August 31, 1965
Honorable Wm. J. Burke Opinion No. C-496
Executive Director
State Board of Control Re: Various questions relat-
Sam Houston Building ing to rental of space
Austin, Texas 78711 for government agencies
by the Board of Control.
Dear Mr. Burke:
Your request for an opinion on the above subject
matter asks the following question%:
“Cur question is - ‘Are such factors now
contained In the Bid Invitationssuch as size
of rooms, location of the rooms within the
building, the location of the rooms with re-
lation to the ground surface, the availability
of elevator service or the question of attended
elevator service, heating, air conditioning,
lighting, janitorialservice and customer and
employee parking, important elements that con-
tribute to the ultimate determinationof the
“lowest and best bid” and therefore rightfully
included in the Invitation to Bid?’
“Cur second question is - ‘When we re-
ceive bids which cannot be considered to be the
“lowest and best bids” to serve the best in-
terests of the Intended occupant agency, are we
within our legal rights under the Bid Invitation
condition which provides that the Board may re-
ject any or all bids to reject such unacceptable
bids and to forthwith re-advertisefor space in
the given location or city in another attempt to
obtain for the intended occupant state agency
the quarter% which will more fully serve its
best interests and/or purposes.(”
Secti.on%land2 of Article 666b, Vernon’s Civil
Statutes, provide:
“Section 1. Hereafter all departments and
agencies of the State Government,when rental space
1% needed for carrying on the essential functions
-2343-
Hon. Wm. J. Burke, page 2 (C-496 )
of such agencies or d!3QartmentS of the State Govern-
ment, shall submit
- to
_. the State
. Board
.._of Control
_. a _
request thereror, giving tne type. KlnCi. ana size or
building needed. together with any other necessary
description.and stating the purpose for which it
will be used and the need therefor.
"Sec. 2. The State Board of Control, upon
receipt of such request and if the money has been
made available to pay the rental thereon, and if,
in the discretion of the Board such space is need-
ed, shall forthwith advertise in a newspaper,which
has been regularly published and circulated in the
city, or town, where such rental space is sought,
for bids on such rental space, for the use% indicated
and for a period of not to exceed two years. After
such bids have been received by the State Board of
Control at its principal office in Austin Texas, and
publicly opened, the award for such rentai contract
will be made to the lowest and beat bidder and upon
such other terms aa may be agreed upon. The terms
of the contract, together with the notice of the
award of the State Board of Control will be submitted
to the Attorney General of Texas, who will cause to
be prepared and executed in accordance with the terms
of the agreement, such contract in quadruplicate;one
of which will be kept by each party thereto, one by
the State Board of Control and one by the Attorney
General of Texas. The par&e% to such contract will
be the department or agency of the governmentusing
the space as lessee and the party renting the space
as lessor.” (Emphasissupplied)
In awarding contracts to bidders submittingthe lowest
and best bid the awarding agency may take into consideration,
in addition 60 prioe, the quality of the rental space, the
adaptability to the particularuse required, and the ability,
capacity, experience,efficiencyand integrity of the bidders,
as well as their financial resoonsibllitv. Attorney General's
Opinion V-1565 (1952). In Attorney Generalfs Opinion v-1565
it was pointed out:
“Article 2368a flernonls Civil Statutes7
requires that the co?itractbe let 'to the lowest
responsiblebidder.I The phrase ‘lowestrespon-
sible bidder' has a well defined meaning. For
a collection of cases see 25 Words and Phrases
(Perm. Ed. 1940) 714. In determiningthe lowest
responsiblebidder the commissioners'court is
not performinga mere ministerialduty but 1%
-2344-
Hon. Wm. J. Burke, page 3 (C- 496 )
exercising a duty which 1% deliberativeand dis-
cretionary. Att'y Gen. Op. v-1536 (1952). The
commissioners1court may take into consideration
the quality of the product, the adaptabilityto
the particularuse required and the ability
capacity, experience,efficiencyand integrity
of the bidders as well as their financial res-
ponsibility. Mitchell v. Walden Moter Company,
235 Ala. 34 177 So. 151 (19 '0. Kellln v
116 Minn 484 134 N3Wf 5PlTdhe
w;. Kent 160 Iii 655 '43 N E 750 (it396
picone v. City'of New York, $9 N.Y:S:2d 539
kodgeman v. City of San Diego, 53 Cal.App.2d
1
y P.
Thus, it was concluded that the commis%ionerstoourt
had the authority to accept the higher of two bids on the pur-
chase of a dump truck since the truck Involved in Attorney
General'% Opinion v-1565 was better adapted to the particular
use intended by the commissioners'court.
Additional cases defining "lowest and best bidder"
and construing the discretion conferred on governmentalagencies
in awarding contracts are as follow%: State v. Hermann, 59 N.E.
104, 63 Ohio St. 440 (1900); Wilmott Coal Co. v. State Purchasing
Commission, 54 S.W.2d 634, 246 Ky. 115, 86 ALR 127 (1932);
Altschul v. City of Springfield,193 N.E. 788, 48 Ohio App.
56 (1 ) Fetters v. Mayor and Council of Wilmington,74 A.2d
270, 3T3zei. Ch. 364 (1950); 27 ALR 2d. 925 (1951).
The underlined portion of Section 1 of Article 666b
reveals that the principle of law announced in Attorney General's
Opinion v-1565 Is equally applicable to the authority of the
Board of Control in awarding rental contracts for space for
government agencies. It is noted that the request for space
should give not only the type, kind and size of building needed,
but should contain other necessary descriptionas will afford
the using agency acceptable space adaptable to the particular
use required.
You are therefore advised that the bid Invitationmay
contai.n specifications such as'8ize of rooms, location of the
rooms within the building, the location of the rooms with re-
lation to ground surface, the availability of elevator service
or the question of attended elevator service, heating, air
conditioning,lighting, janitorialservice and customer and
employee parking" and other important elements which will aid
the Board of Control in making the ultimate determinationas
to who has submitted the lowest and best bid.
In answer to your second question, when the Board of
Control receives bids which cannot be considered to serve the
best interest% of the intended occupant, the Board of Control
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Hon. Wm. J. Burke, page 4 (C-496 )
has the authority and it is its duty to reject such bids. When-
ever the Board of Control deems it to the best interest of the
State, it has the authority to reject all bids and re-advertise
for space in the given location or city in another attempt to
obtain suitable space for the Intended occupant.
SUMMARY
In awarding a contract for rental space for
government agencies to the lowest and best
bidder, pursuant to the provisions of Article
666b Vernon's Civil Statutes the State Board
of C&trol may consider the adaptability of the
space to the particular use required by the in-
tended occupant, and the bid Invitations may
contain such factors as size of rooms, location
of the rooms within the building, the location
of the rooms with relation to ground surface,
the availablllty of elevator service or the
question of attended elevator service, heating,
air conditioning, lighting, janitorial service,
and customer and employee parking.
Whenever the Board of Control receives bids which
are not considered to serve the best interests of
the intended occupant, the Board of Control has
the authority to reject such bids.
Yours very truly,
WAGGONER CARR
Attorney General
John Reeves
Assistant
JR:mcn
APPROVED:
OPINION COMMITTEE
W. 0. Shultz, Chairman
Dean Arrington
James Broadhurst
Ivan Wllllam%
Tom .Routt';
APPROVED FOR THE ATTORNEY GENERAL
By: T. B. Wright -2346-