Attorney General of Arkansas — Opinion
Opinion Delivered September 22, 2000
MARK PRYOR, Attorney General
The Honorable Ed Wilkinson State Representative P.O. Box 610 Greenwood, AR 72936-0610
Dear Representative Wilkinson:
I am writing in response to your request for my opinion on the following question:
Does a conflict of interest exist if a business is permitted to supply bids on state contracts for which it also writes plans and specifications as a consultant?
You have attached various documents in support of your request. Among these is Bid No. 0086 (the “Bid”), dated April 3, 2000, for kitchen equipment to be installed at Arkansas State University — Beebe (“ASU”). The document, which is signed by ASU Director of Purchasing Joyce M. Griffin, reflects that two entities, “Supreme Fixtures” and “Pioneer Dist.” submitted bids, with the contract awarded to Supreme Fixtures Co. as the low bidder. Also on April 3, 2000, a Mr. Marley, representing Fort Smith Restaurant Supply Co., wrote Ms. Griffin a letter of protest containing the following complaints:
1. It appears that Supreme Fixture Company is the food service consultant and will probably be a bidder — this does not seem right.
2. If Supreme Fixtures and Dixie Equipment both submit bids one or both should not be considered because they are both owned by the same person.
In correspondence dated April 5, 2000, Ms. Griffin reported to Mr. Marley that Dixie Equipment had not bid on the project, thus mooting the second of these concerns. She offered the following response to Mr. Marley’s other protest:
Arkansas State University — Beebe, hereinafter referred to as the University, contracted with Witsell, Evans Rasco Architects/Planners for a new Student Center. Witsell, Evans Rasco provided the University with the plans and equipment list for the kitchen using a consultant, Pat Hample of Supreme Fixture Co., Inc. There is no connection between the Consultant and the University. The University is the Owner and will approve all decisions made by the Architect and/or Consultant prior to acceptance of commodities/services provided in response to any subsequent contract for Kitchen Equipment.
Against this factual backdrop and pursuant to the procedure for “Resolution of protested solicitation and awards,” A.C.A. § 19-11-244, Ms. Griffin concluded that “Supreme Fixture Co., Inc. is authorized to submit a bid in response to the solicitation and have it considered without disqualification because of conflict of interest.”
The facts recited above reflect that your request involves a dispute under the Arkansas Purchasing Law, A.C.A. § 19-11-201 et seq. Subsection 19-11-715(b) of the Arkansas Code provides that upon request the Department of Finance and Administration, not this office, will issue advisory opinions “regarding the appropriateness of the course of conduct” of parties to transactions falling within the scope of the Arkansas Purchasing Law. Consequently, I must respectfully decline to offer my opinion in this matter.
MARK PRYOR Attorney General