Judges: JIM MATTOX, Attorney General of Texas
Filed Date: 3/16/1989
Status: Precedential
Modified Date: 7/6/2016
Honorable James W. Smith, Jr. Frio County Attorney P.O. Box V Pearsall, Texas 78061-1138
Re: Whether certain county road contracts must be competitively bid under court/engineer system, section 3.201 of article 6702-1, V.T.C.S. (RQ-1460)
Dear Mr. Smith:
You ask five questions which appear to have arisen in connection with the following factual circumstances as described in your request:
Frio County, Texas, for the last 2 years has been operating under the Court/Engineer System as to the maintenance of its roads as set out in V.A.C.S., art. 6702-1, Sec. 3.201 et seq. And for the same length of time Frio County has employed a licensed professional engineer.
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The Frio County Engineer ordered emulsion for a paving project — the ordering was done April 7 through April 22, 1988.
The Engineer had planned the project well in advance of the start up date of the project. He had knowledge of the approximate amount of this product he would need and the price of the product.
Invoices were received by the County Auditor on May 5, 1988, in the amount of $9,128.04 for payment on the emulsion. The Engineer has stated that additional emulsion is needed to complete the road paving project.
The County Auditor after receiving the invoices questioned the Engineer as to why the project wasn't let out for bids. The Engineer stated that the company from which the emulsion was provided was the `sole source' for the product. The Auditor has refused to pay for the emulsion received so far, contending that it does not meet the requirements of Section 262.024, `Exemptions,' quoted in part supra. Furthermore in accordance with Local Government Code, Section 113.901 a requisitions [sic] for the materials was not attached to the account presented to the County Auditor by the Engineer nor was the requisition approved by the County Judge. The County Auditor therefore in accordance with Sections 113.064 and 113.065 of the Code has refused to approve the claims for the emulsion.
The first of your questions we address is:
Is there a conflict between V.A.C.S., art. 6702-1, sec. 3.211 and the competitive bidding and proposal requirements of V.T.C.A., Local Government Code, Secs. 262.023 and 262.024?
Your letter indicates that the focus of your concern is an apparent conflict between article 6702-1, section 3.211, V.T.C.S., and sections
All equipment, materials, and supplies for the construction and maintenance of county roads and for the county road department shall be purchased by the commissioners court on competitive bids in conformity with estimates and specifications prepared by the county road engineer. However, on recommendation of the county road engineer and when in the judgment of the commissioners court it is considered in the best interest of the county, purchases in an amount not to exceed $5,000 may be made through negotiation by the commissioners court or the commissioners court's authorized representative on requisition to be approved by the commissioners court or the county auditor without advertising for competitive bids.
The Local Government Code, section 262.023, a part of the County Purchasing Act, provides in subsection (a):
Before a county may purchase one or more items under a contract that will require an expenditure exceeding $5,000, the commissioners court of the county must comply with the competitive bidding or competitive proposal procedures prescribed by this subchapter. All bids or proposals must be sealed.
Section
(a) A contract for the purchase of any of the following items is exempt from the requirement established by Section 262.023 if the commissioners court by order grants the exemption.
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(7) an item that can be obtained from only one source, including:
(A) items for which competition is precluded because of the existence of patents, copyrights, secret processes, or natural monopolies;
(B) films, manuscripts, or books;
(C) electric power, gas, water, and other utility services; and
(D) captive replacement parts or components for equipment.
(b) If an item exempted under Subsection (a)(7) is purchased, the commissioners court, after accepting a signed statement from the county official who makes purchases for the county as to the existence of only one source, must enter in its minutes a statement to that effect.
Section 262.024 on its face provides exemptions only from the section 262.023 competitive bidding requirement and not from the competitive bidding requirement of section 3.211 of article 6702-1. The question then is whether the provisions of sections 262.023 and 262.024 implicitly repeal the separate competitive bidding requirement of section 3.211.
Section
(a) If a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so that effect is given to both.
(b) If the conflict between the general provision and the special or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail.
Section 3.211 is a special provision applicable to the purchase of materials for county roads under the court/engineer system. Sections 262.023 and 262.024 are general provisions applicable to most county purchases. Though the provisions of sections 262.023 and 262.024, enacted in 1985 as part of the County Purchasing Act (then article 2368a.5, V.T.C.S.), appear to be more recently enacted, we find no "manifest intent" of the legislature that the provisions of sections 262.023 and 262.024 prevail over those of section 3.211. Acts 1985, 69th Leg., ch. 641, § 1, at 2377. Article 6702-1, including section 3.211 thereof, was first enacted in 1983, Acts 1983, 68th Leg., ch. 288, at 1431, but section 3.211 was amended by the legislature in the same bill that enacted the County Purchasing Act. Acts 1985, 69th Leg., ch. 641, § 10, at 2384. The 1985 amendment to section 3.211 raised the limit on purchases under section 3.211 that could be made through negotiation from $1,000 to $5,000 but left the other provisions of that section, including those regarding competitive bidding, intact — an indication that the legislature intended that the provisions of section 3.211 still apply to county purchases of "[a]ll equipment, materials, and supplies for the construction and maintenance of county roads" under the court/engineer system.
