Untitled Texas Attorney General Opinion ( 2000 )

September 7,200O
The Honorable Tony Goolsby Opinion No. JC-028 1
Chair, House Administration Committee
Texas House of Representatives Re: Whether a municipality must competitively
P.O. Box 2910 bid a contract with a temporary day labor agency
Austin, Texas 78768 (RQ-0217-K)
Dear Representative Goolsby:
You ask whether a city’s annual contract with a temporary day labor agency to provide
qualified day laborers, particularly garbage collection workers, is exempt from the competitive
bidding procedure required by Local Government Code section 252.021 as a procurement necessary
to preserve or protect the public health or safety.’ The city’s contract with the temporary day labor
agency, if limited to the employment of laborers necessary to preserve or protect the public health,
would be excepted from competitive bidding pursuant to section 252.022(a)(2) of the Local
Government Code. See TEX. Lot. GOV’T CODE ANN. 5 252.022(a)(Z) (Vernon Supp. 2000). You
also ask whether the purchase of equipment and materials used exclusively for solid waste collection
would be exempt from competitive bidding as necessary to preserve the public health or safety. See
Request Letter, note 1, at 1,3. Section 252.022(a)(2) ofthe Local Government Code would exempt
a contract to purchase these items from the competitive bidding requirements of section 252.021.
See TEX. Lot. GOV’T CODE ANN. $5 252.021, .022(a)(2) (Vernon Supp. 2000).
You write that many Texas cities find workers for their city-operated solid waste collection
services through temporary day labor agencies. See Request Letter, note 1, at 1. To be sure of
having a reliable source of qualified day laborers, municipalities will often contract with a temporary
day labor agency. See id. If a municipality anticipates spending more than $15,000 in one year with
a temporary day laborer provider, you ask whether the contract must be put out for competitive bids.
See id. at 2. You also ask whether the purchase of equipment and materials used exclusively for
solid waste collection, such as garbage trucks and residential trash containers, would be excepted
from competitive bidding as necessary to preserve or protect the public health or safety of the city.
See id. at 1, 3.
Under section 252.021 ofthe Local Government Code, amunicipality must submit acontract
that requires an expenditure of more than $15,000 to competitive bidding or competitive proposals.
‘See Letter from Honorable Tony Go&by, Texas State Representative, District 102, Chair, House
Administration Committee, to Honorable John Comyn, Texas Attorney General, at 1 (Mar. 31, 2000) (on tile with
opinion Committee) [hereinafter “Request Letter”].
The Honorable Tony Goolsby - Page 2 (JC-0281)
See TEX. Lot. GOV’T CODE ANN. 4 252.021 (Vernon Supp. 2000); see also id. 5 252.021(c)
(competitive sealed proposal procedure may be used only for high technology procurements or, in
cities of population of 75,000 or more, to purchase insurance). Several kinds of purchases are
excepted by section 252.022 of the Local Government Code from the requirement of competitive
bidding, including expenditures for:
(1) a procurement made because of a public calamity that
requires the immediate appropriation of money to relieve the
necessity of the municipality’s residents or to preserve the property
of the municipality; [or]
(2) a procurement necessary to preserve or protect the public
health or safety of the municipality’s residents.
Id. 5 252.022(a)(l), (2).
The Texas Supreme Court has construed the exemption for purchases necessary “to preserve
or protect the public health or safety” as independent from the exemption for purchases made
necessary by a public calamity. See Hoffman v. City of Mt. Pleasant, 89 S.W.2d 193, 194 (Tex.
1936) (expenditures to repair and improve city sewer system). Thus, the competitive bidding
provision does not apply to an expenditure to protect or preserve the public health, regardless of
whether a public calamity made the purchase necessary.
A city’s contract for garbage collection with a private corporation is within the exception for
expenditures to protect or preserve the public health and may be awarded without competitive
bidding. See Browning-Ferris, Inc. Y. City of Leon Valley, 590 S.W.2d 729, 733-34 (Tex. Civ.
App.-San Antonio 1979, writ ref d n.r.e.); Tex. Att’y Gen. Op. No. JM-908 (1988) at 18. See also
Tex. Att’y Gen. Op. Nos. JC-0136 (1999) at 3 (contract with private company for ambulance service
was excepted from competitive bidding statute as necessary to protect or preserve the public health);
M-806 (1971) at 5-6 (same). Your questions relate to the city’s expenditures to provide solid waste
collection itself, rather than through contracting with a private entity.
A city council could reasonably determine on the authority of Browning-Ferris, Inc. v. City
ofLeon Valley that a contract with a temporary day labor agency for garbage collection workers was
necessary to preserve or protect the public health, thereby bringing the contract within the “public
health or safety” exception found in Local Government Code section 252.022(a)(2). In our opinion,
the city’s contract with the temporary day labor agency would also be within this exception if it were
limited to day laborers necessary to preserve the public health or safety, such as laborers to staff city
solid waste collection services.
The Honorable Tony Goolsby - Page 3 (JC-0281)
You also ask whether the purchase of equipment and materials used exclusively for solid
waste collection, such as garbage trucks and residential trash containers, would be exempt from
competitive bidding as necessary to preserve the public health or safety. See Request Letter, supra
note 1, at 1, 3. In Hoffman Y. City of Mt. Pleasant, the exception from the competitive bidding
requirement for a procurement that is necessary to protect or preserve the public health or safety of
the municipality’s residents was held applicable for an expenditure “for the construction of a new
septic tank, filter bed, mains, and other replacements and improvements” to the city’s sewer system.
Hoffman, 89 S.W.2d at 193. This construction project required the city to purchase materials as well
as services. See id. See also Tex. Att’y Gen. Op. No. DM-4 (1991) at 4 (if dump truck is necessary
to preserve public health or safety, county may purchase it without competitive bidding under
section 262.024(a)(2) of the Local Government Code, a provision virtually identical to Local
Government Code section 252,022(a)(2)). The city council could reasonably determine that
equipment and materials used exclusively for solid waste collection, such as garbage trucks and
residential trash containers, are necessary to preserve the public health or safety, and could then
purchase these items without complying with the competitive bidding provisions in section 252.021
of the Local Government Code.
The Honorable Tony Goolsby - Page 4 (X-0281)
SUMMARY
A city’s contract with a temporary day labor agency for day
laborers, if limited to the employment of laborers necessary to
preserve or protect the public health, such as garbage collection
workers, would be excepted from the competitive bidding
requirements of Local Government Code section 252.021 by section
252,022(a)(2) of the Local Government Code. The purchase of
equipment and materials used exclusively for solid waste collection
would also be exempt from competitive bidding as items necessary
to preserve or protect the public health or safety.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General - Opinion Committee