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                                   L~KWTIN   11. -
          PRICE  DANIEL
          ATTDRSBYGRNEHM
                                      June 5, 1948

      Hon. Wm. N. Hensley             Opinion No. V-6OC
      Criminal District At%orney
      Bexar County                    Re:    The legality of paying an
      San Antonio, Texas                     amount In excess of that bid
                                             and contracted for the repair
                                             of road machinery where it is
                                             alleged the actual work cost
                                             more than the contract price.
      Dear Sir:
               Reference is made to your recent request which is, in
      part, as follows:
                  "On September 25, 1547, we received a re-
             quest for an opinion from the Bexar County Audl-
             tar in the following language:
                  "'On July 25, 19'17,the Bexar County Commls-
             sioners' Court:passed an order to advertise for
             bids for repair on a motor grader for Precinct Nod
             1, as per specifications on file in the County
             Engineer's Office.
                  "'Or.~iigj.,.~t
                              l,s,lga?, bids were opened in
             the Commissioners Court and the bid submitted by
             Wm. K. Halt Machinery Company in the sum of
             $600.00 was accepted by the Court.
                   "'Upon compls:ion of repair+ the Wm, K.
             Halt Machinery Company rendered a bill for
             $1,000.23. From previous legal,adv%ce, I know
             of no way to approve a bill for payment wherein
             it is in excess of toe amount bid and the
             amount awarded by the Court,    Therefore, I ask
             you to give me an opinion as to payment of any
             amount in excess cf hid axard and contract, wh!ct
             was for $600 :oo * : & /'"
                   You then ask the following questions:
                   ':I: Does t'-:sc0ntrac.Lfall wi%hin the
             provisiors of Arri:le 1659, V,R.C,S., or any
             otner article, snlch re,Tii.rescompetitive bid-
             ding?
                                                                   .   ,,




Hon. Wm. N. Hensleg, page 2        v-600


         "2c If It does not, does this particular
    contract fall within the provisions of Article
    III, Sectlon 53, of the State Constitution or
    not?
         “3; If if does come under this constitu-
    tional provision, does the clause Included there-
    in, (as part of the speciflcatlons upon which
    blds were received and made a part of the con-
    tract) that 'payment will be based on the actual
    work done and on the parts actually furnished',
    authorize the Commissioners Court to pay for this
    work on that basis rather than on the basis of
    the flat sum bid?"
         Ycu also enclosed copies of the contract, together with
the proposal and the specifications under which the Commissioners'
Court of Bexar County submitted to competitive bids, for the
repair of a Caterpillar Motor Grader. The bid of Wm. K. Halt
Machinery Company was accepted.
          In the face of the contract it is stated that it is in
accordance with the specifications and the proposal which %:ere
annexed thereto and made a part thereof, The proposal provides
that the repairing ofthe Motor Grader will be made for the lump
Yim of $CrJri .OOa

         The specifinacions provide, in part, as follows:'
         "TLe work shall consist,of PJrnis?ing and
    installing necessary parts and labor in the re-
    pairing of a Caterpillar Model 12 Motor Grader
        i in accor.dar,ce
                        %ith the following specl-
    hioations.
         "The lump 3v.m price bid for 'Repairs of
    Motor Grader' shall be full compensation for
    furnishing ail mat,erials,parts, tools, labor,
    equipment and incidentals nec$ssary to complete
    the wcrk as ber:eFnspecified.


         ~'PA3igNT; Fayment:,
                            will be based on the
    actual iork done, and on the parts actually
    furnished."
         TEE type;irir:enportion of the "Proposal Sheet!'reads:
                                      i




