AGO 1984 No. 2 - Jan 30 1984
DISTRICTS ‑- SCHOOLS ‑- TRANSPORTATION ‑- CONTRACTS ‑- COMPETITIVE BIDDING ON SCHOOL DISTRICT TRANSPORTATION CONTRACTS
The provisions of RCW 28A.58.135 do not require school districts to go through a competitive bidding process prior to entering into a contract for pupil transportation services under RCW 28A.58.131.
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January 30, 1984
Honorable Robert V. Graham
Olympia, Washington 98504
Cite as: AGO 1984 No. 2
By letter previously acknowledged you requested the opinion of this office on the following question:
"Under RCW 28A.58.135, are school districts required to go through a competitive bidding process prior to entering into a contract for pupil transportation services?"
We answer your question in the negative for the reasons set forth in the analysis below.
The school districts of this state are municipal corporations, or quasi-municipal corporations. See,Noe v. Edmonds School District, 83 Wn.2d 97, 515 P.2d 977 (1973). As such, our Supreme Court held in Seattle High School Ch. No. 200 v. Sharples, 159 Wash. 424, 428, 293 Pac. 994 (1930), such districts,
". . . can exercise only such powers as the legislature has granted in express words, or those necessarily or fairly implied in or incident to powers expressly granted, or those essential to the declared objects and purposes of the municipal corporation. State ex rel. Winsor v. Mayor & Council of Ballard, 10 Wash. 4, 38 Pac. 761."
RCW 28A.58.131, as amended by § 3, chapter 191, Laws of 1982, provides in relevant part as follows:
[[Orig. Op. Page 2]]
"The board of directors of any school district may enter into contracts for their respective districts for periods not exceeding five years in duration with public and private persons, organizations, and entities for the following purposes:
". . .
"(3) To provide pupil transportation services.
"No school district may enter into a contract for pupil transportation unless it has notified the superintendent of public instruction that, in the best judgment of the district, the cost of contracting for the ensuing term will not exceed the projected cost of operating its own pupil transportation for the same term."
Thus, this statute expressly empowers school districts to contract, for periods not exceeding five years, with individuals or organizations to provide transportation for pupils of the district.
We next note that all classes of school districts are subject to the competitive bidding requirements contained in RCW 28A.58.135. For ease of reference, that statute is first here set out in its entirety. Later, we will refer in context to particular parts of the statute.
"(1) When, in the opinion of the board of directors of any school district, the cost of any furniture, supplies, equipment, building, improvements, or repairs, or other work or purchases, except books, will equal or exceed the sum of ten thousand dollars, complete plans and specifications for such work or purchases shall be prepared and notice by publication given in at least one newspaper of general circulation within the district, once each week for two consecutive weeks, of the intention to receive bids therefor and that specifications and other information may be examined at the office of the board or any other officially designated location: PROVIDED, That the board without giving such notice may make improvements or repairs to the property of the district through the shop and repair department of such district when the total of such [[Orig. Op. Page 3]] improvements or repair does not exceed the sum of forty-five hundred dollars. The cost of any public work, improvement or repair for the purposes of this section shall be the aggregate of all amounts to be paid for labor, material, and equipment on one continuous or interrelated project where work is to be performed simultaneously or in close sequence. The bid shall be in writing and shall be opened and read in public on the date and in the place named in the notice and after being opened shall be filed for public inspection.
"(2) Every purchase of furniture, equipment or supplies, except books, the cost of which is estimated to be excess of forty-five hundred dollars, shall be on a competitive basis. The board of directors shall establish a procedure for securing telephone and/or written quotations for such purchases. Whenever the estimated cost is from forty-five hundred dollars up to ten thousand dollars, the procedure shall require quotations from at least three different sources to be obtained in writing or by telephone, and recorded for public perusal. Whenever the estimated cost is in excess of ten thousand dollars, the public bidding process provided in subsection (1) of this section shall be followed.
"(3) Every building, improvement, repair or other public works project, the cost of which is estimated to be in excess of forty-five hundred dollars, shall be on a competitive bid process. All such projects estimated to be less than ten thousand dollars may be awarded to a contractor on the small works roster. The small works roster shall be comprised of all responsible contractors who have requested to be on the list. The board of directors shall establish a procedure for securing telephones and/or written quotations from the contractors on the small works roster to assure establishment of a competitive price and for awarding contracts to the lowest responsible bidder. Such procedure shall require that a good faith effort be made to request quotations from all contractors on the small works roster who have indicated the capability of performing the kind of public works being contracted. Immediately after an award is made, the bid quotations obtained shall be recorded, open to public inspection, and available by telephone inquiry. The small works roster shall be revised at least once each year by publishing notice of such opportunity in at [[Orig. Op. Page 4]] least one newspaper of general circulation in the district. Responsible contractors shall be added to the list at any time they submit a written request. Whenever the estimated cost of a public works project is ten thousand dollars or more, the public bidding process provided in subsection (1) of this section shall be followed.
