                         August 31, 1965

Honorable Wm. J. Burke              Opinion No. C-496
Executive Director
State Board of Control              Re: Various questions relat-
Sam Houston Building                    ing to rental of space
Austin, Texas 78711                     for government agencies
                                        by the Board of Control.
Dear Mr. Burke:
          Your request for an opinion on the above subject
matter asks the following question%:
         “Cur question is - ‘Are such factors now
    contained In the Bid Invitationssuch as size
    of rooms, location of the rooms within the
    building, the location of the rooms with re-
    lation to the ground surface, the availability
    of elevator service or the question of attended
    elevator service, heating, air conditioning,
    lighting, janitorialservice and customer and
    employee parking, important elements that con-
    tribute to the ultimate determinationof the
    “lowest and best bid” and therefore rightfully
    included in the Invitation to Bid?’
         “Cur second question is - ‘When we re-
    ceive bids which cannot be considered to be the
    “lowest and best bids” to serve the best in-
    terests of the Intended occupant agency, are we
    within our legal rights under the Bid Invitation
    condition which provides that the Board may re-
    ject any or all bids to reject such unacceptable
    bids and to forthwith re-advertisefor space in
    the given location or city in another attempt to
    obtain for the intended occupant state agency
    the quarter% which will more fully serve its
    best interests and/or purposes.(”
          Secti.on%land2 of Article 666b, Vernon’s Civil
Statutes, provide:
         “Section 1. Hereafter all departments and
    agencies of the State Government,when rental space
    1% needed for carrying on the essential functions
                              -2343-
Hon. Wm. J. Burke, page 2 (C-496 )


    of such agencies or d!3QartmentS of the State Govern-
    ment, shall submit
                 -     to
                       _. the State
                               .     Board
                                        .._of Control
                                                _.    a _
    request thereror, giving tne type. KlnCi. ana size or
    building needed. together with any other necessary
    description.and stating the purpose for which it
    will be used and the need therefor.
         "Sec. 2. The State Board of Control, upon
    receipt of such request and if the money has been
    made available to pay the rental thereon, and if,
    in the discretion of the Board such space is need-
    ed, shall forthwith advertise in a newspaper,which
    has been regularly published and circulated in the
    city, or town, where such rental space is sought,
    for bids on such rental space, for the use% indicated
    and for a period of not to exceed two years. After
    such bids have been received by the State Board of
    Control at its principal office in Austin Texas, and
    publicly opened, the award for such rentai contract
    will be made to the lowest and beat bidder and upon
    such other terms aa may be agreed upon. The terms
    of the contract, together with the notice of the
    award of the State Board of Control will be submitted
    to the Attorney General of Texas, who will cause to
    be prepared and executed in accordance with the terms
    of the agreement, such contract in quadruplicate;one
    of which will be kept by each party thereto, one by
    the State Board of Control and one by the Attorney
    General of Texas. The par&e% to such contract will
    be the department or agency of the governmentusing
    the space as lessee and the party renting the space
    as lessor.” (Emphasissupplied)
          In awarding contracts to bidders submittingthe lowest
and best bid the awarding agency may take into consideration,
in addition 60 prioe, the quality of the rental space, the
adaptability to the particularuse required, and the ability,
capacity, experience,efficiencyand integrity of the bidders,
as well as their financial resoonsibllitv. Attorney General's
Opinion V-1565 (1952). In Attorney Generalfs Opinion v-1565
it was pointed out:
           “Article 2368a flernonls Civil Statutes7
     requires that the co?itractbe let 'to the lowest
     responsiblebidder.I The phrase ‘lowestrespon-
     sible  bidder' has a well defined meaning. For
     a collection of cases see 25 Words and Phrases
     (Perm. Ed. 1940) 714. In determiningthe lowest
     responsiblebidder the commissioners'court is
     not performinga mere ministerialduty but 1%
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Hon. Wm. J. Burke, page   3 (C- 496 )



