                     TEE    ATTORNEY                  GENERAL
                               OF TEXAS


                                   September         13, 1990



Honorable  Charles W. Chapman                   Opinion        NO.   JM-1220
Criminal District Attorney
Hays County Courthouse                          Re:   Competitive   bidding for
Suite 208                                       a county vehicle maintenance
San Marcos, Texas    78666                      building    (RQ-1746)

Dear   Mr.    Chapman:

      You inform    us   that in the      fall of    1988,   a county
vehicle maintenance     building was     constructed   at the    direc-
tion of a county commissioner       who made verbal    contracts   with
vendors on the project.       You add that the vendors were        paid
by the county auditor with        funds from the maintenance       line
item of    the commissioner's      precinct budget     following     the
commissioner's     approval    of   the    claims.     The   cost     of
construction   was in excess of $10,000.

       You ask whether a county must award a contract           for   the
construction    of a vehicle maintenance      building   on the     basis
of competitive      bids   when   no statute    other    than    section
271.024 of     the Local    Government    Code appears     to    require
competitive    bidding.    You also ask as a preliminary        question
whether section 271.024 itself requires competitive              bidding
on the contract.      You   do not ask, and     we therefore     do   not
consider,   whether under      the facts you    describe    the   county
commissioner,    acting alone,     was authorized      to execute     the
contract or contracts       in question.     See aenerally      Attorney
General   Opinion m-892      (1988) and authorities     cited therein.
Neither do you question        the payment of     the vendors on      the
apparent approval of only the commissioner          who ordered      that
the construction     take place, rather than on the approval            of
the entire     commissioners    court.    This opinion      accordingly
will address only your specific questions          concerning    section
271.024 of the Local Government        Code.

I. Does      Local    Government     Code    section         271.024    require
   counties      to award  contracta           for     the    construction        of
   public      worka on the basis           of aompetitive           bidding?

      Chapter 271 of the Local Government      Code                     is a revision
and   compilation   of   several    former   civil                      statutes  that
prescribe    the  purchasing    and   contracting                       authority   of




                                             P- 6448
Honorable     Charles   W. Chapman    - Page   2   (JM-1220)




municipalities,        counties,       and     certain      other       local
governments.     Subchapter      A of    chapter     271 is     the    Public
Property   Finance    Act,     formerly article        2368a.2,     V.T.C.S.
The   subchapter     is     by    its   terms      applicable      only
acquisitions    of   personal property.          w     Local    Gov't    Co::
08 271.004, 271.005.        Subchapter     B, of which section 271.024
is a pa*,      governs     competitive     bidding    on certain      public
works contracts.       Subchapter     C was formerly V.T.C.S.        article
2368a.l and is known as the Certificate             of Obligation     Act of
1971.    Local Gov't Code 8 271.041.          Subchapter     D   authorizes
local    governments     to    purchase     items    through     the    State
Purchasing    and General Services Commission.            J&     5 271.082.
Subchapter    Z contains     miscellaneous      provisions     relating     to
purchasing    and the    awarding of contracts          by local     govern-
ments that are not pertinent          to this opinion.

  A. Local Government  Code section  271.024            and    its
     relationship  to competitive  bidding

      Section    271.024,      the   provision      that      prompts    your
question,   provides   the    following:

                If a governmental       entity    is required     by
            statute to award a contract        for the construc-
            tion, repair, or      renovation    of a    structure,
            road,   highway,     or     other   improvement
            addition to    real property       on the    basis    zg
            competitive   bids,     and    if the   contract     re-
            quires the expenditure        of more than      ~10,000
            from the funds of the entity, the bidding             on
            the contract     must    be   accomplished      in   the
            manner   provided     by    this   subchapter      [sub-
            chapter B of chapter 2711.

*lGovernmental entity"      is defined    to   include a county,       a
municipality,    a common or     independent    school   district,     a
special district      or authority    created under     article    III,
section 52, or article XVI, section 59, of the constitution,
a hospital   district   or authority,    a housing authority,    or an
agency of    the aforementioned      entities.    Local   Gov't    Code
§ 271.021.

