                      The Attorney               General         of Texas
                                           March 23, 1981
MARKWHITE
AltorneyGeneral

                  Mr. Homer A. Foerster                      Opinion No. MW-310
                  Executive Director
                  State Purchasiw & General                  Re: Construction of section 3.08(a)
                    Services Commission                      of article 60&i, V.T.C.S.
                  L&J. State Offhe Building
                  Austin, Texas 787 11

                  Dear Mr. Poerster:

                        You have requested our opinion regarding this question:

                             Is the commission authorized by section 3.08(a) of
                             article SOlb, V.T.C.S., to waive alI oompetitive
                             bidding requirements, whether formal or informal, on
                             delegated purchases mder $1000

                        Artiele 6Olb, V.T.C.S., the State Purchasing and General Services Act,
                  provides in pertinent part as follows:

                                See. 3.08.    (a) The commission shall establish a
                             pmeedure by which state egencies shall be delagated
                             the authority to purchase supplies, materials, and
                             equipment if the purchase is less than $600 and shall
                             provide in the procedure that formal competitive
                             bidding is not required for purchases under $100.

                                 . . . .

                                 (d) A3encies making purchases under this section
                             must attempt to obtain at least three competitive
                             bids from sa~rces which normally offer for sale the
                             merehandke being purchased.

                                 . ...

                                 sec. 3.10.  . . . All purchases of and contracts
                             for supplies, materiab, services, and equipment shall,
                             except as provided herein, be based whenever possible
                             on competitive bids.




                                                  n.   QA7
 Mr. Homer A. Poerster - Psge Two         (H-310)




       You state that the commission delegates authority to make such purchases to
agencies under its Rule 028.12.OLO59b), but that it asks agencies to take a minimum of
three informal competitive bicb where possible. Tbs rule does not distbguish between
bids tmder $500 and those under $100, but requires an attempt at competitive bidding in
each instance. You flrther state that the term “formaLcompetitive        biddingw has a
rather precise meaning in purchase     cicltw and that it comprehends “a bid which has
been submitted in a sealed envelope to prevent dissemination of its contents before the
specified time and date set for bid opening.”

       For the following ressons, we snswer your question in the negative.            First,
section 3.08(a) exprcrssly provib   that “formaP competitive bidding is not required for
 purchases under $100, not that %ompetitive bidding” is not required. We must assume
 that the legislature used the adjective “formal” for a purpose, Eddins-Walcher Butane
 Company v. Calvert, 298 S.W. 2d 93 (Tex. 1957k L & M-Surco Manufacturing, In
%Ynn Title Company, 580 S.W. 2d 920 (Tax. Civ. App. - Tyler l979, writ dism’d),‘~~
 that it did not regard “formal competitive bidding” and “competitive bidding” as
synonymous       We firther assume that the legislature intended that the term “formal
competitive bidding,” which is not defined in the statute, would be given its commonly
accepted meaning. See Sanford v. State, 492 S.W. 2d 581 (Tex. Crim. App. 1973); In’re
Estate of. Purr, 553%W.       26 676 (Tex. Civ. App. - Amarillo 1977, writ ref’d n.r.e.);
Texas Employers’ Insurance Association v. Haunsehild, 527 S.W. 26 270 (Tex. Civ.
App. - Amarillo 1976, writ refkl       eJ Second, section’S.O8(d), which provides that
agencies making purchases mdeF&?tion          3.08 must attempt to obtain at least three
competitive biQ from the designated sources, does not except purohese~ of less than
$100. It applies to all purchases of less than $500, and its conditions must be satisfied.

      We therefore conclude that the commission is not authorieed by section 3.08(a)
of article 6Olb, V.T.C.S., to waive all compstitiw! bidding requirements, whether
formal or informal, on delegated purchases tmder $100. However, in view of the fact
that section 3.10 only requires competitive bids “whenever possible,” we think the
commission may promulgate rules indicating those instances in which it will consider
that competitim bids are not posslhle.

                                      SUMMARY

                The State Ptxehesing snd General Servfces Commission is
            not authorized by section 3.08(a) of article SOlb, V.T.C.S., to
            waive all competitive bidding requirements, whether formal or
            informal, on deleted  purchases under $100.

                                             veneNl*

                                               Attorney General of Texas




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Mr. Homer A. Poerster - Page Tluee     @f-310)




JOHN W. PAINTER, JR.
First Assistant Attorney Qeneral,

RICHARD E.GBAYUl
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVRD:
OPINION COMMrI’TEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilptn
Eva Loutzenhiser
Bruce Youngblood




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