Untitled Texas Attorney General Opinion ( 1990 )

TEE ATTORNEY GENERAL
OF TEXAS
September 13, 1990
Honorable Charles W. Chapman Opinion NO. JM-1220
Criminal District Attorney
Hays County Courthouse Re: Competitive bidding for
Suite 208 a county vehicle maintenance
San Marcos, Texas 78666 building (RQ-1746)
Dear Mr. Chapman:
You inform us that in the fall of 1988, a county
vehicle maintenance building was constructed at the direc-
tion of a county commissioner who made verbal contracts with
vendors on the project. You add that the vendors were paid
by the county auditor with funds from the maintenance line
item of the commissioner's precinct budget following the
commissioner's approval of the claims. The cost of
construction was in excess of $10,000.
You ask whether a county must award a contract for the
construction of a vehicle maintenance building on the basis
of competitive bids when no statute other than section
271.024 of the Local Government Code appears to require
competitive bidding. You also ask as a preliminary question
whether section 271.024 itself requires competitive bidding
on the contract. You do not ask, and we therefore do not
consider, whether under the facts you describe the county
commissioner, acting alone, was authorized to execute the
contract or contracts in question. See aenerally Attorney
General Opinion m-892 (1988) and authorities cited therein.
Neither do you question the payment of the vendors on the
apparent approval of only the commissioner who ordered that
the construction take place, rather than on the approval of
the entire commissioners court. This opinion accordingly
will address only your specific questions concerning section
271.024 of the Local Government Code.
I. Does Local Government Code section 271.024 require
counties to award contracta for the construction of
public worka on the basis of aompetitive bidding?
Chapter 271 of the Local Government Code is a revision
and compilation of several former civil statutes that
prescribe the purchasing and contracting authority of
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Honorable Charles W. Chapman - Page 2 (JM-1220)
municipalities, counties, and certain other local
governments. Subchapter A of chapter 271 is the Public
Property Finance Act, formerly article 2368a.2, V.T.C.S.
The subchapter is by its terms applicable only
acquisitions of personal property. w Local Gov't Co::
08 271.004, 271.005. Subchapter B, of which section 271.024
is a pa*, governs competitive bidding on certain public
works contracts. Subchapter C was formerly V.T.C.S. article
2368a.l and is known as the Certificate of Obligation Act of
1971. Local Gov't Code 8 271.041. Subchapter D authorizes
local governments to purchase items through the State
Purchasing and General Services Commission. J& 5 271.082.
Subchapter Z contains miscellaneous provisions relating to
purchasing and the awarding of contracts by local govern-
ments that are not pertinent to this opinion.
A. Local Government Code section 271.024 and its
relationship to competitive bidding
Section 271.024, the provision that prompts your
question, provides the following:
If a governmental entity is required by
statute to award a contract for the construc-
tion, repair, or renovation of a structure,
road, highway, or other improvement
addition to real property on the basis zg
competitive bids, and if the contract re-
quires the expenditure of more than ~10,000
from the funds of the entity, the bidding on
the contract must be accomplished in the
manner provided by this subchapter [sub-
chapter B of chapter 2711.
*lGovernmental entity" is defined to include a county, a
municipality, a common or independent school district, a
special district or authority created under article III,
section 52, or article XVI, section 59, of the constitution,
a hospital district or authority, a housing authority, or an
agency of the aforementioned entities. Local Gov't Code
§ 271.021.
Subchapter B, entitled "Competitive Bidding on Certain
Public Works Contracts," is the descendant of former
V.T.C.S. article 2368a.3. Originally enacted in 1979, that
statute also provided that the competitive bidding proce-
dures described in the act were applicable to contracts for
the enumerated public works if the governmental entity
awarding the contract was required by another statute to
award the contract on the basis of competitive bids. Acts
p. 6449
Honorable Charles W. Chapman - Page 3 (JM-1220)
1979, 66th Leg., ch. 770, at 1901. Subchapter B prescribes
procedures for the advertisement for bids, the opening of
bids, and the award of the resulting contract. a Local
Gov't Code §§ 271.025 - 271.027. It also stipulates that
its provisions do not affect a contract awarded pursuant to
the Professional Services Procurement Act, V.T.C.S. art.
