Untitled Texas Attorney General Opinion ( 1982 )

The Attorney General of Texas
February23, 1982
MARK WHITE
Attorney General
Honorable Henry Wade Opinion No. MW-449
supreme court BulldIng Criminal District Attorney
P. 0. Box 12549
Condemnation Section Re: May a county award a bid
Austin. TX. 79711-2549
5t2i475-2501 Sixth Floor, Records Building with conditions different from
T&.x 91Ol974-1397 Dallas, Texas 75202 those stated in the bid
Telecopier 51214750299 specifications
Dear Mr. Wade:
1907 Main SL. suite 1400
oallaa. TX. 752OlaO9
214i742-9944 You ask whether a conunissioners court may accept a bid with
conditions different from those set out in the bid specifications.
4924 Al3Wta Ave.. SUitS 160
You state that the purchasing agent sent out bid documents for
El Paw. TX. 799u52792
91-2494 the purchase of asphalt, liquids, road, oils,. and similar. items.
Although the “Notice and Instructions to Bidders” uses the term
“annual contract” in relation to such items, none of the bid documents
1220 Dallas Ave.. suite 202 provide the specific term of the contract. Company A submitted a
Houston. TX. 770028999
7l26905999
timely bid on some of the items, and the bid was accepted by the
commissioners’ court on January 5, 1981. by an order.
905 Brcadway. Suite 312 The Specifications/Bid Proposal likewise did not state a contract
Lubbock. TX. 79401.3479 term for the bid. The following language appears therein:
909!7476239
Prices are to be firm for the contract period.
4309 N. Tenth. .Suite B Vendor may raise prices only when the market
McAllsn. lx. 79901-1995 justifies with a 30 day written notice. The
tiw992.4947 contract may be terminated on a 30 day written
notice by either party.
200 MLkl Ptua. Sult9 400
Ban Antonlo. TX. 792052797 Apparently. Company B submitted.an untimely bid for the remaining
5G?i2254191 items covered by the same bid proposal on January 9. 1981. which bid
the commissioners’ court accep~tedby another order.
An Equal Oppoftunityl
Afflrmatlve Actlon Employer Each of the two orders provided that each contract was awarded to
the lowest bidder “as per specifications and prices set forth in bid”
and “as per proposal presented.”
The bid from Company B which was accepted by the commissioners
court contained a provision which was added by the bidder saying
“[tlhe above prices are subject to change without notice.” Company B
p. 1546
.. Honorable Henry Wade - Page 2 (MU-449)
also changed the units from tons to gallons or pounds on some of the
asphalt items.
Competitive bidding is the foundation for purchasing by agencies
of the state of Texas. The supreme court in an opinion by Justice
Norvell states:
The purpose and intent of competitive bidding
ordinances and statutes are well stated in
Sterrett v. Bell, Tex. Civ. App.. 240~S.W.2d 516,
520 (no wr. hist.) wherein it was said:
'Competitive bidding' requires due
advertisement, giving opportunity to bid, and
contemplates a bidding on the same undertaking
upon each of the same material items covered by
the contract; upon the same thing. It requires
that all bidders be placed upon the same plane of
equality and that they each bid upon the same
terms and conditions involved in all the items and
parts of the contract, and that the proposal '
specify as to all bids the same, or substantially
similar specifications. Its purpose is to
stimulate competition, prevent favoritism and
secure the best work and materials at the lowest
practicable price, for the best interests and
benefits of the taxpayers and property owners.
There can be no competitive bidding in a legal
sense where the terms of the letting of the
contract prevent or restrict competition, favor a
contractor or materialman. or increase the cost of
the work or of the materials or other items going
into the project.
Texas Highway Commission V. Texas Association of Steel Importers,
Inc., 372 S.W.2d 525. 527 (Tex. 1963).
Article 2368. V.T.C.S.. requires that purchases by commissioners
courts or by cities in amounts of $3.000 or more must be committed to
competitive bidding, and the case of Kelly v. Cochran, 82 S.W.2d 641
(Tex. 1935). finds the failure to have competitive bidding as grounds
for holding a commissioners court purchase contract invalid. See also
V.T.C.S. arts. 1659. 16598.
In setting out requirements for purchasing contracts for
materials based on unit prices , article 2360a states in section 2a. in
pertinent part:
In the event a contract is to bc let on s unit
price basis, the information furnished bidders
p. 1547
Honorable Henry Wade - Page 3 (PIW-449)
shall specify the approximate quantities estimated
upon the best available information, but the
compensation paid the contractor shall be based
upon the actual quantities constructed or
supplied.
We could find no approximation of quantities in the bid
specifications as required above in section 2a. You pointed out also
that the various provisions in the bid specifications with regard to
the contract term and prices are themselves contradictory and
confusing. On the one hand. the language provides that the prices are
to be firm for the contract period, but the contract period is not
specifically set out.
These ambiguous invitations and instructions for competitive bids
left the bidding requirements to conjecture so that competitive
bidding was prevented. The bids submitted in response thereto should
not have been accepted. -See Attorney General Opinions MU-299 (1981);
U-24 (1973).
The untimely bid also violated article 2368a and would be void as
section 2(d) states:
(d) Any and all such contracts or agreements
hereafter made by any county or city in this
state, without complying with the terms of this
Section, shall be void and shall not be
enforceable in any court of this state and ,the
performance of same and the payment of any money
thereunder may be enjoined by any property
taxpaying citizen of such county or city.
We do not reach your second question which was contingent upon an
affirmative answer to the first question.
SUMMARY
The Commissioners Court of Dallas County may
not accept a bid with conditions different .from
those stated in the bids.
F MA.R-K WRITE
Attorney General of Texas
JOAN W. FAINTER, JR.
First Assistant Attorney General
p. 1548
.
I Honorable Henry Wade - Page 4 (MU-449)
RICHARD E. GRAY III
Executive Assistant Attorney General
~Preparedby Jean Cornelius
Assistant Attorney General
APPROVBD:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Jean Cornelius
Rick Gilpln
Jim Hoellinger
Bruce Youngblood
P. 1549