      Subchapter   B, entitled   "Competitive    Bidding on    Certain
Public   Works    Contracts,"    is   the   descendant     of   former
V.T.C.S.   article 2368a.3.     Originally   enacted in 1979,      that
statute also provided      that the    competitive    bidding   proce-
dures described    in the act were applicable      to contracts     for
the enumerated     public   works    if the    governmental     entity
awarding the     contract was    required by     another statute     to
award the contract on the       basis of competitive     bids.    Acts




                                       p. 6449
    Honorable     Charles   W. Chapman    - Page   3    (JM-1220)




    1979, 66th Leg., ch. 770, at 1901.         Subchapter    B prescribes
    procedures   for the    advertisement    for bids,    the opening      of
    bids, and the     award of the     resulting   contract.    a      Local
    Gov't Code §§ 271.025       - 271.027.    It   also stipulates      that
    its provisions    do not affect a contract awarded pursuant            to
    the Professional      Services   Procurement    Act,   V.T.C.S.     art.
    664-4.    a    S 271.022.    A home rule charter in conflict with
    the terms of the subchapter      prevails    over subchapter    B,   and
    contracts   awarded in violation       of the subchapter    are    void.
    J&   55 271.023, 271.028.

          You conclude      that the     competitive      bidding     procedures
    prescribed   by subchapter      B of chapter 271 are triggered            only
    when a    statute    other     than section       271.024     requires     the
    governmental      entity    to   award    a    contract      for    projects
    described   in    section 271.024       on the     basis of      competitive
    bidding,   and the contract        involves the expenditure          of  more
    than $10,000 of      the entity's       funds.     The    language    of   the
    section provides       clear    support     to    your    conclusion.       An
    opinion of     this    office,    however,      suggests      that    section
    271.024 may     itself    be sufficient        to   require      competitive
    bidding on     a construction        contract.       A   review      of  that
    opinion is necessary.
m
      8.   Attorney  General Opinion      JM-505     and publio     works
           construation   contracta

          Attorney   General      Opinion    JW-505   (1986)     concluded      in
    part that the competitive        bidding requirements        of the County
    Purchasing   Act, then codified as article 2368a.5,               V.T.C.S.,
    did not apply      to contracts     for   public works       construction.
    In reaching     this    conclusion,      it was     said    that     article
    2368a.3, the     predecessor     to    subchapter   B of chapter         271,
    "expressly     governs     competitive      bidding    on   public     works
    contracts."     Attorney    General     Opinion JW-505,       at 2.      This
    statement,   though     technically      correct,     was   made     without
    elaboration    and without specific         reference   to the     language
    of   section      271.024.       More    importantly,       the      opinion
    mistakenly   suggests      that    section 271.024       itself    mandates
    competitive    bidding     on public     works contracts.         To   avoid
    further    confusion,      we   should    here    emphasize     that      the
    procedures   described      in   subchapter      B are,    by    its   plain
    terms, applicable      only when a separate statute requires              the




                                           P. 6450
Honorable   Charles   W. Chapman    - Page     4   (JM-1220)




contracts for the enumerated        projects       to be awarded   on   the
basis of competitive bids.1

      Your reading     of section     271.024     is buttressed       by   a
recently enacted      provision   of   the Local      Government      Code,
section 271.029, which states that an officer or employee                 of
a governmentalm~;~ty       commits an offense if he intentionally
or knowingly              or authorizes     separate      purchases      "to
avoid the competitive       bidding requirements         of the    statute
that requires a contract described         by Section 271.024 to          be
awarded on the basis of competitive         bids."     Accordingly,      the
threshold   question,    h,       whether     section     271.024     alone
requires a county to award        a contract     for the    construction
of a county    vehicle maintenance        building    on   the basis      of
competitive   bids, may be answered        in the negative.        To    the
extent Attorney    General    Opinion JW-505 suggests          otherwise,
it should be disregarded.         Attorney    General Opinion       JW-505
is relevant    to your     question   for   other reasons       as    well,




      1. Attorney  General    Opinion JW-505    is not   the    only
authority which, if read    without reference    to the    specific
language of section 271.024, might generate      confusion     about
the nature of   the provision.      In his treatise    on the    law
governing counties and special      districts,  Brooks makes     the
following observations   about section 271.024:

       The first modern   competitive   bidding statute,      en-
   acted in 1917, was    amended in 1931     to apply only     to
   public works projects:    this limitation   was dropped      in
   1947.   A 1979 statute    [former V.T.C.S.   art.    2368a.3,
   now subch. B of Local Gov't      Code ch. 2711,      specifi-
   cally applicable   to  public works contracts,       requires
   that counties    . . . follow    specified    bidding     pro-
   cedures in connection   with the construction     or   repair
   of any 'structure,    roadway, or any 'other improvement
   or addition   to real property.'     (Footnotes   omitted.)

