                          April2, 1973

3s. Harry B. Xelton, Director          Opinion No. Ii-24
Texas National Guard Armory Board
Kest
_     Austin
         -   Station
                 -_-_                              _ _concerning
                                       i3Z: Questi0r.s ._ -
Aus tic, Texas   78763                      award of bid for   con-
                                            structicn of an armory
                                            and other work     '

Dear Mr. Xelton:
     You advise, and we accept, as the facts of this natte.r that:

     (1) your Board called for competitive bids fcr tlieconstiuc-
tion of an AZ~oq ar.da shop (OMS) at Fort SaaaBocstsn:

     (2) Eie Invite-;
                   ,-on for Sids cosltainedthe Lcllowing para-
graph:
          "The right is reserved, as the interest of the
                    require, to reject any and all bids,
          State ir.ay
          to waive any informality ir.bids received, and
          '-0accepz c: reject any and all items of -my
          Did, il~l~ess
                      the Edder qualified such bid h-7
          specific IAirataon.";

     (3) The Instructions to Bidders, attached to 'theirmitation,
advised:
          "Tinecon?leted form shall show no erasures,
          alteraticzs, aualifications, or additior.al
                       'y kind whatsoever."
          material of an

      (4) The Specifications read in part:
          -"The Owner desires to award all work unrierone
          contract &it reserves the right to award two
           (for ~rr.orywork and for OHS work) if it is
          necessary. The breakdown of costs by Sid it-as
          and Alterzates is prmarily ror cost acc?uncinT
          prpcses ."




                              p. 104
..
                                                                       -   :

     Mr. Harry B. itelton,   page 2 (H-24)
                                                                               8:

           (5)   Prior
                     to the bid opening, one of the bidders had a teie- .
     phone conversation with the Supervisor of Construction for the ?ro- )
     ject, in which he was instructed that if his bid wzre qualified in
     any manner, as by conditioning it on the award of both jobs, it
     would be rejected, and that the shop was a 100% federally funded
     project which would be awarded to the low bidder "irrespective of
     the bid on the armory.y That bidder thereafter stimitted an un-
     qualified bid.
          (6) The low bidder on the combination of the projects condi-
     tioned his bid on the award of all items. Another bidder, whose
     bid was not so conditioned, was lower on the shop item.
           YOU have asked:
                 "1. . . . can the Armory Board consider a bid
                 which was qualified by the insertion of the sen-
                 tence which indicated the bid must be aczegted
                 wi+h the contingency that all bid items Se awar-
                 ded?"
          In Texas Eiahway Commission v. Texas Association of Steel
     Importers, 372 S.N.2d 525 (Tex. 1963) , the Supreme Court cited
     with approval a staternestin Sterrett v. Bell, 240 S.X.2d 516,
     520 (Tex.Civ.App. 1951 no writ), settrng forth the requirements
     and purposes of competitive bidding:
                 "'Competitive bidding' requires due advertise-
                 ment, giving opportunity to bid, and cor.tem?lates
                 a bidding . . . upon the same thing. It requires
                 that all bidders be placed upon the same plane of
                 equality and that.they each bid upon the same terms
                 and conditions involved in all the items and parts
                 of the contract, and that the proposal specify as
                 to all bids the same, or substantially similar
                 specifications. Its purpose is to stimulate
                 competition, prevent favoritism and secure the
                 best work and materials at the lowest practica-
                 ble urice. for the best interests and benefits
                 of the taxpayers and the property owners. 'There
                 can be no competitive bidding in a legal sense
                 where the terms of the letting of the ccntract
                 prevent or restrict competition, ravor a contrac-
                 tor or material man, or increase the cost of the
                 work or of the materials or other items going
                 into the project.Y




                                        p. 105
w--. Harry 9. Xelton, page 3 (H-24)
.


     The bid documents here, when read together, are ambiguous.
One contemplates the allowance of quaiified or 1im:ltedbids.
Another prohibits qualifications or reservations of bids. still
others could be construed as contemplating three different bids
(fo: both buildings: for the Armory work: and for 023swork), rx-
cept for the indication that cnly a single bid encamnassing both
jobs was expected: ". . . The brsakdown. . . is primarily for
cost accounting. . ."
     The bid documents leave to conjecture the requirements gov-
erning the bids and only by happenstance would all interested
bidders arrive at a corn.-onconclusion regarding t!!eir xneankg.
Under those circumstances, we do not believe the procedure re-
sulted in competitive bidding in a legal sense, because the
ambiguity of the bid letting docuxxentsprevented effective cow
petition. This is not a case where no harm or ineuualitv :e-
suits. Cf. iiaralson v. City of Dallas, 14 S.W.2d j45 (T;x.Civ.
Apa.  Dallas, 1929, writ dism.): Attorney General Opinion X-990
 (1971).
        1~ our opinion, none of the bids su3mitted can be considered
competitive, and none should be accepted. Texas Eiqhwav Cozxnissior:
v. Taxas Association of Steel Imnorzers, 372 S.W.2d 525 ITex. 1963);
Sterretr v. Sell, 240 S.i?.id 516 (Tex.Civ.App. 1951, no writ);
Sqerior Incinerator CO. of Texas V. Tom?kins, 37 S.W.2d 391 (Tex.
Civ.+q.     Dallas,    19311, aff'd 54 S.w.2d 102 (Tex.Comm. 1933);
64 i-3 hr2a,       Public Works and'contracts, 553, et seq.; 10 :!cQuilliz,
3xici3al Cxooratioxs, 1956 Rev.Zd., $29.52, p. 373.

     Ke do not reach your second question contingently stititted
UPC?.an affirmative answer =o the first Guestion:


           Mbiguous invitations and instructions for com-
     petitive  bids which ieave bidding requirements to ccn-
      jecture prevent competitive bidding. Bids submitted
      in response thereto should not be accepted.
                                Very truly yours,




                                 Attorney   General   of   Texas




                              p. 106
.

    Mr. Barry B. Kelton, page 4 (H-24)

    APPROVED:




          3”. YOX,   Fiist   A




    Opinion Comittee             ,




                                     p. 107