664-4. a S 271.022. A home rule charter in conflict with
the terms of the subchapter prevails over subchapter B, and
contracts awarded in violation of the subchapter are void.
J& 55 271.023, 271.028.
You conclude that the competitive bidding procedures
prescribed by subchapter B of chapter 271 are triggered only
when a statute other than section 271.024 requires the
governmental entity to award a contract for projects
described in section 271.024 on the basis of competitive
bidding, and the contract involves the expenditure of more
than $10,000 of the entity's funds. The language of the
section provides clear support to your conclusion. An
opinion of this office, however, suggests that section
271.024 may itself be sufficient to require competitive
bidding on a construction contract. A review of that
opinion is necessary.
m
8. Attorney General Opinion JM-505 and publio works
construation contracta
Attorney General Opinion JW-505 (1986) concluded in
part that the competitive bidding requirements of the County
Purchasing Act, then codified as article 2368a.5, V.T.C.S.,
did not apply to contracts for public works construction.
In reaching this conclusion, it was said that article
2368a.3, the predecessor to subchapter B of chapter 271,
"expressly governs competitive bidding on public works
contracts." Attorney General Opinion JW-505, at 2. This
statement, though technically correct, was made without
elaboration and without specific reference to the language
of section 271.024. More importantly, the opinion
mistakenly suggests that section 271.024 itself mandates
competitive bidding on public works contracts. To avoid
further confusion, we should here emphasize that the
procedures described in subchapter B are, by its plain
terms, applicable only when a separate statute requires the
P. 6450
Honorable Charles W. Chapman - Page 4 (JM-1220)
contracts for the enumerated projects to be awarded on the
basis of competitive bids.1
Your reading of section 271.024 is buttressed by a
recently enacted provision of the Local Government Code,
section 271.029, which states that an officer or employee of
a governmentalm~;~ty commits an offense if he intentionally
or knowingly or authorizes separate purchases "to
avoid the competitive bidding requirements of the statute
that requires a contract described by Section 271.024 to be
awarded on the basis of competitive bids." Accordingly, the
threshold question, h, whether section 271.024 alone
requires a county to award a contract for the construction
of a county vehicle maintenance building on the basis of
competitive bids, may be answered in the negative. To the
extent Attorney General Opinion JW-505 suggests otherwise,
it should be disregarded. Attorney General Opinion JW-505
is relevant to your question for other reasons as well,
1. Attorney General Opinion JW-505 is not the only
authority which, if read without reference to the specific
language of section 271.024, might generate confusion about
the nature of the provision. In his treatise on the law
governing counties and special districts, Brooks makes the
following observations about section 271.024:
The first modern competitive bidding statute, en-
acted in 1917, was amended in 1931 to apply only to
public works projects: this limitation was dropped in
1947. A 1979 statute [former V.T.C.S. art. 2368a.3,
now subch. B of Local Gov't Code ch. 2711, specifi-
cally applicable to public works contracts, requires
that counties . . . follow specified bidding pro-
cedures in connection with the construction or repair
of any 'structure, roadway, or any 'other improvement
or addition to real property.' (Footnotes omitted.)
35 D. Brooks, County and Special District Law 5 18.24 (Texas
Practice 1989). In isolation, this passage might lead the
reader to erroneously conclude that section 271.024 is the
sole authority to consult when considering not merely what
competitive bidding procedures are to be followed, but
whether competitive bidding for a particular public works
contract is required at all. As this opinion demonstrates,
the express language of section 271.024 precludes this
result.
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Honorable Charles W. Chapman - Page 5 (JM-1220)
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which will be discussed in greater detail later in this
opinion.
II. Does a aeparate atatute require publia worka
construction contracta to be awarded by counties on the
basia of competitive bidding?
Our answer to your preliminary question does not end
our inquiry. Under section 271.024 a separate statute must
impose a competitive bidding requirement on the awarding of
a contract for the construction of public works by a county.
