Untitled Texas Attorney General Opinion ( 1991 )

@ffice of tfie 9lttornep @eneral
Mate of Gexas
DAN MORALES
.ATTcmXEI
CEs‘ER.*L
February 22,199l
Honorable Marcus D. Taylor Opinion No. DM-4
Criminal District Attorney
Wood County Re: Whether a county may make a purchase
P. 0. Box 689 in excess of $10,000 without competitive bids
Quitman, Texas 75783 if, after advertising, no bids are received
(RQ-2187)
Dear Mr. Taylor:
You have requested our opinion on questions relating to the following set of facts:
On August 22 and August 29, 1990, Wood County commissioners
advertised for bids for a dump truck for the Precinct 4 Road and Bridge
Department. The specifications (which were identical to specifications
previously used, where bids were obtained and trucks purchased) were
mailed to ten potential bidders, as well as publicly advertised as
required by law. On September 10, 1990, the date of the bid opening,
no bids were received.
You state that the cost of the truck will exceed $10,000, -thereby bringing the
purchase within the County Purchasing Act, sections 262.022 through 262.035 of the Local
Government Code. You also stipulate that none of the exceptions to competitive bidding
provided in the act apply to the purchase of the dump truck.
You ask whether the county in these circumstances may negotiate directly with a
vendor for the purchase of the dump truck or whether it must readvertise for bids. If it
must readvertise, you also ask how many times it is required to do so. We conclude that
the county must readvertise for contract bids in accordance with the terms of the County
Purchasing Act. We further advise that the County Purchasing Act imposes no limit on the
number of times that a county may be required to advertise for bids on a single contract.
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Honorable Marcus D. Taylor - Page 2 (DM-4 )
The County Purchasing Act provides the following in pertinent part:
Before a county may purchase one or more items under a contract that
will require an expenditure exceeding $10,000, the commissioners court
of the county must comply with the competitive bidding or competitive
proposal procedures prescribed by this subchapter. All bids or
proposals must be sealed.1
Local Gov’t Code $ 262.023(a). Competitive bids or proposals are required only for
contracts paid from current funds, with bond funds, or through the issuance of time
warrants. Id. § 262.023(b).
The County Purchasing Act prescribes specific procedures governing the notice of
competitive bidding for a particular contract, the opening of bids, and the awarding ~of
contracts pursuant to competitive bidding. &.e ti $3 262.025; 262.026; 262.027; 262.0275.
Notice of a proposed purchase of $10,000 or more must either be published in a newspaper
of general circulation in the county or, if there is no such publication in the county, posted
in the courthouse in the manner specified in the act. Ih, § 262.025(a). The notice must
contain certain information, including specifications describing the item to be purchased
(or a statement informing bidders where specifications may be obtained), the time and
place for receiving and opening bids, the name and position of the person to whom bids
must be sent, the method of payment, and the type of bond required of the bidder. && $
262.025(b).
Following the opening of bids, the commissioners court is required to
(1) award the contract to the responsible bidder who submits the
lowest and best bid; or
(2) reject all bids and publish a new notice.
1. Competitive proposal procedures, which authorize a county to negotiate with vendors after the
qening of proposals submitted at the coudty’s request, are generally available only for insurance and high
technology procurements. h Local G&t Code. 5 262.030. The legislature recently amended the County
Purchasing Act to allow a county with a population of mote than 125,OiXl to employ competitive proposal
procedures if “the county official who makes purchases for the county determines that it is impractical to
prepare detailed specifications for an item to support the award of a purchase contract,” and the commissioners
court concurs in this determination by making a similar finding. rd. Q 262.0295. According to 19&l census
figures (the most recent available), Wood County has a population of just under 25,ooO persons.
