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                                OlRNEY                ENEKAL

                              OIFTE~AS




                            October   29,   1949

      Hon. Ball Ii. Logan, Chairman         opinion    No. v-941
      State Board of Control
      Aus tin, Texas                        Re:    Authority of the Board
                                                   of Control to handli~
                                                   utility  contracts    for
                                                   eleemosynary inatitu;
                                                   tiona, In* titiltions    of
                                                   higher learnlhg atid
                                                   State departments.
      ~Dear Mr. Logan:
                  you have requested an opinion concerning the au-
      thority  of the Board of Control to handle utility   contracts.
      for the elebmosynary institutions    not under its supervision,  ’
      the Institutions   of higher learning and the State departments.
                  In answering, we assume your question is whether
      the services   available   from public utilities    must be pur-
      chased by the Board of Control.        We further assume that you
      referonly    to power, light,    telephone,   gas, water, sewer,~
      and similar services     provided by connection with a community
      8ystem and which may be obtained from only one source.
                 Considering first   the eleemosynary instltutlons
      and the higher educational   institutions   It is our opinion
      that the statutes do not require that such utility      services
      be purchased by the Board of Control.
                   The purchasing power of th6 Board of Control is
      governed by Chapter 3, Title 20, V.C.S.,         which creates the ‘~
      Board’s purchasing division.         When taken together,   the stat-
      utes of this chapter point to the one idea: the urchaae
               lies b comcetitive      biddin     Provis iTihor~
      %~o+%le              purchase +* 0 supplies In this manner. In-
      cluded are provisions      for a mailing list,    letting  of the
      contracts    after advertising,     sealed bids and their requl-,
      sltea,   rejection  of certain bids by the Board, equal bids,
      separate bids, opening of bids and the requirement of a             ~~
      bond to accompany bids.       Construing those statutes     of Chap-
      ter 3 together,    the purchasing power of the Board of Con-
      trol Is limited to only those items which are the proper
      subject of competitive      bidding.
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                                 (v-941)    ,.
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             A public utility is usually a monopoly 0psratUg
under a frrinchise with the type of rervlce defined and rater
controlled.     These factors make purchasr of public Utility
aervlces    on the basis of competitive  bids inpracticable.
The courts have recognized    these conditions  and have’held




AUP.   1921) e
            Public utility   services   are not “6upplles” with-
 1~ the scope of th&statutes       and therefore the Board~of
 Control would not be required to make such purchases.
                                 ,
            We have not, in the absence of a specific        queu-
 tlon, considered   the inclusion    within a public utlllty    con-
 ;y”    of items other than the primary rervlce      to be iurnlsh-’
       Generally speaking, such a contract should cover nothing
 ax&noms:      to the furnishing    of service.
            You have further inquired as to the Board of Cm-
Arol’s   authority   to handle utllity,contracts      for the State
departments.      The Board is designated as. custodian of pub-
 lic buildlngs~bg    Article  665, V.C.S.     Therefore,  utility
 service used in connection vith the maintenance of build-
 ings In the custody of the Board should be procured by tlm
 Board.

                           SUMMARY

                The Board of Control is not required to let
       ,mblic     utility   contracts  for the eleemosynary
         institutions     not under Its suparvlsio;t;;iEo8e
         of’ instltutlons    of higher learning.
         sCrvice used in connection with the tilntenance
       ~;of buildings     in the custody of the Board of



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        Hen, Hall B. Logan, page 3 (v-941)


             Control   should be procured   by the Board.
                                            Yours very truly,
                                            ATTORHEY CRUiERAL
                                                            OF THXAS


                                            By     -i&m~+t.=&&&
                                     'L.             ~hoaas E. Taulbee
                                                     Assistant
        TET:rt:gw
                                            APPROVEI)


                                            FIRST ASSISTABT
                                            ATTORREYGFiXiBRAL