Otherwise the procedures outlined in subchapter B of chapter
271 are not triggered. You contend that no statute imposes
a competitive bidding requirement on county public works
construction contracts in general. However, as the
remainder of this opinion will explain, we believe, con-
trary to Attorney General Opinion JM-505, that the County
Purchasing Act applies to such contracts and requires that
they be awarded pursuant to the competitive bidding proce-
dures prescribed by that act rather than subchapter B of
chapter 271.
A. The absence of a general statutory competitive bidding
P requirement expressly applicable to county public works
construction contracts
You argue that no statute other than the Certificate of
Obligation Act of 1971 currently requires a county to award
a contract for the construction of public works on the basis
of competitive bids, and that statute requires competitive
bidding only in the event certificates of obligation are
issued to fund contracts of more than $5000. See Local
Gov't Code 8s 271.045(a)(l) (certificates of obligaon may
be issued for the construction of any public work), 271.054
(competitive bidding requirement). The provisions of the
Public Property Finance Act, subchapter A of chapter 271, do
not apply to a contract for the construction of improvements
to real property, even though such structures may be
characterized in the contract as "personal property."
Attorney General Opinion JW-800 (1987). Thus, you conclude
that unless a county issues certificates of obligation on
the construction project, the bidding procedures described
in subchapter B are inapplicable.
You attribute this deficiency to an amendment to former
V.T.C.S. article 2368a, relevant portions of which are now
codified as chapter 252 of the Local Government Code. Prior
to 1985, section 2 of article 2368a, also known as the
Bond and Warrant Law of 1931, provided that no county was
authorized to make any contract calling for the expenditure
p. 6452
Honorable Charles W. Chapman, - Page 6 (JM-1220)
of more than $5000 in county funds without first submitting
the proposed contract to competitive bids. This requirement
was deleted in 1985. Acts 1985, 69th beg., ch. 505, 5 2, at
2091-92 (Senate Bill 802). The contracting provisions of
the statute thereafter were applicable only to cities. YOU
conclude that this action resulted in the repeal of the only
general statutory provision that requires county construc-
tion contracts to be awarded on the basis of competitive
bids. Our research has revealed no other statute that,
prior to 1985, would have generally required competitive
bidding on county construction contracts.
B. The enactment of the County Purahaaing Aat and its
efieat on the award of construction contra&a
During the same legislative session in which article
2368a was amended, the County Purchasing Act was enacted as
article 2368a.5, V.T.C.S. Acts 1985, 69th beg., ch. 641, at
2377 (Senate Bill 807). It is now codified as subchapter C
of chapter 262 of the Local Government Code, sections
262.021 through 262.035. Senate Bill 802, the bill amending
the Bond and Warrant Law to make its contracting provisions
applicable only to cities, contained a separate section
tentatively restoring coverage of its competitive bidding
provisions to counties. Acts 1985, 69th Leg., ch. 505, § 4,
at 2094. This provision was expressly made contingent upon
Senate Bill 807, the County Purchasing Act, not becoming
law. & Because Senate Bill 807 was ultimately enacted,
section 4 of Senate Bill 802 never took effect, and counties
were therefore not made subject to the competitive bidding
requirements imposed by section 2 of the Bond and Warrant
Law.
Senate Bill 807, meanwhile, contained a provision
tentatively removinq counties from the scope of section 2 of
the Bond and Warrant Law. Acts 1987, 69th Leg., ch. 641,
.6 2, at 2379. The amendment to the Bond and Warrant Law was
expressly made contingent upon the failure of the legisla-
ture to enact Senate Bill 802. Id. 0 12, at 2384. The
continuing applicability of the competitive bidding re-
quirement of the Bond and Warrant Law to counties hinged
upon the success or failure of Senate Bill 807. The two
bills thus were carefully and deliberately tied to one
another, and it therefore clearly appears that the legisla-
ture intended the provisions of the County Purchasing Act to
replace the repealed portions of the Bond and Warrant Law.
