Public Contracts, Counties, Competitive Bidding, Negotiations
As to Conclusion 1, G.S. 143-132 contains minimum bid requirements for award of public building contracts. With certain exemptions for projects costing not in excess of $30,000 (See Chapter 644, 1977 Session Laws), the statute requires "three competitive bids" as a result of the first advertisement for bids from "reputable and qualified contractors regularly engaged in their respective lines of endeavor". Generally, failure of a bidder to enclose an informational document not essential as a prerequisite to acceptance and creation of a binding contract can be waived as an informality and the public agency may proceed to award upon submission of the omitted document. However, the advertisement and instructions to bidders may specify certain documents whose omission will require rejection of the bid. Where this occurs, the rejection is occasioned by the terms of the advertisement and instructions and not by the language of the statute. Therefore, the incompletely documented bid may still be counted as a competitive bid under the requirement of G.S. 143-132.
As to Conclusion 2, G.S. 143-129 requires the advertisement for bids to reserve to the public agency "the right to reject any or all" bids. No reason for exercise of this right of rejection need be stated by the public agency.
As to Conclusion 3, the term "funds available for the project" found in G.S. 143-129 contemplates a fixed sum of money from whatever source informally appropriated or allocated by the public agency for the construction of the particular project. When bids exceed that sum, the public agency has three alternatives: (1) It may reject all bids and proceed as if no advertisement had been made; (2) it may appropriate or allocate sufficient money to the project to enable it to proceed to award of contract, or (3) it may negotiate with the "lowest responsible bidder" in an attempt to bring the price within the available funds making reasonable changes in the plans and specifications to accomplish that purpose.
As to Conclusion 4, the language of G.S. 143-129 authorizes negotiations with the lowest responsible bidder. The language is discretionary; it does not manditorily require such negotiations.
Rufus L. Edmisten Attorney General
T. Buie Costen Special Deputy Attorney General