Untitled Texas Attorney General Opinion

The Attorney General of Texas
JIM MAllOX August 6, 1984
Attorney General
Suprsms Court BulldIn Honorable Henry Wadt! @iniOn NO. JM- 186
P. 0. Box 12549 Criminal District AMoney
A,,s!In. TX. 7671% 254S Dallas County Re: Competitive bidding
5?21475-2501 Services Building requirements under article
Telex 9101874-1387
TsIscODIs’ 51214750288
Dallas, Texas 7520:! 2367, V.T.C.S.
Dear Mr. Wade:
714 Jackson, Sub 700
Dallas. TX. 75202.4506
You have asked .#hether all competitive bids must have affixed to
214i742-9944
them the affidavit set out in article 2367, V.T.C.S. If such an
affidavit is legally required on a specific type of item or on all
4824 Albsrts AvO.. Suite 160 bids, you ask whether a bidder may notarize the affidavit after the
El Paso. TX. 799052793 official bid openin!! date.
SlY533.34a4
r As we understan it. all bids for merchandise, supplies, services
11.~1 Texas. Suite 700 and/or equipment received by Dallas County have heretofore contained
Houston, TX. 77002.3111 both the wording cotd the notarized signature of the bidder. You
713l223.5996 state, however, thglt, the Dallas County purchasing agent desires. in
order to increase competition, to have the requirement of a signature
before the notary el:lminated, but continue to place the wording of the
905 Broadway. Suile 312
Lubbock, TX. 79401.3479 affidavit, as set out in article 2367, V.T.C.S., on all bids
909J747-5239 documents.
It is our o?Lnion that article 2367, V.T.C.S.. imposes a
4309 N. Tenth. Suite B
mandatory duty upc’r a bidder to affix to his bid a signed and
McAllsn, TX. 79501-1995
512f982.4547 notarized affidavit as specified within the article. We conclude.
however, that this article applies only to bids submitted to the
commissioners COUIt for the printing and stationery supplies
200 MaIn Plan. Suite 400 enumerated within article 2358. V.T.C.S., and is not legally required
Ssn Antonlo. TX. 782052797
51212254191
for all bids involv:.ng other types of supplies and/or materials. It
is further our opin:.oa that when such an affidavit is mandated under
article 2367, V.T.C.S., it must be affixed to the bid when submitted
An Equal Opporlunltyl and may not be notarized after the official bid opening date.
Alllrmatlve Action Employs~
Article 2367, V.T.C.S., reads as follows:
The manager, secretary or other agent or
officer of the bidder shall attach to each bid an
affidavit to the effect that affiant has full
knowledge of the relations of the bidder with the
other firn,s in the same line of business and that
the biddet is not a member of any trust, pool or
Bonorable,Henry Wade - Page 2 (``-166)
combination of an]i’kind and has not been for six
monthr last past, directly or indirectly concerned
in any pool or agreement or combinati& to control
the price of suppl.les bid on, or to influence any
person to bid or not to bid thereon. (Rmphesia
added).
The article clearly impof es upon a bidder, acting through an
appropriate officer or agent, a duty to attach “to each bid” an
affidavit designed to discl,cse the affiant’s full knowledge of the
bidder’s relations “with the other firms in the same line of
business .I’ The affiant muft legally affirm that the bidder is not
involved in “any trust, poo!. or combination” with the other suppliers
and that he has not, within the prescribed period, entered into “any
pool or agreement or combinclt:ion” for the purpose of controlling “the
price of supplies bid on” or in order “to influence any person” to bid
or refrain from bidding. V.T.C.S. art. 2367.
The obvious intent of cll,ticle 2367 is to ensure that all bidders
will have an opportunity to bid on equal terms and will have their
bids judged according to t!ll? same standards; this is a fundamental
tenet of the competitive bidding process. Accord Texas Highway
Co~ission v. Texas Aswcic~t~ion of Steel Importers, 372 S.W.2d 525
--.
(Tex. 1963). See also A::orney General Opinions m-449, MI-440
(1982); MW-299 (1981); H-24 (1973).
