Untitled Texas Attorney General Opinion ( 1971 )

E ATI-QIKNEY GENERAL
UDFTEXAS
Hon. Harry B. Keltbn, Director Opinion No. M-890
Texas National Guard Armory Board
West Austin Station Ret Questions Concerning an
Austin, Texas~ 78703 award for the construc-
tion of an armory.
Dear Mr. Kelton:
Your request for an opinion reads as follows:
"Bids for the construction of a National
Guard armory in El Paso were opened on 14 June
1971. Contractors were required to include in
their bids an alternate to build at a location
other than or in addition to the present site.
"As a consequence of this procedure, the
results of the two low bids are as follows:
"Ponsford Construction Company
Base bid and all alternates,
except the new site $299,810
Alternate to construct at
the new site 1,700
$301,510
"Croom Construction Company
Base bid and all alternates,
except the new site $298,780
Alternate to construct at the
new site 4,750
$303,530
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Hon. Harry B. Kelton, page 2 (M-890)
"Since armories are constructed under the pro-
visions of PL 783 on a'75% Federal, 25% State fund-
ing basis, invitations to bids were advertised at
this time to preclude the loss of Federal partici-
pating funds for this project or other possible
disadvantages if the Federal money is not obligated
by the end of the Federal FY 1971, or on 30 June 1971.
"The matter of a base and an alternate site
as a part of the bidding consideration has been
occasioned by a possible exchange of properties
between the State of Texas and the Federal Govern-
ment, the authority for which is now pending in
the U. S. Congress. In the event the legislation
is effected, the new or alternate site, which is
much more suitable, would be the one designated
for construction of the armory. Should the legis-
lation fail to pass, construction on the present
site would result.
"Your opinion is requested as follows:
"Under the competitive bid law, does the
Armory Board have authority to award the contract
to the Croom Construction Company, which is lowest
with regard to the present site and to issue a
change order when and if Congress enacts legis-
lation to effect an exchange of sites?
"In the event your opinion pertaining to the
above question is negative, can the Armory Board
contract with the Ponsford Construction Company
for construction of the armory at the alternate
location when that site is not owned by the State,
for the reason stated above, and delay issuance
of a work order pending favorable Congressional
action with regard to the exchange of properties?
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Hon. Harry B. Kelton, page 3 (M-890)
"Since the above two questions and the bidding
involve the unknown factors of the element of time,
as related to a fixed bid, price, and Congressional
action, can a valid contract be entered into with
either of the above construction companies?
t,....13
In Texas Highway Commission v. Texas Association of Steel
Importers, 372 S.W.Zd 525 (Tex.Sup. 1963), the Supreme Court of
Texas cited with approval a statement in Sterrett v. Bell, 240
S.W.Zd 516, 520 (Tex.Civ.App. 19511, setting forth the require-
ments and,purposes of competitive bidding as follows:
"'Competitive bidding' requires due advertise-
merit, giving opportunity to bid, and contemplates
a bidding . . . upon the same thing. It requires
that all bidders be placed upon the same plane
of equality and that they each bid upon the same
terms and conditions involved in all the items
and parts of the contract, and that the proposal
specify as to all bids the same, or substantially
similar specifications. Its purpose is to stimu-
late competition, prevent favoritism and secure
the best work and materials at the lowest practicable
price, for the best interests and benefit of the
taxpayers and the property owners. There can be
no competitive bidding in a legal sense where the
terms of the letting of the contract prevent or
restrict competition, favor a contractor or
material man, or increase the cost of the work
or of the materials or other items going into
the project."
In the instant case all bidders were placed upon the
same plane of equality and each bid upon the same terms and con-
ditions involved in all items and p,arts of the construction pro-
ject. In the invitation for bids Alternate No. 5 stated:
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Hon. Harry B. Kelton, page 4 (M-890)
"Bidder must show the amount to be added to
his total bid price for construction of the armory
and all facilities on the alternate site as shown
on sheets No. 2-A, 3-A and 4-A of the plans. Site
work, utility lines extension, access roads and
curbs only are affected. All other work remains
unchanged."
In determining the lowest responsible bidder the award-
ing agency is not performing a mere ministerial duty but is exer-
cising a duty which is deliberative and discretionary. Attorney
General's Opinion V-1536 (1952). The awarding agency may take
into consideration among other things the ability, capacity,
experience, efficiency and integrity of the bidders as well as
their financial responsibility. Attorney General's Opinion V-1565
(1952). In exercising honest judgment the awarding agency's
determination of the lowest and best bid will not be interfered
with in the absence of fraud or an abuse of discretion. Attorney
General's Opinion V-1565, supra.
In view of the foregoing, your questions are answered as
follows:
If, in the opinion of the Armory Board, it is for the best
interest and benefit of the State under the facts submitted, it
may award the contract to the Croom Construction Company, which is
lowest with regard to the present site and issue a change order
when and if Congress enacts legislation to effect an exchange of
sites.
If. in the opinion of the Armory Board, it is for the best
interest and benefit of the State under the facts submitted, it
may award the contract to Ponsford Construction Company for
construction of the armory at the alternate location when that
site is not owned by the State and delay issuance of a work order
pending favorable Congressional action with regard to the
exchange of properties.
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. .
Hon. Harry B. Kelton, page 5 (M-890)
In other words, it is our opinion that either contract may
be awarded by the Armory Board in the exercise of its sound
judgment and neither award would in our opinion constitute an
abuse of discretion under the facts submitted.
SUMMARY
Where the cost of construction of an
armory varies as to alternate sites to be
named by the Armory Board, which involve
unknown factors of the element of time as
related to fixed bid, price and Congressional
action, it is within the sound discretion of the
Armory Board to determine the lowest and best
bid as will be for ,the best interest and
benefit of the State.
Ve truly yours,
#
General of Texas
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Pat Bailey
Mike Stork
R. D. Green
Roger Tyler
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE'
First Assistant
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