Kansas Attorney General Opinion 1992-118

ROBERT T. STEPHAN
ATTORNEY GENERAL
September 4, 1992
ATTORNEY GENERAL OPINION NO. 92- 118
Brad L. Jones
Coffey County Attorney
P.O. Box 310
Burlington, KS 66839
Re: Counties and County Officers -- County
Commissioners -- Awarding of Certain Contracts;
Public Letting; Ability to Negotiate with the Low
Bidder
Synopsis: The board of county commissioners can modify
contracts without being required to rebid the
project as long as there is not a material change
in the terms, any change is such that it could have
been made before the contract had been executed,
and if the change does not defeat the purpose of
the competitive bidding procedure. Cited herein:
K.S.A. 19-214; 19-215; 19-216.
Dear Mr. Jones:
As Coffey county attorney, you request our opinion as to
whether the Coffey county board of commissioners has the
authority to negotiate with the low bidder in making the award
of a contract subject to the requirement of public letting of
bids pursuant to K.S.A. 19-214 et seq., and if so, what
scope of change in the project would be allowed.
You state in your request letter that on some occasions all
the bids which are submitted pursuant to K.S.A. 19-214 et

seq. exceed the amount budgeted or the engineer's estimate
for the project. In this situation Coffey county is faced
with the prospect of rejecting all the bids and re-advertising
the project unless it is lawful to negotiate with the low
bidder and adjust the specifications so as to lower the cost
of the project to the amount of the estimate and budget.
The competitive bidding statutes require the construction of
certain county projects be awarded by public letting to the
lowest and best bid. K.S.A. 19-214. The board of county
commissioners are required to publish notice of the public
letting (K.S.A. 19-215) and cause plans and specifications of
the project to be available for inspection by the bidders.
K.S.A. 19-216.
The Kansas Supreme Court has held that a competitive bid
statute (regarding first class cities) "is for the protection
of the public rather than the bidders." Sutter Bros.
Construction Company v. City of Leavenworth, 238 Kan. 85, 88
(1985). We have echoed this sentiment by stating that:
"Awarding contracts by public bid-letting
encourages competition, allows all
contractors an equal opportunity, and
avoids any appearance of impropriety or
favoritism. Attorney General Opinion No.
88-45. The rule requiring public
authorities to give out plans and
specifications for proposed public works
and contracts before receiving bids
therefore demands that the plans and
specifications be so framed as to secure
fair competition upon equal terms to all
bidders, and to permit free and open
bidding by all interested parties; they
should be free from any restrictions the
effect of which would be to stifle
competition. 64 Am.Jur.2d Public Works
and Contracts, § 51, 902." Attorney
General Opinion No. 90-23.
In discussing the necessity and sufficiency of having plans
and specifications the court in Bridge and Iron Works Co. v.
Labette County, 98 Kan. 292, 301 (1916) held:
"The intent of the requirement that a plan
and specifications shall be on file for
the inspection of bidders is that all

bidders shall be placed on an equality,
and that each shall know exactly what is
required. . . . [T]he plans and
specifications on file for the inspection
of bidders must, so far as the nature and
character of the proposed work will admit,
be sufficiently definite and explicit as
to enable bidders to prepare their bids
intelligently on a common basis. It may
be said as a general rule that plans and
specifications are sufficient if
contractors and others skilled in such
matters are able to determine what is
required." (Emphasis added.)
In the same case, the court also stated that:
"None of the cases cited goes so far as to
hold that statutes similar to ours can
only be complied with by filing detailed
working plans for the inspection of
bidders. . . . The authorities are
practically unanimous in holding that
there can be no active,intelligent
competition among bidders unless plans and
specifications are open to inspection
which are sufficiently explicit as to
afford to all bidders an equal opportunity
to bid upon the same project or
proposition." Id. at 304 (Emphasis
added). See also Attorney General
Opinion No. 81-65.
There is one Kansas Supreme Court case, Lucas v. Lane Co.
Commrs., 131 Kan. 589, 592 (1930), which dealt with the
issue you raise. The court in Lucas allowed the contract
regarding the construction of the county courthouse to be
modified based on the following reasons:
"Plans and specifications for the
courthouse and jail had been prepared and
filed, bids had been advertised for and
had been received. The only thing wrong
with the contracts in the first place was
that, in the aggregate, by the adding of
the sum necessary to furnish the building,
they might exceed $115,000. The tentative
contracts entered into contained the

provision, usually in building contracts,
providing that the owner, without
invalidating the contract, might make
changes, altering, adding to, or deducting
from the work, the contract sum being
adjusted accordingly, the amount to be
paid or deducted because of the change to
be determined by estimate and acceptance
in a lump sum, by unit prices named in the
contract or subsequently agreed to, or by
cost and percentage, or cost and a fixed
fee; in any case the architect to certify
to the amount. Many of the changes made
were in unit prices for such things as a
bronze tablet, Venetian blinds, outside
shutters and screens for windows, which
were omitted. Some of the items were for
alternates, in which the less expensive
was selected. Others applied to methods
of finish and the like, all being computed
and certified by the architect. . . . In
short, all changes made in the structure
were of a character which did not
radically change plans and specifications,
and each of them could have been made at
any time as the work progressed. [T]he
evidence is that changes in the prices of
materials and the fact that the
construction would have been delayed until
the winter season would have substantially
increased the cost. It cannot be said,
therefore, that the plaintiff, or any
other taxpayer of the county, was damaged
in any way by the business being handled
as it was. This was modified before
contracts were finally let in a way that
might have been made after the contracts
had been executed, and we see nothing
seriously wrong with it."
As previously stated, the purpose of competitive bidding is to
avoid fraud, favoritism and impropriety. Therefore,
"[A]ny competitive bidding procedure
which defeats this fundamental purpose,
even though it be set forth in the initial
proposal to all bidders, invalidates the
construction contract although subsequent

events establish, as in the present case,
that no fraud was present. It is for this
reason that no material change may be made
in any bid after the bids have been
received and opened since to permit such
would be to open the door to fraud and
collusion." Griswold v. Ramsey
County, 65 N.W.2d 647, 652 ( Sup. Ct.
Minn. 1954).
Therefore, it is the opinion of this office that the Lucas
case gave counties only a narrow window of opportunity to
modify contracts without being required to rebid the project.
Any modification of the terms of the contract which is not a
material change and is such that it could have been made
before the contract had been executed is allowable if it does
not defeat the purpose of the competitive bidding procedure.
Very truly yours,
ROBERT T. STEPHAN
ATTORNEY GENERAL OF KANSAS
Mary Jane Stattelman
Assistant Attorney General
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