Montana Attorney General Opinion 17-100

Opinion No. 100. Unfair Competition and Discrimina- tion-State Purchasing Agent-Chap- t~rs 42 and 80, Laws of 1937, Not Applicable to. HELD: Chapter 80. relating tv un- fair competition and discrimination. OPINIONS OF THE ATTORNEY GENERAL 109 and Chapter 42, relating to contracts for the purchase and sale of Trade- ~1ark products, do not amend the law requiring the State Purchasing Agent to award contracts to the lowest re- sponsible bidder, since these acts do not affect the State of Montana as such in its purchases of needed sup- plies and equipment. Hon. A. W. Engel State Purchasing Agent The Capitol Dear Mr. Engel: May 11, 1937. You advise that on May 7, your department "will open bids on ap- proximately $32,000 worth of light trucks and commercial cars," and you inquire whether under the provisions of Chapters 42 and 80, Laws of 1937, it will be lawful for any manufacturer of motor vehicles to submit a bid or offer to sell a motor vehicle at a price lower than his regular advertised re- tail price for such vehicle, or to bid or offer to sell a motor vehicle at a price lower than such motor vehicles can be purchased by a retail dealer selling said manufacturer's product. Section 293.3, R. C. M. 1935, pro- vides: "The state purchasing agent in making purchase of supplies and equipment under the provisions of this act, or under the laws of the state of Montana must advertise as hereinafter provided, and award con- tracts in the name of the state of Montana for such supplies and equip- ment to the lowest responsible bid- der, except as hereinafter provided." I t has been the practice for years for the state of Montana to purchase sup- plies and equipment at a price lower than the regular advertised retail price and at a price lower than can be pur- chased by retail dealers selling manu- facturers' products. Such practice has not been the source of complaint among regularly established dealers in such products, but, on the other hand, in view of its large purchases in whole- sale quantities, has resulted in great savings to the taxpayers of Montana. Such practice was not the cause for the enactment of either Sections 42 or 80. Laws of 1937. The purpose of Chapter 80, relating to unfair competi- tion and discrimination was to prevent unfair competition between dealers in selling their products in general trade and to ordinary customers, and was particularly intended to prevent cer- tain unfair practices which, as stated in Section 1 of said Chapter 80, "dis- criminate between different sections, communities or cities or portions there- of, or between different locations in such sections, communities, cities or portions thereof in this state, by selling or furnishing such commodity, product or service at a lower rate in one sec- tion, community or city, or any portion thereof, than in another after making allowance for difference, if any, in the grade or quality, quantity and in the actual cost of transportation from the point of production, etc.," and to pre- vent the vicious practice by some merchants of selling articles below cost, with the intent of destroying a competitor or preventing competition. These practices among certain dealers and stores were well known and it was the purpose of said Section 80, to prevent them. V'Ve think that if the legislature had intended, by either Chapter 42 or Chapter 80, to prevent the state from advertising for bids and purchasing from the lowest responsible bidder, as required by Section 293.3, it would have expressly so provided. Repeals by implication are not favored and we do not think that the legislature intended that the state of Montana, which purchases supplies and equip- ment in wholesale quantities, should be placed in the same class as the buying public. It is therefore our opinion that neither Chapter 42 nor Chapter 80 has any application and that it is the duty of the state purchasing agent to follow the mandate of Section 293.3, and to award contracts for supplies and equip- ment to the lowest responsible bidrler. in the same manner as it has heretofore done.