No, this is not a parlor game but an exercise that actually took place in an Arkansas courtroom — specifically the Pulaski County Circuit Court on Monday. Judge Jay Moody ruled that a sentence in the 1874 Constitution that says “all contracts for erecting or repairing public buildings or bridges in any county” must be given to the lowest responsible bidder actually means that state agencies do not have to take bids on buildings and bridges in any county.
The big building and highway contractors wanted the law changed so that they could negotiate deals with government agencies without going through the old competitive biding process. Government officials also chafed under the bidding law, which was supposed to see that taxpayers got the most for their money but was cumbersome. So the legislature obliged in 2001 and enacted a law that said bids did not have to be taken for projects of more than $5 million. Since then, hundreds of millions of dollars of contracts have been let by negotiated deals with contractors without the benefit of bids.
They claim that requiring businesses to submit sealed secret bids actually raises costs rather than guaranteeing the lowest cost. Counter-intuitive as it sounds, that is their premise and the legislature bought it. But a few contractors objected and sued to force the state to abide by the clear wording of the Constitution, not a state law that contradicted it.
Judge Moody heard the arguments — the attorney general sided with the contractors and the statute — and handed down his unhappy judgment. The Constitution was badly written, he concluded, and he had to figure out what the drafters actually meant. He deduced that they intended the bid mandate to apply only to county governments. Every other government could ignore it and give contracts to any business regardless of the price. The phrase “public buildings or bridges in any county” must mean, he said, “by any county government.”
If we assume that the framers were following some logical paradigm in doing what Judge Moody thinks they were trying to do, they must have concluded that alone, of all government officials in Arkansas, only county judges could not be trusted to get honest work for the taxpayer’s dollar. They had to collect bids and give the work to the lowest responsible bidder. For everyone else, a private conversation and a handshake was good enough.
