                           Office of tlpz!Zfttornep&neral
                                       Mate of Cexae
DAN MORALES
 *TToRs’EY
        CESERAL                          August12,1993




      Honorable Traoey Bright                    Opinion No. DM-242
      County Attorney
      Ector County Courthouse                    Re: Whe-ther an independent school district
      Room201                                    MY. without violating the competitive
      Odessa, Texas 79761                        bidding statutes, “act as its own general
                                                 contractor” in letting bids for renovation and
                                                 remodeling projects (RQ-530)

      Dear Mi. Bright:

               On behalf of the Ector County Independent School Diict     (“ECISD”), you have
      asked us to interpret the commitive bidding staMcs that apply to independent school
      districts. You specifically cite section 21.901 of the Texas Education Code and chapter
      271, subchapter B of the Local Government Code.

             You state as follows:

                     ECISD has several remodeling or renovation projects that need
                to be completed prior to the 1993-94 school year. The. aggregate
                cost of each renovation or remodeling project will vary depending on
                the nature and extent of the requked remodeling or renovation. In
                almost all instances, the total Be         cost of each project will
                exceed SIO,OOO.OO.ECISD [has] numerous employees on its staff
                who [can] adequately and competently perform the majority of tasks
                required on each remodeling or renovation project. Therefore,
                ECISD desires to act as its own general contractor on several of
                these remodeling or renovation projects. ECISD would only submit
                for competitive bids those tasks [within] the project that requireu
                specialized training or expertise which would require the
                expenditures of more than S10.000.00 (e.g. plumbing, electrical,
                cabme-try, etc.).

      You finther state that ECISD does not believe that this procedure will violate sections
      21.901 and 21.9011 of the Education Code nor sections 271.021 through 271.025 of the
      vocal Government Code. Finally, you assure us that ECISD “does not desire to act as its
      own general contractor to avoid the competitive bidding statutes.”
HonorableTracey   Bright - Page 2         (DM-242)




       Section 21.901 of the Education Code states in puthmnt part as follows:

               (a) Exceptas providedin this section,all contractsproposed to
          bemadebyMyTexssplblicschoolboardforthepurchaseofMy
          personal property shall be submitted to competitive bidding when
          said property is valued at S 10,000 or more.
               (b) Except as provided in Subsection (e) of this section,t a8
          ContraasproposedtobemrdebyMyT~publicrchoolboardfor
          the cwstmction, maintenance, repair or renovation of any building or
          for mate&Is used in said wnstnmtion, maintenance, repair, or
          tenovation,shallbe&mittedtowmpetitkbiddingv+hensaid
          wntmcta are vahd at $10,000 or more. footnote added.]

See u&o Attorney General Opiion DM-14 (1991) at 3. The remainder of section 21901
also provides exceptions to the wmpetitive bidding requhwnent and for notice of the bid
opening. Section 21.901 l(c), (e) of the Education Code provides that the h~tentional or
knowing violation of section 21.901(a) or (b) wnstitutes a Class B misd emeanorandmay
result in immdate removal from office or employment.

       TheLocalGo      vemment code provisions about which you ask apply to
govemmed     entities generally, which include a common or independent school district.
See Local Gdt Code 5 271,021(2)(C). Section 271.024 provides as follows:

               Ifagovemmen        talentityisrequidbystatutetoawarda
          wntract      for the wnstrwtio~           repair, or renovation   of   a
          rtruchire....onthebasisofcompetitivebiQ,andifthewntract
          requiresthearpadiaueofmorethanSlO,OOO~mthehrndsofthe
          entity,thebiddingonthewntmctmustbeaccomplishedhtthe
          manner provided by this takhapter.

Other sections of chapter 271, subchapter B of the Local Govemment Code articulate
requkments for advertising for bids. Local Goti Code 0 271.025; opening bids, id.
Q 271.026; and awarding the wntract, id. 8 271.027. Section 271.029 of the Local
Government Code, like section 29.011 of the Education Code, prescribes penalties for
violations of the competitive bidding requirements. See gerre~& Cooper & Horton,
CampeririwBidRequirementsforschoolDisbicfCorrb.acts,      34TEx.B.J. 1154(1983).

      Both section 21.901 of the Education Code and section 271.024 of the Local
Government Code articulate the procedure for wmpetitive bidding to which an




                                          p.   1249
Honorable Tracq Bri&t - Pa8e 3            (DM-242)




independwt school district must adhare iftha district proposes to award a wntract for the
wnstructi~     repair, or ranovation of a st~ctura that will rapire the axpanditurc of more
than S10.000 of the district’s 8mds. Tbur, section 21.901 of the Education Code and
section 271.024 of the Local Govunmcnt codemerdyrequire~ifanindependent
schooldisbictistow~tohave~ouuide~paformtheworlstheirdependcnt
schooldistrid~competitivelybidthecontncturd8wudthew~tothelowest
resptsible bidder. See Local Goti Code 50 271.027(b). 271.0275; 64 AM JVR 2d
Public W~ksmdContmcts~4O,at893(1972).               Neitherscction21.901 oftheEducation
Code nor section 271.024 of the Local Govamnant Code apply, howcvar, if the
indepadcatschooldistrictdoesMtpropo#to~acontrrctbutntherproposcsto
perfotm the work using its own amployacs. See Attorney General Opiion V-506 (1948)
at 4; Montaro Chqter, Not? Elec. Cmtractors Ash v. State Bd. of Educ.. 352 P&l 258,
259-60 (Mont. 1960) (and cases cited therein); Davis v. cmbon Co@y, 85 A2d 862,
868 (Pa. 1952); Hame Be. & &mqwnx                Co. v. Ct@ o/Ron&e,      20 S.E. 895, 899
(Va. 1895); 64 AM. JUR. 2d, super, see ah Guy Bitdithtc Co. v. Nueces County, 11
S.W.2d 305.309 (Tat. Camm’n App. 1928. judpn’t adopted).

        We conclude, therefore, that an independent school district may, without violating
section 21.901 of the Education Code and saction 271.024 oftha Local Govanmast
code,“~rsitsowngarenlwmnctor”inl~bidsforrenovrtion~rezwd~
Projects. Of wurse, the inde9endant school district may be tquirui to wmptitively bid
wntmUs for materials or sat-vices used in the renovation and ranoddin8 projacts. &e
Educ. Code §219Ol(b);s see alsu TExrss EtWCATtON AGBNCY, HANDBooK 0N
m              BIDDINGFORTEXASPUBLICSchools 4.1, question 2 (1992).




                                         p.   1250
Honorable Tracey Bright - Pa& 4         (DIG242)




                                    SUMMARY
               Neither section 21.901 of the Education Code nor section
          271.024oftbcLocdGovammt            code,WhiCh~~tOWrptitiW
          biddingsituation&applytolniadepeDdentscbooldistrictthat&3ires
          topedormcertainworkusingitsownallployeu.               Acwrdingly,m
          iIdpdwt       8cbool distriu mly, without violatiq Be&n 21.901 of
          the Education Code and don        271.024 of the Local Govmment
          code.“actasitsowngwesal             wntmctor” in letting bids fix
          mtovationandmwdeungprojects.




                                                   DAN      MORALES
                                                   Attorney Gene-d of Texas

WILL PRYOR
F~ASSkUltdnornyGMld

MARYKELLER
DeputyAttomeyGaleralforLitigation

RENEAHICKS
state solicitor

MADELEINE B. JOHNSON
Chair, Opiion conwina




                                       p.   1251
