Untitled Texas Attorney General Opinion

OFFXCE am THE AFFORNEY GENERAL AUSTIN.TEXAS PRICE DANIEL February 20, 1948 *TTORNEY ‘Eh‘E8.a Hon. Joaeph C. Ternus Opinion Ho. V-506 County Attorney San Patrlcio County Re: The necessity of let- Sinton. Texas tina contractsbased on co~etltlve bidding for road work to be done by the Comtulssloners' Court Itself, rather than by a general con- tractor. Dear Sir: Reference Is made to your recent.raquestfor an opinion of this Department, which reads, in part, as follows: "Sometime-ago~theConnty of-San Patrl- Oio voted a $1;500,000.00bond Issue to im- prove and construct roads in this county. The mohey Is now avtiilableand the oommLs- sloners expect to @end at least $750,000.00 of this money on road Improvementsand con- structiondone directly under their imme& iate supervl.slonanB direction; that Is to say, It Is not contemplatedthat the work would be let to a contractor under bid to do a completed job, but that the commlssion- em would, with the'help of an engineer hir- ed for that purpose, do their own road con- structionand rebuilding. This will necsa- sltate many direct, individual e%pendltures of money since they contemplatepurobaslng road materials themselves, directly paying for hauling, etc. In other words, the com- missloners do not contemplate'contractlng with anyone for an 'end Item', I. e. a com- pleted roab. "I would appreciate receiving an opin- ion from you concerning the questions here- inafter set forth. 188 Hon. Joseph C. Terms, page 2 (V-506) "Questlon,Bo.1. Is there any law re- quiring the commlssioners~court to let the San Patricia County road building and im- provement progrtimout on oontract~under competitivebids, or may the commissioners1 court build and improve the roads, doing the job themselves? . . . "QuestionNo. 2. There will be consic¶- erable hauling to be done. The commisslon- era would like to hire local men in the coun- ty, who own trucks, to do most of the haul- ing. It 1.3further contemplatedto pay for the hauling on a yardage basis. It is fur- .. ther contemplatedthat, if a man were to start hauling for the oounty and hauled as long as the county had work for him to ao, he would be paid a total In excess of $2,CCO.- 00; however, the man would probably bill the county by the week which amount would probably be under $2,000.00 petiweek.' Does Art. 2368a, Section 2 (or any other law), re- quire this type of work to be let under com- petitive bids? "QuestionNo. 3. It is contemplated that the commLssloners~court would hire from the owner a dragline, the owner fur- nishing the operator and bearing the ex- penses and upkeep of the dragline; to be used in excavatingroad material and plac- ing same in the dump trucks, the owner of the dragline to be paid &t the rate of SO much a yar@ loaded In the dump trucks. Would Art; 2368a, Section 2“(or any.,,other law) require that the oommissioners'court let this type of contract out for bids? "QuestionHO. 4. Akme that the dragline owner referred to above also. furnished the road building materials, would not Art. 1659 apply so that in that case the contract would have to be let Un- der bids? "The dragline owner in both Instances above would bill the county either by the day or by the week as the work progresses; Hon. Joseph C. Ternus, page 3 (v-506) of any nature or character upon such county or any subdivisionof such oounty or upon auoh olty, without first submitting such proposed contract to competi- tive bids. . . “Provided, that in case of public.calamity, where it becomes necessary to act at once to appropriatemoney to relieve the necessity of the citizens, or to pre - ,servethe property of such county or city, or where it is necessary to preserve or protect the public health of the citizens of such county or city, or in case of unforeseen damage to public property, machinery, or equipment, this provision shall not apply; and provided further, that it shall not be applied to contracts for personal or for professional servlces, nor to work done by such county or city'and paid for by the day, as such work prbgresses.” Ths purpose of these provisions is to enable counties to obtain the performance of any public work at the lowest possible cost to taxpayers. However, the Commissioners t Court has the option of carrying on the work itself and the provIsions of Article 2368a do not apply to any work done under the direot supervlslonof the County Conrmlssloners,'andpaid for by the day. Gulf Bltullthlc Compan v. &4oes County (Corn.App.) 11 S.W. (26) 305; 11 Tex. ?ur. 6c3. 