              ~~HEA~ORNEY                        GENERAL
                               OFTEXAS




Honorable William J. Burke             Opinion    No. W-345
Executive   Director
State Board of Control                 Re:    The legal   effect     of House
Austin,   Texas                               Concurrent    Resolution    No.
                                              17, of the First Called
                                              Session   of the 55th Legls-
                                              lature,   1957, purporting
                                              to direct    the Board of,
                                              Control   not to accept     bids
                                              for oil and by-products
                                              from companies engaged in
                                              the importation      of crude
                                              oil into the United States,
Dear Mr. Burke:                               and related     questions.

           Your request      for   an opinion.reads        In part    as follows:

            “I am attaching   a copy of House Concurrent    Reso-
     lution   No. 17, introduced    by Representatives  Latimer,
     Lee and Kennard.

             “The Resolution  directs  the Board of Control   not
     to accept    any bids for 011, etc.,     from firms that Import
     crude oil or products     into the United States    or those
     affiliated    with such importing    firma.

            “The Board is also directed     to study existing     con-
     tracts   and make every effort   to terminate      said contracts
     with oil Importers    if it Is legally    possible     to do 80.

            %l%e Board of Control           purchases      refined     products
     for the use of the State and State-owned                    vehicles.      The
     availability       of adequate service          and supply facilities
     throughout     the State Is directly           related      to the refining
     capacity     and distribution         organization       of the contracting
     supplier.       It has been found that even some of the ‘major’
     011 and refining         companies have limited            and/or no dli-
     trlbutlon     of refined       products     In some portions         of the
     State.      Some of the problems involved               In purchasing      from
     Independent       producers     are refinery      location      and dlstri-
     butlon facilities          for refined      products,      a satisfactory
     method for handling           multiple    lndeperdent       contracts     and
     credit    arrangements        between the various          contract    areas
     of the State,        refined     products    of uniform quality         and
Honorable   William   J. Burke,      Page 2 (WW-345,



     dependability.      There are differences        to be found In
     petroleum    products  refined   by various      producers    be-
     cause of the method of processing and            compounding and
     the chemicals     used therefor.    This is      particularly
     true of lubricating      oil and grease.

            ‘Our   questions   are   as follows:

           “(1)    In order to be assured of adequate service
     for the State's fuel and refined          produ::ts needs,   under
     the Resolution,      can we legally    obtain and/or force
     compliance    leading     to the Issuance   of a certificate
     from refiners     certifying    that the refined    products
     purchased   for consumption      by the State are refined
     from Texas crude’?       Would sue” certificate     satisfy
     the Intent of the Resolution?

            “(2)    In the event our examination          of existing
     contracts     with refiners      indicates   that they are 011
     importers     but that said refiners        are willln     to
     furnish     a certificate     such as described      In f 1) above,
     would the Board of Control           be In violation    of terms
     of the Resolution         to continue    to purchase from refiners
     with whom we now have contracts?

            “(3)   In the event our Investigation          reveals    that
     the firms with whom we have State contracts              are Importers,
     and that they are unwilling           to execute a certificate       stat-
     ing the products      sold to the State are refined          from Texas
     crude oil;    If we attempted        to terminate  the contracts      as
     directed    by the Resolution,        could they be legally      terml-
     nated without     affording     cause of legal    actlun    against
     the State by present        contract     holders.

             “(4)    In the event the holders        of our present  con-
     tracts     for refined    products   are affiliated    with 011
     Importing      companies,   but refine   the products     which are
     sold to the State of Texas from Texas crude oil and so
     certify      to that fact,   what ,ls our position     with reference
     to compliance       with the Resolution     and particularly    para-
     graph 7; paragraph 87

           “(5)    In the event present          contracts   are terminated
     and new bids are called         for refined      products,    and upon
     call  for said bids we find thaL distribution                of non-
     Importing   refiners    f products      5.s ‘spotty’   ar,d/or limited
     and that State-owned        vehicles     operating    throughout    the
     State cannot be adequately           served b:? the same and/or
     other refiner     contracts,     what course of action         Is open
Honorable    William   J. Burke,    Page 3 (W-345)



       to us to obtain     supplies of fuel and oil products         In
       those areas where non-importing      refiners are not
       operating   or do not have adequate distribution    of        their
       refined   products?

             “(6)    What form of statement  by bidders   should
       be used?'    Is such a statement  form now available?

             "(7)  What authority  and/or power of enforcement
       does H.C.R. #17 bestow on the Board of Control    with
       which to effectuate   the provisions of the Resolution?



             House Concurrent      Resolution   No.   17 resolves   as
follows:

              "RESOLVED, By the House of Representatives            of
       the State of Texas, the Senate concurring,            that the
       State Board of Control     be directed      not to accept     any
       bids for 011, gasoline     and/or    lubricant    needs of the
       State of Texas from any person,         firm,   oartnershlp,
       company or corporation     which imports any crude 011
       or products   Into the United States,         or bihlch pur-
       chases any foreign-produced       crude 011 or products,        or
       from any individual,    firm,   partnership,      company or
       corporation   which is owned, controlled,         or affiliated
       by stock ownership,    or otherwise,       with any importer
       as defined   herein;  and be it further

              "RESOLVED, That the Board of Control          be directed   to
       study all contracts        now In efPect with any Individual,
       firm,    partnership,     company or corporation     which Imports
       or Is affiliated       with any importer    of foreign    011, as
       defined    herein,    and make every effort     to terminate
       forthwlth      such contract   or contracts    If It is legally
       possible     to do so; and be it further

              "RESOLVED, That bidders    on oil, gasoline     and/or
       lubricant   needs of the state be required      to file   with
       the Board of Control    a sworn statement    attached    to their
       bids to the effect    that they areanot   importers     of foreign
       crude 011 or products,    or affiliated   with such importers,
       as defined   herein."

