Untitled Texas Attorney General Opinion ( 1948 )

. . -
L~KWTIN 11. -
PRICE DANIEL
ATTDRSBYGRNEHM
June 5, 1948
Hon. Wm. N. Hensley Opinion No. V-6OC
Criminal District At%orney
Bexar County Re: The legality of paying an
San Antonio, Texas amount In excess of that bid
and contracted for the repair
of road machinery where it is
alleged the actual work cost
more than the contract price.
Dear Sir:
Reference is made to your recent request which is, in
part, as follows:
"On September 25, 1547, we received a re-
quest for an opinion from the Bexar County Audl-
tar in the following language:
"'On July 25, 19'17,the Bexar County Commls-
sioners' Court:passed an order to advertise for
bids for repair on a motor grader for Precinct Nod
1, as per specifications on file in the County
Engineer's Office.
"'Or.~iigj.,.~t
l,s,lga?, bids were opened in
the Commissioners Court and the bid submitted by
Wm. K. Halt Machinery Company in the sum of
$600.00 was accepted by the Court.
"'Upon compls:ion of repair+ the Wm, K.
Halt Machinery Company rendered a bill for
$1,000.23. From previous legal,adv%ce, I know
of no way to approve a bill for payment wherein
it is in excess of toe amount bid and the
amount awarded by the Court, Therefore, I ask
you to give me an opinion as to payment of any
amount in excess cf hid axard and contract, wh!ct
was for $600 :oo * : & /'"
You then ask the following questions:
':I: Does t'-:sc0ntrac.Lfall wi%hin the
provisiors of Arri:le 1659, V,R.C,S., or any
otner article, snlch re,Tii.rescompetitive bid-
ding?
. ,,
Hon. Wm. N. Hensleg, page 2 v-600
"2c If It does not, does this particular
contract fall within the provisions of Article
III, Sectlon 53, of the State Constitution or
not?
“3; If if does come under this constitu-
tional provision, does the clause Included there-
in, (as part of the speciflcatlons upon which
blds were received and made a part of the con-
tract) that 'payment will be based on the actual
work done and on the parts actually furnished',
authorize the Commissioners Court to pay for this
work on that basis rather than on the basis of
the flat sum bid?"
Ycu also enclosed copies of the contract, together with
the proposal and the specifications under which the Commissioners'
Court of Bexar County submitted to competitive bids, for the
repair of a Caterpillar Motor Grader. The bid of Wm. K. Halt
Machinery Company was accepted.
In the face of the contract it is stated that it is in
accordance with the specifications and the proposal which %:ere
annexed thereto and made a part thereof, The proposal provides
that the repairing ofthe Motor Grader will be made for the lump
Yim of $CrJri .OOa
The specifinacions provide, in part, as follows:'
"TLe work shall consist,of PJrnis?ing and
installing necessary parts and labor in the re-
pairing of a Caterpillar Model 12 Motor Grader
i in accor.dar,ce
%ith the following specl-
hioations.
"The lump 3v.m price bid for 'Repairs of
Motor Grader' shall be full compensation for
furnishing ail mat,erials,parts, tools, labor,
equipment and incidentals nec$ssary to complete
the wcrk as ber:eFnspecified.
~'PA3igNT; Fayment:,
will be based on the
actual iork done, and on the parts actually
furnished."
