Office of tlpz!Zfttornep&neral
Mate of Cexae
DAN MORALES
*TToRs’EY
CESERAL August12,1993
Honorable Traoey Bright Opinion No. DM-242
County Attorney
Ector County Courthouse Re: Whe-ther an independent school district
Room201 MY. without violating the competitive
Odessa, Texas 79761 bidding statutes, “act as its own general
contractor” in letting bids for renovation and
remodeling projects (RQ-530)
Dear Mi. Bright:
On behalf of the Ector County Independent School Diict (“ECISD”), you have
asked us to interpret the commitive bidding staMcs that apply to independent school
districts. You specifically cite section 21.901 of the Texas Education Code and chapter
271, subchapter B of the Local Government Code.
You state as follows:
ECISD has several remodeling or renovation projects that need
to be completed prior to the 1993-94 school year. The. aggregate
cost of each renovation or remodeling project will vary depending on
the nature and extent of the requked remodeling or renovation. In
almost all instances, the total Be cost of each project will
exceed SIO,OOO.OO.ECISD [has] numerous employees on its staff
who [can] adequately and competently perform the majority of tasks
required on each remodeling or renovation project. Therefore,
ECISD desires to act as its own general contractor on several of
these remodeling or renovation projects. ECISD would only submit
for competitive bids those tasks [within] the project that requireu
specialized training or expertise which would require the
expenditures of more than S10.000.00 (e.g. plumbing, electrical,
cabme-try, etc.).
You finther state that ECISD does not believe that this procedure will violate sections
21.901 and 21.9011 of the Education Code nor sections 271.021 through 271.025 of the
vocal Government Code. Finally, you assure us that ECISD “does not desire to act as its
own general contractor to avoid the competitive bidding statutes.”
HonorableTracey Bright - Page 2 (DM-242)
Section 21.901 of the Education Code states in puthmnt part as follows:
(a) Exceptas providedin this section,all contractsproposed to
bemadebyMyTexssplblicschoolboardforthepurchaseofMy
personal property shall be submitted to competitive bidding when
said property is valued at S 10,000 or more.
(b) Except as provided in Subsection (e) of this section,t a8
ContraasproposedtobemrdebyMyT~publicrchoolboardfor
the cwstmction, maintenance, repair or renovation of any building or
for mate&Is used in said wnstnmtion, maintenance, repair, or
tenovation,shallbe&mittedtowmpetitkbiddingv+hensaid
wntmcta are vahd at $10,000 or more. footnote added.]
See u&o Attorney General Opiion DM-14 (1991) at 3. The remainder of section 21901
also provides exceptions to the wmpetitive bidding requhwnent and for notice of the bid
opening. Section 21.901 l(c), (e) of the Education Code provides that the h~tentional or
knowing violation of section 21.901(a) or (b) wnstitutes a Class B misd emeanorandmay
result in immdate removal from office or employment.
TheLocalGo vemment code provisions about which you ask apply to
govemmed entities generally, which include a common or independent school district.
See Local Gdt Code 5 271,021(2)(C). Section 271.024 provides as follows:
Ifagovemmen talentityisrequidbystatutetoawarda
wntract for the wnstrwtio~ repair, or renovation of a
rtruchire....onthebasisofcompetitivebiQ,andifthewntract
requiresthearpadiaueofmorethanSlO,OOO~mthehrndsofthe
entity,thebiddingonthewntmctmustbeaccomplishedhtthe
manner provided by this takhapter.
Other sections of chapter 271, subchapter B of the Local Govemment Code articulate
requkments for advertising for bids. Local Goti Code 0 271.025; opening bids, id.
Q 271.026; and awarding the wntract, id. 8 271.027. Section 271.029 of the Local
Government Code, like section 29.011 of the Education Code, prescribes penalties for
violations of the competitive bidding requirements. See gerre~& Cooper & Horton,
CampeririwBidRequirementsforschoolDisbicfCorrb.acts, 34TEx.B.J. 1154(1983).
Both section 21.901 of the Education Code and section 271.024 of the Local
Government Code articulate the procedure for wmpetitive bidding to which an
p. 1249
Honorable Tracq Bri&t - Pa8e 3 (DM-242)
independwt school district must adhare iftha district proposes to award a wntract for the
wnstructi~ repair, or ranovation of a st~ctura that will rapire the axpanditurc of more
than S10.000 of the district’s 8mds. Tbur, section 21.901 of the Education Code and
section 271.024 of the Local Govunmcnt codemerdyrequire~ifanindependent
schooldisbictistow~tohave~ouuide~paformtheworlstheirdependcnt
schooldistrid~competitivelybidthecontncturd8wudthew~tothelowest
resptsible bidder. See Local Goti Code 50 271.027(b). 271.0275; 64 AM JVR 2d
Public W~ksmdContmcts~4O,at893(1972). Neitherscction21.901 oftheEducation
Code nor section 271.024 of the Local Govamnant Code apply, howcvar, if the
indepadcatschooldistrictdoesMtpropo#to~acontrrctbutntherproposcsto
perfotm the work using its own amployacs. See Attorney General Opiion V-506 (1948)
at 4; Montaro Chqter, Not? Elec. Cmtractors Ash v. State Bd. of Educ.. 352 P&l 258,
259-60 (Mont. 1960) (and cases cited therein); Davis v. cmbon Co@y, 85 A2d 862,
868 (Pa. 1952); Hame Be. & &mqwnx Co. v. Ct@ o/Ron&e, 20 S.E. 895, 899
(Va. 1895); 64 AM. JUR. 2d, super, see ah Guy Bitdithtc Co. v. Nueces County, 11
S.W.2d 305.309 (Tat. Camm’n App. 1928. judpn’t adopted).
We conclude, therefore, that an independent school district may, without violating
section 21.901 of the Education Code and saction 271.024 oftha Local Govanmast
code,“~rsitsowngarenlwmnctor”inl~bidsforrenovrtion~rezwd~
Projects. Of wurse, the inde9endant school district may be tquirui to wmptitively bid
wntmUs for materials or sat-vices used in the renovation and ranoddin8 projacts. &e
Educ. Code §219Ol(b);s see alsu TExrss EtWCATtON AGBNCY, HANDBooK 0N
m BIDDINGFORTEXASPUBLICSchools 4.1, question 2 (1992).
p. 1250
Honorable Tracey Bright - Pa& 4 (DIG242)
SUMMARY
Neither section 21.901 of the Education Code nor section
271.024oftbcLocdGovammt code,WhiCh~~tOWrptitiW
biddingsituation&applytolniadepeDdentscbooldistrictthat&3ires
topedormcertainworkusingitsownallployeu. Acwrdingly,m
iIdpdwt 8cbool distriu mly, without violatiq Be&n 21.901 of
the Education Code and don 271.024 of the Local Govmment
code.“actasitsowngwesal wntmctor” in letting bids fix
mtovationandmwdeungprojects.
DAN MORALES
Attorney Gene-d of Texas
WILL PRYOR
F~ASSkUltdnornyGMld
MARYKELLER
DeputyAttomeyGaleralforLitigation
RENEAHICKS
state solicitor
MADELEINE B. JOHNSON
Chair, Opiion conwina
p. 1251