purchased and do not relate directly to the purchase itself. The allocation of the pipe purchased is separate and apart from the purchase of the culvert pipe; therefore, the amended language has no effect on 62 O.S. 310.1 [62-310.1] through 62 O.S. 310.7 [62-310.7] (1971). Your third question relates to the amount of culvert pipe which may be purchased without bids and the allocation of the pipe purchased. It is clear from the language contained in Senate Bill No. 650 that the purpose of the amendment was to permit the purchase of culvert pipe in the amount of $4,500.00, or less, without taking bids on the purchase, and to also provide that if more than one-third of the amount of culvert pipe purchased without bid is to be used in one Commissioner's district, such use would be permitted only upon the unanimous recorded vote of the Board of County Commissioners. If the Board of County Commissioners wished to purchase $4,501.00, or more, of culvert pipe, such purchases can be made only upon sealed bids and from the lowest and best bidder. Such purchases may be made by a majority vote of the Board of County Commissioners and the culvert pipe used in one or more Commissioners' district upon a majority vote of the Board of County Commissioners. It is, therefore, the opinion of the Attorney General that your questions be answered as follows: The answer to your first question is in the affirmative. The effect of 19 O.S. 3 [19-3] (1971), has been altered by 69 O.S. 636 [69-636] (1975), to the extent that a unanimous vote of the Board of County Commissioners is required when $4,500.00, or less, worth of culvert pipe is purchased and more than one-third is allocated for use in one Commissioners' district. As to your second question, the Purchase Order Law, 62 O.S. 310.1 [62-310.1] through 62 O.S. 310.7 [62-310.7] (1971), is not affected by 69 O.S. 636 [69-636] (1976). Your third question is answered in the negative. Under the provisions of 69 O.S. 636 [69-636] (1976), a Board of County Commissioners may purchase $4,500.00, or less, worth of culvert pipe without seeking bids. When $4,500.00, or less, worth of culvert pipe is purchased, not more than one-third of the pipe may be used in any one Commissioners' district without the unanimous recorded vote of the Board of County Commissioners to that effect. When a Board of County Commissioners wishes to buy culvert pipe in an amount of $4,501.00, or more, the purchase must be made upon sealed bids and from the lowest and best bid. The purchases made from sealed bids may be made by a majority vote of the Board of County Commissioners and the culvert pipe so purchased may be used in one or more Commissioners' district by a majority vote of the Board. (MARVIN C. EMERSON) (ksg)