Hon. Wm. N. Bensley,    page   3          v-600


    “Repairing Caterpillar Model 12Ct;,t,;r
                                          Grader
     for 600 .OO Dollars and
     Lump Sum                           ho0 .oo”
         In the case of Patten v. Conch0 County, 196 3,W. (2d)
833, It was held that the purchase of machinery by a county was
;;t2;; ulred to be made by competitive bids under Articles 1659
      ia v.c.3 * However, Article 2368a, supra, was amended by
the 50th’Leglslature and now reads, In part, as follows:
         “3ec s 2 o No county acting through Its
    ConnnlsslonersCourt and no city In this State
    shall hereafter make any contract calling for
    or requlrlng the expenditure or payment of Two
    Thousand Dollars ($2,000) or more out of any
    fund or funds of any county or subdivision of any
    county creating or imposing an obligation or
    llablllty of any nature or character upon such
    county or any subdivision of such county, or
    upon such city, without first submitting su$h
    proposed contract to competitive bids . D V
         It is apparent that’the above Article now requires that
all contracts made by a county mst be under competitive bids if
such contracts amount of $2,000 or more. 32nce,the expenditure
to be made by your county does not amount to $2,000 and In -view
of the foregoing, It is our oplnlon that such a contract does
not fall within the provisions of Article 1659 or any other
article which require competltlve bidding,
         10 Tex. Jur. pages        288, 289, provides, In part, that;
         “Another contract or Instrument may be
    made a part of a written cont~ractby express
    reference, In which case the principal writing
    and that referred to are to be read and con-
    strued together. S m .‘I
         In 17 C.3.3.     731, para. 313, It is stated that:
         “Unless a conkary  intention appears from
    the contract as a whole, the meaning of general
    words will be restricted by more specific terms
    for, or descriptions of, the subject matter to
    whlcb t.heyapply. Where, however, both general
    and special provisions may be given reasonable
    effect both ape to be retained. See also Western
    Union vs S Echhardt Comm. App i) 11 3.W, (2d) 7779
    syllabus 12, page 7 2.”
Hon. Wm. N. Hensley, page 4         v-600


         The contract expressly states that the speclflcatlons
and the proposal are made a part of the contract. In conslder-
lng these three instruments together, we believe that the con-
tract is definitely one where the repair was to be made for a
lump sum of $600 and that the phrase “payment will be based on
the actual work done and on the parts actually furnished” Is
overridden by the specific provlslon in the contract that the
lump sum price bid - shall be full compensation for furnishing
all materials, parts, tools, labor, equipment and incidentals
necessary to complete the work as herein specified. This con-
clusion is supported by the fact that the proposal which was sub-
mitted by the company clearly provides that the repair of the
machinery according to the specifications would be made for a
lump sum of $600.
         Section 53 of Article III of the State Constitution 1s
as follows:
         “The Leglslature shall have no power to grant,
    or to authorize any county or mnlclpal authority
    to grant, any extra compensation, fee or allowance
    to a public officer, agent, servant or contractor,
    after service has been rendered, or a contract has
    been entered into, and performed in whole or ln
    part; nor pay, nor authorize the payment of, any
    claim created agalnst any county or munlclpalLty of
    the State, under any agreement or contract, made
    without authority of law.”
         Ever.,
              though tne Commissioners’ Court was not required to
make such purchase under competltlve bids, nevertheless since it
elected to do so, the contract is binding on both parties. Inas-
mch as the county 1s legally liable only to the extent of $600
under the provisions of the contract, it Is our opinion that the
county may hot allow addlt.lonalexpenditures for such repairs,
since it is prohibited from doing so under Section 53 of Article
III, supra 1 See Shelby County v. Gibson, 44 3.X” 302.
         In view of the foregoing construction of said contract,
it is our opinion tnat the clause included in the speclflcatlons
that “payment,will be based on the actual work done and on the
parts.actually furnished” does not authorize the Commissioners!
Court to pay for this work on that basis rather than on the basis
of the flat sum bid /
                          SUMMARY
         A contract,by a county for repair of road
    machinery is not wlt,hlnthe provisions of
    Article 1659, V.C.3. Patten v. Concbo County,
.   .




    Hon. Wm. N. Benslsy, Page 5         v-600


        196 S.W. (26) 833.  The county is not required
        to submit same to competitive bids under Article
        2368a, V.C.S., unless such repair amounts to
        $2,000 or more.
              The county is not required to receive com-
        petitive bids for the repair of county road
        machinery where said repair amounts to only
        $600.   Nevertheless, when It elects to do so
        and enters into a contract for a specified
        amount, the county is bound by said contract
        and may not allow any additional expenditures
        for such repair. Art. III, Section 53,    See
        Shelby County v. Gibson, 44 S.W. 302.
                                  Yours very truly,
                              ATTORNEY GENERAL OF TEXRS
                                  By s/Bruce Allen
                                       Bruce Allen
                                       Assistant
    BA:mw:wc

    APPROVED:
    s/Price Danlel
    ATTORNEY GENERAL