The legislative history of the County Purchasing Act
indicates that the overriding goal of the legislature was to
provide uniformity and certainty in the laws governing the
p, 6453
Honorable Charles W. Chapman - Page 7 (JM-1220)
acquisition of supplies, materials, equipment, and
stationery by counties. There apparently was no intention
to make changes in the laws governing the award of public
works construction contracts, However, by the amendment of
the Bond and Warrant Law the legislature inadvertently
removed the only general competitive bidding requirement for
county public works construction contracts. This action by
default presented the unlikely prospect that construction
contracts could be awarded without resort to competitive
bidding.2
As we will explain shortly, we think the language of
the County Purchasing Act supports the conclusion that its
provisions were intended to replace the repealed portions of
article 2368a. Attorney General Opinion JW-505, however,
concluded that the terms of the County Purchasing Act do not
apply to public works contracts except insofar as the
acquisition of "high technology items," separately defined
in the act, may be considered public works under other
statutes. Given the far reaching implications of this
conclusion coupled with a determination that county
construction contracts are not otherwise subject to a
general competitive bidding requirement, it is appropriate
- to reevaluate Attorney General Opinion JW-505.3
2. By comparison, the Certificate of Obligation Act of
1971 still requires counties to award public works
construction contracts financed with bonds or certificates
of obligation on the basis of competitive bids. Local Gov't
Code 5 271.054. Thus, the amendment of the Bond and Warrant
Law should not be viewed as a departure from the strong
public policy favoring competitive bidding.
3. This is not the first time we have had occasion to
reconsider Attorney General Opinion JW-505. A brief sub-
mitted in connection with Attorney General Opinion JW-1027
(1989) urged us to overrule the earlier opinion. The latter
opinion dealt with the purchase of road emul~~~c;~ a county
engineer appointed pursuant to V.T.C.S. 6702-l.
Because the purchase was determined not to be a public works
contract, we declined to reconsider the ruling of Attorney
General Opinion JW-505. Since your statement of facts
stipulates that a contract for the construction of a
structure on real property is involved, M Local Gov't Code
8 271.024, we must now confront the issue left unanswered by
Attorney General Opinion JW-1027.
/?
p. 6454
Honorable Charles W. Chapman - Page 8 (JM-1220)
III. Attorney General Opinion JH-505 and ita oonatruction of
the County Purchasing Act
Attorney General Opinion JW-505 was generated by a
perceived conflict between the bonding provisions of the
County Purchasing Act and V.T.C.S. article 5160. The
primary concern was not with the competitive bidding aspects
of public works construction contracts, or the ramifications
the opinion would have on competitive bidding. Article 5160
requires prime contractors on public works contracts for
more than $25,000 awarded by the state, a county, or other
political unit to execute statutory performance and payment
bonds. The statute prohibited a governmental entity from
requiring a bond on contracts for less than $25,000. Sec-
tion 12 of the County Purchasing Act, now Local Government
Code section 262.032, authorized a county to require a
bidder to furnish a bid bond in a specified form and sum.
It also required a successful bidder or offeror on a
contract exceeding $50,000 to provide a performance bond.
The bid bond requirement of section 12 was expressly made
applicable to contracts "for the construction of public
works," regardless of the amount of the contract. V.T.C.S.
art. 2368a15, 5 12(a) (repealed, now codified as Local Gov't
Code § 262.032).
The apparent conflict between the two statutes was
resolved by concluding that the County Purchasing Act did
not apply to public works contracts generally, the language
of section 12 notwithstanding. Two grounds were offered in
support of this conclusion. We have already examined one of
the arguments in support of the conclusion, b, that
article 2368a.3 governs competitive bidding for public works
construction contracts. Apparently, this conclusion was
based on the assumption that article 2368a.3 alone was
sufficient to require competitive bidding on such contracts.
A review of the language of the statute as it existed at the
time Attorney General Opinion JW-505 was written and as it
now exists as Section 271.024 of the Local Government Code
discloses the error of that assumption.
The other argument offered in support of the conclusion
was that the term I1item,ll employed throughout the statute,
did not encompass construction contracts. llItemtl was
defined as "any service, equipment, good, or other tangible
or intangible personal property,11 including insurance and
"high technology items." V.T.C.S. art. 2368a.5, 5 2(3) (m
see Local Gov't Code S 262.022(5)). The opinion
acknowledged that construction work could be characterized
as a wservice11 in some circumstances, but concluded that in
p. 6455
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Honorable Charles W. Chapman - Page 9 (JM-1220)
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ordinary usage, the term was not applied to public works
construction contracts.