35 D. Brooks, County and Special District Law 5 18.24 (Texas
Practice   1989).    In isolation,     this passage might lead       the
reader to erroneously      conclude    that section 271.024 is       the
sole authority    to consult     when considering     not merely    what
competitive   bidding     procedures    are   to   be   followed,    but
whether competitive      bidding    for a particular     public   works
contract   is required at all.       As this opinion     demonstrates,
the express     language     of  section    271.024    precludes    this
result.




                                     P. 6451
.


        Honorable    Charles   W. Chapman   - Page    5     (JM-1220)


P


        which will     be discussed      in greater       detail   later   in   this
        opinion.

        II. Does a aeparate    atatute require publia worka
            construction    contracta   to be awarded by counties           on the
            basia of competitive      bidding?

              Our answer to     your preliminary    question    does not     end
        our inquiry.    Under section 271.024 a separate statute           must
        impose a competitive     bidding requirement     on the awarding      of
        a contract   for the construction     of public works by a county.
        Otherwise   the procedures    outlined in subchapter      B of chapter
        271 are not triggered.       You contend that no statute        imposes
        a competitive    bidding requirement       on county    public    works
        construction    contracts      in general.        However,    as     the
        remainder   of  this opinion     will explain,     we believe,     con-
        trary to Attorney      General Opinion JM-505,       that the    County
        Purchasing   Act applies to     such contracts    and requires     that
        they be awarded pursuant       to the competitive     bidding    proce-
        dures prescribed    by   that act    rather than     subchapter   B of
        chapter 271.

          A. The absence       of a general statutory   competitive  bidding
    P        requirement       expressly  applicable  to county public works
             construction       contracts

              You argue that no statute other than the Certificate               of
        Obligation   Act of 1971 currently        requires a county to        award
        a contract   for the construction       of public works on the basis
        of competitive    bids, and     that statute requires         competitive
        bidding only     in the    event certificates         of obligation     are
        issued to    fund contracts      of more      than $5000.      See    Local
        Gov't Code 8s 271.045(a)(l)        (certificates      of obligaon       may
        be issued for the construction         of any public work),        271.054
        (competitive    bidding    requirement).       The    provisions   of   the
        Public Property Finance Act, subchapter            A of chapter 271, do
        not apply to a contract       for the construction        of improvements
        to   real   property,     even   though     such    structures     may   be
        characterized      in the     contract     as    "personal     property."
        Attorney   General Opinion JW-800        (1987).    Thus, you     conclude
        that unless a     county issues certificates           of obligation      on
        the construction     project,    the bidding procedures          described
        in subchapter    B are inapplicable.

              You attribute  this deficiency   to an amendment    to former
        V.T.C.S.   article 2368a, relevant    portions   of which are     now
        codified as chapter 252 of the Local Government        Code.    Prior
        to 1985,    section 2 of    article 2368a,     also known    as   the
        Bond and Warrant Law     of 1931, provided     that no county     was
        authorized   to make any contract calling for the       expenditure




                                              p. 6452
Honorable   Charles   W. Chapman, - Page    6   (JM-1220)




of more than $5000 in county funds without          first    submitting
the proposed   contract to competitive      bids.    This requirement
was deleted in 1985.      Acts 1985, 69th beg., ch. 505, 5 2, at
2091-92   (Senate Bill    802).   The    contracting    provisions     of
the statute thereafter     were applicable     only to cities.       YOU
conclude that this action resulted        in the repeal of the only
general statutory    provision    that requires county        construc-
tion contracts   to   be awarded     on the    basis of     competitive
bids.   Our   research has     revealed    no other     statute    that,
prior to    1985, would    have generally      required     competitive
bidding on county construction       contracts.

   B. The enactment     of the County  Purahaaing   Aat and     its
      efieat on the    award of construction   contra&a

      During the same     legislative   session     in which    article
2368a was amended, the County Purchasing         Act was enacted      as
article 2368a.5, V.T.C.S.       Acts 1985, 69th beg., ch. 641, at
2377 (Senate Bill 807).       It is now codified as subchapter          C
of chapter    262    of  the   Local   Government     Code,   sections
262.021 through 262.035.       Senate Bill 802, the bill amending
the Bond and Warrant Law to make its contracting            provisions
applicable   only    to  cities, contained     a   separate     section
tentatively   restoring    coverage of     its competitive     bidding
provisions   to counties.     Acts 1985, 69th Leg., ch. 505, § 4,
at 2094.    This provision    was expressly   made contingent       upon
Senate Bill     807, the   County Purchasing      Act, not    becoming
law.   &     Because Senate     Bill 807 was ultimately       enacted,
section 4 of Senate Bill 802 never took effect, and counties
were therefore    not made    subject to the competitive        bidding
requirements    imposed by    section 2 of    the Bond and      Warrant
Law.


