October 28, 1988
Honorable Mike Driscoll Opinion No. JR-974
Harris County Attorney
1001 Preston, Suite 634 Re: Competitive bidding in
Houston, Texas 77002 counties with a county pur-
chasing agent (RQ-1484)
Dear Mr. Driscoll:
You ask:
(1) In counties with county purchasing
agents, must the county purchasing agent make
all purchases which are not made by competi-
tive bid or can individual officers and
departments purchase their own supplies?
(2) Is the county Purchasing Agent
subject to the $5,000 limitation imposed by
MC. GDV'T CODE 5262.023 in making purchases
of maintenance and repair items the need for
which is not foreseeable[?]
In your first question you ask whether the county
purchasing agent in Harris County must make all purchases
which are not subject to the competitive bid requirements of
section 262.023 of the Local Government Code.
You advise that Harris County has a duly appointed
purchasing agent subject to' the provisions of section
262.011 of the Local Government Code. Section 262.011
provides in pertinent part:
(a) In a county with a population of
74,000 or more, a board composed of the
judges of the district courts in the county
and the county judge, by majority vote, may
appoint a suitable person to act as the
county purchasing agent. The term of office
of the county purchasing agent is two years.
. . . .
p. 4955
Honorable Mike Driscoll - Page 2 (JM-974)
(d) The county purchasing agent shall
purchase all supplies, materials, and eguip-
ment required or used, and contract for all
repairs to property used, by the county or a
subdivision, officer, or employee of the
county, extent nurchases and -tracts
-red bv law to be made on comvetitive
bid. A nerson other than the countv nur-
ina aaent mav not w the nurwse of
ent or make
. . . .
(f) A purchase made by the county purchas-
ing agent shall be paid for by a warrant
drawn by the county auditor on funds in the
county treasury in the manner provided by
law. me countv auairpr may not draw ad the
Qzantv treasurer &zv not honor a warrant fey
a wurchase unlaas the nurGL%se is made bv thg
countv nuruina aaent or on comnetitive bid
as vrovided bv lax .
. . . .
(n) This section applies to all purchases
of supplies, materials, and equipment for the
use of the county and its officers, including
purchases made by officers paid out of fees
of office or otherwise, regardless of whether
the purchase contract is made by the commis-
sioners court or any other officer authorized
to bind the county by contract. An officer
making a purchase out of fees of office in
violation of this section may not deduct the
amount of the purchase from the amount of any
fees of office due the county. (Emphasis
added.)
you state that your question was prompted by Attorney
General Opinion JM-725 (1987). In Attorney General Opinion
JM-725 it was concluded that a county officer, department or
institution may purchase its own supplies subject to the
limitations imposed by section 3 of article 2368a.5,
V.T.C.S. (now section 262.023 of the Local Government Code).
The request in Attorney General Opinion JM-725 was from a
county that did not have a purchasing agent. Hence, the
provisions of section 262.011 were not applicable.
p. 4956
Honorable Mike Driscoll - Page 3 (JM-974)
In Attorney General Opinion H-1237 (1978), the question
arose as to whether the commissioners court of El Paso
County had authority to order payment for a purchase made by
the sheriff when the county had a purchasing agent duly
appointed under then article 1580, V.T.C.S. (now section
262.011). In concluding that the commissioners court did
not have authority to direct payment of a claim under a
contract which contravened the statute, the opinion stated:
Article 1580 [now section 262.0111 estab-
lishes the county purchasing agent, an
officer not under the supervision of the com-
missioners cou*, as the proper party to
contract for all county supplies and services
except those required to be let on competi-
tive bid. The statute prohibits any other
person from entering into such contracts and
directs the county auditor not to draw
warrants 'for any purchases except by such
agent and those made by competitive bid.'
Attorney General Opinion H-1237 (1978), at 1. The county
purchasing agent must make all purchases that are not
subject to the competitive bid requirements.
In your second question you ask whether the county
purchasing agent is subject to the $5,000 limitation imposed
by section 262.023(a), which provides:
Before a county may purchase one or more
items under a contract that will require an
expenditure exceeding 85,000, the
commissioners court of the county must comply
with the competitive bidding or competitive
proposal procedures prescribed by this
subchapter. All bids or proposals must be
sealed.
You state that in counties the size of Harris, compli-
ance with the 85,000 limitation is difficult because of the
maintenance of a large inventory of heavy equipment. The
statute does not contain an exception based on population.
The background information contained in the Bill Analysis to
Senate Bill 807, Acts 1985, 69th Leg., ch. 641, at 2377,
effective September 1, 1985, (now section 262.023) reflects:
S.B. 807 repeals many of these old purchasing
laws and amends others and creates a new,
uniform purchasing law for counties
P. 4957
Honorable Mike Driscoll - Page 4 (JM-974)
regardless of population. . . . In effect,
S.B. 807 gives all counties the same
requirements relating to purchasing and
removes the disadvantage imposed by earlier
methods of regulating the purchasing activity
of county officials. . . .
Bill Analysis, Tex. S.B. 807, 69th Leg. (1985). Subsection
(d) of section 262.011 expressly excludes from the county
purchasing agent's authority "purchases and contracts
required by law to be made on competitive bid."
You suggest that the purchase of maintenance and repair
items may come within the exceptions to the competitive
bidding process under the "captive replacement parts or
components for equipment" exception in subsection (a)(7) tD)
of section 262.024. Section 262.024 provides in pertinent
pa*:
(a) A contract for the purchase of any of
the following items is exempt from the
requirement established by Section 262.023 if
the commissioners court, by order grants the
exemption: --.
. . . .
(7) an item that can be obtained from only
one source, including:
. . . .
(D) captive replacement parts or
components for equipment.
Since the county purchasing agent is subject to the
competitive bidding requirements of section 262.023, it
follows that the exceptions thereto are applicable. Before
there may be an exception to the bidding requirement the
parts or components must be items "that can be obtained from
only one source.H In addition the "maintenance and repair
items" must be "captive replacement parts or components.l*
Of necessity the factual determination of whether
"maintenance and repair items" constitute %aptive
replacement parts or components@q must be made on a case-by-
case basis.
p. 4958
Honorable Mike Driscoll - Page 5 (JM-974)
P
SUMMARY
In counties with county purchasing
agents, the county purchasing agent must make
all purchases that are not subject ;~,,~~;
competitive bid requirements of
262.023 of the Local Government Code. The
county purchasing agent is subject to the
$5,000.00 limitation imposed by section
262.023 in making purchases of maintenance
and repair items unless such purchases fall
within the exceptions set forth in section
262.024 of the Local Government Code.
Very Itruly you An
JIM MATTOX
Attorney General of Texas
MARYKELLRR
First Assistant Attorney General
mu l4ccREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STRARLRY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 4959