Honorable J. Collier Adeee, Jr.         opinion NO. JN-1248
co&ran county Attorney
109 Woet Weehington                     M:   Validity of a bid eo-
Worton, Texae   19346                   licitation Which doee  not
                                        ccmply with the publiehing
                                        requirement8 of    section
                                        262.025(a) of the Texas
                                        Lccal Government Code
                                         (RQ-2050)

DearHr.   Adame:
     You ask three gueetione about the comtyRe purchaee, by
meane of competitive bidding, of a motor grader. First, you
ask whether  the eolicitation of bide for the grader was
valid.
     You tell ue that the eolicitation wae publiehed twice
in a local neWspaper, on Decbber 21, 1989, and on January
4, 1990. We understand  that the’newepaper wae not published
during the intemening Christmas week in 1989 and that the
bide Were opened on Jenuary 19, 1990.
     Subchapter C of Chapter 262 of    the Local Gwernment
Code reguiree that county purchaeee of more than $10,000 be
made by competitive bidding, and eection 262.025(a) requires
the solicitation of bide, as follows:
                   A       of   a   propoeed   pur?r   nrw;t
          be &         at w             a u+ctk
          paper of general circulation in the county,
          with the g
               a the 14th   dav &&r,#    the  date of the
          bid.            If there    ie no notepaper  of
          generalcirculation in the county, the notice
          muet be pceted in a proainurf place in the
          courthoueo for 14 day8 before the date of the
          bid opening.
      Gw't    Code S 262.025(a) (our emphasis).
     This statute has not           been previously eubjctctadto
published legal analysis.           In conetruing the publication



                                     p. 6646
Honorable J. Collier Adam,   Jr. - Page 2   (J&1248)                   :
                                                                       .




                                                                   .’
requirements, ve a r eleeietedby conmideringthe lub ee& io n
as a whole. The lubeection defines two alternative methode
for  giving notice of the propoSed   contract, publication, and    I
posting. In those cases where there is no Wevepaper           of
general circulation,vl the courthouee posting alternative
reguiree posting for the 14 day period imvediately preceding
the opening  of the bida.    An lguivalent notice is achieved
through publication vhere the initial publication is made
once lech week for the tvo veeka procoding the bid opening.
Read litarally, the ltetute   reguiree a publication once each
ve& from the firet publication until the opening of         the
     * We helieve that the legislature here intended to
require that notice of the contract be publimhed in a
nevepaper, as it vould be posted in the courthouse, once       a
week for at least the tvo coneecutive veeka immediately
prior to the opening. Purther,     if the original publication
occurs on a more remote date than the 15th day before       the
date of the bid opening, there vi11 be additional veeke of
publication.2
      In the circumetancee you describe, the first publica-
tion of the notiae occurred 29 days before the opening (Dec.
21, 1989). The second posting occurrod on January 4, 1990,
because there vae no paper publiehed during the Christmas
week. Ae ve read the statute, there ehould have been
another publication in the week folloving the January 4,
1990, publicetion end preceding the week of the opening (on
January 11, 1990, for example). Therefore, ve believe that
.the publication of notice for this bid does not technically
fulfill the statutory requiremnte.
     You next ask about the validity of the restrictive
epecification, Wide on Total Coot Only,* which you indicate
is intended to eneure a maximum amount to be spent on parts


     1. You neither ask about nor supply information rela-
tive to the guution    of vhethu     the nevepepu    is one of
general oirculaticnr thue ve do not       eddreee  that   issue
but assume thatthe newmpapernats        therequiraent.      w
m        v. St,&&   143 S.W.26   629,  633 (Tex.  Civ. App. -
Dallas 1940, vrit dia'd, judgm't car.).
      2. The statute raguiree publication "at least once a
veek,.  unlike similar ltatutee that limit the publication
requirement  to  .once a vsek for tvo coneeeutivm weeks. *
sr r .l.~r, Local Gw't   Code Is 271.055(b)(l) (public vorke
contracts paid     out   of  oe*ificatee    of   obligation);
252.041(a) (municipal contracta).




                               p. 6649
Honorable J. Colliu         Adaee, Jr. - Page 3    (JM-1246)                .