In order for the bid bond language of section 12 of the
County Purchasing Act to have complete effect, it was
necessary to give meaning to the phrase "contract . . . for
the construction of public works.n Attorney General Opinion
JM-505 resolved this dilemma by referring once again to the
definition of l'item.ll It was noted that the term included
"high technology items." "High technology item" was
separately defined as
a service, equipment, or good of a highly
technical nature, including: data processing
equipment and software and firmware used in
conjunction with data processing equipment;
telecommunications, radio, and microwave
systems: electronic distributed control
systems (including building energy management
systems): and technical services related to
these items.
V.T.C.S. art. 2368a.5, 5 2(4) (pow see Local Gov't Code
P 5 262.022(4)). The opinion surmised that the legislature
included such work and articles in the definition of 11item11
to avoid the possibility that such matters would be excluded
from the scope of the act. The opinion also gave meaning to
the "public worksn language by observing that some of the
work described in the definition of "high technology item"
could be considered "public works" under other statutes.
Hence, the opinion concluded that the "public works"
language in section 12 referred only to "high technology11
installations that might be classified as public works under
other statutes.
Attorney General Opinion JM-505 also attempted to give
meaning to the 1985 enactments that resulted in both the
removal of counties from the purview of the Bond and Warrant
Law and the addition of the County Purchasing Act. However,
rather than viewing the enactment of Senate Bills 802 and
807 as evidence of the comprehensiveness of the County
Purchasing Act, it accepted the legislation as support for
its conclusion that the act did not apply to public works
construction contracts. It noted that the amendment to the
Bond and Warrant Law required successful bidders on city
public works contracts to execute performance bonds in
accordance with article 5160, whereas the County Purchasing
Act contained no similar requirement. The opinion concluded
that a narrow interpretation of the llpublic worksl' language
p. 6456
Honorable Charles W. Chapman - Page 10 (JM-1220)
in section 12 of the County Purchasing Act would minimize
direct conflict between the two statutes.
Once again, however, this reading of the County Pur-
chasing Act depended heavily on the incorrect assumption
that article 2368a.3 (now subchapter B of Local Government
Code chapter 271) imposed an independent public works
competitive bidding requirement on counties and all other
governmental entities subject to the statute.
The interpretation given the County Purchasing Act in
Attorney General Opinion JW-505 was probably consistent with
legislative intent, at least as it related to county pur-
chases. However, since it appears that the legislature
have been unaware of the complete effect of the amendmentmtz
the Bond and Warrant Law, it would have been appropriate to
consider whether the legislature intended to free counties
from the obligation to comply with competitive bidding when
awarding construction contracts. It seems clear that the
legislature did not intend to accomplish this by the
enactment of the County Purchasing Act. Had Attorney
General Opinion JW-505 taken this fully into account, we
think it would have given the purchasing act a different
reading.
A. Applicability of the County Purchasing Act to
construction aontracts
Upon further inspection, we believe it was erroneous to
place so much reliance on the definition of '1item11 in
Attorney General Opinion JW-505. We also think it was
incorrect to conclude that the application of the County
Purchasing Act is solely contingent upon whether the
particular acquisition is for an V'item11 as specifically
defined in the act. A review of other provisions of the
County Purchasing Act reveals that while the term aitem11 is
specially defined in the act, it is not a rigid, inflexible
concept. The definition therefore should not limit the
reach of the County Purchasing Act where there is a clear
indication in the language of the act that it should apply
to particular procurements. This point is made manifest by
other provisions of the act.
1. Section 262.024 of the Local Government Code
Section 262.024 provides, in part, that a llcontract for
the purchase of any of the following items" is exempted from
the competitive bidding requirement established by section
262.023 if the commissioners court grants the exemption:
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Honorable Charles W. Chapman - Page 11 (JW-1220)
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(1) an item that must be purchased in a
case of public calamity if it is necessary to
make the purchase promptly to relieve the
necessity of the citizens or to preserve the
property of the county:
(2) an item necessary to preserve or pro-
tect the public health or safety of the resi-
dents of the county:
(3) an item necessary because of unfore-
seen damage to public property:
(4) a personal or professional service;
(5) any work performed and paid for by
the day, as the work progresses:
(6) any land or right-of-way;
(7) an item that can be obtained from
only one source, including:
(A) items for which competition is
precluded because of the existence of
patents, copyrights, secret processes, or
monopolies;
(B) films, manuscripts, or books;
(c) electric power, gas, water, and
other utility services; and
(D) captive replacement parts or
components for equipment.