Thus, we conclude that the competitive bidding requirement of section 3.211 applies to a purchase, under the court/engineer system of road materials in the amount of over $5,000, such as the $9,128.04 emulsion purchase you describe in your statement of facts. There being no provision of law exempting sole source items from the competitive bidding requirement of section 3.211 for purchases of over $5,000 under that section,2 an emulsion purchase such as the one you describe must be made on competitive bids.
However, though we find that the requirement of section 3.211 (that all road material purchases under the court/engineer system in excess of $5,000 be made on competitive bids) prevails over the conflicting provisions of sections 262.023 and 263.024 (which would allow purchase of such materials, if only available from a sole source, without competitive bids), we believe that otherwise the provisions of section 3.211 and sections 262.023 and 262.024 can be construed "so that effect is given to both," pursuant to subsection (a) of section
The second of your questions, which we now turn to, is:
The County Engineer has never been officially authorized by the Commissioners Court in accordance with Local Government Code, Section 262.001 to be an agent to make contracts on behalf of the County for `any other purpose authorized by law.' Would this invalidate any and all contracts that the County had with a supplier of road emulsion without regard to whether the supplier was a `sole source,' and, therefore whether or not the competitive bidding and proposal requirements of the statute are met would be immaterial? [Thus in original.]
Section
(a) The commissioners court of a county may appoint an agent to make a contract on behalf of the county for:
(1) erecting or repairing a county building;
(2) supervising the erecting or repairing of a county building; or
(3) any other purpose authorized by law.
(b) A contract or other act of an agent appointed under this section that is properly executed on behalf of the county and is within the agent's authority binds the county to the contract for all purposes.
It is an elementary rule of the law of agency that the acts of an unauthorized agent do not generally bind a purported principal. You argue in your request that the commissioners court "has in effect ratified this contract by subsequently accepting the benefits of the contract." As regards the emulsion purchase contract, we will not address whether or how the defective agency relationship you describe could be cured so as to validate it, since we have concluded in response to the first question addressed above that the contract was inherently defective because it was not made on competitive bids as section 3.211 of article 6702-1 requires.
County officials' authority is limited to that expressly conferred or necessarily implied by the constitution and statutes. Wilson v. County of Calhoun,
We also note that the establishment of apparent authority would likely be precluded on the facts you present, since a person dealing with the engineer would be deemed to be on notice that the $9,128.04 emulsion purchase was required to be made on competitive bids and that neither the engineer nor the commissioners court had authority to make the purchase in any other manner. See, e.g., Limestone County v. Knox, supra.
Finally, in regard to your second question we note that you ask whether the engineer's not having been approved as agent under section 262.001 would "invalidate any and all contracts that the county had with a supplier of road emulsion." Since your statement of facts does not refer to any emulsion purchase contracts other than the one for $9,128.04, we do not here address the validity or possible validation of any other emulsion purchase contracts. See footnote 1, supra.
Two of your other questions deal with the construction of and manner of applying the sole source exemption in Local Government Code section 262.024. We need not reach these questions inasmuch as we have concluded in response to the first question that section 262.024 does not exempt the $9,128.04 emulsion purchase contract from the requirement of section 3.211, article 6702-1, that it be made on competitive bids.
You also ask:
[I]s there any civil and/or criminal liability on anyone's part if it is determined that this is an invalid expenditure of the public's money?
Whether the circumstances of the emulsion purchase contract may be grounds for civil or criminal liability is ultimately a question of fact, which cannot be resolved in the opinion process.
Various provisions of Texas law could possibly give rise to liability. They include section
Finally, we note that though you refer in your statement of facts to the county auditor's refusal "to approve the claims for the emulsion," citing Local Government Code sections 113.064, 113.065, and 113.091, your request poses no questions with respect to the auditor's action or the construction or application of those provisions. Accordingly, we offer no opinion on these matters.
Very truly yours,
Jim Mattox Attorney General of TexasMary Keller First Assistant Attorney General
Lou McCreary Executive Assistant Attorney General
Judge Zollie Steakley Special Assistant Attorney General
Rick Gilpin Chairman, Opinion Committee
Prepared by William Walker Assistant Attorney General