                                                                            .
end a   guaranteed r8purchaer pricm for thm oquipmont.     Aa
noted in your brief, this office has previouely approved the
use of total cost bidding epecificatione. Attorney General
Opinion C-768 (1966). In that opinion, this office con-
sidered, as here, a county's epecificetion of a guaranteed
rapurchaeeprice andmaximum parts replaaonn t ooet in its
call for   bidm on road nohinuy.      That opinion concluded
that the definition of purchasing epecificatione vae a
matter for   the  comieeionere oourt. At the time that
opinion vae ieeued, there vere no state statutes gwerning a
county*8 sale of pereonal property.   Thue, Attorney Genmral
Opinion C-788 coneidered the repurchuo,     or sale, of the
motor gredu ably ae it    related to the lpecificatione  for
tbe county*8 original pumhaee and not as the uparate sales
traneaction tbat it really is. subeeguent to the issuance
of C-786, the legislature statutorily limited the means by
vhich counties cae diepoee of pereonal property.
        In      the legislature adopted a lta tut8,
              1981,
found at eection  263.151, m,        -1      governeent cozy
governing counties' sales of pereonal proparty.    Act8 1981,
67th L8g., ch. 647. At the time that statute vae enacted,
the legislature rewqnired that countiu lct pureuant to
legal authorization. We quote from the bill analysis:
                Countiee are edeinietrative aree of the
             State, and as such, have no ieplied pwere.
             The Legislature grante euch authority as it
             eeee fit, and this must be literally inter-
             preted .
                       of the statutes
                 A check                 reveald no re-
             feruhoe  to
                       the eale of ealvage [or] property
             deewd surplus or unfit for a county~e need.
             Hovever,   ocuntiu    already    generally    follov
             the proceduru   outlined belov for the die-
             po8al of surplus or unueable properties.
Bill Analysis, H.B. 2176-2, 67th Leg. (19111); M
~g~eaA.r       on H.B.  2176-2 before tha House Cop.   on
         .     67th Leg. (Nay 6, 1981) (tape on file vitb
House Tochni& Servioee).
       Section 263.151(2)           of    the code defina        meurplue
property* as follove:

                 (2)    %urplue   property~    eeane      personal
             prcperty    that:
                      (A)  is net ealvage property        or iteee
                 routinely discardad as vaete:


                                       p. 6650
    .
        Honorable J. Collier A,                   Jr. - page h       (JM-12483
                                                                                              I




,
                               (8)     is not aurrently         needed by      its
                      ovner:

                               (C)     is    notrequired      for   the    ovner*e
                      foreseeableneeder              and
                               (0)     poeeeene        eoae    ueefulmee       for
                      the purpwe            for   vhich it vae intended.
        Loeel Gov't Code S 263.151(2).
             Se&ion   263.152 Of tb   COIM &finu    tb   mOdm                            by
        ~i~l~~mmieeioner8oourtmaydiepouofpereonalproperty
                    :
                The cemmieeioner8 court                of   a county may:

                   (1) periodically     ull                    the   county*8
                mwplue or   ealvage proporfy                   by competitive
                bid or auction;
                      (2)      offer    the property        es a trade-in      for
                nev    property        of    the 8ame general       type   if the
                commieeionere court considerstht action to
                be in the beet interuta of the county8 or                            .

                      (3)      order    any of the proputy           to be    du-
                troyed or otheruiu diepoud of as worthless
                if the commieeionere CouLt undertaJce8to ull
                that property  under Subdivieion  (1) and is
                unable to do 80 because no bide are made.
        Local Gov*t Code 5 263.152.
               We do not believe that the legislature intended to
        allow the guaranteed     repurchasethat is preeentedby your
        queeticne. Such a repurchase is not a ltrade-ina u            that
        term18 generellyunderstood.         In a trade-in, a county sells
        one piece of property      and eimulteneouely acquires   another.
        In total coet, the county acquires property and contrect.8      to
        sell that ume pieae of property at wme later time.          While
        thetransfer    of property     vould   bo lccompliehed by means
        of oompetitive bidding, tha bid was let relative to the
        original purohaee of the machine,       and no bid vae let rela-
        tive to the sale of the machine, as allowed by section
        263.152 of the Local Government Code.
             While chapter  262 requiru competitive bidding for
        certain purchases end chapter 263 allowe it as an option for
        the sale of county personal property, ve do not believe that
        the oompotitive bidding reguirementm for thm two diffrrent



                                                     p. 6651
Honorable     J. Collier Adam,      Jr.    -   Page 5     UI4-1246)




tramactiona ten be met through a single competitive bid.
After  all, vhen the bid vu    nde and accepted     for  the
oounty*e purchase of the machine, the county did not ovn tbe
machine and wuld        not eel1 it.
        Yw    third    que8tion   asks     whether the

to uction 263.151    of the Local Governmen
not anever that queeticn eeperetely i~emueh as ve have
anmtered it  abwe.    Nor do ve address the issue of the
validity of the contract a8 a whole.


                Section 262.025 of the Lccel Goverrment
             Code, in cefiain inetencee, requires puhlioa-
             tion of notice  of a proposed purchame once
             awhveakuntil the opening of bide, viththe
             first publication to occur no later then the
             15thdaybeforethe    data ofthabid    opmning.
             While a conieeionere court has the authority
             to determine epecificatione for iteme to be
             purchased or sold by the county under com-
             petitive bide, they may not combine the tvo
             transactions in a eincle bid.




                                               JIM       HATTOX
                                               Attonmy    General of Texas
NARYXBLINR
Firet keietent        Attorney    Genus1
ImJ NC-Y
Executive Aeeietant Attorney         General
JUDGB BDILIB STBAXLBY
SpOial Aseiet8ntAttorney            tieral
BBNBANICXB
special Aeeietent Attorney          Generel
RICXGIIZIH
Chairman, Opinion Committee
Prepared by Xaren C. Gladney
Aeeietent Attorney Genual



                                          p.   6652