TEE type;irir:enportion of the "Proposal Sheet!'reads:
i
Hon. Wm. N. Bensley, page 3 v-600
“Repairing Caterpillar Model 12Ct;,t,;r
Grader
for 600 .OO Dollars and
Lump Sum ho0 .oo”
In the case of Patten v. Conch0 County, 196 3,W. (2d)
833, It was held that the purchase of machinery by a county was
;;t2;; ulred to be made by competitive bids under Articles 1659
ia v.c.3 * However, Article 2368a, supra, was amended by
the 50th’Leglslature and now reads, In part, as follows:
“3ec s 2 o No county acting through Its
ConnnlsslonersCourt and no city In this State
shall hereafter make any contract calling for
or requlrlng the expenditure or payment of Two
Thousand Dollars ($2,000) or more out of any
fund or funds of any county or subdivision of any
county creating or imposing an obligation or
llablllty of any nature or character upon such
county or any subdivision of such county, or
upon such city, without first submitting su$h
proposed contract to competitive bids . D V
It is apparent that’the above Article now requires that
all contracts made by a county mst be under competitive bids if
such contracts amount of $2,000 or more. 32nce,the expenditure
to be made by your county does not amount to $2,000 and In -view
of the foregoing, It is our oplnlon that such a contract does
not fall within the provisions of Article 1659 or any other
article which require competltlve bidding,
10 Tex. Jur. pages 288, 289, provides, In part, that;
“Another contract or Instrument may be
made a part of a written cont~ractby express
reference, In which case the principal writing
and that referred to are to be read and con-
strued together. S m .‘I
In 17 C.3.3. 731, para. 313, It is stated that:
“Unless a conkary intention appears from
the contract as a whole, the meaning of general
words will be restricted by more specific terms
for, or descriptions of, the subject matter to
whlcb t.heyapply. Where, however, both general
and special provisions may be given reasonable
effect both ape to be retained. See also Western
Union vs S Echhardt Comm. App i) 11 3.W, (2d) 7779
syllabus 12, page 7 2.”
Hon. Wm. N. Hensley, page 4 v-600
The contract expressly states that the speclflcatlons
and the proposal are made a part of the contract. In conslder-
lng these three instruments together, we believe that the con-
tract is definitely one where the repair was to be made for a
lump sum of $600 and that the phrase “payment will be based on
the actual work done and on the parts actually furnished” Is
overridden by the specific provlslon in the contract that the
lump sum price bid - shall be full compensation for furnishing
all materials, parts, tools, labor, equipment and incidentals
necessary to complete the work as herein specified. This con-
clusion is supported by the fact that the proposal which was sub-
mitted by the company clearly provides that the repair of the
machinery according to the specifications would be made for a
lump sum of $600.
Section 53 of Article III of the State Constitution 1s
as follows:
“The Leglslature shall have no power to grant,
or to authorize any county or mnlclpal authority
to grant, any extra compensation, fee or allowance
to a public officer, agent, servant or contractor,
after service has been rendered, or a contract has
been entered into, and performed in whole or ln
part; nor pay, nor authorize the payment of, any
claim created agalnst any county or munlclpalLty of
the State, under any agreement or contract, made
without authority of law.”
Ever.,
though tne Commissioners’ Court was not required to
make such purchase under competltlve bids, nevertheless since it
elected to do so, the contract is binding on both parties. Inas-
mch as the county 1s legally liable only to the extent of $600
under the provisions of the contract, it Is our opinion that the
county may hot allow addlt.lonalexpenditures for such repairs,
since it is prohibited from doing so under Section 53 of Article
III, supra 1 See Shelby County v. Gibson, 44 3.X” 302.
In view of the foregoing construction of said contract,
it is our opinion tnat the clause included in the speclflcatlons
that “payment,will be based on the actual work done and on the
parts.actually furnished” does not authorize the Commissioners!
Court to pay for this work on that basis rather than on the basis
of the flat sum bid /
SUMMARY
A contract,by a county for repair of road
machinery is not wlt,hlnthe provisions of
Article 1659, V.C.3. Patten v. Concbo County,
. .
Hon. Wm. N. Benslsy, Page 5 v-600
196 S.W. (26) 833. The county is not required
to submit same to competitive bids under Article
2368a, V.C.S., unless such repair amounts to
$2,000 or more.
The county is not required to receive com-
petitive bids for the repair of county road
machinery where said repair amounts to only
$600. Nevertheless, when It elects to do so
and enters into a contract for a specified
amount, the county is bound by said contract
and may not allow any additional expenditures
for such repair. Art. III, Section 53, See
Shelby County v. Gibson, 44 S.W. 302.
Yours very truly,
ATTORNEY GENERAL OF TEXRS
By s/Bruce Allen
Bruce Allen
Assistant
BA:mw:wc
APPROVED:
s/Price Danlel
ATTORNEY GENERAL