                                     OFFXCE     am

                       THE AFFORNEY               GENERAL
                                   AUSTIN.TEXAS
PRICE  DANIEL                        February 20, 1948
*TTORNEY ‘Eh‘E8.a


           Hon. Joaeph C. Ternus          Opinion Ho. V-506
           County Attorney
           San Patrlcio County            Re: The necessity of let-
           Sinton. Texas                      tina contractsbased on
                                              co~etltlve bidding for
                                              road work to be done by
                                              the Comtulssloners'
                                              Court Itself, rather
                                              than by a general con-
                                              tractor.
           Dear Sir:
                    Reference Is made to your recent.raquestfor
           an opinion of this Department, which reads, in part, as
           follows:
                         "Sometime-ago~theConnty of-San Patrl-
                    Oio voted a $1;500,000.00bond Issue to im-
                    prove and construct roads in this county.
                    The mohey Is now avtiilableand the oommLs-
                    sloners expect to @end at least $750,000.00
                    of this money on road Improvementsand con-
                    structiondone directly under their imme&
                    iate supervl.slonanB direction; that Is to
                    say, It Is not contemplatedthat the work
                    would be let to a contractor under bid to
                    do a completed job, but that the commlssion-
                    em would, with the'help of an engineer hir-
                    ed for that purpose, do their own road con-
                    structionand rebuilding. This will necsa-
                    sltate many direct, individual e%pendltures
                    of money since they contemplatepurobaslng
                    road materials themselves, directly paying
                    for hauling, etc. In other words, the com-
                    missloners do not contemplate'contractlng
                    with anyone for an 'end Item', I. e. a com-
                    pleted roab.
                         "I would appreciate receiving an opin-
                    ion from you concerning the questions here-
                    inafter set forth.
188
      Hon. Joseph C. Terms, page 2   (V-506)


               "Questlon,Bo.1. Is there any law re-
          quiring the commlssioners~court to let the
          San Patricia County road building and im-
          provement progrtimout on oontract~under
          competitivebids, or may the commissioners1
          court build and improve the roads, doing the
          job themselves? . . .
                "QuestionNo. 2. There will be consic¶-
           erable hauling to be done. The commisslon-
           era would like to hire local men in the coun-
           ty, who own trucks, to do most of the haul-
           ing. It 1.3further contemplatedto pay for
           the hauling on a yardage basis. It is fur- ..
           ther contemplatedthat, if a man were to
           start hauling for the oounty and hauled as
           long as the county had work for him to ao,
           he would be paid a total In excess of $2,CCO.-
           00; however, the man would probably bill
           the county by the week which amount would
           probably be under $2,000.00 petiweek.' Does
           Art. 2368a, Section 2 (or any other law), re-
           quire this type of work to be let under com-
           petitive bids?
                "QuestionNo. 3. It is contemplated
           that the commLssloners~court would hire
           from the owner a dragline, the owner fur-
           nishing the operator and bearing the ex-
           penses and upkeep of the dragline; to be
           used in excavatingroad material and plac-
           ing same in the dump trucks, the owner of
           the dragline to be paid &t the rate of SO
           much a yar@ loaded In the dump trucks.
           Would Art; 2368a, Section 2“(or any.,,other
           law) require that the oommissioners'court
           let this type of contract out for bids?
                "QuestionHO. 4. Akme     that the
           dragline owner referred to above also.
           furnished the road building materials,
           would not Art. 1659 apply so that in that
           case the contract would have to be let Un-
           der bids?
                "The dragline owner in both Instances
           above would bill the county either by the
           day or by the week as the work progresses;
 Hon. Joseph C. Ternus, page 3 (v-506)


        of any nature or character upon such county or any
        subdivisionof such oounty or upon auoh olty, without
        first submitting such proposed contract to competi-
        tive bids. . .
       “Provided, that in case of public.calamity, where it
       becomes necessary to act at once to appropriatemoney
       to relieve the necessity of the citizens, or to pre -
       ,servethe property of such county or city, or where it
       is necessary to preserve or protect the public health
       of the citizens of such county or city, or in case of
       unforeseen damage to public property, machinery, or
       equipment, this provision shall not apply; and provided
       further, that it shall not be applied to contracts for
       personal or for professional servlces, nor to work done
       by such county or city'and paid for by the day, as such
       work prbgresses.”
Ths purpose of these provisions is to enable counties to obtain
the performance of any public work at the lowest possible cost to
taxpayers. However, the Commissioners t Court has the option of
carrying on the work itself and the provIsions of Article 2368a do
not apply to any work done under the direot supervlslonof the
County Conrmlssloners,'andpaid for by the day. Gulf Bltullthlc
Compan v. &4oes County (Corn.App.) 11 S.W. (26) 305; 11 Tex.
?ur. 6c3.
'I;herefore,
           It is our opinion that the Commissioners'Court has
authority to do this work in the same ~mannerthat they provide for
other constructionon the county highway system ,lnsteadof asking
for bids from private concerns.
Inasmuch aa your questions 2 and 3 are 80 closely related, and
since the same rule of law will govern in eaoh lnstanoe, we shall
oonsider both questionstogether.
The provisions of the above uoted Article  2368a am somewhat
dltter4nt from Article 2368 ?now repealed), but the same rule of
law lpplicabls under Article.2368may now-be applied under Arti~cle
2368a. W4 do not believe that such contracts as presentedT$ th4
above questions are."suchas to require oompotitivebids;
Commissioners'Court may terminate the employment in each instance
eny time It drsires to do so*
The caao of Jackson v. Noel, 37 S.W. (26) 787, wan one In which
the Commfssionsra'Court of Way County has entersd Into a contract
with appsllant Jackson by which Jackson agreed to furnish certain
road material for public roads for a prioe of $3.00 per yard of'
gravel and material to be paid by Gra County;. further the price
agroad upon was greatly fn excess of 32,ccc.cc.
Hon. Joseph C. Ternus, page 4 (v-5061