      Senate    Bill   807,   meanwhile,     contained    a provision
tentatively   removinq   counties     from the scope of section 2 of
the Bond and Warrant      Law.     Acts 1987,    69th Leg., ch.      641,
.6 2, at 2379.    The amendment     to the Bond and Warrant Law was
expressly   made contingent    upon     the failure of the     legisla-
ture to    enact Senate     Bill 802.      Id. 0 12,   at 2384.       The
continuing   applicability      of   the   competitive    bidding     re-
quirement   of the   Bond and      Warrant Law    to counties     hinged
upon the success     or failure      of Senate Bill    807.    The    two
bills thus    were   carefully      and deliberately    tied    to    one
another, and it therefore      clearly appears that the        legisla-
ture intended the provisions        of the County Purchasing      Act to
replace the repealed portions        of the Bond and Warrant Law.

      The legislative   history   of the  County Purchasing    Act
indicates  that the overriding    goal of the legislature   was to
provide uniformity    and certainty   in the laws governing    the




                                    p, 6453
     Honorable   Charles   W. Chapman    - Page   7    (JM-1220)




     acquisition      of    supplies,     materials,      equipment,      and
     stationery   by counties.     There    apparently   was no    intention
     to make changes in the laws governing            the award of    public
     works construction     contracts,    However, by the amendment        of
     the Bond    and   Warrant    Law   the   legislature     inadvertently
     removed the only general competitive         bidding requirement     for
     county public works construction        contracts.    This action     by
     default presented      the unlikely     prospect   that   construction
     contracts   could   be awarded     without resort     to   competitive
     bidding.2

           As we will     explain shortly, we         think the language       of
     the County Purchasing       Act   supports the conclusion        that    its
     provisions   were intended to replace the repealed portions               of
     article 2368a.       Attorney General        Opinion JW-505,      however,
     concluded   that the terms of the County Purchasing            Act do not
     apply to    public     works    contracts     except    insofar    as    the
     acquisition    of "high     technology     items," separately      defined
     in the    act,   may be     considered      public works     under    other
     statutes.    Given     the   far    reaching     implications     of   this
     conclusion     coupled      with    a    determination      that     county
     construction     contracts      are    not   otherwise    subject     to   a
     general competitive      bidding      requirement,    it is   appropriate
-    to reevaluate    Attorney General Opinion JW-505.3




           2.   By comparison,    the Certificate    of Obligation    Act of
     1971   still   requires      counties    to    award    public    works
     construction   contracts    financed    with bonds or     certificates
     of obligation   on the basis of competitive        bids.    Local Gov't
     Code 5 271.054.     Thus, the amendment      of the Bond and Warrant
     Law should    not be    viewed as     a departure     from the   strong
     public policy favoring competitive        bidding.

           3.   This is not the first time we have had occasion              to
     reconsider   Attorney   General    Opinion JW-505.        A brief     sub-
     mitted in connection     with    Attorney General Opinion         JW-1027
     (1989) urged us to overrule the earlier opinion.              The latter
     opinion dealt with the purchase of road emul~~~c;~              a county
     engineer appointed      pursuant     to   V.T.C.S.                6702-l.
     Because the purchase was determined         not to be a public works
     contract,   we declined   to    reconsider    the ruling of     Attorney
     General Opinion     JW-505.      Since    your   statement     of    facts
     stipulates     that   a contract      for   the    construction     of    a
     structure   on real property     is involved, M        Local Gov't Code
     8 271.024, we must now confront the issue left unanswered               by
     Attorney General Opinion JW-1027.
/?




