April2, 1973
3s. Harry B. Xelton, Director Opinion No. Ii-24
Texas National Guard Armory Board
Kest
_ Austin
- Station
-_-_ _ _concerning
i3Z: Questi0r.s ._ -
Aus tic, Texas 78763 award of bid for con-
structicn of an armory
and other work '
Dear Mr. Xelton:
You advise, and we accept, as the facts of this natte.r that:
(1) your Board called for competitive bids fcr tlieconstiuc-
tion of an AZ~oq ar.da shop (OMS) at Fort SaaaBocstsn:
(2) Eie Invite-;
,-on for Sids cosltainedthe Lcllowing para-
graph:
"The right is reserved, as the interest of the
require, to reject any and all bids,
State ir.ay
to waive any informality ir.bids received, and
'-0accepz c: reject any and all items of -my
Did, il~l~ess
the Edder qualified such bid h-7
specific IAirataon.";
(3) The Instructions to Bidders, attached to 'theirmitation,
advised:
"Tinecon?leted form shall show no erasures,
alteraticzs, aualifications, or additior.al
'y kind whatsoever."
material of an
(4) The Specifications read in part:
-"The Owner desires to award all work unrierone
contract &it reserves the right to award two
(for ~rr.orywork and for OHS work) if it is
necessary. The breakdown of costs by Sid it-as
and Alterzates is prmarily ror cost acc?uncinT
prpcses ."
p. 104
..
- :
Mr. Harry B. itelton, page 2 (H-24)
8:
(5) Prior
to the bid opening, one of the bidders had a teie- .
phone conversation with the Supervisor of Construction for the ?ro- )
ject, in which he was instructed that if his bid wzre qualified in
any manner, as by conditioning it on the award of both jobs, it
would be rejected, and that the shop was a 100% federally funded
project which would be awarded to the low bidder "irrespective of
the bid on the armory.y That bidder thereafter stimitted an un-
qualified bid.
(6) The low bidder on the combination of the projects condi-
tioned his bid on the award of all items. Another bidder, whose
bid was not so conditioned, was lower on the shop item.
YOU have asked:
"1. . . . can the Armory Board consider a bid
which was qualified by the insertion of the sen-
tence which indicated the bid must be aczegted
wi+h the contingency that all bid items Se awar-
ded?"
In Texas Eiahway Commission v. Texas Association of Steel
Importers, 372 S.N.2d 525 (Tex. 1963) , the Supreme Court cited
with approval a staternestin Sterrett v. Bell, 240 S.X.2d 516,
520 (Tex.Civ.App. 1951 no writ), settrng forth the requirements
and purposes of competitive bidding:
"'Competitive bidding' requires due advertise-
ment, giving opportunity to bid, and cor.tem?lates
a bidding . . . upon the same thing. It requires
that all bidders be placed upon the same plane of
equality and that.they each bid upon the same terms
and conditions involved in all the items and parts
of the contract, and that the proposal specify as
to all bids the same, or substantially similar
specifications. Its purpose is to stimulate
competition, prevent favoritism and secure the
best work and materials at the lowest practica-
ble urice. for the best interests and benefits
of the taxpayers and the property owners. 'There
can be no competitive bidding in a legal sense
where the terms of the letting of the ccntract
prevent or restrict competition, ravor a contrac-
tor or material man, or increase the cost of the
work or of the materials or other items going
into the project.Y
p. 105
w--. Harry 9. Xelton, page 3 (H-24)
.
The bid documents here, when read together, are ambiguous.
One contemplates the allowance of quaiified or 1im:ltedbids.
Another prohibits qualifications or reservations of bids. still
others could be construed as contemplating three different bids
(fo: both buildings: for the Armory work: and for 023swork), rx-
cept for the indication that cnly a single bid encamnassing both
jobs was expected: ". . . The brsakdown. . . is primarily for
cost accounting. . ."
The bid documents leave to conjecture the requirements gov-
erning the bids and only by happenstance would all interested
bidders arrive at a corn.-onconclusion regarding t!!eir xneankg.
Under those circumstances, we do not believe the procedure re-
sulted in competitive bidding in a legal sense, because the
ambiguity of the bid letting docuxxentsprevented effective cow
petition. This is not a case where no harm or ineuualitv :e-
suits. Cf. iiaralson v. City of Dallas, 14 S.W.2d j45 (T;x.Civ.
Apa. Dallas, 1929, writ dism.): Attorney General Opinion X-990
(1971).
1~ our opinion, none of the bids su3mitted can be considered
competitive, and none should be accepted. Texas Eiqhwav Cozxnissior:
v. Taxas Association of Steel Imnorzers, 372 S.W.2d 525 ITex. 1963);
Sterretr v. Sell, 240 S.i?.id 516 (Tex.Civ.App. 1951, no writ);
Sqerior Incinerator CO. of Texas V. Tom?kins, 37 S.W.2d 391 (Tex.
Civ.+q. Dallas, 19311, aff'd 54 S.w.2d 102 (Tex.Comm. 1933);
64 i-3 hr2a, Public Works and'contracts, 553, et seq.; 10 :!cQuilliz,
3xici3al Cxooratioxs, 1956 Rev.Zd., $29.52, p. 373.
Ke do not reach your second question contingently stititted
UPC?.an affirmative answer =o the first Guestion:
Mbiguous invitations and instructions for com-
petitive bids which ieave bidding requirements to ccn-
jecture prevent competitive bidding. Bids submitted
in response thereto should not be accepted.
Very truly yours,
Attorney General of Texas
p. 106
.
Mr. Barry B. Kelton, page 4 (H-24)
APPROVED:
3”. YOX, Fiist A
Opinion Comittee ,
p. 107