ANNUAL REPORT OF THE ATTORNEY GENERAL 073-29 o conlct wth a statute the rule prevals. The Rule supersede s anylegslatve enactment governng practce and procedure to the extent that the statute and the rule may be nconsstent. Jaworsk v. Cty o Opa-Locka 47 So.2d 33 Fla. 963. See also Fort v. Fort 04 So.2d 69 D.C.A. Fla. 958 8 Fla. Jur. Courts 93. Thereore t would seem that a person under twenty-one years o age cannot serve a subpoena under the language o Rule.40c RCP-or by any other person who s not a party and who s not less than twenty-one years o age-or under Rule es 8.0902 R.J.P. unless and untl the Supreme Court changes ts rules to conorm S to the statute. d e Accordng to the language o Rules.40c and.070b RCP any person or any ocer may serve process or a subpoena so authorzed by law. Under these provsons persons eghteen to twenty years o age may n approprate crcumstances serve process or subpoenas. Secton 48.02 F. S. says that al process shall be served by the sher o the county where the person to be served s ound but wtness subpoenas may also be served by any person authorzed by rules o procedure. Shers also have the power to execute all process o the courts o ths state under 30.5 F. S. Accordngly there had been an age requrement o twenty-one years n order to be sher whch under Ch. 73-2 supra became a requrement o eghteen years then a person eghteen years o age or older such person s a sher may serve process or wtness subpoenas. a person eghteen years o age or older s not a sher then under Rule.40c he may not serve a subpoena unless he s twenty-one. But a person eghteen or older mayserve process apponted by a court under Rule.070b. 073-29-August 6 973 COUNTES COMPETTVE BDDNG ON TOTAL COST CONCEPT To Hal Y. Manes Unon County Attorney Lake Butler Prepared by Jerry E. Oxner Assstant Attorney QUESTONS General. May a board o county commssoners consder bds whch are submtted on the total cost concept o purchasng when such a concept s not stated n the speccatons or request or bds 2. May such board request and accept bds based on the total cost concept o purchasng SUMMARY The total cost purchasng concept o bddng may not be used when such bds are unresponsve to the nvtaton to bd. Countes mayopt or nvtng bds under the total cost purchasng concept adequate saeguards are provded to prevent raud and nsure competton. The rst queston s answered negatvely. Assumng that your nvtaton or bds made no reerence to buy-back provsons and mantenance any bd based upon the total cost o purchasng concept as dened heren would not be responsve to the nvtaton and would not be n the best publc nterest due to the absence o true competton. Your second queston s answered wth a qualed armatve. Assumng that there s no specal or local law or county ordnance that would operate to nhbt such a system o lettng bds and assumng that the county commsson determnes to use the total cost method o solctng recevng and awardng bds and 49 s
pp y t lk 073-29 ANNUAL REPORT OF THE ATTORNEY GENERAL assumng that the nvtaton or bds s released clearly demonstratng that l expectaton bds so oered maybe accepted so long as the system does not result n t avortsm or an absence o competton and the publc nterest s n every respect % a. q saeguarded. State and local governments are oten requred by law to utlze compettve bddng procedures. These procedures requre ocals procurng supples equpment and servces to advertse publcly the speccatons thereo and to receve all bds whch respond to the speccatons. See 0 McQulln The Law o Muncpal Corporatons 29.29 3d Ed. 966. Ater bds are receved the procurement contract s awarded based upon those bds. As a rule bds are requred to be let to the lowest responsble bdder who can meet the mnmum speccatons. Your nqury mentons the purchase o heavy equpment. Machne A whch ntally cost less than Machne B could due to mantenance cost and poor resale value over the le o the machne cost the county more than Machne B. The practce has arsen n ths state and around the country o consderng the total cost ys4 o a pece o machnery. Obvously all other thngs beng equal buyng on the bass o the lower ntal cost would not be n the best nterest o the county. Thereore the nvtaton or bds mght ask not only or the ntalcost but the cost o mantenance and repar and the prce at whch the seller wll repurchase the machne at the end