                                           p. 6454
Honorable     Charles   W. Chapman   - Page    8     (JM-1220)




III.   Attorney  General Opinion JH-505            and   ita oonatruction   of
       the County Purchasing   Act

      Attorney    General     Opinion    JW-505 was      generated      by   a
perceived    conflict     between the      bonding provisions        of    the
County    Purchasing      Act   and    V.T.C.S.     article     5160.      The
primary concern was not with the competitive              bidding aspects
of public works construction          contracts,    or the ramifications
the opinion would have on competitive            bidding.     Article    5160
requires prime      contractors     on   public works       contracts      for
more than $25,000 awarded by           the state, a county, or          other
political   unit to execute statutory         performance     and    payment
bonds.    The statute      prohibited    a governmental       entity     from
requiring   a bond on contracts         for less than $25,000.           Sec-
tion 12 of the County         Purchasing    Act, now Local       Government
Code section      262.032,     authorized     a county     to    require     a
bidder to furnish a bid bond in a              specified    form and     sum.
It also    required     a   successful      bidder    or   offeror      on   a
contract   exceeding    $50,000     to provide      a performance       bond.
The bid bond      requirement    of section      12 was expressly        made
applicable    to   contracts      "for the    construction       of   public
works," regardless      of the amount of the contract.              V.T.C.S.
art. 2368a15,     5 12(a) (repealed, now codified as Local Gov't
Code § 262.032).

      The apparent     conflict     between the     two   statutes    was
resolved by concluding       that the County      Purchasing    Act   did
not apply to public works contracts         generally,    the   language
of section 12 notwithstanding.          Two grounds were offered        in
support of this conclusion.         We have already examined       one of
the arguments     in   support     of the   conclusion,      b,      that
article 2368a.3 governs competitive         bidding   for public works
construction    contracts.      Apparently,     this    conclusion    was
based on    the   assumption     that article     2368a.3     alone   was
sufficient   to require competitive       bidding on such contracts.
A review of the language of the statute as it existed at the
time Attorney    General Opinion JW-505        was written and as      it
now exists as Section      271.024    of the Local Government        Code
discloses   the error of that assumption.

      The other argument offered in support of the conclusion
was that the term      I1item,ll employed throughout     the   statute,
did   not   encompass     construction     contracts.     llItemtl was
defined as "any service, equipment,         good, or other     tangible
or intangible     personal property,11      including  insurance     and
"high technology     items."    V.T.C.S.   art. 2368a.5,    5 2(3) (m
see    Local     Gov't     Code     S 262.022(5)).       The    opinion
acknowledged   that construction       work could be     characterized
as a wservice11 in some circumstances,        but concluded    that    in




                                      p. 6455
.



        Honorable     Charles   W. Chapman     - Page   9   (JM-1220)


    P



        ordinary usage, the    term      was     not applied     to public   works
        construction  contracts.

              In order for the bid bond language of section 12 of the
        County Purchasing     Act   to have    complete   effect,     it was
        necessary   to give meaning to the phrase "contract       . . . for
        the construction    of public works.n    Attorney   General Opinion
        JM-505 resolved this dilemma by referring       once again to      the
        definition   of l'item.ll It was   noted that the term       included
        "high   technology    items."     "High   technology     item"     was
        separately   defined as

                    a service,    equipment,   or   good of   a highly
                    technical   nature, including:      data processing
                    equipment   and software    and firmware used      in
                    conjunction   with   data processing     equipment;
                    telecommunications,      radio,     and   microwave
                    systems:     electronic     distributed      control
                    systems   (including building    energy management
                    systems):   and technical     services related     to
                    these items.

        V.T.C.S.   art.   2368a.5,     5 2(4) (pow see     Local   Gov't    Code
    P   5 262.022(4)).     The   opinion surmised      that the    legislature
        included such work and articles         in the definition   of   11item11
        to avoid the possibility      that such matters would be excluded
        from the scope of the act.        The opinion also gave meaning to
        the "public worksn      language by observing       that some of     the
        work described    in the    definition    of "high technology     item"
        could be    considered   "public     works" under    other   statutes.
        Hence,   the    opinion    concluded     that  the   "public     works"
        language in section      12 referred only      to "high    technology11
        installations    that might be classified      as public works under
        other statutes.

              Attorney   General Opinion JM-505 also attempted          to   give
        meaning to the      1985 enactments      that resulted     in both    the
        removal of counties       from the purview of the Bond and Warrant
        Law and the addition of the County Purchasing           Act.    However,
        rather than viewing        the enactment    of  Senate Bills 802       and
        807 as    evidence     of   the comprehensiveness      of   the    County
        Purchasing   Act, it accepted       the legislation    as support      for
        its conclusion     that the    act did not     apply to public      works
        construction    contracts.     It noted that the amendment       to   the
        Bond and    Warrant Law      required successful      bidders   on   city
        public works     contracts     to   execute    performance     bonds    in
        accordance   with article 5160, whereas the County            Purchasing
        Act contained    no similar requirement.        The opinion concluded
        that a narrow interpretation        of the llpublic worksl' language




                                                p. 6456
Honorable    Charles   W. Chapman    - Page    10   (JM-1220)




in section 12   of the County Purchasing  Act would                  minimize
direct conflict between the two statutes.