     exercising a duty which 1% deliberativeand dis-
     cretionary. Att'y Gen. Op. v-1536 (1952). The
     commissioners1court may take into consideration
     the quality of the product, the adaptabilityto
     the particularuse required and the ability
     capacity, experience,efficiencyand integrity
     of the bidders as well as their financial res-
     ponsibility. Mitchell v. Walden Moter Company,
     235 Ala. 34 177 So. 151 (19 '0. Kellln v
              116 Minn 484 134 N3Wf 5PlTdhe
     w;.       Kent 160 Iii 655 '43 N E 750 (it396
     picone v. City'of New York, $9 N.Y:S:2d 539
     kodgeman v. City of San Diego, 53 Cal.App.2d
     1
     y   P.
          Thus, it was concluded that the commis%ionerstoourt
had the authority to accept the higher of two bids on the pur-
chase of a dump truck since the truck Involved in Attorney
General'% Opinion v-1565 was better adapted to the particular
use intended by the commissioners'court.
           Additional cases defining "lowest and best bidder"
and construing the discretion conferred on governmentalagencies
in awarding contracts are as follow%: State v. Hermann, 59 N.E.
104, 63 Ohio St. 440 (1900); Wilmott Coal Co. v. State Purchasing
Commission, 54 S.W.2d 634, 246 Ky. 115, 86 ALR 127 (1932);
Altschul v. City of Springfield,193 N.E. 788, 48 Ohio App.
 56 (1   )   Fetters v. Mayor and Council of Wilmington,74 A.2d
270, 3T3zei. Ch. 364 (1950); 27 ALR 2d. 925 (1951).
          The underlined portion of Section 1 of Article 666b
reveals that the principle of law announced in Attorney General's
Opinion v-1565 Is equally applicable to the authority of the
Board of Control in awarding rental contracts for space for
government agencies. It is noted that the request for space
should give not only the type, kind and size of building needed,
but should contain other necessary descriptionas will afford
the using agency acceptable space adaptable to the particular
use required.

           You are therefore advised that the bid Invitationmay
contai.n specifications such as'8ize of rooms, location of the
rooms within the building, the location of the rooms with re-
lation to ground surface, the availability  of elevator service
or the question of attended elevator service, heating, air
conditioning,lighting, janitorialservice and customer and
employee parking" and other important elements which will aid
the Board of Control in making the ultimate determinationas
to who has submitted the lowest and best bid.
          In answer to your second question, when the Board of
Control receives bids which cannot be considered to serve the
best interest% of the intended occupant, the Board of Control
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Hon. Wm. J. Burke, page 4 (C-496 )


has the authority and it is its duty to reject such bids. When-
ever the Board of Control deems it to the best interest of the
State, it has the authority to reject all bids and re-advertise
for space in the given location or city in another attempt to
obtain suitable space for the Intended occupant.

                            SUMMARY
            In awarding a contract for rental space for
            government agencies to the lowest and best
            bidder, pursuant to the provisions of Article
            666b Vernon's Civil Statutes the State Board
            of C&trol may consider the adaptability of the
            space to the particular use required by the in-
            tended occupant, and the bid Invitations may
            contain such factors as size of rooms, location
            of the rooms within the building, the location
            of the rooms with relation to ground surface,
            the availablllty of elevator service or the
            question of attended elevator service, heating,
            air conditioning, lighting, janitorial service,
            and customer and employee parking.
            Whenever the Board of Control receives bids which
            are not considered to serve the best interests of
            the intended occupant, the Board of Control has
            the authority to reject such bids.
                                       Yours very truly,
                                       WAGGONER CARR
                                       Attorney General



                                            John Reeves
                                            Assistant
JR:mcn
APPROVED:
OPINION COMMITTEE
W. 0. Shultz, Chairman
Dean Arrington
James Broadhurst
Ivan Wllllam%
Tom .Routt';
APPROVED FOR THE ATTORNEY GENERAL
By: T. B. Wright                       -2346-
