Attorney General's Opinion
Attorney General, Richard Blumenthal
July 27, 2004
Connecticut State University System
39 Woodland Street
Hartford, CT 06105
Dear Chancellor Cibes:
By letter dated July 23, 2004, you advised us that on June 23, 2004, Richard L. Judd, the former President of Central Connecticut State University (the "University"), signed a document entitled "University Manual Food Services Agreement," to which the University and the Chartwells Division of Compass Group USA, Inc. ("Chartwells") are the designated parties. The purported "Agreement" contemplates the payment to Chartwells of some forty million dollars over a term of ten years, commencing July 1, 2004.
In your letter, you further advised us that the selection of Chartwells as the University's food service provider was not the result of a competitive bidding or negotiation process, as is required by Section 10a-151b(b) of the Connecticut General Statutes. You also indicated in your letter that apparently this situation resulted from the failure of one or more University employees to follow the statutorily mandated procedures, and that the agreement fails to include several provisions required by Connecticut law. Finally, you report – and I can confirm—that the agreement did not receive the approval of this office. As the selection of Chartwells was not the result of the required competitive bidding or negotiation process and does not comply with state statutory requirements, pursuant to Section 10a-151b(f) of the General Statutes the "Agreement" signed by former President Judd is void and of no effect.
Because the University does not now have a contract with a food services vendor, you have asked me whether you may employ the emergency contracting procedures set forth in Conn. Gen. Stat. 10a- 151b(c) to provide the food services which the University presently requires. According to your letter, the University is in immediate need of food services and there is not sufficient time to select a food service vendor through the competitive bidding process required by Section 10a-151b of the statutes.
Specifically, you have informed us that the University conducts summer sessions and leases its facilities during the summer to various groups. These leases often involve the provision of food service to the lessees. From mid-July through mid-August, the University's food service vendor provides meals for approximately 250 people. By mid-August that number increases to approximately 450 with the operation of various athletic camps, and by the end of August the number increases to as much as 3,000, due to freshman orientation. During the fall semester, there are approximately 2000 University students on various meal plans. In addition, the University provides food service to faculty members, administrators and staff during the summer sessions and the fall semester.
Section 10a-151b(c) of the General Statutes provides, in pertinent part, that "[w]henever an emergency exists by reason of extraordinary conditions or contingencies that could not reasonably be foreseen and guarded against . . . the chief executive officer may, if it is for the best interest of the state, make purchases without competitive bidding." The determination of whether there is an emergency and whether it would be in the best interest of the state to make a purchase without competitive bidding is a factual determination that the legislature has entrusted to you exclusively. This office has no authority or expertise to make such findings. However, should you determine that an emergency does exist and that it would be in the best interests of the state to contract with a food services vendor without competitive bidding, Section 10a- 151b (c) explicitly authorizes you to enter into such a contract immediately while the University solicits bids under an RFP.
As you are aware the overarching policy of the state is to competitively bid all contracts for goods and services, thereby allowing the operation of state government to continue at the lowest reasonable cost to state taxpayers. Should you determine that it is necessary to employ the emergency contracting provisions of Section 10-151b(c), any contract agreed to under that statutory provision should be for the shortest possible time period and should coincide with the immediate issuance of an RFP to solicit competitive bids for the provision of food services to the University.
Importantly, the circumstances that have created the present emergency should be considered in your exercise of emergency contracting powers. As you have informed this office, the present emergency stems from the failure of the University and the current vendor to follow state law, resulting in an illegal contract. The emergency powers given you under Section 10a-151b(c) require that you act in the best interests of the state in selecting a contractor for the University food services. The State's best interests would seem ill-served by selecting Chartwells for the non-competitive emergency contract, since this company's participation in the illegal non-competitive agreement led to an emergency under Section 10a-151b(c). Compelling questions of fairness and public policy would be rightly raised if Chartwells' illegal non-competitive agreement resulted in rewarding Chartwells with a non-competitive contract because of an emergency Chartwells helped create. Therefore, the University should make its best efforts to inform and consider other possible vendors capable of providing the required emergency services who were not involved, even inadvertently, in creating the present crisis.
Finally, we recommend and will assist you in doing an investigation of Chartwells' activities in regard to the illegal non-competitive agreement. The results of that investigation, which this office is prepared to begin jointly right away, must be considered when reviewing any possible proposal that Chartwells may submit in response to your RFP and any evaluation of their responsibility as a prospective bidder.
Do not hesitate to contact me if you have additional questions or concerns.
Very truly yours,