o a speced perod. The system o bddng whch takes nto account not only the ntal cost and salvage value but the cost o mantenanceand l 6 t HA jl lj j resale value as well s reerred to as the total cost concept-the subject o your nqury. The total cost concept should never be appled when all bdders are not made aware o the commssons desre through the ntal nvtaton or bds or speccatons. When low ntalcost s the only matter to be consdered ths should be made known rom the begnnng. Thus the commssoners control and should control the use o the system. To nvte bds on the bass o ntal cost and then accept a bd based upon the total cost concept would not be ar to the other bdders and n act would be antcompettve. Ater bds have been made upon the bass o one set o speccatons prepared by publc authortes and gven to all nterested bdders no materal change n the terms o such speccatons wll be allowed wthout a new advertsement gvng all bdders the opportunty to bd under the new plan. The bds must be responsve to the nvtaton. Lasster Co. v. Taylor 28 So. 4 Fla. 930 4A.L.R.437 65 A.L.R. 835 69 A.L.R. 697 64 Am. Jur. 2d Publc Works and Contracts 66. Otherwse opportuntes or avortsm may creep n whether avortsm s actually practced or not. Wester v. Belote 38 So. 72 Fla. 93. Unless all bdders know what s expected n advance and submt ther bds n lke terms an exact comparson o the bds wll be mpossble. Clark v. Melson 89 So. 495 Fla. 92. have earler ruled that nonchartered countes or nonchartered governments are no longer requred to purchase on the bass o compettve bds. They are allowed to provde by home rule ordnance or the procedure to be ollowed n ajal purchasng materals equpment and supples or county use. The county s not requred to provde a precedure by ordnance but may deal wth each contract or purchase by bds or by negotaton-wth or wthout bds. Attorney General r. Opnon 07-366. The statute that ormerly requred countes to purchase goods supples and materals by compettve bddng 25.08 F. S. was repealed by Ch. 7-4 Laws o Florda amendng 25.0 F. S. mplementng the home rule provson o Art. V State Const. Each county may now provde or the procedure to be used n that county n purchasng materals equpment and supples or county use. Absent a rule regulaton statute or ordnance so requrng a publc body s not requred unqualedly to award a contract to the lowest bdder. Wllam A. Berbusse Jr. nc. v. North Broward Hosp. Ds. 7So.2d 550 2 D.C.A. Fla. 960. n the absence o a statutory or charter requrement the county adopts a polcy o advertsng or bds t need not let the bd to the lowest - 492
t ANNUAL REPORT OF THE ATTORNEY GENERAL 073-29 bdder. Armco Dranage and Metal Products nc. v. County o Pnellas37 So.2d 234 2 D.C.A. Fla. 962. The Florda Consttuton and 25.0 F. S. n eect say the county commssoners have the power to and shall govern the county and legslate or the ctzens o the county. Complete dscreton and power or such purposes are vested n the county commssoners lmted only by the mportant charge that ther dscreton not be abused or arbtrarly or llegally exercsed. n the event the county has or should n the uture adopt an ordnance provdng or county purchasng and contractng by compettve bddng whch does not demand the standard bd speccaton acceptance and award requrements that the bd be let to lowest bdder or best and lowest bdder or lowest and most responsble bdder but whch would allow or the total cost method o purchasng as descrbed heren then consderaton should be gven to certan actors rules o law and gudelnes whch ollow. n other words once the county commssoners have armatvely decded that they wll adopt a bddng procedure that allows or and determnes that they wll request compettve bds upon a total cost bass then they should be guded by the consderatons and standards dscussed heren. The usual challenge that s made upon the total cost bddng concept s that t volates a compettve bddng statute or ordnance. Even when compettve bddng statutes requre lettng bds to the lowest responsble bdder the courts have generally allowed the exercse o sound dscreton to consder the qualty o the thng to be suppled. West v. Cty o Oakland 59 P. 202 D.C.A. Cal. 96. not capable Where bds are receved on tems o equpment whch are o precse or exact speccatons a muncpalty may exercse a reasonable dscreton n determnng who s the lowest responsble