                               October     28,   1988




Honorable  Mike Driscoll                   Opinion      No.   JR-974
Harris County Attorney
1001 Preston, Suite 634                    Re:    Competitive   bidding    in
Houston,  Texas  77002                     counties with a county       pur-
                                           chasing agent     (RQ-1484)

Dear   Mr.    Driscoll:

       You    ask:

                 (1)   In counties   with   county   purchasing
             agents, must the county purchasing       agent make
             all purchases   which are not made by      competi-
             tive    bid  or   can  individual    officers    and
             departments   purchase their own supplies?

                 (2)   Is  the    county    Purchasing      Agent
             subject to the     $5,000 limitation   imposed     by
             MC.   GDV'T CODE 5262.023 in making       purchases
             of maintenance    and repair items the need       for
             which is not foreseeable[?]

      In your    first question you ask                 whether   the   county
purchasing   agent in Harris County must                 make all   purchases
which are not subject to the competitive                 bid requirements    of
section 262.023 of the Local Government                 Code.

      You advise    that Harris    County   has a   duly    appointed
purchasing    agent   subject    to' the   provisions    of   section
262.011 of    the   Local   Government    Code.    Section    262.011
provides   in pertinent   part:

                 (a) In  a county    with    a population    of
             74,000 or   more,  a board      composed  of  the
             judges of the district     courts in the   county
             and the county judge,    by majority vote,    may
             appoint a suitable     person    to   act as  the
             county purchasing  agent.    The term of   office
             of the county purchasing    agent is two years.

                . . . .




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                 (d) The   county   purchasing     agent     shall
            purchase   all supplies,    materials,   and   eguip-
            ment required or used,       and contract    for   all
            repairs to property used, by the county or            a
            subdivision,     officer,    or   employee    of   the
            county,    extent     nurchases     and -tracts
            -red       bv   law to    be made   on   comvetitive
            bid.    A  nerson other     than the    countv    nur-
                  ina aaent mav    not w       the nurwse       of
                                                     ent or make


                . . . .
                (f) A purchase made by the county purchas-
            ing agent   shall be   paid    for by   a warrant
            drawn by the county     auditor on funds in    the
            county treasury    in the manner      provided  by
            law.   me  countv auairpr may not draw ad      the
            Qzantv treasurer &zv not honor a warrant       fey
            a wurchase unlaas the nurGL%se     is made bv thg
            countv nuruina      aaent or on comnetitive    bid
            as vrovided bv lax  .

                .   .   .   .

                (n) This section applies to all        purchases
            of supplies,   materials,   and equipment    for the
            use of the county and its officers,        including
            purchases  made by officers      paid out of     fees
            of office or otherwise,     regardless   of whether
            the purchase   contract   is made by the     commis-
            sioners court or any other officer authorized
            to bind the county      by contract.    An   officer
            making a purchase     out of fees     of office    in
            violation   of this section may not deduct        the
            amount of the purchase     from the amount of any
            fees of   office    due the   county.      (Emphasis
            added.)

      you state that your      question was prompted       by   Attorney
General Opinion JM-725      (1987).    In Attorney   General     Opinion
JM-725 it was concluded      that a county officer, department         or
institution   may   purchase   its   own supplies      subject to     the
limitations    imposed    by   section    3 of     article      2368a.5,
V.T.C.S.   (now section 262.023 of the Local Government           Code).
The request in Attorney       General Opinion      JM-725 was from       a
county that did     not have     a purchasing    agent.     Hence,    the
provisions   of section 262.011 were not applicable.




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      In Attorney   General Opinion H-1237      (1978), the question
arose as   to   whether the     commissioners     court of    El    Paso
County had authority     to order payment for a purchase        made by
the sheriff    when the    county had     a purchasing     agent    duly
appointed  under    then article     1580, V.T.C.S.      (now   section
262.011).    In concluding    that the     commissioners    court    did
not have   authority    to  direct payment      of a claim under        a
contract which contravened      the statute, the opinion stated:

            Article   1580    [now  section     262.0111     estab-
            lishes   the    county     purchasing     agent,      an
            officer not under the supervision         of the com-
            missioners   cou*,     as   the   proper     party    to
            contract   for all county supplies and services
            except those required to        be let on     competi-
            tive bid.      The statute     prohibits   any    other
            person from entering      into such contracts        and
            directs    the   county    auditor    not    to    draw
            warrants   'for    any purchases     except by     such
            agent and those made by competitive          bid.'

