Untitled Texas Attorney General Opinion ( 1958 )

``HEA~ORNEY GENERAL
OFTEXAS
Honorable William J. Burke Opinion No. W-345
Executive Director
State Board of Control Re: The legal effect of House
Austin, Texas Concurrent Resolution No.
17, of the First Called
Session of the 55th Legls-
lature, 1957, purporting
to direct the Board of,
Control not to accept bids
for oil and by-products
from companies engaged in
the importation of crude
oil into the United States,
Dear Mr. Burke: and related questions.
Your request for an opinion.reads In part as follows:
“I am attaching a copy of House Concurrent Reso-
lution No. 17, introduced by Representatives Latimer,
Lee and Kennard.
“The Resolution directs the Board of Control not
to accept any bids for 011, etc., from firms that Import
crude oil or products into the United States or those
affiliated with such importing firma.
“The Board is also directed to study existing con-
tracts and make every effort to terminate said contracts
with oil Importers if it Is legally possible to do 80.
%l%e Board of Control purchases refined products
for the use of the State and State-owned vehicles. The
availability of adequate service and supply facilities
throughout the State Is directly related to the refining
capacity and distribution organization of the contracting
supplier. It has been found that even some of the ‘major’
011 and refining companies have limited and/or no dli-
trlbutlon of refined products In some portions of the
State. Some of the problems involved In purchasing from
Independent producers are refinery location and dlstri-
butlon facilities for refined products, a satisfactory
method for handling multiple lndeperdent contracts and
credit arrangements between the various contract areas
of the State, refined products of uniform quality and
Honorable William J. Burke, Page 2 (WW-345,
dependability. There are differences to be found In
petroleum products refined by various producers be-
cause of the method of processing and compounding and
the chemicals used therefor. This is particularly
true of lubricating oil and grease.
‘Our questions are as follows:
“(1) In order to be assured of adequate service
for the State's fuel and refined produ::ts needs, under
the Resolution, can we legally obtain and/or force
compliance leading to the Issuance of a certificate
from refiners certifying that the refined products
purchased for consumption by the State are refined
from Texas crude’? Would sue” certificate satisfy
the Intent of the Resolution?
“(2) In the event our examination of existing
contracts with refiners indicates that they are 011
importers but that said refiners are willln to
furnish a certificate such as described In f 1) above,
would the Board of Control be In violation of terms
of the Resolution to continue to purchase from refiners
with whom we now have contracts?
“(3) In the event our Investigation reveals that
the firms with whom we have State contracts are Importers,
and that they are unwilling to execute a certificate stat-
ing the products sold to the State are refined from Texas
crude oil; If we attempted to terminate the contracts as
directed by the Resolution, could they be legally terml-
nated without affording cause of legal actlun against
the State by present contract holders.
“(4) In the event the holders of our present con-
tracts for refined products are affiliated with 011
Importing companies, but refine the products which are
sold to the State of Texas from Texas crude oil and so
certify to that fact, what ,ls our position with reference
to compliance with the Resolution and particularly para-
graph 7; paragraph 87
“(5) In the event present contracts are terminated
and new bids are called for refined products, and upon
call for said bids we find thaL distribution of non-
Importing refiners f products 5.s ‘spotty’ ar,d/or limited
and that State-owned vehicles operating throughout the
State cannot be adequately served b:? the same and/or
other refiner contracts, what course of action Is open
Honorable William J. Burke, Page 3 (W-345)
to us to obtain supplies of fuel and oil products In
those areas where non-importing refiners are not
operating or do not have adequate distribution of their
refined products?
“(6) What form of statement by bidders should
be used?' Is such a statement form now available?
"(7) What authority and/or power of enforcement
does H.C.R. #17 bestow on the Board of Control with
which to effectuate the provisions of the Resolution?
House Concurrent Resolution No. 17 resolves as
follows:
"RESOLVED, By the House of Representatives of
the State of Texas, the Senate concurring, that the
State Board of Control be directed not to accept any
bids for 011, gasoline and/or lubricant needs of the
State of Texas from any person, firm, oartnershlp,
company or corporation which imports any crude 011
or products Into the United States, or bihlch pur-
chases any foreign-produced crude 011 or products, or
from any individual, firm, partnership, company or
corporation which is owned, controlled, or affiliated
by stock ownership, or otherwise, with any importer
as defined herein; and be it further
"RESOLVED, That the Board of Control be directed to
study all contracts now In efPect with any Individual,
firm, partnership, company or corporation which Imports
or Is affiliated with any importer of foreign 011, as
defined herein, and make every effort to terminate
forthwlth such contract or contracts If It is legally
possible to do so; and be it further
"RESOLVED, That bidders on oil, gasoline and/or
lubricant needs of the state be required to file with
the Board of Control a sworn statement attached to their
bids to the effect that they areanot importers of foreign
crude 011 or products, or affiliated with such importers,
as defined herein."
Under the State Purchasing Act of 1957 (Senate Bill
169, Chapter 304, Acts 55th Legislature, Regular Session,
1957, page 739, codified in Vernon's as Article 664-3, Vernon's
Civil Statutes, the Board of Control is required to award
.
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Honorable Wllllam J. Burke, Page 4 (W’W-345)
contracts to the bidder submitting the lowest and best bid.
Subdivision (f) of Section 8 provides:
“(f) Award of Contract. The Board shall award
contracts to.the bidder submitting the lowest and
beast bid. In determining who,ls the lowest ,and best
bidder, In addition to price, the Board shall con-
sider:
“(1) The ability, capacity and skill of the
bidder to perform.the contract op.provlde the service
required;
“(2) Whether the bidder can perform the con-
tract or provide the service promptly, or within the
time required, without delay Lr interference;
“(3) The character, responsibility, integrity,
reputation, and experience of the bidder;
“(4) The quality of performance of previous
contracts or servioes;
“(5) The previous and existing compliance by
the bidder with laws relating to the contract or
service;
“(6) The sufficiency of the financial re-
sources and ability of the bidder to perform the
contract or provide the service;
“(7) The quality, availability and~adapt-
ability of the supplies, or contractual services,
to the particular use required;
e ability of the bidder to provide
futurl:(%nLance , repair parts, and service for
the use of the subject of the contract;
e number and scope of conditions at-
tachei(zA t: bid . ” .
Section 30 of Article III of the Constitution of
Texas provides :
“Sec. 30. ND law shall be passed, except by
bill, and’no bill shall be so amended In Its passage
through zither House, as to change its original
purpose.
. .
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Honorable William J. Burke, Page 5 (WW-345)
In view of the provisions of Section 30 of Article
III of the Constitution above quoted, a statute can not be
amended by a resolution. Humble 011 & Ref. C_o. _vs ~&ate.
104 S,W. 2d 174 (Tex. CivT A 36). Terrell W ells Swik-
ming Pool vs Rodriguez, 182 S%:?d 823 ( Tex. Civ. A .
1944) Moshelm va Rolilns, 79 S.W. id 672 (Tex. Civ. &.
1935,'error dismissed).
It is our opinion that House Concurrent Resolution
of the First Called Session of the 55th Legislature, 1957,
constitutes an attempt to amend the provisions of SubditSsion
(f) of Section 8 of Chapter 304, Acts 55th Legislature, Reg-
ular Session, 1957 in violation of Section 30 of Article III
of the Constitution of Texas. Therefore, in answer to your
questions, you are advised:
1. The State Board of tiantrol is not authorized
to require the "Issuing of a certificate from refiners
certifying that the refined products purchased