Untitled Texas Attorney General Opinion ( 2000 )

OPPTCE OF THE ATTORNEY GENERAL STATE OF TEXAS
JOHN CORNYN
December 22.2000
The Honorable Michael P. Fleming Opinion No. K-0319
Harris County Attorney
1019 Congress, 15th Floor Re: Whether a county commissioners court may
Houston, Texas 77002-1700 condition acceptance of bids for county public
works project on attendance at amandatoryprebid
conference (RQ-266)
Dear Mr. Fleming:
You ‘ask whether a county commissioners court may condition acceptance of bids for a
county public works project on attendance at a mandatory prebid conference. We conclude that a
commissioners court may not do so.
As background to your request, you explain that the county engineer in your county would
like “to impose mandatory pre-bid conferences on selected public works projects in order to ensure
that all bidders are aware of the intricacies of the project” and to enable the county to “answer
questions related to the scope ofwork.“r We understand you to ask whether a county commissioners
court may condition acceptance of bids for county public works projects on attendance at a
mandatory prebid conference under the County Purchasing Act, subchapter C of chapter 262 of the
Local Government Code. See Request Letter, note 1, at 1.
Section 262.023 of that subchapter generally requires a county to purchase goods and
services according to competitive bidding or competitive proposals:
(a) Before a county may purchase one or more items under a
contract that will require an expenditure exceeding $25,000, 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.
(b) The competitive bidding and competitive proposal require-
ments established by Subsection (a) apply only to contracts for which
payment will be made t?om current funds or bond funds or through
‘Letter from Honorable Michael P. Fleming, Harris County Attorney, to Honorable John Comyn, Texas
Attorney General at I (Aug. 8,200O) (on tile with Opinion Committee) [hereinafter Request Letter].
The Honorable Michael P. Fleming - Page 2 (JC-0319)
time warrants. However, contracts for which payments will be made
through certificates of obligation are governed by The Certificate of
Obligation Act of 1971 (Subchapter C, Chapter 271). Contracts for
which payment will be made through anticipation notes are subject
to the competitive bidding provisions ofThe Certificate ofobligation
Act of 1971 (Subchapter C, Chapter 271) in the same manner as
certificates of obligation.
TEX.LOC. GOV’TCODEANN. $262.023(a), emon Supp. 2000) (footnote omitted). We assume
(b) (V
you ask about purchases exceeding $25,000 that are not exempt from section 262.023 by section
262.024. See id. 5 262.024 (Vernon 1999) (items exempted from competitive bidding). As the
memorandum brief submitted with your query focuses on the requirements of competitive bidding
and the County Purchasing Act,’ we also assume that your question does not pertain to competitive
sealed proposals or to contracts subject to the Certificate of Obligation Act of 1971.
The County Purchasing Act requires a county to publish notice of a proposed purchase
including spetiifications about the item to be purchased and other information about the purchase.
Id. § 262.025. All bids for an item must be opened at the same time. See id. 5 262.026 (Vernon
Supp. 2000). After bids for an item have been opened, the officer in charge ofopening the bids must
present them to the commissioners court. See id. 9 262.027(a) (Vernon 1999). Section 262.027
requires a commissioners court to award the contract to the lowest responsible bidder, providing in
pertinent part:
(a) Except as provided by Subsection (e), the court shall:
(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.
@) If two responsible bidders submit the lowest and best bid, the
commissioners court shall decide between the two by drawing lots in
a manner prescribed by the county judge.
(c) A contract may not be awarded to a bidder who is not the
lowest dollar bidder meeting specifications unless, before the award,
each lower bidder is given notice ofthe proposed award and is given
an opportunity to appear before the commissioners court and present
evidence concerning the lower bidder’s responsibility.
2See Brief from Honorable Michael P. Fleming, Harris County Attorney, to Honorable John Comyn, Texas
Attorney General (Aug. 8,200O) (on tile with Opinion Committee).
The Honorable Michael P. Fleming - Page 3 (JC-0319)
Id. 5 262.027(a), (b), (c).
Subsections(d) and(e) of section 262.027 provide special criteria for determining the lowest
and best bid for a contract for the purchase of certain equipment and materials not relevant here. In
addition, section 262.0275 provides that in determining who is a responsible bidder, the
commissioners court may take into account the safety record of the bidder, if:
(1) the commissioners court has adopted a written definition and
criteria for accurately determining the safety record of a bidder;
(2) the governing body has given notice to prospective bidders in
the bid specifications that the safety record of a bidder may be
considered in determining the responsibility of the bidder; and
(3) the determinations are not arbitrary and capricious.
