DISABILITY PREFERENCE AND GOV’T CONTRACTS: COMMUNITY SERVICES PROJECT, INC. V. BAWAC CLEANING SERVICES, INC (COA 5/25/2007)

COMMUNITY SERVICES PROJECT, INC.  V. BAWAC CLEANING SERVICES, INC
GOVERNMENT CONTRACTS:  Disability preferences; bidding
2005-CA-002320
PUBLISHED: REVERSING AND REMANDING
JUDGES:  VANMETER PRESIDING; PAISLEY & STUMBO CONCURS
DATE RENDERED: 5/25/2007
COUNTY: BOONE

KRS 45A.470 expresses a policy that in procuring commodities and services, Governmental bodies are to give preference to certain agencies serving disabled persons. The Boone Circuit Court held that the Commonwealth of Kentucky, Finance and Administration Cabinet (Cabinet), in applying the requirements of the statute, failed to conduct negotiations with the qualified nonprofit agencies bidding on a contract for janitorial and maintenance services and ordered the Cabinet to resolicit bids for the contract.

COA held that such negotiations were not required under the facts presented, and we therefore reverse disagreeing with the trial court’s conclusion that the Cabinet is unable to freely incorporate the preference expressed by KRS 45A.470(1) into the conditions of whatever bid solicitations it makes. KRS 45A.080(1) expresses as a requirement of a competitive sealed bidding solicitation that specifications can be prepared that permit award on the basis of best value[.]  COA ascertained no prohibition on the Cabinet seeking to comply with the preference expressed in KRS 45A.470(1), so long as it is able to do so within the context of preparing specifications which permit the award on the basis of best value.

The Cabinet correctly concluded that negotiations were not required in this case since BAWAC failed to offer a service at a price comparable to that offered by CSP.

Since the decision of the Cabinet is entitled to a presumption of correctness and since, for the reasons stated above, the Cabinet was not required to conduct negotiations with the nonprofit organizations in this situation, it follows that the trial court erred in ruling that the Cabinet was required to reissue the bids.

The Order and Judgment of the Boone Circuit Court is reversed, and this matter is remanded to that court with the direction to reinstate the decision of the Cabinet to award the contract to CSP.

by Michael Stevens

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