Article 2367 is merely one of the provisions of a 1907 act
enacted as an emergency measure for the specific purpose of regulating
the purchases of stationery supplies by the county. Acts 1907. 30th
Leg.. ch. 136, at 252 [hereinafter referred to as the 1907 Act]. This
enactment, codifying articles 2358 through 2367, V.T.C.S., deals
specifically with the authority of the commissioners court to contract
on behalf of the county for specific supplies and prescribes the
manner in which bids thereoa must be solicited and accepted. Attorney
General Opinions O-1597, O-244 (1939).
We are aware that a number of statutes, overlapping in some
caees, relate to the bidding requirements applicable to supplies
purchased by the county. ,sre, e.g., V.T.C.S. arts. 1658 (bids for
supplies of stationery, books, blanks, records and other supplies);
1659 (bids for supplies of c!very kind); 1659a (bids for supplies in
counties of 900,000 or morel; 2368a (bidding procedures for purchases
of supplies in the amount of $5.000 or more applicable to all
counties). See generally Attorney General Opinions MW-439 (1982);
MW-296 (1981); F-1219 (1978).
The statutes cited abormz mandate, in general, that all purchases
of supplie? for the use of t!le county made by the co~insioners court
-
must be awarded on the b.331~ of competitive bidding requirements
imposed by applicab1.e str.tutory language. See Attorney General
p. 813
Honorable Rcnry Wade - Page 11 (m-186)
Opinion IN-299 (1981). A failure to engage in competitive bidding is
grounds for holding a co~i~h~ioners court purchaee contract invalid.
See V.T.C.S. art. 2368a. 52(d); Kelly v. Co&ran, 82 S.W.2d 641 (Tex.
1935); Attorney General 0p:lnion MW-449 (1982). See also V.T.C.S.
arts. 1659, 1659a and 1659b.
It is apparent that the L907 Act, governing contracts made by the
commissioners court for tha! purchases of the expressly enumerated
items, see V.T.C.S. art. 2362, is a specific enactment intended to be
effecticin regard to these *Enumerated supplies. One of the rules of
statutory constructlon is thrlt the express enumeration of particular
persons or things is tantamou:lt to an express exclusion of all others.
Er parte McIver, 586 S.W.2d ,351 (Tex. Grim. App. 1979).
In view of the foregoing, we conclude that the affidavit set out
in article 2367, V.T.C.S., must be attached to bids submitted to the
commmissioners court for printing and stationery supplies governed by
the provisions of articles 2358 through 2367, V.T.C.S. It is not
legally required for bids an supplies not included within these
specific bidding statutes.
In response to your second question, we believe that when an
affidavit is legally required, it must be attached to the bid when the
bid is submitted and may not be notarized subsequent to the official
bid opening.
An instrument not sworn to and properly notarized attached to a
bid will not constitute “an affidavit.” Gordon v. State, 16 S.W. 337
(Tex. Grim. App. 1891). Yet compliance with the terms of the bidding
statutes is required in order to create a valid contract. Accord
Attorney General Opinions :$C449 (1982); MW-296 (1981). The only
exceptions to such requirements are those contained in the statutes
themselves. See Limestone iounty v. Knox, 234 S.W. 131 (Tex. Civ.
APP. - Dsllas 1921. no writ). We are aware of no exception applicable
to article 2367. Purthernlcsre, in view of the possible criminal
penalty which may be imposc!i, on an affiant making a false statement
and slnce an affidavit 13 legally binding on the affiant, the
legislative choice of words mandating that “an affidavit” be affixed
“to each bid” indicates that the legislature intended for the document
to be signed and notarized at the time the bid is offered. We
therefore conclude that SUC’I an affidavit should not be notarized
after the official bid opening date.
SUMMARY
Article 2367, V.T.C.S., requires an affidavit
to be affixed tc, each bid submitted to the
commissioners court on bids for stationery and
printing supplien used by the county. When
legal 1-y required for the specific type of
Honorable Henry Wade - Page 4 (JM-186)
supplies, governed under provisions of articles
2358 through 2367, V.T.C.S., the affidevit muet be
signed by the affhnt under oath and notarized by
an officer authorized to administer oethe. It may
not be notarized subsequent to the official bid
opening date.
JIB WATTOX
Attorney General of Texas
TOMGREEN
First Assistant Attorney General
DAVID R. RICHARDS
F*ecutive Assistant Attorney, General
Prepared by Georgette Bethle,n
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Georgette Bethlen
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
p. 815