Honorable J. Collier Adeee, Jr. opinion NO. JN-1248
co&ran county Attorney
109 Woet Weehington M: Validity of a bid eo-
Worton, Texae 19346 licitation Which doee not
ccmply with the publiehing
requirement8 of section
262.025(a) of the Texas
Lccal Government Code
(RQ-2050)
DearHr. Adame:
You ask three gueetione about the comtyRe purchaee, by
meane of competitive bidding, of a motor grader. First, you
ask whether the eolicitation of bide for the grader was
valid.
You tell ue that the eolicitation wae publiehed twice
in a local neWspaper, on Decbber 21, 1989, and on January
4, 1990. We understand that the’newepaper wae not published
during the intemening Christmas week in 1989 and that the
bide Were opened on Jenuary 19, 1990.
Subchapter C of Chapter 262 of the Local Gwernment
Code reguiree that county purchaeee of more than $10,000 be
made by competitive bidding, and eection 262.025(a) requires
the solicitation of bide, as follows:
A of a propoeed pur?r nrw;t
be & at w a u+ctk
paper of general circulation in the county,
with the g
a the 14th dav &&r,# the date of the
bid. If there ie no notepaper of
generalcirculation in the county, the notice
muet be pceted in a proainurf place in the
courthoueo for 14 day8 before the date of the
bid opening.
Gw't Code S 262.025(a) (our emphasis).
This statute has not been previously eubjctctadto
published legal analysis. In conetruing the publication
p. 6646
Honorable J. Collier Adam, Jr. - Page 2 (J&1248) :
.
.’
requirements, ve a r eleeietedby conmideringthe lub ee& io n
as a whole. The lubeection defines two alternative methode
for giving notice of the propoSed contract, publication, and I
posting. In those cases where there is no Wevepaper of
general circulation,vl the courthouee posting alternative
reguiree posting for the 14 day period imvediately preceding
the opening of the bida. An lguivalent notice is achieved
through publication vhere the initial publication is made
once lech week for the tvo veeka procoding the bid opening.
Read litarally, the ltetute reguiree a publication once each
ve& from the firet publication until the opening of the
* We helieve that the legislature here intended to
require that notice of the contract be publimhed in a
nevepaper, as it vould be posted in the courthouse, once a
week for at least the tvo coneecutive veeka immediately
prior to the opening. Purther, if the original publication
occurs on a more remote date than the 15th day before the
date of the bid opening, there vi11 be additional veeke of
publication.2
In the circumetancee you describe, the first publica-
tion of the notiae occurred 29 days before the opening (Dec.
21, 1989). The second posting occurrod on January 4, 1990,
because there vae no paper publiehed during the Christmas
week. Ae ve read the statute, there ehould have been
another publication in the week folloving the January 4,
1990, publicetion end preceding the week of the opening (on
January 11, 1990, for example). Therefore, ve believe that
.the publication of notice for this bid does not technically
fulfill the statutory requiremnte.
You next ask about the validity of the restrictive
epecification, Wide on Total Coot Only,* which you indicate
is intended to eneure a maximum amount to be spent on parts
1. You neither ask about nor supply information rela-
tive to the guution of vhethu the nevepepu is one of
general oirculaticnr thue ve do not eddreee that issue
but assume thatthe newmpapernats therequiraent. w
m v. St,&& 143 S.W.26 629, 633 (Tex. Civ. App. -
Dallas 1940, vrit dia'd, judgm't car.).
2. The statute raguiree publication "at least once a
veek,. unlike similar ltatutee that limit the publication
requirement to .once a vsek for tvo coneeeutivm weeks. *
sr r .l.~r, Local Gw't Code Is 271.055(b)(l) (public vorke
contracts paid out of oe*ificatee of obligation);
252.041(a) (municipal contracta).
p. 6649
Honorable J. Colliu Adaee, Jr. - Page 3 (JM-1246) .
.
end a guaranteed r8purchaer pricm for thm oquipmont. Aa
noted in your brief, this office has previouely approved the
use of total cost bidding epecificatione. Attorney General
Opinion C-768 (1966). In that opinion, this office con-
sidered, as here, a county's epecificetion of a guaranteed
rapurchaeeprice andmaximum parts replaaonn t ooet in its
call for bidm on road nohinuy. That opinion concluded
that the definition of purchasing epecificatione vae a
matter for the comieeionere oourt. At the time that
opinion vae ieeued, there vere no state statutes gwerning a
county*8 sale of pereonal property. Thue, Attorney Genmral
Opinion C-788 coneidered the repurchuo, or sale, of the
motor gredu ably ae it related to the lpecificatione for
tbe county*8 original pumhaee and not as the uparate sales
traneaction tbat it really is. subeeguent to the issuance
of C-786, the legislature statutorily limited the means by
vhich counties cae diepoee of pereonal property.
