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DAN MORALES
ATTORNEY
GENERAL April 30.1996
Mr. Mike Moses Qpiion No. DM-387
Commissioner
Texas Education Agency Re: Whether a school district must
1701 North Congress Avenue comply with the competitive bidding
Austin, Texas 78701-1494 procedures specified in Local Government
Code chapter 271, subchapter B when
seeking to bid a construction contract
valued at $25,000 or more in the aggregate
for a twelve-month period and related
question (RQ-861)
Dear Commissioner Moses:
You ash whether a school district must comply with the competitive bidding
procedures specitkd in Local Government Code chapter 271, subchapter B when seeking
to bid a construction contract v&xl at $25,000 or more in the aggregate for a twelve-
month period. Your question requires that we consider the interplay between Local
Government Code chapter 271, subchapter B and section 44.031 of the Education Code.
You also ask whether a community college district, junior college district, and regional
college district must comply with the purchasing and contracting procedures articulated in
chapter 44, subchapter B of the Education Code.
Section 44.031 of the Education Code, which the Seventy-fourth Legislature
enacted,’ pertains to school district contracts. Educ. Code 8 44031(a). The section
provides in pertinent part as follows:
(a) Except as provided by this section, all school district
contracts,2 except contracts for the purchase of produce or vehicle
fuel, valued at $25,000 or more in the aggregate for each 1Zmonth
period shall be made by the method, of the following methods, that
provides the best value to the district:
(1) competitive bidding;
‘See Act of May 27, 1995. 74th Leg., RS., ch. 260, 5 1, 1995 Tex. Sess. Law Serv. 2207,
2425-26.
ZFas xc&cd for professional services rendered arc not subject to section 44.03 1. Educ. Code
p 44.031(f).
Mr. Mike Moses - Page 2 (DM-387)
(2) competitive sealed proposals;
(3) a request for proposals;
(4) a catalogue purchase . . ;
(5) M interlocal catract; or
(6) a deeign/buiid contract.
(b) h det ermining to whom to award a contract, the district
may consider:
(1) the purchase price;
(2) the reputation of the vendor and of the vendor’s goods
or services;
(3) the quality of the vendor’s goods or services;
(4) the extent to which the goods or services meet the
district’s need&
(5) the vendor’s past relationship with the district;
(6) the impact on the ability of the district to comply with
laws and rules relating to historically underutilized businesses;
(7) the total long-term cost to the district to acquire the
vendor’s goods or services; and
(8) any other relevant factor that a private business entity
would consider in selecting a vendor.
(e) To the extent of any conflict, this section prevails over any
other law relating to the purchasing of goods and services except a
law relating to contracting with historically underutilized businesses.
[Footnote added.]
Chapter 271, subchapter B of the Local Government Code provides competitive
bidding procedures a governmental entity must use, if applicable, for certain public works
contracts. A governmental entity must comply with chapter 271. subchapter B only if the
entity “is required by statute to award a contract for the construction, repair or renovation
of a structure, road, highway, or other improvement or addition to real property on the
basis of competitive bids” and if the contract requires the entity to expend more than
$15,000 of its own funds. Local Gov’t Code 4 271.024. A common or independent
p. 2126
Mr. Mike Moses - Page 3 (DM-387)
school district is a governmental entity to which chapter 271. subchapter B may apply.
See id. 8 271.021(2)(C).
In Attorney General Gpiion JM-1220 this office concluded, in accordance with
section 271.024 of the Local Government Code, that the competitive bidding procedures
described in chapter 271, subchapter B apply “only when a separate statute requires the
wntracts for the enumerated projects to be awarded on the basis of competitive bids.”
Attorney General Gpiion JM-1220 (1990) at 3-4. If a separate statute does not require a
government entity to competitively bid a contract for the enumerated projects, the entity
need not comply with chapter 271, subchapter B. Id. at 5.
We must consider, therefore, whether Education Code section 44.031 requires a
school district to competitively bid a contract for the wnstruction, repair, or renovation of
a structure, road, or other improvement or addition to real property, see Local Gov’t
Code 5 271.024, assuming that the value of the contract exceeds $25,000 in the aggregate
over a twelve-month period. By its terms, section 44.031(a) requires a school dktrict to
utilize the purchasing method, of the six listed methods, that will provide the best value to
the school district. Thus, when a school board determines that competitively bidding a
contract wig provide the best value to the school district, section 44.031 requires the
school to competitively bid it. In that circumstance, section 271.024 of the Local
Government Code plainly requires a school district to comply with the wmpetitive bidding
procedures articulated in chapter 271, subchapter B of the Local Government Code. Gf
course, to the extent that any of the procedures mandated by chapter 271, subchapter B
wntlict with section 44.031 of the Education Code, section 44.031 prevails. See Educ.
Code 4 44.031(e).
We turn to your second question, regarding the appiicability of chapter 44,
subchapter B of the Education Code to wmmunity college districts, junior college
distticts, or regional college districts. Chapter 44, titled “Fiscal Management,” and
subchapter B, which applies to purchases and contracts, expressly apply to public school
distticts. Section 130.005(a) of the Education Code indicates that the terms “wmmunity
college” and “junior college” are synonymous. A junior college district is wnstituted as a
school district for purposes of article VII, section 3 of the Texas Constitution. Educ.
Code 5 130.122(f).
Additionally, the legislature repealed chapter 130, subchapter F of the Education
Code, providing for the creation of regional college districts, in 1985. See Act of
May 16.1985, 69th Leg, RS., ch. 302, 5 3, 1985 Tex. Gen. Laws 1353, 1355.
Nevertheless, section 130.122(t), which is located in subchapter G of the Education Code,
states that a regional college district is wnstituted as a school district for purposes of
article VII, section 3 of tbe Texas Constitution.
With respect to the management and control of a junior college district, the board
of trustees is to be governed by the general law governing the management and control of
p. 2127
Mr. Mike Moses - Page 4 (DM-387)
an independent school district. Id.3 130.084. Because of the virtual equivalence of a
junior college district, a wmmunity wUege district, and a regional college district, we
believe section 130.084 of the Education Code pertains to the management and control of
all three types of districts.s Furthermore, we believe a junior college district’s purchasing
and wntmcting duties are part of the management or control of the district. We
accordingly conclude that chapter 44, subchapter B of the Education Code, which
provides for purchases and wntrks of a school district, also applies to a junior college
district.
SUMMARX
Where a school board determines that competitive bidding on a
contract for an improvement to real property will provide the best
value to the school district, section 44.03 l(a) of the Education Code
requkes the school to competitively bid the contract. In that
ciramtstanw, the school district must comply with the wmpetitive
bidding procedures articulated in chapter 271, subchapter B of the
Local Government Code, to the extent the procedures do not wntlict
with section 44.03 1 of the Education Code.
Chapter 44, subchapter B of the Education Code, which
provides for purchases and wntracts of a school district, also applies
to a junior college district, wmmunity college district, and regional
college district.
DAN MORALES
Attorney General of Texas
JORGE VEGA
Fii Assistant Attorney General
SARAH J. SHIRLEY
Chair, Gpiion Committee
Prepared by Kymberly K. Ohrogge
Assistant Attorney General
3For the sake of brevity, we will use the term *junior college district” to refer to junior cdegc
rUstriots,community college districts, and regional college districts.
p. 2128
Untitled Texas Attorney General Opinion
Combined Opinion