Untitled Texas Attorney General Opinion ( 1984 )

I ’
.
The Attorney General of Texas
Octcber 12. 1984
JIM MATTOX
Pctorney General /
supr*mabull BUlldinQ Honorable Tin Curry Opinion No. JM-208
o.eox1254a Criminal District Al:l:orney
rtin. TX. 79711. 2549 Tarrant County Court:houac Re: Authority of a county
5121475.2501 Forth Worth, Texas 76196 purchasing agent to revrite
Telex 91om7c13S7 or refuse to advertise bid
lecopiar 5lY47542S9
apecificatlona epproved by
the commissioners court
714 Jackson. Suite 700
11lao.TX. 75202.4508 Dear tlr. Curry:
u742.994A
You have reqwrted our opinion as to whether. under articles
24 AIbe,ta Ave.. Suite 160 1659b and 2368a, V.:r..C.S., and the note to article 1580, V.T.C.S.. the
Paso. TX. m-2793 Tarrant County purchasing agent la authorized .to rewrite or, in the
Qls33.34S4 alternative, ia authorized to refuse to advertise bid specificationa
approved by the c````isaloners court but which. In the purchasing
I. Texas. Suilc 700 agent’s judgment. are so narrovly vritten as to deny competitive
Houston. TX. 77002-3111 bidding. Addressins only the statutory construction issue, we
- ‘Y22359m conclude that the plr:chasing agent is not authorized either to rewrite
or refuse to advertL:;e such bid specifications.
905 Broadwy. Suite 312
rbbock. TX. 79401.3479
The county acts only through its commissioners court in making a
W747.5239 contract. Article 2.3688, V.T.C.S.. is the general competitive bidding
statute. Section 2(.1) provides:
y)9 N. Tenlh. Suite 8
sac. I!., (a) No county, acting through its
ic*,,.n. TX. 7S.501.19SS
3 tma?-4!547
Cormiaaioncra Court, sod no city in this atate
shell hereafter make any contract calling for or
requiring an expenditure or payment In an amount
90 *(*in Ptua. Suite 409 exceedlag five thousand dollars ($S.WO.DO) out of
aan Anlonio. TX. 792052797
any fund or funds of any city or county or
51212254191
subdlvisiDp of any county creating or imposing an
obligation or liability of any nature or character
rn Equal OpportuniIvl upon such county or an9 aubdivlaloo of such
Afflrmatlr* Action Employer county, or upon such city. without first
submitting such proposed contract to competitive
bids.
-
Although the utatutea do not expressly specify .vhich offlcer or
entity is authorized to set bid specificationa. this office has stated
that, under articles 1659 and 2368a. V.T.C.S..
p. 940
. .
I
gonorable Tim Cum9 - Page 2 m4w
the Commiaaioner’s Court ir given broad discre-
tionary powers ult,k rerpecr to establlahlng and
getting apccificat:he for meteriala end l uppliee
to be purchased by the county. . . .
Attorney General Opinion O-6606 (1945); see also Attorney General
Opinion W-1121 (1961). No changer ln the statutes since the 1945
opinion have altered the corr~lssionera court’s authority to contract
for the county. to submit p,ropoaed contracta to competitive bidding,
and inferentially to set apec::.ficatioaa for such bids.
Chapter 9, Acts of the Forty-sixth Legislature, as amended, vhich
is codified as a note to article 1580. V.T.C.S., makes it the duty of
the purchasing agent to make roll purchases for the county of supplies,
materials, and equipment exctrpt purchases which are required by law to
be made by competitive bid. Sec. l(b). It grants no reaponaibil1ty
to a purchasing agent for purchases which must be made by competitive
bid.
Article 1659b. V.T.C.S. I is a statute applying only to Tarrant
County because of its pop~;llation bracket. The statute imposes
specific duties on the county purchasing agent once specifications for
bidding have been set. It provides, in part, that:
Where the total expenditure for any such purchase
or an9 such cwtract shall exceed $1.000.
advertisements for-- bids for such supplies and
meterial, according to purchasing specifications
giving in detail what la needed, shall be made by
the purchasing agent
__. . . . (Emphasis added).
Additional duties of the purchasing agent under this statute include
filing all bids received, pwvlding copies of 811 bids received by the
coaaaiasioners court and, whenever that ‘court finds all bids unaatia-
factory, rejecting the bids and readvertiaing. Id. This office has
stated that where the county auditor performs thexited functions of
the ~purchsalng process conferred by article 1659. V.T.C.S., duties
virtually identical to th<>re imposed on the purchasing agent by
article 1659b. the comtniasjonera court, not the auditor, sets bid
specifications. Attorney General Opinion WI?-1121 (1961). citing
Attorney General Opinion O-6606 (1945).
We believe that, since the purchasing agent has no power to aet
bid apecificat1ona. by tis,lication he has no power to rewrite
specifications set by the coaauisaioners court. You also inquire
whether the purchasing agent may refuse to advertise such bid
specifications.
Honorable Tim Curry - Pago 3 (JH-208)
Section 2(a) of article 2368a requires that a county submit
certain contracts to compet lcive bidding. Section 2(b) of that act
requirea the ldvertiaemen t of such bidding. Article 1569b
specifically provides that :iu Tarrant County advertiaemcnts for bids
for certain contracts “shall ‘>e made by the purchasing agent.”
Section 2(d) of article 2368a provides that a contract made by a
county without complying with the statutory requirements of that act
la void and unenforceable at4 that the performance of such a contract
may be enjoined by any citizen of the county who~paya property taxes.
However, we do not believe r:hat the provisions of either statute give
the purchasing agent dia~:retionaay authority to judge whether
specifications approved by the commissiqnera court meet competitive
bidding standards or discretion to refuse to advertise for bids on
such apecificationa. We wrlclude that the duty of the purchasing
agent to advertise the a``;~ilability of bid specifications la a
ministerial duty which la statutorily explicit and involves no
exercise of judgment or discretion.
Since you do not ask about the coaatitutionslity of the statute
vhich appliea~ only to Ta::!:ant Couoty because of its population
bracket, we do not address the issue of vhether it la ‘a local or
special law in violation cmf article III, section 56 of the Texas
Constitution. See Oakle v. Kent, 181 S.W.Zd 919. 923. 924 (Tex. Clv.
APP. - Eaatland
-4-m 194 , ; Attorney General Opiniona R-393
(1974); A-8 (1973).
SUnMARY
The Tarrant County purchasing agent la not
authorized to rev~r-lte bid specifications approved
by the commiaaion~!::a court even if the purchaaiug
agent believes the bid apeclfications deny com-
petitive bidding. The purchasing agent may not
refuse to advertise for bids on such
specifications.
JIM HATTOX
Attorney General of Texas
TOMGREEN
First Assistant Attorney Gewral
p. 942
lhorabh Tim Curry - Page 4 (JM-208)
DAVID 1. RICHARDS
IDcecutive Aesiotent Attorney General
Preperrd by Nancy Sutton
Aeeietent Attoroey General
ApPxOVeD:
OPINIONCOWlIlTEE
Rick Cilpin, Chairmen
David Brook.
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youogblood
.