           Under the State Purchasing    Act of 1957 (Senate Bill
169, Chapter 304, Acts 55th Legislature,     Regular Session,
1957, page 739, codified   in Vernon's   as Article  664-3, Vernon's
Civil Statutes,  the Board of Control    is required  to award
                                                                                                                   .
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Honorable     Wllllam        J. Burke,            Page 4 (W’W-345)



contracts     to the        bidder         submitting         the        lowest      and best      bid.

              Subdivision            (f)     of    Section      8 provides:

               “(f)    Award of Contract.        The Board shall award
        contracts     to.the   bidder submitting      the lowest and
        beast bid.      In determining    who,ls   the lowest ,and best
        bidder,     In addition    to price,   the Board shall   con-
        sider:

               “(1)    The ability,              capacity    and skill                 of   the
        bidder to     perform.the             contract    op.provlde                  the   service
        required;

              “(2)   Whether the bidder can perform the con-
        tract  or provide    the service  promptly,    or within the
        time required,    without   delay Lr interference;

              “(3)      The character,                 responsibility,                integrity,
        reputation,      and experience                 of the bidder;

               “(4)    The quality                of   performance              of   previous
        contracts     or servioes;

               “(5)     The previous  and existing                             compliance    by
        the bidder      with laws relating   to the                            contract   or
        service;

               “(6)    The sufficiency     of the                        financial  re-
        sources     and ability    of the bidder                         to perform the
        contract     or provide    the service;

                “(7)    The quality,   availability  and~adapt-
        ability      of the supplies,   or contractual  services,
        to the particular       use required;

                        e ability    of the bidder to provide
        futurl:(%nLance        , repair  parts,  and service  for
        the use of the subject       of the contract;

                             e number and scope                     of    conditions        at-
        tachei(zA      t:     bid . ” .

              Section        30 of         Article      III    of        the    Constitution          of
Texas    provides :

              “Sec. 30.    ND law shall be passed, except by
        bill,  and’no bill   shall be so amended In Its passage
        through zither   House, as to change its original
        purpose.
.       .
    -         -




            Honorable   William   J. Burke,   Page 5 (WW-345)



                        In view of the provisions      of Section    30 of Article
            III of the Constitution      above quoted,    a statute    can not be
            amended by a resolution.       Humble 011 & Ref.      C_o. _vs ~&ate.
            104  S,W. 2d 174 (Tex. CivT A           36).   Terrell   W ells  Swik-
            ming Pool vs Rodriguez,      182 S%:?d       823 ( Tex. Civ. A .
            1944)    Moshelm va Rolilns,     79 S.W. id 672 (Tex.      Civ. &.
            1935,'error    dismissed).

                        It is our opinion     that House Concurrent    Resolution
            of the First Called Session       of the 55th Legislature,     1957,
            constitutes    an attempt to amend the provisions      of SubditSsion
            (f) of Section    8 of Chapter 304, Acts 55th Legislature,         Reg-
            ular Session,    1957 in violation     of Section  30 of Article     III
            of the Constitution     of Texas.     Therefore,  in answer to your
            questions,    you are advised:

                       1.   The State Board of tiantrol      is not authorized
            to require  the "Issuing   of a certificate      from refiners
            certifying  that the refined   products     purchased  <or consump-
            tion by the State are refined    from Texas crude.

                         2.   The Board of Control     is required   to continue
            the purchase from refiners      with whom the State now has con-
            tracts    in accordance  with the terms and conditions        of such
            contracts    and is not authroized    to abrogate     the obllgatlons
            of the State under existing      contracts.

                       3.   In answer to the remaining     questions you are
            advised  that the State Board of Control     is required   to
            follow  the terms and conditions     of the State Purchasing    Act
            of 1957 In awarding contracts     for the purchase of.the     State's
            fuel and refined   product needs.




                                              SUMMARY


                               The purchase of feul and refined
                        products   for the State is governed by
                        the provisions     of Chapter 304, Acts
                        55th Legislature,     Regular Session,   1957
                        (State   Purchasing   Act of 1957).    The
                        provisions    of Rouse Concurrent   Resolution
                        No. 17 of the First     Called Session   of the
                        55th Legislature,     1957, can not amend,
                                                                                  .   .




   1,622
Honorable      William       J. Burke,      Page 6 (WW-345)



              alter  or repeal    any of the provisions
              of the State Purchasing     Act of 1957
              in view of the provisions     of Section
              30 of AFtlcle    III of the Conetltutlon
              of, Texas.

                                            Very   truly   yours,,

                                            WILL WILSON
                                            Attorney General         of   Texas




JR:tllg

APPROVED:

OPINION COMMITTEE

Geo.      Pi. Blackburn,         Chairman

John H. Mlnton,            Jr.

Marietta       Payne

B. H. Tlmmlns,         Jr.

Fred Werkinthin

REVIEWEDFOR THE ATTORNEYGENERAL

By:       W. V. Geppert