"(4) The contract for the work or purchase shall be awarded to the lowest responsible bidder as defined in RCW 43.19.1911: PROVIDED, That when bids have been solicited in the manner provided for in subsections (2) or (3) of this section and there is reason to believe that the lowest acceptable bid is not the best obtainable, all bids may be rejected, and the board may call for new bids. Any or all bids may be rejected for good cause. On any work or purchase the board shall provide bidding information to any qualified bidder or his agent, requesting it in person.
"(5) In the event of any emergency when the public interest or property of the district would suffer material injury or damage by delay, upon resolution of the board declaring the existence of such an emergency and reciting the facts constituting the same, the board may waive the requirements of this section with reference to any purchase or contract: PROVIDED, That an 'emergency', for the purposes of this section, means a condition likely to result in immediate physical injury to persons or to property of the school district in the absence of prompt remedial action."
RCW 28A.58.135,supra, does not expressly require a school district to advertise for competitive bids prior to entering into a contract for pupil transportation services. Therefore, interpretation of the statute is necessary.
The primary purpose of statutory construction is to determine, and carry out, the intent of the legislature. Department of Transportation v. SEIB, 97 Wn.2d 454, 458, 645 P.2d 1076 (1982). A statute must be construed as a whole and effect should be given to all the language used; and, by the same token, all provisions of the statute must be considered in relation to each other and harmonized, if possible, to insure proper construction of each provision. Burlington Northern v. Johnston, 89 Wn.2d 321, 326, 572 P.2d 1085 (1977). The courts, however, will neither read into a [[Orig. Op. Page 5]] statute matters which are not there nor modify a statute by construction. SeeKing County v. Seattle, 70 Wn.2d 988, 991, 425 P.2d 887 (1967).
The Washington Supreme Court has observed that public policy favors competitive bidding as a method of purchasing equipment, supplies and services for use by government organizations. See,Dalton v. Clarke, 18 Wn.2d 322, 329, 139 P.2d 291 (1943). InEdwards v. Renton, 67 Wn.2d 598, 602, 409 P.2d 153 (1965), the Court, citing 10 McQuillin Municipal Corporations § 29.29 (3d ed. 1950), said that:
". . . the objects of statutory bidding requirements in connection with the letting of municipal contracts are to prevent fraud, collusion, favoritism, and improvidence in the administration of public business, as well as to insure that the municipality receives the best work or supplies at the most reasonable prices practicable. . . ."
This public policy in favor of competitive bidding is not, however, without limits. Indeed, inDalton v. Clarke, 18 Wn.2d 322, 329, 139 P.2d 291 (1943), the Court held that although it certainly may do so, a municipal corporation isnot required to award a particular contract through a competitive bidding process unless there is a constitutional, statutory or charter provision requiring that it do so. In so ruling, the Court said:
"It is no doubt true that a requirement by the lawmaking body that public contracts be let only after competitive bidding is had, establishes a wholesome rule of public policy, but it is a matter solely within the discretion of that body, and, if it does not see fit to establish such a rule in a particular situation, such is not the subject of judicial inquiry even though it may have established such a rule in other similar situations." Id. at 330. (Emphasis supplied)
See also Shaw Disposal v. Auburn, 15 Wn.App. 65, 69, 546 P.2d 1236 (1976).
Dalton v. Clarke, supra, thus clearly indicates that in the absence of a clear expression of legislative intent, the public policy in favor of competitive bidding is not enough, by itself, to force competitive bidding for purchases not required by statute to be competitively bid.
[[Orig. Op. Page 6]]
RCW 28A.58.135(1) through (3), as above noted, list the types of goods and work which a school district must purchase through a competitive bidding process. Accordingly, let us next examine these lists of goods and work to determine whether they encompass pupil transportation services by implication even though such services are not expressly listed as a type of work required to be competitively bid.
First, RCW 28A.58.135(1) requires a school district to advertise for written competitive bids under the following circumstances:
"When, in the opinion of the board of directors of any school district, the cost of anyfurniture, supplies, equipment, building, improvements, or repairs, or other work or purchases, except books, will equal or exceed the sum of ten thousand dollars, . . ." (Emphasis supplied)
RCW 28A.58.135(2) and (3) then require that, for purchases in excess of $4,500 and less than $10,000, a school district shall obtain telephone and/or written quotations from at least three different sources prior to awarding a contract. RCW 28A.58.135(2) reads, in relevant part:
"Every purchase offurniture, equipment or supplies, except books, the cost of which is estimated to be in excess of forty-five hundred dollars, shall be on a competitive basis. . . ." (Emphasis supplied)
RCW 28A.58.135(3) states in relevant part:
"Everybuilding, improvement, repair or other public works project, the cost of which is estimated to be in excess of forty-five hundred dollars, shall be on a competitive bid process. . . ." (Emphasis supplied)
Pupil transportation services clearly are not furniture, supplies, equipment, building, improvements or repairs. And recently, in AGO 1983 No. 13, this office advised (albeit in a different context‑-see chapter 39.12 RCW) that contracting out pupil transportation services does not constitute a "public works project." Thus, the phrase "other work or purchases" in RCW 28A.58.135(1) is the only remaining feature of the statute which might, arguably, apply to pupil transportation services.
