AGO 1979 No. 2 - Jan 11 1979
COUNTIES ‑- CITIES AND TOWNS ‑- CONTRACTS ‑- BIDS ‑- NECESSITY FOR BIDDING IN CONNECTION WITH CONTRACT FOR SOLID WASTE DISPOSAL SYSTEM
(1) In the event that a county enters into an interlocal cooperation act agreement with cities of the second, third and fourth class within the county for the operation of a solid waste disposal system, whereby the county is given full authority to manage and operate such system on behalf of the county and the cities, the county would stand in the position of agent for the participating cities and, hence, would be required to comply with the bidding requirements of RCW 35.23.352 and 35.23.353 in making and entering into contracts and purchases for such solid waste disposal system.
(2) The fact that a particular county is not subject to mandatory bidding requirements, generally, does not excuse it from compliance with RCW 36.58.050 which requires a county entering into contracts for the hauling of trailers of solid waste from transfer stations to disposal sites and return to do so either by (a) the normal bidding process or (b) negotiation with the qualified collection company servicing the area under the authority of chapter 81.77 RCW.
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January 11, 1979
Honorable Joseph Panattoni
P.O. Box 577
Ellensburg, Washington 98926
Cite as: AGO 1979 No. 2
By letter previously acknowledged you requested our opinion on the following question:
"If Kittitas County enters into an interlocal agreement with cities of the second, third and fourth class within the County for the [[Orig. Op. Page 2]] operation of a solid waste disposal system, wherein the County is given full authority to manage and operate such system on behalf of the county and cities, must the County make and enter into contracts and purchases by competitive bid for such solid waste disposal system in conformance with RCW 35.23.352 and 35.23.353?"
Additionally, noting that RCW 36.58.050 requires counties entering into contracts for the hauling of solid waste to and from transfer stations to do so either (a) by the normal bidding process or (b) by negotiating with a qualified collection company servicing the area, you have asked:
"Since Kittitas County does not have a required normal bidding process, may the County negotiate with someone other than a qualified collection company servicing the area?"
We answer your first question in the affirmative and your second question in the negative.
In answering your initial question we assume that Kittitas County and the cities involved are, or will be, proceeding pursuant to a coordinated comprehensive solid waste management plan as provided for by chapter 70.95 RCW‑-and specifically, RCW 70.95.080. In accordance with such a plan the county and participating cities, as we understand it, would jointly operate the solid waste disposal system in question by agreement executed in accordance with the Interlocal Cooperation Act, chapter 39.34 RCW.
Neither Kittitas County nor any of the cities involved are "home rule" or code municipalities. Therefore, they are clearly governed by the well-established principle that municipal corporations have only those powers which are expressly granted to them by law and those which are necessarily implied from any such express grant. Pacific First Federal Savings & Loan Ass'n v. Pierce Cy., 27 Wn.2d 347, 353, 178 P.2d 351 (1947). Applying this principle in the past, this office has consistently advised that in [[Orig. Op. Page 3]] the absence of a specific grant of authority from the legislature, powers granted to a municipal corporation may not be exercised jointly with other municipalities. See, AGO 1965-66 No. 28 and AGO 1913-14 No. 279, copies enclosed.
An equally fundamental principle, as stated in 2 McQuillin, Municipal Corporations, § 10.39 (p.843), is as follows:
". . .
"The legal conception early obtained that the powers possessed by public and municipal officers 'must be viewed as public trusts, not conferred upon individual members for their own emolument, but for the benefit of the community over which they preside.' Therefore, the principle is fundamental and of universal application that public powers conferred upon a municipal corporation and its officers and agents cannot be delegated to others, unless so authorized by the legislature or charter. . . ."
Shortly after our issuance of AGO 1965-66 No. 28, supra, the legislature considered and adopted a model act, chapter 239, Laws of 1967, now codified as chapter 39.35 RCW and entitled the Interlocal Cooperation Act. This act authorizes two basic kinds of agreements between public agencies (including counties and cities) to which it applies. The first is an agreement for joint or cooperative action as provided for in RCW 39.34.030(2):
"(2) Any two or more public agencies may enter into agreements with one another for point or cooperative action pursuant to the provisions of this chapter. . . ."
The second type of agreement authorized by the Interlocal Cooperation Act is a simple "business" transaction between public agencies. Accord, RCW 39.34.080 which provides as follows:
"Any one or more public agencies may contract with any one or more other public agencies to perform any governmental service, activity, or undertaking which each [[Orig. Op. Page 4]] public agency entering into the contract is authorized by law to perform: PROVIDED, That such contract shall be authorized by the governing body of each party to the contract. Such contract shall set forth fully the purposes, powers, rights, objectives, and responsibilities of the contracting parties."