      Once again, however,     this reading of     the County     Pur-
chasing Act    depended heavily     on the   incorrect     assumption
that article 2368a.3    (now   subchapter   B of Local     Government
Code   chapter    271)  imposed    an  independent     public    works
competitive   bidding requirement     on counties    and all     other
governmental   entities subject to the statute.

      The interpretation     given the    County Purchasing     Act    in
Attorney  General Opinion JW-505 was probably         consistent    with
legislative   intent, at     least as it     related to county      pur-
chases.   However,   since it appears that the legislature
have been unaware of the complete effect of the amendmentmtz
the Bond and Warrant Law, it would have been appropriate              to
consider whether the legislature         intended to free     counties
from the obligation     to comply with competitive      bidding     when
awarding construction     contracts.      It seems    clear that     the
legislature    did   not    intend   to   accomplish    this    by   the
enactment   of   the    County    Purchasing    Act.    Had   Attorney
General Opinion     JW-505 taken     this fully     into account,     we
think it would     have given     the purchasing     act a different
reading.

  A. Applicability      of the County     Purchasing    Act     to
     construction      aontracts

      Upon further inspection,         we believe it was erroneous        to
place so    much    reliance      on the   definition     of   '1item11 in
Attorney   General     Opinion     JW-505.     We also    think    it   was
incorrect   to   conclude that       the application      of the    County
Purchasing     Act   is    solely    contingent     upon   whether      the
particular   acquisition       is   for an    V'item11 as    specifically
defined in the      act.    A   review of other      provisions    of   the
County Purchasing     Act reveals that while the term aitem11 is
specially   defined in the act, it is not a rigid,             inflexible
concept.    The    definition      therefore   should    not   limit    the
reach of the County        Purchasing    Act where    there is a clear
indication   in the language of         the act that it should        apply
to particular    procurements.       This point is made manifest         by
other provisions     of the act.

     1. Section    262.024   of the Local     Government      Code

      Section 262.024 provides,   in part, that a llcontract for
the purchase   of any of the following items" is exempted    from
the competitive   bidding  requirement   established by  section
262.023 if the commissioners    court grants the exemption:




                                     P. 6457
.

        Honorable     Charles     W. Chapman      - Page    11 (JW-1220)


P

                        (1) an item that must     be purchased   in   a
                    case of public calamity    if it is necessary    to
                    make the   purchase   promptly to    relieve    the
                    necessity  of the citizens or to preserve       the
                    property  of the county:

                        (2) an item necessary to preserve or pro-
                    tect the public health or safety of the resi-
                    dents of the county:

                        (3) an item necessary  because             of      unfore-
                    seen damage to public property:

                       (4)      a personal      or professional     service;

                        (5) any work  performed  and              paid     for     by
                    the day, as the work progresses:

                       (6)      any   land   or right-of-way;

                        (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
                       monopolies;

                                (B)    films,    manuscripts,     or books;

                                (c) electric power, gas,           water,         and
                       other     utility services; and

                             (D) captive   replacement              parts          or
                       components for equipment.

        In the absence of an exemption    granted by the     commissioners
        court, the acquisition    of each of the enumerated    articles    or
        services would be subject to the competitive      bidding    proce-
        dures of the   County Purchasing   Act,   despite the fact      that
        they do  not fall    neatly within    the definition     of  11item'1
        provided  in section 262.022.

            2. Se&ion        262.0275        of the Looal    Government      Code

              Further proof is found in section 262.0275 of the Local
        Government   Code, originally    enacted in 1987 as an    amendment
        to article 2368a.5.     See Acts 1987, 70th Leg., ch. 722, § 5,
        at 2598.    It authorizes   a governmental    entity to take    into
    C
        account    the   safety   record   of   a bidder    under   certain




                                                   p. 6458
Honorable      Charles   W. Chapman     - page     12   (JM-1220)




specified   conditions.     Those conditions    relate primarily        to
the issues    of notice     and fairness     to bidders.      &?     Acts
1989, 71st    beg.,    ch.   1,  f 58,    at   66    (conforming      1987
amendment   to Local Gov't Code      format).     The caption to       the
bill enacting     what   is now section       262.0275     reveals     the
legislature's    understandins    of   the    scope    of   the    County
purchasing   Act:

            An   act   relating    to        safety    standards    for
            construction    projects         and   consideration     of
            safety   records      when         awarding      bids    on
            construction    projects.

