                                   The Attorney             General        of Texas
JIM MAllOX                                            August 6, 1984
Attorney General


Suprsms Court BulldIn             Honorable Henry Wadt!                               @iniOn     NO.   JM- 186
P. 0. Box 12549                   Criminal District   AMoney
A,,s!In. TX. 7671% 254S           Dallas County                                        Re:    Competitive        bidding
5?21475-2501                      Services Building                                    requirements   under      article
Telex 9101874-1387
TsIscODIs’ 51214750288
                                  Dallas, Texas     7520:!                             2367, V.T.C.S.

                                  Dear Mr. Wade:
714 Jackson, Sub 700
Dallas. TX. 75202.4506
                                         You have asked .#hether all competitive    bids must have affixed   to
214i742-9944
                                  them the affidavit       set out in article    2367, V.T.C.S.     If such an
                                  affidavit     is legally   required on a specific    type of item or on all
4824 Albsrts AvO.. Suite 160      bids,    you ask whether a bidder may notarize      the affidavit   after the
El Paso. TX. 799052793            official    bid openin!! date.
SlY533.34a4
r                                        As we understan     it. all bids for merchandise,    supplies,  services
11.~1 Texas. Suite 700            and/or equipment received by Dallas County have heretofore            contained
Houston, TX. 77002.3111           both the wording cotd the notarized         signature    of the bidder.      You
713l223.5996                      state,     however, thglt, the Dallas County purchasing      agent desires.    in
                                  order to increase      competition,  to have the requirement of a signature
                                  before the notary el:lminated, but continue to place the wording of the
 905 Broadway. Suile 312
 Lubbock, TX. 79401.3479          affidavit,      as set    out   in article   2367,   V.T.C.S.,    on all    bids
 909J747-5239                     documents.

                                         It  is     our o?Lnion     that    article     2367,   V.T.C.S..     imposes a
 4309 N. Tenth. Suite B
                                  mandatory duty upc’r a bidder             to affix      to his bid a signed and
 McAllsn, TX. 79501-1995
 512f982.4547                     notarized     affidavit    as specified      within    the article.      We conclude.
                                  however,    that this article         applies     only to bids      submitted   to the
                                  commissioners        COUIt   for    the    printing      and   stationery     supplies
    200 MaIn Plan. Suite 400      enumerated within article        2358. V.T.C.S.,       and is not legally     required
    Ssn Antonlo. TX. 782052797
    51212254191
                                  for all bids involv:.ng other types of supplies               and/or materials.      It
                                  is further our opin:.oa that when such an affidavit                 is mandated under
                                  article   2367, V.T.C.S.,      it must be affixed        to the bid when submitted
    An Equal Opporlunltyl         and may not be notarized after the official              bid opening date.
    Alllrmatlve Action Employs~
                                        Article   2367,   V.T.C.S.,   reads as follows:

                                                   The manager,     secretary    or  other   agent  or
                                              officer    of the bidder shall attach to each bid an
                                              affidavit     to the effect     that affiant   has full
                                              knowledge of the relations       of the bidder with the
                                              other   firn,s in the same line of business and that
                                              the biddet     is not a member of any trust,     pool or
Bonorable,Henry    Wade - Page 2 (~~-166)




            combination of an]i’kind and has not been for six
            monthr last past, directly or indirectly  concerned
            in any pool or agreement or combinati&   to control
            the price of suppl.les bid on, or to influence   any
            person to bid or not to bid thereon.       (Rmphesia
            added).

The article       clearly    impof es upon a bidder,           acting    through    an
appropriate    officer    or agent,     a duty to attach         “to each bid” an
affidavit   designed to discl,cse       the affiant’s     full    knowledge of the
bidder’s    relations     “with    the other    firms    in the same line           of
business .I’ The affiant       muft legally   affirm that the bidder is not
involved in “any trust, poo!. or combination” with the other suppliers
and that he has not, within the prescribed            period,     entered into “any
pool or agreement or combinclt:ion” for the purpose of controlling               “the
price of supplies bid on” or in order “to influence              any person” to bid
or refrain from bidding.        V.T.C.S. art. 2367.

      The obvious intent of cll,ticle 2367 is to ensure that all bidders
will have an opportunity    to bid on equal terms and will have their
bids judged according    to t!ll? same standards; this is a fundamental
tenet   of the competitive     bidding  process.   Accord Texas Highway
Co~ission    v. Texas Aswcic~t~ion of Steel Importers,    372 S.W.2d 525
                                                                                              --.
(Tex.   1963).   See also   A::orney   General Opinions   m-449,   MI-440
(1982); MW-299 (1981); H-24 (1973).

