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                                        The Attorney General of Texas
                                                            Octcber    12.   1984
JIM MATTOX
Pctorney General                                                                                         /



supr*mabull BUlldinQ                   Honorable Tin Curry                                     Opinion       No.   JM-208
  o.eox1254a                           Criminal District  Al:l:orney
  rtin. TX. 79711. 2549                Tarrant County Court:houac                              Re:     Authority     of a county
5121475.2501                           Forth Worth, Texas      76196                           purchasing      agent   to revrite
Telex 91om7c13S7                                                                               or refuse       to advertise     bid
  lecopiar 5lY47542S9
                                                                                               apecificatlona        epproved     by
                                                                                               the commissioners       court
714 Jackson. Suite 700
  11lao.TX. 75202.4508                 Dear tlr.   Curry:
  u742.994A

                                             You have reqwrted            our     opinion      as to whether.       under articles
      24 AIbe,ta Ave.. Suite 160       1659b and 2368a, V.:r..C.S., and the note to article                   1580, V.T.C.S..     the
       Paso. TX. m-2793                Tarrant County purchasing            agent la authorized          .to rewrite     or, in the
    Qls33.34S4                         alternative,       ia authorized       to refuse       to advertise     bid specificationa
                                       approved       by the c~~~~isaloners court               but which.     In the purchasing
    I.    Texas. Suilc 700             agent’s      judgment.      are so narrovly          vritten    as to deny competitive
    Houston. TX. 77002-3111            bidding.         Addressins     only      the    statutory      construction       issue,   we
    - ‘Y22359m                         conclude that the plr:chasing            agent is not authorized          either   to rewrite
                                       or refuse       to advertL:;e   such bid specifications.
    905 Broadwy. Suite 312
      rbbock. TX. 79401.3479
                                              The county acts only through its commissioners                     court in making a
      W747.5239                        contract.    Article  2.3688, V.T.C.S.. is the general                  competitive bidding
                                       statute.    Section 2(.1) provides:
       y)9 N. Tenlh. Suite 8
                                                         sac.    I!., (a)      No county,        acting     through      its
       ic*,,.n. TX. 7S.501.19SS
     3 tma?-4!547
                                                     Cormiaaioncra         Court,    sod no city        in this       atate
                                                     shell    hereafter      make any contract          calling     for or
                                                     requiring      an expenditure       or payment In an amount
          90 *(*in Ptua. Suite 409                   exceedlag      five thousand dollars          ($S.WO.DO) out of
         aan Anlonio. TX. 792052797
                                                     any fund or funds              of any city          or county         or
         51212254191
                                                     subdlvisiDp        of any county creating          or imposing an
                                                     obligation      or liability      of any nature        or character
         rn Equal OpportuniIvl                       upon such          county    or an9 aubdivlaloo             of     such
         Afflrmatlr* Action Employer                 county,       or      upon    such     city.       without       first
                                                     submitting        such proposed      contract      to competitive
                                                     bids.
                                                                                               -
                                               Although    the utatutea         do not expressly        specify     .vhich offlcer     or
                                        entity    is authorized       to set bid specificationa.            this office       has stated
                                        that, under articles          1659 and 2368a. V.T.C.S..




                                                                                 p.   940
                                                                                               .   .
                                                                                                       I

gonorable   Tim Cum9     - Page 2       m4w




             the Commiaaioner’s      Court ir given     broad discre-
             tionary  powers ult,k rerpecr      to establlahlng      and
             getting  apccificat:he      for meteriala    end l uppliee
             to be purchased     by the county.   . . .

Attorney   General    Opinion  O-6606 (1945);    see also Attorney          General
Opinion W-1121      (1961).   No changer ln the statutes         since    the 1945
opinion   have altered    the corr~lssionera  court’s   authority      to contract
for the county.     to submit p,ropoaed contracta     to competitive      bidding,
and inferentially     to set apec::.ficatioaa for such bids.

      Chapter 9, Acts of the Forty-sixth      Legislature,    as amended, vhich
is codified   as a note to article     1580. V.T.C.S.,     makes it the duty of
the purchasing   agent to make roll purchases     for the county of supplies,
materials,   and equipment exctrpt purchases    which are required     by law to
be made by competitive    bid.     Sec. l(b).    It grants    no reaponaibil1ty
to a purchasing   agent for purchases     which must be made by competitive
bid.