In the legislature adopted a lta tut8,
1981,
found at eection 263.151, m, -1 governeent cozy
governing counties' sales of pereonal proparty. Act8 1981,
67th L8g., ch. 647. At the time that statute vae enacted,
the legislature rewqnired that countiu lct pureuant to
legal authorization. We quote from the bill analysis:
Countiee are edeinietrative aree of the
State, and as such, have no ieplied pwere.
The Legislature grante euch authority as it
eeee fit, and this must be literally inter-
preted .
of the statutes
A check reveald no re-
feruhoe to
the eale of ealvage [or] property
deewd surplus or unfit for a county~e need.
Hovever, ocuntiu already generally follov
the proceduru outlined belov for the die-
po8al of surplus or unueable properties.
Bill Analysis, H.B. 2176-2, 67th Leg. (19111); M
~g~eaA.r on H.B. 2176-2 before tha House Cop. on
. 67th Leg. (Nay 6, 1981) (tape on file vitb
House Tochni& Servioee).
Section 263.151(2) of the code defina meurplue
property* as follove:
(2) %urplue property~ eeane personal
prcperty that:
(A) is net ealvage property or iteee
routinely discardad as vaete:
p. 6650
.
Honorable J. Collier A, Jr. - page h (JM-12483
I
,
(8) is not aurrently needed by its
ovner:
(C) is notrequired for the ovner*e
foreseeableneeder and
(0) poeeeene eoae ueefulmee for
the purpwe for vhich it vae intended.
Loeel Gov't Code S 263.151(2).
Se&ion 263.152 Of tb COIM &finu tb mOdm by
~i~l~~mmieeioner8oourtmaydiepouofpereonalproperty
:
The cemmieeioner8 court of a county may:
(1) periodically ull the county*8
mwplue or ealvage proporfy by competitive
bid or auction;
(2) offer the property es a trade-in for
nev property of the 8ame general type if the
commieeionere court considerstht action to
be in the beet interuta of the county8 or .
(3) order any of the proputy to be du-
troyed or otheruiu diepoud of as worthless
if the commieeionere CouLt undertaJce8to ull
that property under Subdivieion (1) and is
unable to do 80 because no bide are made.
Local Gov*t Code 5 263.152.
We do not believe that the legislature intended to
allow the guaranteed repurchasethat is preeentedby your
queeticne. Such a repurchase is not a ltrade-ina u that
term18 generellyunderstood. In a trade-in, a county sells
one piece of property and eimulteneouely acquires another.
In total coet, the county acquires property and contrect.8 to
sell that ume pieae of property at wme later time. While
thetransfer of property vould bo lccompliehed by means
of oompetitive bidding, tha bid was let relative to the
original purohaee of the machine, and no bid vae let rela-
tive to the sale of the machine, as allowed by section
263.152 of the Local Government Code.
While chapter 262 requiru competitive bidding for
certain purchases end chapter 263 allowe it as an option for
the sale of county personal property, ve do not believe that
the oompotitive bidding reguirementm for thm two diffrrent
p. 6651
Honorable J. Collier Adam, Jr. - Page 5 UI4-1246)
tramactiona ten be met through a single competitive bid.
After all, vhen the bid vu nde and accepted for the
oounty*e purchase of the machine, the county did not ovn tbe
machine and wuld not eel1 it.
Yw third que8tion asks whether the
to uction 263.151 of the Local Governmen
not anever that queeticn eeperetely i~emueh as ve have
anmtered it abwe. Nor do ve address the issue of the
validity of the contract a8 a whole.
Section 262.025 of the Lccel Goverrment
Code, in cefiain inetencee, requires puhlioa-
tion of notice of a proposed purchame once
awhveakuntil the opening of bide, viththe
first publication to occur no later then the
15thdaybeforethe data ofthabid opmning.
While a conieeionere court has the authority
to determine epecificatione for iteme to be
purchased or sold by the county under com-
petitive bide, they may not combine the tvo
transactions in a eincle bid.
JIM HATTOX
Attonmy General of Texas
NARYXBLINR
Firet keietent Attorney Genus1
ImJ NC-Y
Executive Aeeietant Attorney General
JUDGB BDILIB STBAXLBY
SpOial Aseiet8ntAttorney tieral
BBNBANICXB
special Aeeietent Attorney Generel
RICXGIIZIH
Chairman, Opinion Committee
Prepared by Xaren C. Gladney
Aeeietent Attorney Genual
p. 6652