Attorney   General Opinion   H-1237   (1978), at          1.  The   county
purchasing   agent  must   make   all   purchases          that   are   not
subject to the competitive     bid requirements.

      In your    second question  you   ask whether the                 county
purchasing   agent is subject to the $5,000 limitation                 imposed
by section 262.023(a),    which provides:

                Before a county may      purchase  one or    more
            items under a contract       that will require      an
            expenditure        exceeding        85,000,       the
            commissioners    court of the county must comply
            with the competitive      bidding or     competitive
            proposal    procedures     prescribed      by    this
            subchapter.    All    bids or   proposals   must    be
            sealed.

      You state that in counties the size of Harris,          compli-
ance with the 85,000 limitation       is difficult  because of     the
maintenance   of a    large inventory   of   heavy equipment.      The
statute does not contain      an exception    based on   population.
The background    information   contained   in the Bill Analysis    to
Senate Bill 807,      Acts 1985,    69th Leg., ch.   641, at    2377,
effective   September   1, 1985, (now section 262.023) reflects:

            S.B. 807 repeals many of these old purchasing
            laws and  amends others  and creates   a  new,
            uniform   purchasing    law   for    counties




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            regardless   of population.               . . .    In   effect,
            S.B.   807    gives   all               counties    the     same
            requirements    relating                to   purchasing      and
            removes the disadvantage                  imposed by    earlier
            methods of regulating     the            purchasing   activity
            of county officials.     . .            .

Bill Analysis,  Tex. S.B. 807, 69th Leg. (1985).                         Subsection
(d) of section    262.011 expressly  excludes     from                  the   county
purchasing   agent's    authority   "purchases     and                    contracts
required by law to be made on competitive      bid."

      You suggest that the purchase     of maintenance     and repair
items may   come within    the   exceptions   to   the    competitive
bidding process   under    the "captive     replacement     parts    or
components  for equipment"   exception   in subsection       (a)(7) tD)
of section 262.024.    Section    262.024 provides     in   pertinent
pa*:

                (a) A contract   for the purchase  of any  of
            the   following    items   is  exempt  from   the
            requirement   established   by Section 262.023 if
            the commissioners    court, by order grants   the
            exemption:                                                                 --.

                  . . . .

                  (7) an item that can be obtained               from   only
            one    source, including:

                  .   .    .   .

                              (D) captive   replacement         parts     or
                          components   for equipment.

      Since the     county purchasing       agent is     subject to     the
competitive    bidding     requirements     of   section     262.023,     it
follows that the exceptions        thereto are applicable.          Before
there may be     an exception      to the    bidding requirement        the
parts or components      must be items "that can be obtained           from
only one source.H       In   addition the "maintenance        and   repair
items" must be      "captive replacement       parts or     components.l*
Of   necessity      the     factual     determination       of     whether
"maintenance       and     repair     items"     constitute       %aptive
replacement    parts or components@q must be made on a case-by-
case basis.




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P



                                    SUMMARY
                      In   counties     with    county      purchasing
                agents, the county purchasing        agent must make
                all purchases     that are    not subject       ;~,,~~;
                competitive     bid    requirements      of
                262.023 of     the Local    Government    Code.      The
                county purchasing      agent    is subject      to   the
                $5,000.00    limitation      imposed     by     section
                262.023 in making purchases          of   maintenance
                and repair items      unless such purchases         fall
                within the     exceptions   set    forth in     section
                262.024 of the Local Government         Code.

                                                    Very Itruly   you An



                                                    JIM      MATTOX
                                                    Attorney  General      of Texas

    MARYKELLRR
    First Assistant       Attorney    General

    mu   l4ccREARY
    Executive   Assistant      Attorney     General

    JUDGE ZOLLIE STRARLRY
    Special Assistant  Attorney           General

    RICK GILPIN
    Chairman,  Opinion      Committee

    Prepared by Tom G. Davis
    Assistant Attorney General




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