Judges: GREG ABBOTT, Attorney General of Texas
Filed Date: 2/28/2008
Status: Precedential
Modified Date: 7/6/2016
The Honorable Jesse Gonzales, Jr. Pecos County Attorney 103 West Callaghan Fort Stockton, Texas 79735
Re: Whether a project financed in distinct phases is subject to the competitive bidding requirements of the County Purchasing Act (RQ-0620-GA)
Dear Mr. Gonzales:
You ask with regard to certain purchases in Pecos County:
Whether the County Auditor may present for payment, an invoice for labor, that in the opinion of the County Attorney, has been determined to violate the County Purchasing Act? Specifically, can a project be set up to be performed in "phases" that are each under $25,000 and not be subject to the County Purchasing Act, if the entire project, when completed, is over $25,000?1
You explain that a county commissioner "contracted with a local contractor for a concrete slab in a county park." Request Letter, supra note 1, at 1.2 You indicate that the concrete work is described by the commissioner as "Phase I" of the project. Id. An invoice for the labor and *Page 2 materials totaled $8,775; it was "processed" by the auditor and then submitted to and approved for payment by the commissioners court.Id.
You tell us a pavilion structure was subsequently constructed on the concrete slab in what is described as "Phase II" of the project. Id. Two separate invoices were submitted by the contractor for the Phase II work. Id. We understand that the first invoice, totaling $12,921.52, was submitted to and approved for payment by the commissioners court.3 The second invoice for the Phase II work, totaling $12,000,4 brought the total cost of the Phase I and II work to $33,696.52. See supra note 3. You explain that all of the invoices "for either labor or materials were from the same contractor by the same county official." Request Letter, supra note 1, at 2.
Pursuant to section
You first ask whether the county auditor may present the final invoice for payment to the commissioners court in light of your advice. Id. We begin by examining relevant duties of the county auditor under state law. Chapter 113, Local Government Code, provides that "[a] claim, bill, or account may not be allowed or paid until it has been examined and approved by the [county] auditor." TEX. LOC. GOV'T CODE ANN. § 113.064(a) (Vernon 1999). Under Local Government Code section 112.006(b), "[t]he county auditor shall see to the strict enforcement of the law governing county finances." Id. § 112.006(b). "The county auditor may not audit or approve a claim unless the claim was incurred as provided by law." Id. § 113.065. Thus, an auditor has a mandatory duty to examine the lawfulness of a claim against the county before the claim is considered for payment by the commissioners court. Crider v. Cox,
In determining whether to approve a claim, bill, or account, a county auditor may turn to the county attorney for an opinion or advice under section
We do not believe, however, that the duty imposed on the county attorney under section 41.007 to provide advice and opinions binds the county auditor to act in accord with the opinion or advice received from the county attorney. The opinion of a county attorney has no force of law. Travis County v. Matthews,
We turn next to your question whether a project can "be set up to be performed in `phases' that are each under $25,000 and not be subject to the County Purchasing Act, if the entire project, when completed, is over $25,000[.]" Request Letter, supra note 1, at 1.
The County Purchasing Act (the "Act"), Local Government Code chapter 262, subchapter C, generally requires counties to make certain purchases using competitive bidding. Section
[b]efore a county may purchase one or more items under a contract that will require an expenditure exceeding $25,000, the commissioners court of the county must:
(1) comply with the competitive bidding or competitive proposal procedures prescribed by this subchapter;
(2) use the reverse auction procedure, as defined by Section
2155.062 (d), Government Code, for purchasing; or(3) comply with a method described by Subchapter H, Chapter 271.
TEX. LOC. GOV'T CODE ANN. § 262.023(a) (Vernon Supp. 2007). In the Act, the term "item" is defined to mean "any service, equipment, good, or other tangible or intangible personal property, including insurance and high technology items." Id. § 262.022(5) (Vernon 2005). In applying section 262.023(a), "all separate, sequential, or component purchases of items ordered or purchased, with the intent of avoiding the 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." Id. § 262.023(c) (Vernon Supp. 2007). Section 262.022 defines "component purchases," "separate purchases," and "sequential purchases" in the following manner:
(2) "Component purchases" means purchases of the component parts of an item that in normal purchasing practices would be purchased in one purchase.
. . . .
(7) "Separate purchases" means purchases, made separately, of items that in normal purchasing practices would be purchased in one purchase.
(8) "Sequential purchases" means purchases, made over a period, of items that in normal purchasing practices would be purchased in one purchase.
Id. § 262.022(2), (7)-(8) (Vernon 2005). *Page 5
Having set out the relevant law, we conclude we cannot answer your second question because it would require us to resolve fact questions. For instance, it may have been more appropriate to undertake this purchase in compliance with the Act because certain facts you relay, such as (1) the invoices came from the same contractor and were delivered to the same commissioner, and (2) the invoices resulted from what is characterized as Phase I and Phase II of a single project, raise questions as to whether this purchase violates the Act. These facts are not, however, dispositive. Section 262.023(c) applies when "separate, sequential, or component purchases" are undertaken "with the intent of avoiding the requirements" of the Act. Id. § 262.023(c) (Vernon Supp. 2007) (emphasis added); see also id. § 262.034(a) (Vernon 2005) ("A county officer or employee commits an offense if the officer or employee intentionally or knowingly makes or authorizes separate, sequential, or component purchases to avoid the competitive bidding requirements of Section 262.023."). Moreover, in determining whether a separate, sequential, or component purchase has taken place, one must determine if the purchase would "in normal purchasing practices" be made as a single purchase. Id. § 262.022(2), (7)-(8) (emphasis added). Determining whether the requisite intent is present and what constitutes a normal purchasing practice with respect to a particular item requires the taking of evidence and finding of facts that cannot be performed in the opinion process. Tex. Att'y Gen. LO-94-087 (1994) at 2 (concluding that a determination of whether purchases by Smith County of culverts and road sign components would fall within the prohibitions of the Act involves questions of fact that cannot be resolved in an opinion).
As previously discussed, it is the county auditor who must determine whether a contract was awarded in violation of the Act. TEX. LOC. GOV'T CODE ANN. §§ 113.064(a), .065 (Vernon 1999); see also Tex. Att'y Gen. Op. No.
In order to conclude that a project financed in distinct phases violates the competitive bidding requirements of the County Purchasing Act ("Act"), one must consider the facts, including whether the purchase is undertaken with the intent of avoiding the requirements of the Act and whether the purchase would in normal purchasing practices be made as a single purchase. These considerations involve questions of fact that cannot be resolved in an attorney general opinion.
Yours very truly,
GREG ABBOTT, Attorney General of Texas
KENT C. SULLIVAN, First Assistant Attorney General
ANDREW WEBER, Deputy Attorney General for Legal Counsel
NANCY S. FULLER, Chair, Opinion Committee
CHRISTY DRAKE-ADAMS, Assistant Attorney General, Opinion Committee
Joe v. Two Thirty Nine Joint Venture , 145 S.W.3d 150 ( 2004 )
Guynes v. Galveston County , 861 S.W.2d 861 ( 1993 )
Hays County v. Hays County Water Planning Partnership , 106 S.W.3d 349 ( 2003 )
Kaufman County v. Crow , 176 S.W.3d 921 ( 2005 )
Travis County v. Matthews , 235 S.W.2d 691 ( 1950 )
Crider v. Cox , 960 S.W.2d 703 ( 1997 )
Smith v. Flack , 728 S.W.2d 784 ( 1987 )
Smith v. McCoy , 533 S.W.2d 457 ( 1976 )
Commissioners Court of Harris County v. Fullerton , 596 S.W.2d 572 ( 1980 )