The court in passing upon the question of whether such a contract
oame within the provisions of Article 2368, had this to say:,
          "The contract made by the commfssioners'court with'
          Jackson ~throughCoxs one of its commisslon4r8, was
          for the hauling of material and for the spreading of
          same on the road. ;The record does not disclose that
          any contract was made with reforonco to the plaoing
          of such material upon any special numbor of yards of
          road, and no number of yards of gravel or caliche or
          other material was contractedfor; hence It dannot
          be said that the making of the contract called for the
          expenditureof the sum of $2,000 or more. In other
          words, it was such a contract for the delivery of
          material that work could be stopped at any time.
          *That the contract now before this court is not
          controlledby article 2368, R.C.S. See Gulf Bttull-
          thlc Co. v. Nueces County (Tex.Com.App.).11 S.W.
          (2%) 30%                  -
          "For the reason that the evidence fails to dLsclose
          that the contract as made with Jackson necessarily
          amounted to the sum of #2,000, and for the roason
          that the conmlsaloners~~court9 when having county
          road work done under its supervision,was not llmlted~
          to such sum In the repair of the roads of the county
          and that they had the option as to whether suah work
          should be mubmitted to competitivebidders, w4 rovers8
          .thejudgment of the trial court* and remand the cause
          for another triaz."
Therefore; in view of the foregoing, it Is the opinion or thla
Department that your questions 2 and 3 should be answored In the
nogativs.
Artlola   1659,   V.C.S., Is aa follows%
          wSupplles of over kind, road and bri o~matsrlal, or
                                                9 county, or
          any other materia9 p for the ua4 of sal
          of ltr offloors, departments,or institutionamust tty
          purchased on competitivebids,.th4 contract-t?-bo
          awarded to the party who9 in the judgment of the commis-
          sionora Court, had'rubmlttedthe lowest and bort bid.
          The oounty auditor shall advertisefor a perlod of
          two weeks in at least one daily newapapor.I\,
                                                      published
          and oirculatsd In the county9 for such suppllss and
          material aocordfng to specifl&atlons,glvi,ngin d&all
          what is needed. Such advertisementsshall atats whsro
          the specificationsare to be found, and shall give th4
Hon. Joseph C. Ternus page 5, (v-506)


             time and,place for receiving such bids. All such
             competitivebfds shali be kept on file by-the
             county ,audqtoras a part of the records of hfa
             office, and shal,lbe subject to inspectionby any
             one desiring to see them. Copies of all bfds
             received snail be furnis!ledby the county auditor to
             the county judge and to the commissionerscourt; and
             when the bids received are not satisfactoryto,the
             said judge or county commissioners,the auditorshall
             reject said bids and readvertfsefor new bids. In
             cases of emergency, pur=has-esnot in excess of one
             hundred and fifty doli.arsmay be made upon requisf-
             tfon to be approved by the commissionerscourt, with-
             out advertfsfng for competftfvebfds."
In thecase of iEastTexas Const. Co. v. Lfberty County, 139 S.W.
{2d) 669# the court fn passPng upon the question of whether gravel
'purchasedby the county sk;ouldbe under competitfvebids said:
        "Since, on the allegatfona of the petition, the
        gravel fn controversywas sold and delivered by
        appellant and accepted by appellee on contract
      . without competitivebids, the oontract was unauthor-
        fzed by law."
So4   also    Wyatt   Meta;   and BroilerWorks 'v.Farmin   County, 111   S.W.
(2%) 787.
&o&fore,   in'viow of the foregoing, it is our opinion that road
building materfals purchased by the county,,mustbe submitted
under.competftivebids.
In compliance wit&your request, we are encPosfng the following
opfnfonss v-285, C-6369, O-6$6, and C-2955.
                                     subwRY
             X0. The CommisaloneraD Court is not rsquired to let
             a contract under oompetitfvebids to build dounty
             roads? but may supervise the buflding of the .same
             ft44u.   Art. V, Sec. 18, Art. XI, SerP.'2$Art. XVI.
             Se0 24# State Constitution;Art..2351, V.C.S.; @.Qf
             Bitulfthfc Co. v. NizecesCo. (Corn.App.).11.S.W..
             .@d) 3%.
             2. In the constructionof oounty roads, the Commfs-
             sfonerac Court may employ persons to haul gravel and
             material, and pay them on a per yard baais, without
             requfrfn competftivobids. Jackson v. Noel, 37
             S.W. (2%7 787.                          .-
                  ~,
Hon. Joseph C. Ternus   page 6, (V-506)


      3.   Road building material purchased by the
       county must be submitted under competitive bids.
       Art. d~59~.V.C.S.; East Texas Const. Co. v. Liberty
       Coay,   139 S.W. (2d1 669,

                                      Yours very truly,
                                AlTOFiNEYGENERAL OF TEXAS
                                S/   B&ice Allen

                                BY
                                      Bruce Allen
                                      Assistant


                                APPROVED:
                                s/ Fagan'Dickson

                                FIRiT ASSiSTANT
                                ATTORNEY GQWUL

       Bh:mw/cge
