Attorney General's Opinion 1975-76 #071

October 14, 1975

THE HONORABLE PHILIP R. BROOKS,
Director Department of Purchases and Supply

75-76 71

This is in reply to your request for an opinion as to the required procedure for the opening of bids on contracts for equipment purchased with capital outlay funds. You state that the Department recently solicited bids for certain accessories that were to be purchased out of capital outlay funds. Because of the nature of the funding, the Department attached to the bid invitation the General Conditions of the Contract for Capital Outlay Projects. You further advised me that one bidder contended that paragraph 10 of the General Conditions governed the bid opening procedure rather than the provisions of §2.1-275 of the Code of Virginia (1950), as amended.

Section 2.1-275 provides, in pertinent part, that "[each] bid with the name of the bidder shall be entered of record, and each record, with the successful bid indicated, shall, after the letting of the contract, be open to public inspection." (Emphasis added) Paragraph 10 of the General Conditions, on the other hand, provides in pertinent part, that "bids will be opened at the time and place stated in the invitation, and their contents made public for the information of bidders and others interested who may be present either in person or by representative." (Emphasis added.)

The General Conditions are standard contract clauses administratively adopted for use in capital outlay project contracts. Section 2.1-275, on the other hand, is an enactment of the General Assembly and, of course, would control in the event of any conflict with the General Conditions, provided the contract in question is one to which §2.1-275 applies. Section 2.1-275 is part of Article 3 of Chapter 15 of Title 2.1, which establishes a centralized purchasing system for "all materials, equipment and supplies of every description, the whole or a part of the costs whereof is to be paid out of the State treasury. . . ." (See §2.1-273.) Assuming, therefore, that the "accessories" purchased pursuant to the contract in question constitute materials, equipment or supplies, I am of the opinion that the bid opening procedure specified in §2.1-275 applies notwithstanding anything to the contrary in paragraph 10 of the General Conditions.

Your final inquiry is whether the Virginia Freedom of Information Act contains any requirement which can be construed to require the Department to follow a bid opening procedure different from that spelled out in §2.1-275. Section 2.1-342, a provision of the Freedom of Information Act requiring official records to be open to inspection, does not apply to any situation in which other procedures relating to the inspection of public records are specifically provided by law. Section 2.1-275 contains a specific provision relating to the inspection of bid records. Consequently, I conclude that the provisions of the Act relating to the inspection of public records do not apply in this instance.