Mr. Urn.J. Burke Opinion No. C-676
Executive Director
State Board of Control Re: Authority of the
P. 0. Drawer GG, Capitol Station State Board of
Sam Houston State Office Bldg. Control to accept
Austin, Texas 78711 for verification
purposes additional
data on automohf~les
Dear Mr. Burke: after bid opening.
Your request for an opinion reads In part as follows:
"On April 5, 1966, two bid invitations
were released by the State Board of Control
covering Parks and Wildlife Departments re-
quisition #~Fc-1875-s and requisition #GFC-
1876-S. The requisitions covered 60 and 68
automobiles, respectively. Sample copies of
the bid invitations are attached for your
files; the first page of the bid invitation
contains the following language:
'with exceptions and extras as per
specifications attached.'
"Bids were opened on April 20, 1966. Each
bidder Identified the make, model and engine
horsepower, price per unit and delivery promise
of each bidder.
"The list of 'exceptions and extras . . .
attached' contained as item 35 the following
language:
'all bids to be accompanied by manufac-
turer's statement that engines bidswere
designed to operate on regular gasoline.'
"This language of item 35 of the list which
was attached to and made a part of the bid invi-
tation as quoted in this paragraph has been var-
iously 'interpretedby biddera invited to bid on
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Mr. Wm. J. Burke, page 2, (C-676)
the two above numbered requisitions.
"One interpretation is that when the bidder
furnished the make, model and engine horsepower
and does not take written exception to the require-
ments listed in the attached 'exceptions and
extras' which includes the language of item 35
that he in effect has accepted all requirements
of the bid invitation and has additional proof
of compliance with the engine fuel requirements
as identified in item 35; that the information
can be furnished either with or subsequent to the
formal opening of the bids and that such engine
design for regular fuel is not necessarily a
condition that must be met before the bid can
be considered.
"Also that the Board of Control may call
for additional or supporting evidence of compliance
with the bid invitation and that such additional
information is for the use of the Board of Control
in making a final d~etermlnation.
"A second interpretation is that when the
language of item 35 used the word 'accompanied'
that it also meant that if the manufacturer's
statement that engines bid were designed to
operate on regular gasoline required that such
statement be attached to the bid and available
to the Board of Control as of the time of bid
opening. It is further interpreted that lnforma-
tion furnished subsequently cannot be considered
in making the determination for the award.
"Our question Is (1) where the make, model,
engine horsepower, price and delivery information
is given in the form of a formal bid and that no
exceptions have been taken to any of the conditions
in the bid document and that complete compliance
with all conditions is apparently the intention of
the bidder, can the Board of Control accept from
the bidder a subsequent submission of data for
verification purposes without jeopardizing the
status of the bid?
'Our other question: (2) is the following
language of item 35 'all bids to be accompanied
by manufacturer's statement that engines bid
were designed to operate on regular gasoline'
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Mr. Wm. J. Burke, Page 3, (C-676)
a condition that must be met to guallfy the bid
as of the opening date and time?
In addition to the facts stated In your request, the
requisition file reflects that the manufacturer's statement that
the engines bid by one of the bidders were designed to operate
on regular gasoline was received by the Board of Control after
the bid opening. The statement from the manufacturer in no way
changed or modified the price bid or the product bid (make,
model, engine number) but merely stated that the engines bid were
designed to operate on regular gasoline. Accompanying the other
bid was a similar statement made by a regional service manager (no
corporation or company identified) rather than an officer of the
manufacturer.
All language and every part of the bid invitations
and specifications should be given effect if reasonably pos-
sib1.e and the bid Invitation should be construed as a whole
with the view of obtaining the make, model, and engine horse-
power which is designed for the particular use required by the
Parks and Wildlife Department. Article 664-3, Section 8, Sub-
division (f)(7), Vernon’s Civil Statutes.
Subdivision (f) of Section 8 of Article 664-3, V.C.S.,
controls the award of contracts to bidders and reads as follows:
"(f) Award of Contract. The Board shall
award contracts to the bidder submitting the
lowest and best bid. In determining who is the
lowest and best bidder, in addition to price,
the Board shall consider:
"(1) The ability, capacity and skill of
the bidder to perform the contract or provide
the service required;
"(2) Whether the bidder can perform the
contract or provide the service promptly, or
within the time required, without delay or in-
terference;
“(3) The character, responsibility, in-
tegrity, reputation, and experience of the bidder;
"(4) The quality of performance of previous
contracts or services;
“(5) The previous and existing compliance
by the bidder with laws relating to the contract
or service;
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Mr. Wm. J. Burke, page 4, (c-676)
“(6) The sufficiency of the financial
resources and ability of the bidder to per-
form the contract or provide the service;
“(7) The quality, availability and
adaptability of the supplles, or contractual
-tothe particular use required;
“(8) The ability of the bidder to pro-
vide future maintenance, repair parts, and
service for the use of the subject of the
contract;
e numbef:and scope of conditions
attacL!z)toTkhe bid.
Since the Board of Control is required to determine
whether a particular product (in the instant case automobiles)
has the adaptability to particular use required by the State
agency for whom the purchase is made, the Board of Control had
to be satisfied in the instant case that the engines bid were
designed to operate on regular gasoline and all bidders were
notified in the bid invitation that only automobiles with
engines designed to operate on regular gasoline would be accept-
ed by the Board of Control. Thus, the Board of Control Is au-
thorized under Article 664-3, V.C.S., to accept the bid of a
responsible bidder who furnishes Information satisfactory to
the Board of Control that the automobiles bid had the adapt-
ability to the particular use required as set out In Article
664-3.
Under the facts submitted by you, these conditions
have been met in the instant case. You are, therefore, advised
that the Board of Control can accept from the bidder subsequent
submission of data enabling the Board of Control to determine
the adaptability of the engines bid %o the particular use re-
quired, and this data may be submitted subsequent to the bid
opening without jeopardizing the status of the bid. Under the
facts submitted, no change has been made In the make, model,
engine number, price, or delivery agreement by the furnishing
of additional information necessary for the Board of Control
to make the determination required by Section 8 of Article 664-3.
It necessarily follows that the language of item 35 concerning
the manufacturers statement that engines bid were designed to
operate on regular gasoline is a condition that may be met sub-
sequent to the opening date of the bids.
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Mr. Wm. J. Burke, page 5, (c-676)
SUMMARY
Where bid invitations for automobiles are
received by the Board of Control giving the make,
model, engine, horsepower, price and delivery
information, and no exceptions have been taken
by the bidder to any of the terms and conditions
of the bid invitation, the Board of Control can
accept from e bidder additional data for verifica-
tion purposes enabling the Board of Control to
determine the adaptability of the particular
automobile bidsto the particular use required
of the agency for whom the purchase is made.
Yours very truly,
WAGGONER CARR
Attorney General
y*eY
/ Assistant
JR:sck:mkh
APPROVED8
OPINION COMMITTEE
W. V. Geppert, Chairman
Pat Bailey
Wade Anderson
W. 0. Shultz
Terry Goodman
APPROVED FOR TRE ATTORNEY GENERAL
BY: T. B. Wright
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