Id. 5 262.0275
The County Purchasing Act must be construed in light of counties’ limited jurisdiction. In
Attorney General Opinion JM-1215, for example, this office considered whether Harris County was
authorized to prescribe a prevailing wage for nonpublic works contracts awarded under the County
Purchasing Act. As this office noted, “[clounties may do only those things that they are authorized
to do, either expressly or by necessary implication. Canales v. Laughlin, 214 S.W.2d 451 (Tex.
1948); Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941); Childress County v. State, 92 S.W.2d
1011 (Tex. 1936)” Tex. Att’y Gen. Op. No. JM-1215 (1990) at 2; seealsoTex. Atty. Gen. Op. No.
JC-0171 (2000) at 1 (“It is well settled that the authority of the commissioners court to contract [o]n
behalf of the county is limited to that conferred either expressly or by necessary implication by the
constitution and laws of this state.“). This office concluded that Harris County was not authorized
to prescribe a prevailing wage: “While the legislature has required that counties determine and pay
local prevailing wage rates on public works contracts, it has made no such requirement in regard to
other contracts. [Clhapter 262 does not require the payment of prevailing wages generally. Nor
do we find any other statute that expressly requires or necessarily implies that the commissioners
court establish prevailing wage rates for contracts other than public works contracts.” Tex. Att’y
Gen. Op. No. JM-1215 (1990) at 2.
Here, the County Purchasing Act does not expressly authorize a county to require mandatory
prebid conferences. Nor do we believe such authority must be necessarily implied from the County
Purchasing Act as a county may convey information about a project to potential bidders in writing.
Furthermore, we have identified two Texas statutes that expressly authorize political subdivisions
to require bidders to attend prebid conferences. Significantly, the Water Code expressly authorizes
a water district to “require attendance by a principal of each prospective bidder at mandatory prebid
conferences.” TEX. WATER CODE ANN. 5 49.271 (Vernon 2000). A water district, like a county,
exercises only such powers as have been expressly delegated to it by the constitution or the
The Honorable Michael P. Fleming - Page 4 (JC-0319)
legislature or which exist by clear and unquestioned implication. See Tri-City Fresh Water SuppZy
Did. No. 2 of Harris County v. Mann, 142 S.W.2d 945 (Tex. 1940); Franklin County Water Did.
v. Majors, 476 S.W.2d 371 (Tex. Civ. App.-Texarkana 1972, writ ref d n.r.e.) (a water district may
do only that which is authorized by the statute creating it). In addition, the Health and Safety Code
authorizes political subdivisions to require prebid conferences to coordinate geotechnical
investigation of a project site and prohibits such bodies from considering the bids of bidders who
fail to attend a mandatory prebid conference. See TEX. HEALTH & SAFETY CODE ANN. 5 756.023
(Vernon Supp. 2000) (authorizing political subdivision on a project in which trench excavation will
exceed five feet to require bidders to attend prebid conference to coordinate geotechnical
investigation of project site). The legislature’s enactment of these statutes supports our conclusion
that the authority of a limited-power political subdivision to condition acceptance of bids on
attendance at a prebid conference must be expressly authorized by statute and may not generally be
implied.
In sum, because the County Purchasing Act does not expressly or impliedly authorize a
county to condition acceptance of a bid on the bidder’s attendance at a prebid conference, such a
condition is therefore beyond the authority of a commissioners court when it solicits bids under that
statute. You also ask whether a bidder’s proposal may be returned unopened if the contractor fails
to attend a prebid conference. See Request Letter, supua, note 1, at 1. Given our conclusion that a
county may not require mandatory prebid conferences, it follows that a county may not return a bid
unopened because the contractor failed to attend a prebid conference. As we have noted, however,
a county is authorized to require a prebid conference with respect to a project to the extent it
will involve trench excavation that will exceed five feet. See TEX. HEALTH & SAFETY CODE ANN.
$756.023 (Vernon Supp. 2000). Finally, we note that the County Purchasing Act does not preclude
a county from holding nonmandatory prebid conferences with interested bidders, provided that it
does not take attendance at such conferences into account in awarding contracts.
The Honorable Michael P. Fleming - Page 5 (X-0319)
SUMMARY
A county commissioners court may not condition acceptance
of bids for a county public works project solicited pursuant to the
County Purchasing Act, TEX. Lot. Gov’TCODEANN. ch. 262, subch.
C (Vernon 1999 & Supp. 2000), on attendance at a mandatory prebid
conference.
Yo s ve truly,
4&C-
JOHN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General - Opinion Committee