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                                           January 18, 1965                  <b*rr.L    .,         .._CT.
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        Honorable Richard E. Rudeloff                              7ztid hyL-L-a&                           .- :
        County Attorney,                                           '.                                        i
        Bee County Courthouse.
        Beeville, Texas
                                                   Op'ikon No. c.-376
                                                   Re:      Whether the Commissioners
                                                            Court of Bee County may
                                                            specify the manufacturer
                                                            or brand name of certain
                                                            .road machdnerycosting in
                                                            excess of $2000, requiring
                                                            competitive bids under ArfS-
        Dear Mr. Rudeloff:                                  cle 2368a, V.C.S.
               You have requested the opinion of this office'as to
        whether the Commissioners Court of Bee County may specify
        a certain manufacturer or brand name In drawing the speci-
        fications for machinery costing in excess of $2000 to be used
        in the construction and/or maiatenauce of roads aud streets,'
        and thus requiring competitive bidding under Article 2368a,
        Vernon's Civil Statutes.
                      Article 2368a reads in part as follows:
                           "Sec. 2. No county, actingthrough Its
                      Commissioner,sCourt, and no city in this.State
                      shall hereafter make'any contract calling for
                      or requiring the e enditure or payment of Two
                      Thousand ($2,000.00
                                        "p Dollars or more out of.any
                      fund or funds of any city or county or subdivl-
                      sion of a& county creating or imposing.an obli-
                      gation or liability of,any nature or character
                      upon such county or'any subdivialon of such
                      county, or upon such city, without first submit-
                      ting fuch proposed contract to competitive bids.
                      . . .
                            "Sec. 2b. Contracts for the purchase of
                       machinery for the construction and/or mainten-
                       ance of roads and/or streets, may be made by
                       the governing bodies of all counties and cities

                                                 -1786-
Hon. Richard E. Rudeloff, page 2~ (C- 376)


      within the State in accordance with the pro-
      visions of this Section. The order for pur-
      chase and notice for bids shall provide full
      specification of the machinery desired and
      contracts for the purchase thereof shall be
      let to.the lowest and best bidder."
       You furnished the.following facts in connection with your
request-for fan opinion: The Commissioners Court of Bee County
is in need of a new Piece of machinery for the construction and/on
maintenance of r6ads and streets, specifically, a "pay-loader" or
loading machine mounted on four wheels and capable of locomotion.
All such machinery, regardless of brand name, sells for amounts in
excess of $2,000. The Commissioners Court wishes to submit the
purchase of such machinery to competitive bids limited to a speci-
fic manufacturer or brand. The reason for wishing to limit bidding
in such manner is based on the Court's familiarity with'the brand
in question, the reliability of the machine sold under such brand
name, and the familiarity with it of the county employees who are
to operate such machinery.
       This office has previously issued an Attorney General's
opinion dealing with this,question, Wo. WW-579 (i959). This opin
ion, under generally similar facts, reached the conclusion that
the Commissioners Court was within its authority in specifying a
certain manufacturer-or brand name under circumstances where corn-:
petitive bidding was required. We have Concluded that Attorney
General's Opinion WW-579 is in substantial error and should be
overruled, insofar as it conflicts with this opinion.
       At the time WW-579 was issued, the case law on the que&ion
of specifying manufacturers or brand names.was not clear. The
Texas Commission of Appeals in Vilbig Bros. v. City of Dallas, I.2
Tex. 563, 91 S.W.2d 336~(1936), had h -d in favor of a very libed
inteqretation of the statute, follow&     the so-called “Michigan
,rrowe,"~pr~~~~'~r~~~~~~
Rule.                            the Supreme Court issued a much
                                ited to the particular facts of th
case at issue. 127 Tex. 563, 96 S.W.2d 229 (1936). The Vilbi
case was the only case law on the subject of brknd name bd       at
the time WW-579 was written, and an examination of the final de-
cision 'by the Supreme Court in that case reveals no support for
the "Michigan Rule."
        There are two primary cases which establish the law on
competitive bidding in Texas. St;errettv. Bell, 240 S.W.2d 516
(Te~.Ci~.App.,,l951),  at _ _ _
                          page 520, containsX    following state-
ment regarding competitive ,bidding:


                              -1787-
Hon. Richard E. Rudeloff, page 3 (C-376)


           "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 benefit of the taxnavers
      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 compe-
      tition, favor a contractor or materialman, or in-
      crease the cost of the work or of the material or
      other itemsgoing into the project." (Emphasis sup-
      plied).
The latest expression on the subject Is found in Texas Highway Com-
mis4on.v. Texas Association of Steel Importers, In c-9        . .
n.sup.ct.,        1963) h     inth   T      Iiih    t?ommission, by
Minute Order. attemnted't: Es the ~see?fsfor%~ysteel in the
construction of S&e   highways. The Supreme Co&t here held that
such an order violated Article 6674h, Vernon's Civil Statutes,
which is the statute setting forth the requirements for competi-
tive biddihg for the Highway Department. Article 6674h, V.C.S.,
is substantially the same as Article 2368a,  insofar as the com-
petitive bid requirements are concerned. At page 526 of 'thesu-
?reme Court'~sopinion, it was stated:
            "The effect of the order would be to elimi-
       nate from the field of bidders upon highway con-
       struction contracts all those who owned or in-
       tended to acquire foreign materials and use them
       in carrying out highway construction contracts.
       Quite obviously the field of material suppliers
       would be drastically reduced. : . . If the SUP-
       pliers in one field of materials, such as Steel,
       will be reduced by approximately fifty per cent,
       it seems obvious that the clear purpose for which
       Article 6674h was enacted is being circumvented."
Although this opinion by the Supreme Court did not deal specifi-
cally with the subject of specifying a manufacturer'or brand name
in Competitive bidding, it would appear that the situation is so
closely analogous that this case would apply to our instant problem.
       It is the'opinion of this office that, taken together, the
cases of Sterrett v. Bell, supra, and Texas Highway COmtliSSiOnV.
Texas Assn. of Steel Importers, Inc., supra, operate to forbid any
restriction upon th fi Id f suppliers in competitive bidding
Situations. We expFesseno Opinion regarding situations where the
item to be purchased is a patented article, or is one of a kind.
It is further the opinion of this office that none of the fore-
going operates to divest the Commissioners'Court of Its discretion

                             - 1788-
Hon. Richard E. Rudeloff, page 4 (C-376)


to reject any or all bids, or its duty to accept only what is,
in the exercise of sound discretion, determined to be the lowest
and best bid, in accordance with Article 2368a, Sec. 2b, Vernon'
Civil Statutes.
                           SUMMARY
              Attorney General's Opinion WW-579
         (1sg)'is hereby overruled Insofar as it
         conflicts with this opinion.
                A conkissionerscourt may not specify
         manufacturer or brand name in soliciting the
         competitive bids required for road machinery
         costing in excess of $2000, under Article
         2368a,   V.C.S.
                             Yours very truly,
                             WAGGONER CARR




MLQ:ms
APPROVED:
OPINION COMMITTEE
W. V. Geppert,~Chairman
W. 0. Shultz
Paul Phy
Kerns Taylor
Harold Kennedy

.APPRX'EB FOR TRE ATTORNEY GENERAL
 By: Stanton Stone




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