Acts   1987,    70th   Leg.,   ch.   722,    at 2597.

      Significantly,   the amendment     was accomplished       without
changing the definition     of llitem.n This indicates       that    the
legislature   believed    both   that the    definition     was   broad
enough to    include construction      services and     that the     act
applied generally    to construction    contracts.     If it had     not
held these beliefs, we doubt        it would have amended the        act
to allow consideration     of a contractor's     safety record.      The
addition   of section 262.0275 therefore      should not be      viewed
as an expansion    of the   County purchasing     Act, but merely       a
clarification    of its scope.

      Accordingly,  we believe     construction    work may    reason-
ably be characterized     as a    %ervicel*    for  purposes   of    the
County purchasing   Act, thereby bringing       such work within the
definition   of llitemll and preserving      a general    competitive
bidding requirement     for   construction    contracts.4     We   also
conclude that Attorney    General    Opinion JW-505 was in        error
when it determined    that the    County purchasing    Act does      not
apply to public works     construction    contracts;    it is    hereby
overruled   to the extent it conflicts      with this opinion.

      In answer to your      specific question,    we conclude     that
the County    purchasing     Act requires    a county to      award    a
contract  for   the    construction    of   a vehicle     maintenance
building  on   the basis     of competitive    bids.    This   answer,
however,  raises    an   additional    issue.     Because    both   the
County purchasing    Act and subchapter     B prescribe   competitive



      4.   The bill  enacting   section 262.0275    also   amended
subchapter    B  of  chapter   271    to  allow   for  the     same
consideration   of safety records    under its provisions.      &
Local Gov't Code S 271.0275.




                                            P- 6459
.

          Honorable   Charles    W. Chapman    - Page   13   (JM-1220)




          bidding    procedures,     it becomes    necessary   to    determine
          whether a    county    must award    a public works     contract     in
          accordance   with the    terms of either    the County    Purchasing
          Act or subchapter      B, or whether    the County Purchasing       Act
          simply triggers the procedures       set forth in subchapter     B.

          V.   Does  the County Purohaeing Act       or subchapter B of
               chapter 271 govern competitive        bidding for public works
               oomtruation    contracts7

                Two provisions       of the    Code Construction      Act   resolve
          this issue.       Section     311.025(a)    of  the    Government      Code
          provides   that in the event two statutes enacted at the               same
          or different     sessions of the legislature       are irreconcilable,
          the statute latest in date of enactment            prevails.      Section
          311.026, meanwhile,       admonishes    us to construe   a general code
          provision   and a conflicting        special provision     so that     both
          may be    given    effect,     if possible.     If   the    conflict     is
          irreconcilable,     the    special    provision    is treated       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.

                The County Purchasing       Act    and subchapter     B both     apply
          to   contracts     exceeding     $10,000,     subchapter     B     applying
          specifically     to    public    works    contracts.       The   two    acts
          differ, however,      in several     important    respects,    such as     in
          terms of    the    timing    and content      of   competitive      bidding
          notices.     Comoare     Local    Gov*t    Code    5 262.025     wd      id,
          5 271.025.     The acts     also impose     different    procedures      for
          the opening and modification         of   bids prior to award of         the
          contract.    Comoare     A     5 262.026    l&h    &      6 271.026.      Of
          course, the County       Purchasing     Act contains     a bid bond      and
          performance    bond requirement       while subchapter       B does     not.
          See id, 8 262.032.       The    County   Purchasing    Act  authorizes      a
          property tax paying        citizen of     the county     to enjoin      per-
          formance of     a contract       made    in violation       of   the    act:
          subchapter   B,    though,    provides     that a contract        made     in
          violation    of    its   provisions      is void.       Id.    §S 262.033,
          271.028.    These    differences      cannot,     in   cur   opinion,     be
          readily reconciled,      and we must therefore       determine    which of
          the statutes shall govern         county public works        construction
          contracts.