       Article     2367 is merely one of the provisions               of a 1907 act
enacted as an emergency measure for the specific               purpose of regulating
the purchases of stationery           supplies by the county.        Acts 1907. 30th
Leg..   ch.   136,   at 252 [hereinafter     referred   to  as  the  1907 Act].    This
enactment,      codifying    articles     2358 through 2367, V.T.C.S.,           deals
specifically     with the authority of the commissioners court to contract
on behalf      of the county for specific            supplies    and prescribes     the
manner in which bids thereoa must be solicited              and accepted.     Attorney
General Opinions O-1597, O-244 (1939).

       We are aware that a number of statutes,                overlapping   in some
caees,     relate    to the bidding       requirements    applicable    to supplies
purchased by the county.           ,sre, e.g.,   V.T.C.S.   arts.    1658 (bids for
supplies     of stationery,     books, blanks,     records and other supplies);
1659 (bids for supplies         of c!very kind);    1659a (bids for supplies      in
counties of 900,000 or morel; 2368a (bidding procedures for purchases
of supplies        in the amount of $5.000          or more applicable       to all
counties).        See generally     Attorney General Opinions MW-439 (1982);
MW-296 (1981); F-1219 (1978).

     The statutes cited abormz mandate, in general,    that all purchases
of supplie? for the use of t!le county made by the co~insioners      court
                                                                                          -
must be awarded on the b.331~ of competitive        bidding  requirements
imposed by applicab1.e   str.tutory  language.   See Attorney      General




                                       p. 813
Honorable   Rcnry Wade - Page 11 (m-186)




Opinion IN-299 (1981).     A failure   to engage in competitive   bidding is
grounds for holding a co~i~h~ioners       court purchaee contract    invalid.
See V.T.C.S.   art. 2368a. 52(d);    Kelly v. Co&ran, 82 S.W.2d 641 (Tex.
1935);   Attorney   General 0p:lnion MW-449 (1982).      See also    V.T.C.S.
arts.  1659, 1659a and 1659b.

       It is apparent that the L907 Act, governing contracts made by the
commissioners     court for tha! purchases      of the expressly   enumerated
items, see V.T.C.S.       art. 2362, is a specific  enactment intended to be
effecticin      regard to these *Enumerated supplies.     One of the rules of
statutory    constructlon     is thrlt the express enumeration of particular
persons or things is tantamou:lt to an express exclusion of all others.
Er parte McIver, 586 S.W.2d ,351 (Tex. Grim. App. 1979).

       In view of the foregoing,   we conclude that the affidavit      set out
in article    2367, V.T.C.S.,   must be attached to bids submitted to the
commmissioners court for printing      and stationery  supplies   governed by
the provisions      of articles  2358 through 2367, V.T.C.S.       It is not
legally    required    for bids  an supplies    not included    within    these
specific   bidding statutes.

       In response    to your second question,    we believe  that when an
affidavit   is legally   required, it must be attached to the bid when the
bid is submitted and may not be notarized       subsequent to the official
bid opening.

      An instrument not sworn to and properly notarized             attached     to a
bid will not constitute        “an affidavit.”     Gordon v. State,    16 S.W. 337
(Tex. Grim. App. 1891).         Yet compliance with the terms of the bidding
statutes    is required      in order to create a valid        contract.       Accord
Attorney    General Opinions :$C449 (1982);          MW-296 (1981).        The only
exceptions     to such requirements      are those contained     in the statutes
themselves.       See Limestone iounty v. Knox, 234 S.W. 131 (Tex. Civ.
APP. - Dsllas 1921. no writ).          We are aware of no exception applicable
to article       2367.    Purthernlcsre, in view of the possible            criminal
penalty which may be imposc!i, on an affiant           making a false statement
and slnce       an affidavit      13  legally   binding    on the affiant,         the
legislative      choice of words mandating that “an affidavit”           be affixed
“to each bid” indicates        that the legislature    intended for the document
to be signed and notarized            at the time the bid is offered.               We
therefore     conclude    that SUC’I an affidavit       should not be notarized
after the official      bid opening date.

                                   SUMMARY

                Article  2367, V.T.C.S.,      requires    an affidavit
            to be affixed        tc, each bid      submitted    to the
            commissioners    court on bids       for stationery      and
            printing    supplien     used by the       county.     When
            legal 1-y required       for  the    specific     type     of
Honorable   Henry Wade - Page 4     (JM-186)




            supplies,  governed under provisions       of articles
            2358 through 2367, V.T.C.S.,    the affidevit  muet be
            signed by the affhnt      under oath and notarized     by
            an officer  authorized   to administer oethe.    It may
            not be notarized     subsequent to the official      bid
            opening date.




                                               JIB     WATTOX
                                               Attorney General of Texas

TOMGREEN
First Assistant   Attorney   General

DAVID R. RICHARDS
F*ecutive Assistant Attorney, General

Prepared by Georgette Bethle,n
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Georgette Bethlen
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton




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