                                The Attorney General of Texas
                                                February23, 1982
MARK WHITE
Attorney General


                              Honorable Henry Wade                       Opinion No.   MW-449
supreme court BulldIng        Criminal District Attorney
P. 0. Box 12549
                              Condemnation Section                       Re: May a county award a bid
Austin. TX. 79711-2549
5t2i475-2501                  Sixth Floor, Records Building              with conditions different from
T&.x 91Ol974-1397             Dallas, Texas   75202                      those   stated   in  the bid
Telecopier 51214750299                                                   specifications

                              Dear Mr. Wade:
1907 Main SL. suite 1400
oallaa. TX. 752OlaO9
214i742-9944                       You ask whether a conunissioners court may accept a bid with
                              conditions different from those set out in the bid specifications.
4924 Al3Wta Ave.. SUitS 160
                                   You state that the purchasing agent sent out bid documents for
El Paw. TX. 799u52792
91-2494                       the purchase of asphalt, liquids, road, oils,. and similar. items.
                              Although the “Notice and Instructions to Bidders” uses the term
                              “annual contract” in relation to such items, none of the bid documents
1220 Dallas Ave.. suite 202   provide the specific term of the contract. Company A submitted a
Houston. TX. 770028999
7l26905999
                              timely bid on some of the items, and the bid was accepted by the
                              commissioners’ court on January 5, 1981. by an order.

905 Brcadway. Suite 312            The Specifications/Bid Proposal likewise did not state a contract
Lubbock. TX. 79401.3479       term for the bid. The following language appears therein:
909!7476239

                                       Prices are to be firm for the contract period.
4309 N. Tenth. .Suite B                Vendor may raise prices only when the market
McAllsn. lx. 79901-1995                justifies with a 30 day written notice.    The
tiw992.4947                            contract may be terminated on a 30 day written
                                       notice   by   either   party.
200 MLkl Ptua. Sult9 400
Ban Antonlo. TX. 792052797         Apparently. Company B submitted.an untimely bid for the remaining
5G?i2254191                   items covered by the same bid proposal on January 9. 1981. which bid
                              the commissioners’ court accep~tedby another order.
An Equal Oppoftunityl
Afflrmatlve Actlon Employer        Each of the two orders provided that each contract was awarded to
                              the lowest bidder “as per specifications and prices set forth in bid”
                              and “as per proposal presented.”

                                   The bid from Company B which was accepted by the commissioners
                              court contained a provision which was added by the bidder saying
                              “[tlhe above prices are subject to change without notice.” Company B




                                                               p. 1546
..   Honorable Henry Wade - Page 2   (MU-449)




     also changed the units from tons to gallons or pounds on some of the
     asphalt items.

          Competitive bidding is the foundation for purchasing by agencies
     of the state of Texas. The supreme court in an opinion by Justice
     Norvell states:

               The purpose and intent of competitive bidding
               ordinances and statutes are well stated in
               Sterrett v. Bell, Tex. Civ. App.. 240~S.W.2d 516,
               520 (no wr. hist.) wherein it was said:

                    'Competitive     bidding'    requires     due
               advertisement, giving opportunity to bid, and
               contemplates a bidding on the same undertaking
               upon each of the same material items covered by
               the contract; upon the same thing. It requires
               that all bidders be placed upon the same plane of
               equality and that they each bid upon the same
               terms and conditions involved in all the items and
               parts of the contract, and that the proposal            '
               specify as to all bids the same, or substantially
               similar specifications.     Its purpose is to
               stimulate competition, prevent favoritism and
               secure the best work and materials at the lowest
               practicable price, for the best interests and
               benefits of the taxpayers and property owners.
               There can be no competitive bidding in a legal
               sense where the terms of the letting of the
               contract prevent or restrict competition, favor a
               contractor or materialman. or increase the cost of
               the work or of the materials or other items going
               into the project.

     Texas Highway Commission V. Texas Association of Steel Importers,
     Inc., 372 S.W.2d 525. 527 (Tex. 1963).

          Article 2368. V.T.C.S.. requires that purchases by commissioners
     courts or by cities in amounts of $3.000 or more must be committed to
     competitive bidding, and the case of Kelly v. Cochran, 82 S.W.2d 641
     (Tex. 1935). finds the failure to have competitive bidding as grounds
     for holding a commissioners court purchase contract invalid. See also
     V.T.C.S. arts. 1659. 16598.

          In setting out requirements for purchasing contracts for
     materials based on unit prices , article 2360a states in section 2a. in
     pertinent part:

               In the event a contract is to bc let on s unit
               price basis, the information furnished bidders




                                 p. 1547
Honorable Henry Wade - Page 3 (PIW-449)




          shall specify the approximate quantities estimated
          upon the best available information, but the
          compensation paid the contractor shall be based
          upon   the  actual quantities constructed or
          supplied.

     We could find no approximation of quantities in the bid
specifications as required above in section 2a. You pointed out also
that the various provisions in the bid specifications with regard to
the contract term and prices are themselves contradictory and
confusing. On the one hand. the language provides that the prices are
to be firm for the contract period, but the contract period is not
specifically set out.

     These ambiguous invitations and instructions for competitive bids
left the bidding requirements to conjecture so that competitive
bidding was prevented. The bids submitted in response thereto should
not have been accepted. -See Attorney  General Opinions MU-299 (1981);
U-24 (1973).

     The untimely bid also violated article 2368a and would be void as
section 2(d) states:

          (d) Any and all such contracts or agreements
          hereafter made by any county or city in this
          state, without complying with the terms of this
          Section, shall be void and         shall not  be
          enforceable in any court of this state and ,the
          performance of same and the payment of any money
          thereunder may be enjoined by any property
          taxpaying citizen of such county or city.

     We do not reach your second question which was contingent upon an
affirmative answer to the first question.

                             SUMMARY

              The Commissioners Court of Dallas County may
         not accept a bid with conditions different .from
         those stated in the bids.




                                    F   MA.R-K    WRITE
                                        Attorney General of Texas

JOAN W. FAINTER, JR.
First Assistant Attorney General




                              p. 1548
    .
I       Honorable   Henry   Wade - Page 4        (MU-449)




        RICHARD E. GRAY III
        Executive Assistant Attorney    General

        ~Preparedby Jean Cornelius
        Assistant Attorney General

        APPROVBD:
        OPINION COMMITTEE

        Susan L. Garrison, Chairman
        Jon Bible
        Jean Cornelius
        Rick Gilpln
        Jim Hoellinger
        Bruce Youngblood




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