Montana Attorney General Opinion 17-172

Opinion No. 172. State Purchasing Agent-Call for Bids. HELD: The statute requires that the State Purchasing Agent must ad- vertise for bids in purchasing all sup- plies and equipment. Although such advertising may be futile so far as concerns results obtained, the statutory duty must nevertheless be performed. 206 OPINIONS OF THE ATTORNEY GENERAL October 7. 1937. Hon. I. S. McQuitty State Purchasing Agent The Capitol Dear Mr. McQuitty: You have asked my opinion on the following facts: "For the past several years this office has advertised and sent out calls to service station dealers in gasoline, asking them to bid on fur- nishing gasoline to State-owned cars for six-months periods, October 15th to April 15th on Winter Grade and April 15th to October 15th on Sum- mer Grade Gasoline. "Ever since the N.R.A. was cre- ated the State has gained no ad- vantage as to price except a rebate of 1¢ per gallon Federal Tax, which refund may be obtained from any service station provided exemption certificates are signed. In reply to our calls for bids, we often receive quotations from bidders at a point at which they do not maintain a service station. and this results in considerable confusion to State em- ployees who are trying to obey the rules of this office. "The Highway Department has 12 points in the State at which they can accept carload deliveries, and we con- tinue to send out separate calls for bids for lots as required and do find a variance in prices and we do award the business to the lowest bidder. The prices on this gasoline vary be- tween 14¢ and 17¢ per gallon and includes the State tax but excludes the Federal Tax. Service Station de- liveries, however, are on a different basis. If the price of gasoline in Helena is 250¢ per gallon the price ordains at every service station and a State employee will pay 240¢ at every station, obtaining only the re- bate of 1¢ per gallon the Federal tax. "Under the existing conditions, since the State can gain no advantage by going to the considerable expense necessary to call for bids, the question then arises, is it within the jurisdictio!J or authority of the State Purchasing Agent to refrain from sending out a call for bids on service station de- liveries of gasoline. It seems logical to argue that the funds of this office should not be wasted in an endeavor that brings no advantage to the State." While. in the circumstances. it seems utterly futile to advertise for bids, Section 293.3, R. C. M. 1935, provides that the State Purchasing Agent "must advertise" for bids. Since the statute does not make any exceptions and does not make your call for bids de- pendent upon the results obtained, we are unable to advise you that you have any discretion in the matter or that you may omit such statutory require- ment. Apparently the only remedy is by legislation.