In the absence of an exemption granted by the commissioners
court, the acquisition of each of the enumerated articles or
services would be subject to the competitive bidding proce-
dures of the County Purchasing Act, despite the fact that
they do not fall neatly within the definition of 11item'1
provided in section 262.022.
2. Se&ion 262.0275 of the Looal Government Code
Further proof is found in section 262.0275 of the Local
Government Code, originally enacted in 1987 as an amendment
to article 2368a.5. See Acts 1987, 70th Leg., ch. 722, § 5,
at 2598. It authorizes a governmental entity to take into
C
account the safety record of a bidder under certain
p. 6458
Honorable Charles W. Chapman - page 12 (JM-1220)
specified conditions. Those conditions relate primarily to
the issues of notice and fairness to bidders. &? Acts
1989, 71st beg., ch. 1, f 58, at 66 (conforming 1987
amendment to Local Gov't Code format). The caption to the
bill enacting what is now section 262.0275 reveals the
legislature's understandins of the scope of the County
purchasing Act:
An act relating to safety standards for
construction projects and consideration of
safety records when awarding bids on
construction projects.
Acts 1987, 70th Leg., ch. 722, at 2597.
Significantly, the amendment was accomplished without
changing the definition of llitem.n This indicates that the
legislature believed both that the definition was broad
enough to include construction services and that the act
applied generally to construction contracts. If it had not
held these beliefs, we doubt it would have amended the act
to allow consideration of a contractor's safety record. The
addition of section 262.0275 therefore should not be viewed
as an expansion of the County purchasing Act, but merely a
clarification of its scope.
Accordingly, we believe construction work may reason-
ably be characterized as a %ervicel* for purposes of the
County purchasing Act, thereby bringing such work within the
definition of llitemll and preserving a general competitive
bidding requirement for construction contracts.4 We also
conclude that Attorney General Opinion JW-505 was in error
when it determined that the County purchasing Act does not
apply to public works construction contracts; it is hereby
overruled to the extent it conflicts with this opinion.
In answer to your specific question, we conclude that
the County purchasing Act requires a county to award a
contract for the construction of a vehicle maintenance
building on the basis of competitive bids. This answer,
however, raises an additional issue. Because both the
County purchasing Act and subchapter B prescribe competitive
4. The bill enacting section 262.0275 also amended
subchapter B of chapter 271 to allow for the same
consideration of safety records under its provisions. &
Local Gov't Code S 271.0275.
P- 6459
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Honorable Charles W. Chapman - Page 13 (JM-1220)
bidding procedures, it becomes necessary to determine
whether a county must award a public works contract in
accordance with the terms of either the County Purchasing
Act or subchapter B, or whether the County Purchasing Act
simply triggers the procedures set forth in subchapter B.
V. Does the County Purohaeing Act or subchapter B of
chapter 271 govern competitive bidding for public works
oomtruation contracts7
Two provisions of the Code Construction Act resolve
this issue. Section 311.025(a) of the Government Code
provides that in the event two statutes enacted at the same
or different sessions of the legislature are irreconcilable,
the statute latest in date of enactment prevails. Section
311.026, meanwhile, admonishes us to construe a general code
provision and a conflicting special provision so that both
may be given effect, if possible. If the conflict is
irreconcilable, the special provision is treated as an
exception to the general provision unless the general
provision is the later enactment and the manifest intent is
that the general provision prevail.
The County Purchasing Act and subchapter B both apply
to contracts exceeding $10,000, subchapter B applying
specifically to public works contracts. The two acts
differ, however, in several important respects, such as in
terms of the timing and content of competitive bidding
notices. Comoare Local Gov*t Code 5 262.025 wd id,
5 271.025. The acts also impose different procedures for
the opening and modification of bids prior to award of the
contract. Comoare A 5 262.026 l&h & 6 271.026. Of
course, the County Purchasing Act contains a bid bond and
performance bond requirement while subchapter B does not.
