Judges: JIM MATTOX, Attorney General of Texas
Filed Date: 12/10/1990
Status: Precedential
Modified Date: 7/6/2016
Honorable Marcus D. Taylor Criminal District Attorney Wood County P.O. Box 689 Quitman, Texas 75783
Re: Whether the awarding of a contract precludes a county from making spot purchases from another supplier (RQ-2015)
Dear Mr. Taylor:
You ask:
Does the awarding of a contract to buy supplies on a unit price basis in accordance with Sec.
262.028 , Local Government Code, preclude counties from making spot purchases of the same supplies at [the same or]1 a lower unit price from another supplier during the term of the contract?Your question arises from a situation where the county executed a contract to purchase all road oil needed by the county from one contractor. The contractor was unable to meet all of the county's needs, and one of the county commissioners made a "spot purchase" of the product at the same price from a different supplier. The cost of the additional purchase was less than the $10,000 competitive bidding threshold found in section
262.023 (a) of the Local Government Code.
Inasmuch as your question states that the unit price contract was made "in accordance with section
You have suggested that section
In applying the competitive bidding and competitive proposal requirements established by Subsection (a), all separate, sequential, or component purchases of items ordered or purchased, with the intent of avoiding the competitive bidding and competitive proposal requirements of this subchapter, from the same supplier by the same county officer, department, or institution are treated as if they are part of a single purchase and of a single contract. In applying this provision to the purchase of office supplies, separate purchases of supplies by an individual department are not considered to be part of a single purchase and single contract by the county if a specific intent to avoid the competitive bidding requirements of this subchapter is not present. (Our emphasis.)
Local Gov't Code §
The purpose of this provision is readily apparent. It is designed to prevent counties from avoiding the competitive bidding requirements by purchasing quantities of materials or supplies in lots, which individually cost less than $10,000 but total more than that amount. The public policy behind the competitive bidding requirement is strong enough that criminal penalties have been enacted to effectively stop this particular means of evading the statutory requirement. See Local Gov't Code §§
We do not think that the provision was intended to preclude "spot purchases" in the specific circumstances you describe. Nor do we find any other provision of the chapter that precludes such spot purchases. Of course spot purchases may not be used to avoid the competitive bidding process.
In your second question, you ask:
Assuming that the answer to the first question is `no,' would such a spot purchase be subject to county bidding requirements, even if it were for an amount less than $10,000?
As indicated by your question and the preceding discussion, county purchases are not required to be made by competitive bids unless the amount is more than $10,000. Local Gov't Code §
262.023 (a). Again, we caution that if the contractor's inability to meet the county's needs is seen as a continuing situation that will result in the expenditure of $10,000 or more, the county would be required to call for bids again. Such separate, sequential purchasing is precisely the activity that the language emphasized above in section 262.023(c) was intended to prevent. See Attorney General OpinionJM-725 (1987). Of course, a county is authorized to request bids for purchases that fall below the $10,000 threshold. Patten v. Concho County,196 S.W.2d 833 (Tex.Civ.App.-Austin 1946, no writ).
Very truly yours,
Jim Mattox Attorney General of Texas
Mary Keller First Assistant Attorney General
Lou McCreary Executive Assistant Attorney General
Judge Zollie Steakley Special Assistant Attorney General
Renea Hicks Special Assistant Attorney General
Rick Gilpin Chairman, Opinion Committee
Prepared by Karen C. Gladney Assistant Attorney General