Sometimes the law is just too clear for clear-eyed judges to see. The solemn delegates who wrote the state’s Constitution in 1874 as the state was emerging from Reconstruction were usually plainspoken men who left ambiguity to those who would later write the amendments changing their work. They were not always farsighted or wise, but they were almost always clear.
They were clear when they drafted a sentence requiring public officials to take bids on major public works like buildings and bridges and to give contracts for the work to those who submitted the lowest responsible bids. Thursday, the Arkansas Supreme Court said the authors did not mean to do that. The drafters wanted it to apply only to county governments, the justices said. Everyone else in government — state, city and school officials — presumably could be trusted to be honest and economical with the taxpayers’ money, but county government officials were obliged to strictly follow prudent contracting policies.
Thus, all state agencies can hand construction contracts valued at more than $5 million to their favorite builder — maybe businessmen who are politically matched with the administration — without taking bids. The legislature and Gov. Mike Huckabee changed the law in 2001 to end the requirement of competitive bids. Too cumbersome, too confining, they said. It is better, they said, to negotiate a contract privately with a preferred builder.
Since then, nearly all state building contracts have gone to four big construction companies. We have no way of knowing whether the taxpayers got their dollar’s worth. Some contractors sued on the ground that the Constitution required bids.
This is what it says: “All contracts for erecting or repairing public buildings or bridges in any county, or for materials therefore, or for providing for the care and keeping of paupers where there are no alms houses, shall be given to the lowest responsible bidder under such regulations as may be provided by law.”
The argument was over the words “in any county.” The justices wrote that those words clearly meant that the framers of the Constitution intended it to apply only to county governments.
But that is not what it says. It says bids are required on any public building or bridge in any of the 75 counties. If it meant buildings built by the county government it would have said so.
If the bidding applied only to county government, the section would have appeared in the county government article of the Constitution, where all the other specifications for county government are lodged. Instead, it appears in the Miscellaneous section at the end of the Consti-tution. All the provisions under Miscellaneous apply to the whole state and to the state government. The provision right above it requires bids to be taken on all contracts for state printing. It is a requirement for the state government, not counties. The other 26 sections of the Miscellaneous article all apply to the state government, though a few apply to counties and cities, too, as clearly the public buildings and bridges section was supposed to do.
History also does not support the court’s theory. The delegates who assembled to write a new Constitution to throw off the shackles of the Reconstruction law had an overweening fear of state executive power because they had seen rampant corruption and abuse by the Reconstruction Republican government. Throughout the document, including its miscellaneous provisions, that fear guided the delegates’ work. They intended to rein in those abuses by providing checks and confining the executive branch’s prerogatives. Competitive bidding was one of the weapons.
Sometimes they went too far and hamstrung government’s ability to meet the changing needs of the people. But the requirement of competitive bidding is not such an instance. That prudence is as valuable today as it was in 1874.
Governments now say bidding is just too time-consuming and complicated and that it ties their hands. We need to look no further than the mammoth waste and fraud in the awarding of no-bid contracts for war support in Iraq, all given to friendly businesses.
This case is reversed and remanded with instructions to follow the Constitution.