See id, 8 262.032. The County Purchasing Act authorizes a
property tax paying citizen of the county to enjoin per-
formance of a contract made in violation of the act:
subchapter B, though, provides that a contract made in
violation of its provisions is void. Id. §S 262.033,
271.028. These differences cannot, in cur opinion, be
readily reconciled, and we must therefore determine which of
the statutes shall govern county public works construction
contracts.
The County Purchasing Act was enacted in 1985; V.T.C.S.
article 2368a.3 was enacted in 1979. The County Purchasing
Act is also the more general provision. However, with our
previous discussion of the legislative history and sub-
sequent amendment of the act in mind, we believe that the
rc‘
manifest intent of the legislature is that the County
p. 6460
Honorable Charles W. Chapman - Page 14 (JM-1220)
Purchasing Act govern the award of construction contracts by
a county to the exclusion of subchapter B. Accordingly, we
believe the competitive bidding procedures prescribed by the
County Purchasing Act in sections 262.023 through 262.032 of
the Local Government Code prevail over the provisions of
subchapter B of chapter 271 of the Local Government Code
insofar as the latter provisions relate to counties.5
Recent legislation amended subchapter B to allow a
county with a population of 2.2 million or more to require a
successful bidder to perform at least 25 percent of the work
under a contract and to establish financial criteria for
surety companies that provide payment and performance bonds.
Local Gov't Code 5 271.025(e) (as added by Acts 1989, 71st
Leg., ch. 1019, § 2, at 4115). The legislative history of
the amendment indicates that it was directed primarily at
out-of-state construction contractors who do business with
Harris County. &8 Public Hearing on H.B. 1059, before the
House Comm. on County Affairs (March 7, 1989) (testimony of
Mr. Jack Watkins, Assistant County Engineer, Harris County)
(tape available through House Technical Services). The
amendment to subchapter B would suggest that the legislature
believes its provisions remain applicable to counties.
However, it must also be noted that the same legislation
amended both the County Purchasing Act, w Local Gov't Code
5 262.025(d), and the Certificate of Obligation Act, see ~
g 271.055(e), to provide identical authority to a county
with a population of 2.2 million or more. Furthermore, the
only county that may presently take advantage of the
provision apparently awards construction contracts pursuant
to the County Purchasing Act. &8 Testimony of Jack
Watkins, sunra. The amendment of subchapter B, in our
opinion, represents more a case of overly precise and
unnecessary drafting than a conscious attempt to bring
county construction contracts under the umbrella of
subchapter B.
We would also note that our conclusion also applies to
conflicts between the County Purchasing Act and V.T.C.S.
article 5160. Since the County Purchasing Act contains
5. Public works construction contracts awarded
pursuant to the Certificate of Obligation Act of 1971, Local
Government Code sections 271.041 to 271.065, are not
affected by cur answer because such contracts are expressly
removed from the scope of the County Purchasing Act. Local
Gov't Code 8 262.023(b).
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Honorable Charles W. Chapman - Page 15 (JM-1220)
C
provisions relating to bid and performance bonds, 88~ Local
Gov't Code 5 262.032(a), (b), we think these provisions
should prevail over article 5160, which provides for
performance bonds but not bid bonds. Since the County
Purchasing Act makes no provision for payment bonds, a
county must require contractors to provide such bonds
pursuant to article 5160.
SUMMARX
A county is required to award a contract
for the construction of a county vehicle
maintenance building and public works pur-
suant to the terms of the County Purchasing
Act, Local Government Code sections 262.021
through 262.035. The provisions of sub-
chapter B of Local Government Code chapter
271 do not apply to such contracts. Attorney
General Opinion JW-505 (1986) is overruled to
the extent of conflict with this opinion.
JIM MATTOX
Attorney General of Texas
WARYKELLER
First Assistant Attorney General
LOU MCCRBARY
Executive Assistant Attorney General
JUDGE ZOLLIE STBAELEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Steve Aragon
Assistant Attorney General
p. 6462