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?
P. 6680
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
P. 6681