Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas
JIM MATTOX Dmember 2, 1985
Attorney General
Supreme Court Building Honorable Henry Wadle Opinion No. ``-385
P. 0. Box 12546 Criminal District Attorney
Austin, TX. 76711. 2546 Condemnation 8ect::on ue: Whether a county purchasing
512/475-2501
Sewices Building agent may contract with a non-
Telex 9101674.1367
Telecopier 51214750266
Dallas, Texas 7!ii!O2 profit agency for blind or severely
handicapped persons without taking
competitive bids
714 Jackson, Suite 700
Dallas, TX. 75202.4506
21417424944
Dear Mr. Wade:
You inform us that e nonprofit agency for thr blind or severely
4624 Aiberta Ave.. Suite 160 handicapped persons has requested a contract to perform janitorial
El Paso. TX. 79905.2793 services for the county. In that regard, the Dallas County Purchasing
915/5x3-3464
Agent has asked:
1001 Texas, Suite 7CU Whethem Dallas County may contract with s
HOUS~O”, TX. 77002.3111 nonprof::t agency for the blind or severely
713/223-5666 handicapped persons without taking competitive
bids thmeon?
606 Broadway, Suite 312
Lubbock, TX. 79401.3479 A county governmental body has only the powers conferred either
6061747-5236 expressly or by necessary implication by the constitution or statutes
of this state. S,:eTex. Const. art. V, P18; Caoales v. Laughlin. 214
S.W.Zd 451. 453 ps:x. 1948). County contracts are now governed by the
4309 N. Tenth. Suite B
WAllen. TX. 76501-1665
County Purchasing ,Act. See Acts 1985, 69th Leg., ch. 641, at 4897.
5121662-4547 Section 3(a) of this recentenactnent provides in part:
Before a county may purchase one or more items
200 Main Plaza, Suite 400
under a contract that will require an exuenditure
San Antonio, TX. 76205.2797
5121225.4191
exceed+; $5,000, the commissioners court of the
county rpt comply with the competitive bidding or
competitive proposal procedures prescribed by this
An Equal OppOrtunityI Act.
- . <-. (Emphasis added).
Affirmative Action Employer
Acts 1985, 69th Ieg., ch. 641, 03(a), at 4898. The term "item" has
been defined in the act to include services. See Acts 1985, 69th
Leg., ch. 641, §2(:3),at 4898. The purpose of theact is to provide
for the requirements of competitive~bidding. exceptions, notice, bond
requirements, and changes in plans and specifications of a contract
with a county.
p. 1763
Honorable Henry Wade - Page 2 (JM-385)
Chapter 122 of the '&man Resources Code governs contracts
involving a nonprofit agency for the blind or severely handicapped
Individuals. See Hum. Res. Code 1122.001 et seq. Section 122.014
provides: -
A product manufactured for sale to a political
subdivision of this state or an office or depart-
ment thereof shall be manufactured or produced
according to specifications developed by the
purchaser. Atical subdlvision of this state
may purchase products or services for its use from
private busines& through its authorized pur-
chasing procedurrz, but may substitute equivalent
products or set&es produced by blind or other
severely disableirpersons under the provisions of
this chapter. Nothing in this chapter shall be
construed to req&e a nonprofit agency for blind
or other severelr disabled persons to engage in
competitive biddjE&. (Emphasis added).
Hum. Res. Code )122.014. Consequently, there appears to be a conflict
between the County Purchastng Act, which requires competitive bidding
and section 122.014 of tt,e Human Resources Code which prohibits a
county from requiring a nonprofit agency for the blind or other
severely handicapped persons to 'engage in the competitive bidding
process as a prerequisite to an award of a county contract.
An applicable rule of statutory construction is that. where one
statute deals with a subjec,tof general terms and another deals with a
Dart of the same subiect Ln a more detailed wav. the two should be
harmonized if possibl;, and if there is a conflict. the more soecific
will prevail. See Trinity lJniversa1Insurance Company v. McLaughlin,
373 S.W.Zd 66 (G Civ. AJ'p.- Austin 1963), reh'g denied, 374 S.W.Zd
350 (Tex. Civ. App. - Austin 1963, no writ); --,- see also C. Sands,
Sutherland Statutory Construction
-- 551.05 (4th ed. 1984). The County
Purchasing Act is a gexral statutory enactment governing the
purchasing procedures of counties; whereas, section ?22.014-is a
special provision govern:tng purchases of political subdivisions
involving a nonprofit ager.cy for the blind or other severely handi-
capped persons. Therefore, we conclude that a county is not required
to comply with the competitive bidding procedure outlined in the
County Purchasing Act whet. the contract involves a nonprofit agency
for the blind or severely handicapped persons.
In applying section 122.014 of the Human Resources Code, the
county must employ the prccedure outlined in chapter 122 in order to
ascertain what constitutes Wequivalent products or services" as those
terms are used in the provision. The legislature has established the
Texas Committee on Purehares of Products and Services of Blind and
p. 1764
Honorable Henry Wade - Page 3 (JM-385)
Severely Disabled Persons co determine the fair market price of all
products and services manufactured or provided by these Individuals.
See Hum. Res. Code 15122.COl. 122.004, 122.012. The nonprofit agency
Gt be organized under state law and recognized by the State
Commission for the Blind or the Texas Rehabilitation Commission in
order to participate. mm. Res. Code 0122.004(a). Once the
"equivalent value" has been determined, the county governing body, in
its discretion, may sublititute the products or services of the
nonprofit agency for those provided by private businesses which have
participated in the competitive bidding process as outlined In the
County Purchasing Act. 1x1.no event should the county require the
nonprofit agency to compete in the competitive bidding process with
the private businesses in (orderto be awarded a contract. -See Hum.
Res. Code $122.014.
SUMMARY
A county is n.ot required to comply with the
competitive bidding procedure outlined in the
County Purchasing Act when the contract involves a
nonprofit agency for the blind or severely
handicapped pemons. However, the county must
comply with section 122.014 of the Human Resources
Code before awarS:lnga contract to these nonprofit
agencies.
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
NARY KELLER
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney (General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tony Guillory
Assistant Attorney General
p. 1765
.
Honorable Henry Wade - Page!4 (JM-385)
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk
p. 1766