'I;herefore, It is our opinion that the Commissioners'Court has authority to do this work in the same ~mannerthat they provide for other constructionon the county highway system ,lnsteadof asking for bids from private concerns. Inasmuch aa your questions 2 and 3 are 80 closely related, and since the same rule of law will govern in eaoh lnstanoe, we shall oonsider both questionstogether. The provisions of the above uoted Article 2368a am somewhat dltter4nt from Article 2368 ?now repealed), but the same rule of law lpplicabls under Article.2368may now-be applied under Arti~cle 2368a. W4 do not believe that such contracts as presentedT$ th4 above questions are."suchas to require oompotitivebids; Commissioners'Court may terminate the employment in each instance eny time It drsires to do so* The caao of Jackson v. Noel, 37 S.W. (26) 787, wan one In which the Commfssionsra'Court of Way County has entersd Into a contract with appsllant Jackson by which Jackson agreed to furnish certain road material for public roads for a prioe of $3.00 per yard of' gravel and material to be paid by Gra County;. further the price agroad upon was greatly fn excess of 32,ccc.cc. Hon. Joseph C. Ternus, page 4 (v-5061 The court in passing upon the question of whether such a contract oame within the provisions of Article 2368, had this to say:, "The contract made by the commfssioners'court with' Jackson ~throughCoxs one of its commisslon4r8, was for the hauling of material and for the spreading of same on the road. ;The record does not disclose that any contract was made with reforonco to the plaoing of such material upon any special numbor of yards of road, and no number of yards of gravel or caliche or other material was contractedfor; hence It dannot be said that the making of the contract called for the expenditureof the sum of $2,000 or more. In other words, it was such a contract for the delivery of material that work could be stopped at any time. *That the contract now before this court is not controlledby article 2368, R.C.S. See Gulf Bttull- thlc Co. v. Nueces County (Tex.Com.App.).11 S.W. (2%) 30% - "For the reason that the evidence fails to dLsclose that the contract as made with Jackson necessarily amounted to the sum of #2,000, and for the roason that the conmlsaloners~~court9 when having county road work done under its supervision,was not llmlted~ to such sum In the repair of the roads of the county and that they had the option as to whether suah work should be mubmitted to competitivebidders, w4 rovers8 .thejudgment of the trial court* and remand the cause for another triaz." Therefore; in view of the foregoing, it Is the opinion or thla Department that your questions 2 and 3 should be answored In the nogativs. Artlola 1659, V.C.S., Is aa follows% wSupplles of over kind, road and bri o~matsrlal, or 9 county, or any other materia9 p for the ua4 of sal of ltr offloors, departments,or institutionamust tty purchased on competitivebids,.th4 contract-t?-bo awarded to the party who9 in the judgment of the commis- sionora Court, had'rubmlttedthe lowest and bort bid. The oounty auditor shall advertisefor a perlod of two weeks in at least one daily newapapor.I\, published and oirculatsd In the county9 for such suppllss and material aocordfng to specifl&atlons,glvi,ngin d&all what is needed. Such advertisementsshall atats whsro the specificationsare to be found, and shall give th4 Hon. Joseph C. Ternus page 5, (v-506) time and,place for receiving such bids. All such competitivebfds shali be kept on file by-the county ,audqtoras a part of the records of hfa office, and shal,lbe subject to inspectionby any one desiring to see them. Copies of all bfds received snail be furnis!ledby the county auditor to the county judge and to the commissionerscourt; and when the bids received are not satisfactoryto,the said judge or county commissioners,the auditorshall reject said bids and readvertfsefor new bids. In cases of emergency, pur=has-esnot in excess of one hundred and fifty doli.arsmay be made upon requisf- tfon to be approved by the commissionerscourt, with- out advertfsfng for competftfvebfds." In thecase of iEastTexas Const. Co. v. Lfberty County, 139 S.W. {2d) 669# the court fn passPng upon the question of whether gravel 'purchasedby the county sk;ouldbe under competitfvebids said: "Since, on the allegatfona of the petition, the gravel fn controversywas sold and delivered by appellant and accepted by appellee on contract . without competitivebids, the oontract was unauthor- fzed by law." So4 also Wyatt Meta; and BroilerWorks 'v.Farmin County, 111 S.W. (2%) 787. &o&fore, in'viow of the foregoing, it is our opinion that road building materfals purchased by the county,,mustbe submitted under.competftivebids. In compliance wit&your request, we are encPosfng the following opfnfonss v-285, C-6369, O-6$6, and C-2955. subwRY X0. The CommisaloneraD Court is not rsquired to let a contract under oompetitfvebids to build dounty roads? but may supervise the buflding of the .same ft44u. Art. V, Sec. 18, Art. XI, SerP.'2$Art. XVI. Se0 24# State Constitution;Art..2351, V.C.S.; @.Qf Bitulfthfc Co. v. NizecesCo. (Corn.App.).11.S.W.. .@d) 3%. 2. In the constructionof oounty roads, the Commfs- sfonerac Court may employ persons to haul gravel and material, and pay them on a per yard baais, without requfrfn competftivobids. Jackson v. Noel, 37 S.W. (2%7 787. .- ~, Hon. Joseph C. Ternus page 6, (V-506) 3. Road building material purchased by the county must be submitted under competitive bids. Art. d~59~.V.C.S.; East Texas Const. Co. v. Liberty Coay, 139 S.W. (2d1 669, Yours very truly, AlTOFiNEYGENERAL OF TEXAS S/ B&ice Allen BY Bruce Allen Assistant APPROVED: s/ Fagan'Dickson FIRiT ASSiSTANT ATTORNEY GQWUL Bh:mw/cge