[[Orig. Op. Page 7]]
To determine the meaning of the phrase "other work or purchases" we must look to the statutory context in which it is found. RCW 28A.58.135(1) lists specific types of goods and work which must be obtained through competitive bidding;i.e., furniture, supplies, equipment, building, improvements or repairs. Those goods and work fall into two general categories: (1) those tangible goods or materials needed by a school district; i.e. furniture, supplies and equipment; and (2) work connected with a school district's capital facilities; i.e., building, improvements and repairs. Then, following that specific enumeration of goods and work to be obtained through competitive bidding, the statute contains the general phrase "other work or purchases."
Under the rule ofejusdem generis, whenever a statute contains a specific enumeration of matters followed by words of a more general nature, the specific enumerations govern the meaning of the general words. See,e.g.,Dean v. McFarland, 81 Wn.2d 215, 221, 500 P.2d 1244 (1972),Des Moines v. Hemenway, 73 Wn.2d 130, 135, 437 P.2d 171 (1968). Accordingly, under that rule of construction, the phrase "other work or purchases" should properly be taken to refer only to work or purchases falling into the two general categories described above‑-neither of which involve pupil transportation services.
In addition, an examination of other competitive bidding statutes indicates that when the legislature has intended to require services be obtained through a competitive bidding process it has expressly said so. Thus, for example, the bidding statutes governing fire protection districts (RCW 52.12.110), port districts (RCW 53.08.120), public utility districts (RCW 54.04.070), sewer districts (RCW 56.08.070), water districts (RCW 57.08.050), and public hospital districts (RCW 70.44.140) each require that all work in excess of the legislatively specified amount be contracted for through competitive bidding.
RCW 35.23.352(3), which governs bidding requirements for second and third class cities, requires that:
"Any purchase of supplies, material, equipment or services other than professional services, except for public work or improvement, where the cost thereof exceeds two thousand dollarsshall be made upon call for bids: PROVIDED, That the limitations herein shall not apply to any purchases of materials at auctions conducted [[Orig. Op. Page 8]] by the government of the United States, any agency thereof or by the state of Washington or a political subdivision thereof." (Emphasis supplied)
RCW 35.23.353, which governs contracting and bidding requirements for garbage disposal services in second, third and fourth class cities states, in relevant part:
"Any purchase by a municipality of the second, third or fourth class of supplies, material, equipment or services for garbage collection and disposal, except for public work or improvement,where the cost thereof exceeds two thousand dollars shall be made upon call for bids in accordance with the procedure prescribed for any public work or improvement in the first paragraph of RCW 35.23.352 as now or hereafter amended. . . ." (Emphasis supplied)
Conversely, the legislature did not require in RCW 28A.58.135 that pupil transportation services, or services in general, be competitively bid by school districts. This pattern of legislation, we think, further indicates a legislative intent not to include contracts for pupil transportation services within the competitive bidding requirements of RCW 28A.58.135.
Next, we note that when RCW 28A.58.131 was amended by [by] § 3, chapter 191, Laws of 1982,supra, to authorize school districts to enter into contracts for pupil transportation services, the legislature also provided, in relevant part, that:
". . .
"No school district may enter into a contract for pupil transportation unless it has notified the superintendent of public instruction that, in the best judgment of the district, the cost of contracting for the ensuing term will not exceed the projected cost of operating its own pupil transportation for the same term.
". . ."
By this provision, it appears to us that the legislature adopted a process other than competitive bidding for controlling the cost of pupil transportation service contracts. The existence of this cost control process, coupled with the failure to include pupil transportation services in the list of goods and work which [[Orig. Op. Page 9]] must be competitively bid, further indicates that the legislature did not intend to subject contracts for pupil transportation services to the competitive bidding process established by RCW 28A.58.135.
Based on the foregoing analysis we conclude that RCW 28A.58.135(1),supra, does not require school districts to engage in a competitive bidding process prior to entering into contracts for pupil transportation services. We thus answer your question as above stated in the negative.1/
We trust the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
JERALD R. ANDERSON
Assistant Attorney General
*** FOOTNOTES ***
1/School districts, however, are in no way prevented from obtaining competitive bids before awarding contracts for pupil transportation services. As we said in AGO 61-62 No. 103 (in which we ruled that fire insurance contracts were not required to be competitively bid under the predecessor to RCW 28A.58.135),
". . . Furthermore, in our opinion, we can think of no more effective method for school directors to demonstrate to the electors that they are discharging their duties in a manner calculated to provide the district with the most prudent investment." (Id. at 8)