bdder and n so dong may consder n addton to the bd prce the qualty sutablty and adaptablty o the artcle to be purchased or the use or whch t s ntended. n so dong the dscreton exercsed must be reasonable and must be based upon some substantal derence n qualty or adaptablty. Otter Tal Power Co. v. Vllage o Elbow Lake 49 N.W.2d 97 20 Mnn. 95. Snce there s no longer a requrement o compettve bddng mposed by statute upon the countes ths challenge need not concern the county commssoners absent an ordnance or charter provson lmtng ther dscreton. The second attack whch has been made upon the total cost concept o bddng s that the speccatons are so restrctve as to preclude competton. Speccatons whch restrct ree and open competton are vald only requred or desgned to meet reasonable publc needs. the restrctons unduly restrct or hnder partcpaton they are nvald as antcompettve. See Sulphur Sprngs Valley Elec. Coop. nc. v. Cty o Tombstone 40 P.2d 753 Ct. App. Arz. 965 Waszen v. Cty o Atlantc Cty 63 A.2d 255 N.J. 959 Gerzo v. Sweeney 2 N.E.2d 826 N.Y. 965. The dctates o publc polcy requre that all responsble bdders shall have the opportunty to compete and accordngly devces unreason-able or actons by authortes whch are desgned or tend to lmt the lst o qualed bdders are presumed to be njurous to the taxpayer and are llegal. All partes havng the ablty to perorm the advertsed contract should be allowed to compete reely wthout any unreasonable restrctons. Ctng Opa-Locka v. Trustees o Plumbng ndustry Promoton Fund Fla. 93 So.2d 29 3 D.C.A. Fla. 966. Every element whch enters nto the compettve scheme should be requred equally or all and should not be let to the volton o the ndvdual asprant to ollow or dsregard and thus to estmate hs bd on a bass derent rom that aorded the other contenders a common 493
l j n 073-29 ANNUAL REPORT OF THE ATTORNEY GENERAL.. L standard by whch all bdders are to be measured beng mpled by the J bddng law. -At the tme the corporate authortes may wthout volatng the rule requrng reedom o competton nsert proper condtons n ther proposals or bds and the bdders are bound to observe them. Thus they may make restrctons as to the knd and qualty o the materal to be used wthout nrngng such rule. They are not requred to prepare speccatons so that every manuacturer o the type o equpment nvolved can meet the compettve prce o every other manuacturer. 0 McQulln 29.44 other ctatons omtted. MY predecessor n oce recognzed ths danger when he qualedly approved the total cost concept o bddng or the old State Road Department. However where the eect o total cost purchasng s to elmnate compettve bddng on commodtes such as where the speccatons or repar or mantenance are such that only one bd s receved then t would appear that the clear ntent o Chapter 287 has not been mplemented and the better practce would be to request new bds wthout employng total cost purchasng. So long as the plan actually results n compettve bddng there s no problem. Unpublshed and unnumbered letter opnon to the resdent attorney ta Department January 24 968. Florda State Road The Arkansas Supreme Court decded that when the nvtaton to bd on a tractor provdng that the successul bdder must that guarantee the maxmum cost t 3 l jl o repars or ve years would not exceed an amount speced n the bddng requrements and that the successul bdder must repurchase produced only one response the speccatons were so uncertan as to stle competton n derogaton o the publc nterest..the tral court decson enjonng the town romawardng the contract under the nvtaton to bd was armed. Doutht v. Allen 426 S.W.2d 82 Ark. 968. These antcompettve eects can be avoded by properly structurng the nvtaton or bds and by the commssoners nsurng that there s competton act. Ths s partcularly avalable to the commssoners due to the absence o a mandatory compettve bddng requrement. Speccally the nvtaton provdes that n addton to the ntal cost the bdder guarantee the cost o repar n a xed dollar amount and state the guaranteed buy-back amount n a rmamount and a bond adequately coverng these tems s requred the temptaton to understate repar costs and overstate salvage value wll be sgncantly reduced. So long as the speccatons do n act result n competton the publc nterest s served and n myopnon the system would be legal under the crcumstances and exstng law. t s also