From your letter we take it that the type of agreement here contemplated would be a joint agreement under RCW 39.34.030(2), supra; i.e., a joint agreement between Kittitas County and certain cities within the county for the joint construction and operation of a solid waste disposal system. Under that type of agreement the parties are required to specify, among other things,
". . . The precise organization, composition and nature of any separate legal or administrative entity created thereby together with the powers delegated thereto, . . ."
Or, alternatively, they are required to provide ". . . for an administrator or a joint board responsible for administering the joint or cooperative undertaking. . . ."1/ Once again referring to your letter it appears that the county, in this case, would be the administrator contemplated by this last quoted portion of the statute. It thus seems clear that the county, in acting as the administrator, would be acting not only on its own behalf but also on behalf of the other participants to the agreement, as their agent.
It is in this last stated proposition that the key to our answer to your first question will be found. Like the analogous mathematical principle that the whole is no greater than the sum of its parts, ordinary agency principles would preclude a county, in acting as agent for the cities here involved, from exceeding the powers of its various principals. Or, stated another way, there is no legal basis for holding that a city, acting singly or in concert with other cities or other public agencies, could lawfully employ a county or any other administrator in such a way as to relieve such city of its statutory obligations in [[Orig. Op. Page 5]] connection with a contract like that here contemplated unless expressly authorized by law to do so. Accord, 2 McQuillin, Municipal Corporations, § 10.39, supra, page 843. Statutes defining the mode of contracting are construed to be limitations on the power of contract. 10 McQuillin,supra, § 29.21, page 297.
In addition to the general principles thus far discussed, RCW 39.34.030(5) expressly provides that:
"No agreement made pursuant to this chapter shall relieve any public agency of any obligation or responsibility imposed upon it by law except that to the extent of actual and timely performance thereof by a joint board or other legal or administrative entity created by an agreement made hereunder, said performance may be offered in satisfaction of the obligation or responsibility."
See also, AGO 1978 No. 21, copy enclosed. In that opinion we concluded as follows:
"Where the boards of directors of two or more public school districts have formed a joint purchasing agency, as authorized by RCW 28A.58.107(3), and that joint purchasing agency itself complies with the bidding requirements of RCW 28A.58.135 in so doing, the agency may then acquire and maintain an inventory of supplies from which the participating school districts may draw without also individually calling for bids as provided for in RCW 28A.58.135."
In addition, we there concluded that if a school district utilizes some other purchasing agent to acquire supplies and materials, the district or its agent would have to comply with the applicable school district bid law saying:
"The clear language of this statute directs a school district to call for bids if the supplies it desires to purchase exceed $3,500. It is axiomatic that one cannot do indirectly what one is forbidden to do [[Orig. Op. Page 6]] directly. See,e.g.,Port of Longview v. Taxpayers, 85 Wn.2d 216, 225, 533 P.2d 128 (1974) andWeiss v. Bruno, 82 Wn.2d 199, 219, 509 P.2d 973 (1973). Thus, it is inconceivable to us that the clear legislative requirement contained in this provision may be avoided by using a purchasing agent. . . ."
On the basis of the same reasoning we thus here conclude that your first question, as above stated, must be answered in the affirmative.
RCW 36.58.050 provides, in material part, as follows:
". . .
"Each county may enter into contracts for the hauling of trailers of solid wastes from these transfer stations to disposal sites and return either by (1) the normal bidding process, or (2) negotiation with the qualified collection company servicing the area under authority of chapter 81.77 RCW."
Bearing this statute in mind you have asked:
"Since Kittitas County does not have a required normal bidding process, may the county negotiate with someone other than a qualified collection company servicing the area?"
We would answer this question in the negative. RCW 36.58.050,supra, gives a county two alternative choices. It either may utilize competitive bidding procedures (even though such procedures might not be legally required) or it may contract through the negotiation process ". . . with the qualified collection company servicing the area. . . ."
Therefore, as we view it, the fact that Kittitas County is not required to utilize competitive bidding does not justify an avoidance, by the county, of the alternative requirement that any negotiated contract be with ". . . the qualified collection [[Orig. Op. Page 7]] company servicing the area. . . ." Any other reading of the statute, in our judgment would be to subvert legislative intent.
We trust that the foregoing will be of assistance to you.
Very truly yours,
ROBERT F. HAUTH
Senior Assistant Attorney General
*** FOOTNOTES ***
1/RCW 39.34.030(2)(b) and (4)(a).