                The County Purchasing   Act was enacted in 1985; V.T.C.S.
          article 2368a.3 was enacted in 1979.      The County    Purchasing
          Act is also the more    general provision.     However, with     our
          previous discussion    of   the legislative    history   and   sub-
          sequent amendment   of the   act in mind,    we believe that    the
    rc‘
          manifest  intent  of   the   legislature    is  that   the   County




                                                 p. 6460
Honorable    Charles    W. Chapman    - Page    14   (JM-1220)




Purchasing  Act govern the award of construction        contracts   by
a county to the exclusion     of subchapter   B.   Accordingly,     we
believe the competitive    bidding procedures     prescribed   by the
County Purchasing   Act in sections 262.023 through 262.032 of
the Local   Government   Code   prevail over     the provisions     of
subchapter  B of   chapter 271    of the    Local Government      Code
insofar as the latter provisions      relate to counties.5

      Recent legislation         amended     subchapter    B   to    allow     a
county with a population         of 2.2 million or more to require a
successful    bidder to perform at least 25 percent of the work
under a contract        and    to establish      financial    criteria       for
surety companies      that provide payment and performance              bonds.
Local Gov't Code 5 271.025(e)           (as   added by Acts 1989,          71st
Leg., ch. 1019, § 2, at          4115).     The legislative      history      of
the amendment     indicates      that it was      directed    primarily       at
out-of-state     construction     contractors      who do business         with
Harris County.       &8   Public Hearing on H.B. 1059, before               the
House Comm. on County Affairs           (March 7, 1989) (testimony            of
Mr.  Jack Watkins,      Assistant    County Engineer,      Harris      County)
(tape available       through     House     Technical     Services).         The
amendment   to subchapter       B would suggest that the legislature
believes     its   provisions      remain     applicable      to    counties.
However,   it must      also be    noted that      the same      legislation
amended both the County Purchasing            Act, w      Local Gov't Code
5 262.025(d),     and the Certificate        of Obligation     Act, see ~
g 271.055(e),     to    provide identical        authority    to    a county
with a population       of 2.2 million or more.         Furthermore,        the
only   county     that    may    presently     take    advantage       of   the
provision   apparently      awards construction       contracts      pursuant
to   the   County     Purchasing      Act.     &8     Testimony      of    Jack
Watkins, sunra.         The   amendment      of subchapter       B,    in   our
opinion,   represents       more   a case      of   overly     precise      and
unnecessary    drafting      than    a conscious       attempt      to    bring
county    construction        contracts      under     the   umbrella         of
subchapter    B.

      We would also note that our conclusion         also applies    to
conflicts  between     the County    Purchasing   Act    and V.T.C.S.
article 5160.      Since   the County     Purchasing    Act   contains



      5.   Public   works    construction    contracts      awarded
pursuant to the Certificate    of Obligation  Act of 1971, Local
Government     Code sections   271.041    to 271.065,     are    not
affected by cur answer because such contracts      are    expressly
removed from the scope of the County Purchasing       Act.     Local
Gov't Code 8 262.023(b).




                                       p. 6461
    Honorable     Charles   W. Chapman        - Page   15   (JM-1220)


C




    provisions   relating to bid and performance        bonds, 88~     Local
    Gov't Code    5 262.032(a),     (b), we    think    these    provisions
    should   prevail     over  article    5160,   which     provides      for
    performance   bonds    but  not   bid bonds.      Since     the   County
    Purchasing   Act   makes   no   provision   for   payment     bonds,    a
    county   must    require   contractors     to   provide     such   bonds
    pursuant   to article 5160.

                                    SUMMARX

                    A county is required       to award a contract
                for the    construction     of   a county      vehicle
                maintenance   building    and public      works    pur-
                suant to the terms      of the County      Purchasing
                Act, Local Government       Code sections      262.021
                through    262.035.     The    provisions     of   sub-
                chapter B of Local       Government    Code    chapter
                271 do not apply to such contracts.          Attorney
                General Opinion JW-505      (1986) is overruled      to
                the extent of conflict with this opinion.




                                                   JIM      MATTOX
                                                   Attorney  General    of Texas

    WARYKELLER
    First Assistant      Attorney      General

    LOU MCCRBARY
    Executive  Assistant      Attorney     General

    JUDGE ZOLLIE STBAELEY
    Special Assistant  Attorney          General

    RENEA HICKS
    Special Assistant       Attorney     General

    RICK GILPIN
    Chairman,  Opinion      Committee

    Prepared by Steve Aragon
    Assistant Attorney General




                                              p. 6462