        Article     1659b. V.T.C.S. I is a statute      applying only to Tarrant
 County     because     of its   pop~;llation  bracket.      The statute     imposes
 specific     duties on the county purchasing      agent once specifications      for
 bidding    have been set.     It provides,   in part,   that:

             Where the total       expenditure     for any such purchase
             or    an9    such     cwtract      shall     exceed      $1.000.
             advertisements       for-- bids   for    such    supplies     and
             meterial,     according     to purchasing      specifications
             giving    in detail    what la needed,      shall be made by
             the purchasing      agent
                                     __. . . .      (Emphasis   added).

 Additional      duties    of the purchasing      agent under this statute        include
 filing    all bids received,         pwvlding   copies of 811 bids received       by the
 coaaaiasioners      court and, whenever that ‘court finds all bids unaatia-
 factory,     rejecting      the bids and readvertiaing.        Id.  This office        has
 stated    that where the county auditor          performs thexited        functions      of
 the ~purchsalng        process     conferred   by article    1659. V.T.C.S.,       duties
 virtually       identical      to th<>re imposed      on the purchasing       agent      by
 article      1659b. the comtniasjonera         court,    not the auditor,      sets    bid
 specifications.           Attorney     General   Opinion    WI?-1121 (1961).       citing
 Attorney     General Opinion O-6606 (1945).

         We believe     that,    since    the purchasing  agent  has no power to aet
  bid    apecificat1ona.        by tis,lication       he has no power      to    rewrite
  specifications       set    by the coaauisaioners       court.    You also     inquire
  whether      the purchasing          agent  may refuse     to advertise     such    bid
  specifications.
Honorable    Tim Curry     - Pago 3      (JH-208)




       Section      2(a)    of article     2368a requires     that a county     submit
certain      contracts     to compet lcive bidding.       Section  2(b)  of  that   act
requirea        the     ldvertiaemen t      of   such   bidding.     Article      1569b
specifically       provides      that :iu Tarrant County advertiaemcnts      for bids
for certain       contracts     “shall  ‘>e made by the purchasing   agent.”

       Section 2(d) of article           2368a provides       that a contract        made by a
county without       complying with the statutory              requirements       of that act
la void and unenforceable          at4 that the performance             of such a contract
may be enjoined       by any citizen        of the county who~paya property               taxes.
However, we do not believe            r:hat the provisions         of either     statute     give
the     purchasing      agent    dia~:retionaay         authority       to judge         whether
specifications       approved    by the commissiqnera             court meet competitive
bidding     standards     or discretion        to refuse      to advertise        for bids on
such apecificationa.            We wrlclude        that   the duty of the purchasing
agent     to advertise        the a~~;~ilability        of bid       specifications         la a
ministerial       duty    which    la     statutorily       explicit      and involves          no
exercise     of judgment or discretion.

       Since you do not ask about the coaatitutionslity            of the statute
vhich     appliea~ only    to Ta::!:ant Couoty     because    of its     population
bracket,     we do not address      the issue   of vhether     it la ‘a local       or
special     law in violation    cmf article   III,    section    56 of the Texas
Constitution.       See Oakle v. Kent, 181 S.W.Zd 919. 923. 924 (Tex. Clv.
APP.    -   Eaatland
                   -4-m 194 ,            ; Attorney     General    Opiniona    R-393
 (1974); A-8 (1973).

                                         SUnMARY

                  The Tarrant        County purchasing         agent    la not
              authorized      to rev~r-lte bid specifications          approved
              by the commiaaion~!::a court even if the purchaaiug
              agent believes        the bid   apeclfications         deny com-
              petitive     bidding.      The purchasing       agent may not
              refuse       to     advertise     for       bids       on     such
              specifications.




                                                       JIM        HATTOX
                                                       Attorney    General of Texas

 TOMGREEN
 First Assistant       Attorney     Gewral




                                              p. 942
lhorabh     Tim Curry   - Page 4   (JM-208)




DAVID 1. RICHARDS
IDcecutive Aesiotent Attorney      General

Preperrd    by Nancy Sutton
Aeeietent    Attoroey General

ApPxOVeD:
OPINIONCOWlIlTEE

Rick Cilpin,   Chairmen
David Brook.
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youogblood




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