Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
March 23, 1981
MARKWHITE
AltorneyGeneral
Mr. Homer A. Foerster Opinion No. MW-310
Executive Director
State Purchasiw & General Re: Construction of section 3.08(a)
Services Commission of article 60&i, V.T.C.S.
L&J. State Offhe Building
Austin, Texas 787 11
Dear Mr. Poerster:
You have requested our opinion regarding this question:
Is the commission authorized by section 3.08(a) of
article SOlb, V.T.C.S., to waive alI oompetitive
bidding requirements, whether formal or informal, on
delegated purchases mder $1000
Artiele 6Olb, V.T.C.S., the State Purchasing and General Services Act,
provides in pertinent part as follows:
See. 3.08. (a) The commission shall establish a
pmeedure by which state egencies shall be delagated
the authority to purchase supplies, materials, and
equipment if the purchase is less than $600 and shall
provide in the procedure that formal competitive
bidding is not required for purchases under $100.
. . . .
(d) A3encies making purchases under this section
must attempt to obtain at least three competitive
bids from sa~rces which normally offer for sale the
merehandke being purchased.
. ...
sec. 3.10. . . . All purchases of and contracts
for supplies, materiab, services, and equipment shall,
except as provided herein, be based whenever possible
on competitive bids.
n. QA7
Mr. Homer A. Poerster - Psge Two (H-310)
You state that the commission delegates authority to make such purchases to
agencies under its Rule 028.12.OLO59b), but that it asks agencies to take a minimum of
three informal competitive bicb where possible. Tbs rule does not distbguish between
bids tmder $500 and those under $100, but requires an attempt at competitive bidding in
each instance. You flrther state that the term “formaLcompetitive biddingw has a
rather precise meaning in purchase cicltw and that it comprehends “a bid which has
been submitted in a sealed envelope to prevent dissemination of its contents before the
specified time and date set for bid opening.”
For the following ressons, we snswer your question in the negative. First,
section 3.08(a) exprcrssly provib that “formaP competitive bidding is not required for
purchases under $100, not that %ompetitive bidding” is not required. We must assume
that the legislature used the adjective “formal” for a purpose, Eddins-Walcher Butane
Company v. Calvert, 298 S.W.2d 93 (Tex. 1957k L & M-Surco Manufacturing, In
%Ynn Title Company, 580 S.W.2d 920 (Tax. Civ. App. - Tyler l979, writ dism’d),‘``
that it did not regard “formal competitive bidding” and “competitive bidding” as
synonymous We firther assume that the legislature intended that the term “formal
competitive bidding,” which is not defined in the statute, would be given its commonly
accepted meaning. See Sanford v. State, 492 S.W.2d 581 (Tex. Crim. App. 1973); In’re
Estate of. Purr, 553%W. 26 676 (Tex. Civ. App. - Amarillo 1977, writ ref’d n.r.e.);
Texas Employers’ Insurance Association v. Haunsehild, 527 S.W. 26 270 (Tex. Civ.
App. - Amarillo 1976, writ refkl eJ Second, section’S.O8(d), which provides that
agencies making purchases mdeF&?tion 3.08 must attempt to obtain at least three
competitive biQ from the designated sources, does not except purohese~ of less than
$100. It applies to all purchases of less than $500, and its conditions must be satisfied.
We therefore conclude that the commission is not authorieed by section 3.08(a)
of article 6Olb, V.T.C.S., to waive all compstitiw! bidding requirements, whether
formal or informal, on delegated purchases tmder $100. However, in view of the fact
that section 3.10 only requires competitive bids “whenever possible,” we think the
commission may promulgate rules indicating those instances in which it will consider
that competitim bids are not posslhle.
SUMMARY
The State Ptxehesing snd General Servfces Commission is
not authorized by section 3.08(a) of article SOlb, V.T.C.S., to
waive all competitive bidding requirements, whether formal or
informal, on deleted purchases under $100.
veneNl*
Attorney General of Texas
p. 988
Mr. Homer A. Poerster - Page Tluee @f-310)
JOHN W. PAINTER, JR.
First Assistant Attorney Qeneral,
RICHARD E.GBAYUl
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVRD:
OPINION COMMrI’TEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilptn
Eva Loutzenhiser
Bruce Youngblood
p. 989