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Honorable Marcus D. Taylor - Page 3 (DM-41
rd. 5 262.027(a). The act makes special provision for the awarding of a contract when two
responsible bidders submit the lowest and best bid, id. $ 262.027(b), (c), but it does not
provide alternative procedures when, as in this instance, no bids are submitted.’ Compare
1 T.A.C. 9 113.6(c)(2)(D) (regulation promulgated by State Purchasing & General Services
Commission authorizing negotiations with vendors when advertisement results in
submission of no bids).
Therefore, we believe the county is required in this instance to commence a new
round of bidding by republishing notice of the purchase in accordance with the terms of the
act. As noted, the purchasing act itself supplies no alternative procedures in this instance.
Also, while the statute does not directly address the problem you describe, there is
evidence to suggest that the legislature intends counties to readvertise for bids on a
contract when the initial advertisement yields no bids.
The clearest indicator of this intent is section 262.027(a)(2), quoted above, which
describes the county’s options when itis determined that all bids are inadequate or
unresponsive. In these circumstances, the commissioners court is authorized to reject all
bids, but it is not free to enter into direct negotiations with vendors for the purchase of an
item. Instead, it must publish new notice, which in turn triggers the other competitive
bidding procedures of the act. See also Local Gov’t Code 5 262.024(d) (procedures for the
purchase of food items otherwise exempted from competitive bidding).
In addition, the legislature has specified those occasions on which a departure from
competitive bidding is permitted. See Local Gov’t Code @262.011(a) (in counties of less
than 20,000 population without a purchasing agent, commissioners court may dispense with
competitive bidding for contracts exceeding $15,000 when it publicly finds such “to be in the
public interest”); 262.024 (exceptions to competitive bidding); 262.0295 (alternative
multistep competitive proposal procedures for counties with population of 125,000 or
more); 262.030 (competitive proposal procedure for insurance and high technology items).
It is well established that when the legislature has enacted exceptions to a statute, the
statute will be held to apply in all cases not expressly excepted. See State v. Richards, 301
S.W.2d 597 (Tex. 1957). To permit the county in this instance to avoid its obligation to
award contracts on the basis of sealed competitive bids would be to effectively create a new
exception to the purchasing act. Accordingly, in answer to’your first question we conclude
that a county must readvertise for bids on a contract subject to competitive bidding under
2. For that matter, the County Purchasing Act does not expressly address the submission of identical
low bids by more than two responsible bidders.
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Honorable Marcus D. Taylor - Page 4 ( DM- 4 )
the County Purchasing Act when the initial advertisement results in the submission of no
bids for the contract.
You next ask the number of times the county must readvertise for bids on a contract
for which no bids are received. Again, the purchasing act neither anticipates nor offers
alternatives for this contingency, and the county thus has no recourse but to comply with
the terms of the act.
Moreover, the statute provides for exceptions to the competitive bidding process in
certain circumstances. For example, if the dump truck is needed to avert the consequences
of a genuine public calamity, the county may purchase the truck without resort to
competitive bidding. Id: § 262.024(a)(l). The same will hold true if the purchase is
necessary to preserve the public health or safety of county residents, or if it is required
because of unforeseen damage to public property. 19,s 262.024(a)(2), (3). Such outcomes
will, of course, depend on the facts of the case and the exercise of sound discretion by the
commissioners court. Finally, it should be noted that the county may also purchase items
of personal property from a political subdivision of this state, a state agency, or an entity of
the federal government without resort to competitive bidding. &!, 5 262.024(a)(8)(C).
SUMMARY
A county must readvertise for bids on a contract subject to the
County Purchasing Act, Local Government Code sections 262.022
through 262.035, when the initial advertisement results in the
submission of no bids for the contract. The County Purchasing Act
imposes no limit on the number of times a county may be required to
advertise for bids in such instances.
DANE MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
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Honorable Marcus D. Taylor - Page 5 (DM- 4)
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY (Ret)
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
SUSAN GARRISON
Acting Chairman, Opinion Committee
Prepared by Steve Aragon
Assistant Attorney General
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