argued that the maxmum-cost-o-repar clause places an undue burden o repar on the seller whch mght be prohbtve especally to the smaller h ll and newer companes. Where parts and servces are only avalable romthe seller he may be requred to provde a repar shop and perorm mantenance work. The alternatve however would be an excessve amount o downtme or the equpment resultng n an undue burden upon the publc. Where parts are avalable rom more than one source provdng alternate sources o and parts servces gvng the seller an easy access to mantenance records and requrng the purchasng ocals to consult wth the seller beore repars are perormed whch are estmated to exceed a certan amount could ease entry or the smaller and new companes. The nal determnaton as to whether the provson s so restrctve as a to preclude competton should be determned on a case-by-case bass rather than by a blanket condemnaton o total cost bddng. The bdder s not requred to mantan and repar the equpment. Rather he s requred to estmate what he beleves to be the reasonable cost o mantenance and repar or a gven perod o tme. Ths estmate must then be guaranteed to nsure purchasng ocals or mantenance.an repar costs only hs representatons s 494
r absence s 073-292-August 6 973 SCHOOLS l ANNUAL REPORT OF THE ATTORNEY GENERAL 073-292 concernng these expenses are naccurate and could not n the judgment o the Al county commsson be reasonably reled upon. Ths guarantee usually s n the orm o a bond requred o the successul bdder. The ssue o whether the addtonal eort o preparng estmates o uture expenses s restrctve o compettve bddng s a queston o act that should be determned on a case-by-case bass. Only n unusual stuatons however would ths slght addtonal eort outwegh the benets and protecton that are receved by the publc. See Opnon Mnnesota Attorney General No. 707a-7 at and 2 January2 968. The argument that total cost requrements cause companes to stay n busness as long as necessary to honor repar guarantees s sometmes made. However warrantes o the bdder under a conventonal bddng concept would not be. sgncantly derent. Fnancal lablty and responsblty on the sellers part s assured by the bondng requrement.. Even when statutory or consttutonal provsons mandate that contracts only be let to the lowest responsble bdder the purchasng ocals are requred to nsure that the bdder s ndeed responsble to la the extent that hs nancal resources are adequate. 0 McQulln 29.73. The objectve then should be to requre bdders to submt bds whch accurately relect the economc value o ther equpment wthout stlng competton. So long as such dscreton s approprately exercsed so as tonsure arness and competton and so as to avod rauds upon the publc the system may be used by countes n the purchase o heavy equpment. Vckery Total Cost Bddng 58 a. L. Rev. 972. When the saeguards al and such a system actually results n an obvous absence o competton or a raud upon the publc a remedy s avalable. the bd has been let reservng the rght to reject all bds as s permssble where no compettve bddng statute requres the commssoners have the authorty to reject any and all bds 64 Am. Jur.2d Publc Works and Contracts 67 so long as the rejecton s not arbtrary. Housng Authorty o Opelousas v. Pttman Constr. Co. 264 F.2d 695 5th Cr. 959-applyng Lousana law. The commssoners may reject all. bds or the publc benet when the rght to reject all bds has been expressly reserved. Such a rejecton would appear to be approprate where an o competton or avortsm has resulted. See 64 Am. Jur. 2d Publc Works and Contracts 75-77. TRANSPORTATON OF PUPLS-COUNTY BUSES DELEGATON OF AUTHORTY TO BUS DRVER To Mchael B. Small Palm Beach County Attorney West Palm Beach Prepared by Paul W. Lambert Assstant Attorney General QUESTON 3. May the Palm Beach County Board o Publc nstructon enter nto a contract under the provsons o Ch. 234 F. S. wth the Palm Beach County Transportaton Authorty whereby sad transportaton authorty would transport school chldren to school n county-owned and county-operated buses rather than school buses wth the costs thereo -. to be pad by the board o publc nstructon 2. Mayaprncpal delegate the authorty provded n 232.25 and 232.28 F. S. to bus drvers employed by the Palm Beach County Transportaton Authorty 3. What s the eect on the contract set orth n the rst queston o cy rsll 495 lp 4