                              December    10,   1990



Honorable  Marcus D. Taylor              Opinion   No.   JM-1254
Criminal  District Attorney
wood County                              Re:    Whether the awarding   of
P. 0. Box 689                            a contract precludes   a county
Quitman,  Texas    75783                 from   making  spot   purchases
                                         from another supplier
                                         (RQ-2015)

Dear   Mr.     Taylor:

       You     ask:

             Does the awarding of a contract to buy supplies
             on a unit price   basis in accordance   with   Sec.
             262.028, Local Government   Code, preclude    coun-
             ties from   making spot   purchases of   the   same
             supplies at [the same   or]1 a lower unit     price
             from another supplier   during the    term of   the
             contract?

      Your question    arises from a situation      where the    county
executed a contract to purchase         all road oil needed by       the
county from one      contractor.    The contractor      was unable    to
meet all    of   the county's     needs,    and one   of   the   county
commissioners    made a "spot purchase"       of the product at      the
same price     from   a different     supplier.     The cost    of   the
additional   purchase was     less than     the $10,000    competitive
bidding threshold     found in    section 262.023(a)     of the    Local
Government   Code.

      Inasmuch as your    question states that    the unit   price
contract was made "in accordance     with section 262.028, Local
Government   Code," we assume that the contract was let as the
result of competitive    bids in accordance   with chapter 262 of
the code.    We also   assume that the   county has not    adopted
the Optional     County Road   System as  authorized  by   section
3.201 of article 6702-1, V.T.C.S.



      1.  The original  question was  amended             by   adding   the
bracketed  language to reflect the facts.



                                     p. 6679
Honorable    Marcus      D. Taylor   - Page     2   (JM-1254)




      You have suggested   that section 262.023(c)  of the Local          ,
Government  Code prohibits   the  spot purchase  in question   as
follows:

         In applying    the competitive     bidding and compe-
         titive proposal      requirements      established     by
         Subsection    (a), all    seoarate.    secuential.     or
         comoonent   vurchases    of   items ordered or      our-
         fiased. with the intent         of avoidinc the      com-
         petitive    biddina    and    comoetitive      DroDosaL
         recfuirements of this subchaoter.        from the same
         suoolier   bv
                    .   the
                          .   same   countv  officer,     deDart-
         ment. or institution        are treated     as if    they
         Bre Dart    f a sinale DUrChaSS      and of a     sinale
         contract.O    In applying     this provision     to   the
         purchase   of office supplies,      separate purchas-
         es of supplies by an individual         department    are
         not considered      to be    part of    a single     pur-
         chase and single contract         by the county if       a
         specific    intent    to    avoid   the     competitive
         bidding requirements      of this subchapter      is not
         present.     (Our emphasis.)

Local   Gov't     Code   S 262.023(c).

      The purpose of this provision       is readily apparent.       It
is designed    to prevent     counties  from avoiding the     competi-
tive   bidding     requirements     by  purchasing   quantities      of
materials   or supplies     in lots, which individually    cost    less
than $10,000 but       total more than    that amount.    The   public
policy    behind    the     competitive   bidding   requirement      is
strong enough that criminal penalties          have been enacted     to
effectively      stop   this   particular    means  of   evading    the
statutory   requirement.      &g   Local Gov't Code    55 262.034(a),
252.062(a).

      We do not think that the provision     was intended to pre-
clude "spot    purchases"   in the specific    circumstances     you
describe.   Nor do we find any other provision       of the chapter
that precludes     such spot   purchases.   Of   course spot    pur-
chases may   not be    used to   avoid the   competitive    bidding
process.

        In your    second   question,     you   ask:

          Assuming  that the answer to the first question
          is 'no,' would such a spot purchase be subject
          to county   bidding  requirements, even  if   it
          were for an amount less than $lO,OOO?




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    Honorable     Marcus    D. Taylor     - Page    3    (JM-1254)




          As indicated by     your question and        the preceding      dis-
    cussion, county purchases        are not    required to       be made    by
    competitive   bids   unless the     amount is more than          $10,000.
    Local Gov't Code     S 262.023(a).      Again, we      caution that      if
    the contractor's     inability to      meet the      county's   needs    is
    seen as    a  continuing    situation     that    will result     in    the
    expenditure   of $10,000 or more, the county would be required
    to call    for bids    again.     Such separate,       sequential     pur-
    chasing is precisely     the   activity that the language           empha-
    sized above in section       262.023(c)    was intended to       prevent.
    See Attorney   General    Opinion JW-725      (1987).      Of course,     a
    county is authorized     to request bids for purchases          that fall
    below the $10,000 threshold.          &&ten    v . C oncho Countv,      196
    S.W.2d 833 (Tex. Civ. App. - Austin 1946, no writ).



                   The County Purchasing     Act, chapter 262     of
                the Local Government    Code, does not     preclude
                a county from    making an    isolated spot     pur-
                chase of supplies or materials      when the    con-
                tractor obligated     to meet    the county's    re-
                quirements   is unable to furnish the      supplies
                or materials.    Spot purchases    may not be used
                to avoid the competitive     bidding process.




                                                   JIM      MATTOX
                                                   Attorney  General   of Texas

    WARYXELLER
    First Assistant        Attorney     General

    LOUMCCREARY
    Executive   Assistant      Attorney     General

    JUDGE ZOLLIE STEAXLEY
    Special Assistant  Attorney           General

    RENEA HICKS
    Special Assistant        Attorney     General

.   RICK GILPIN
    Chairman,  opinion       Committee

    Prepared by Karen C. Gladney
    Assistant Attorney General




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