Untitled Texas Attorney General Opinion

The Attorney General of Texas JIM MAllOX August 6, 1984 Attorney General Suprsms Court BulldIn Honorable Henry Wadt! @iniOn NO. JM- 186 P. 0. Box 12549 Criminal District AMoney A,,s!In. TX. 7671% 254S Dallas County Re: Competitive bidding 5?21475-2501 Services Building requirements under article Telex 9101874-1387 TsIscODIs’ 51214750288 Dallas, Texas 7520:! 2367, V.T.C.S. Dear Mr. Wade: 714 Jackson, Sub 700 Dallas. TX. 75202.4506 You have asked .#hether all competitive bids must have affixed to 214i742-9944 them the affidavit set out in article 2367, V.T.C.S. If such an affidavit is legally required on a specific type of item or on all 4824 Albsrts AvO.. Suite 160 bids, you ask whether a bidder may notarize the affidavit after the El Paso. TX. 799052793 official bid openin!! date. SlY533.34a4 r As we understan it. all bids for merchandise, supplies, services 11.~1 Texas. Suite 700 and/or equipment received by Dallas County have heretofore contained Houston, TX. 77002.3111 both the wording cotd the notarized signature of the bidder. You 713l223.5996 state, however, thglt, the Dallas County purchasing agent desires. in order to increase competition, to have the requirement of a signature before the notary el:lminated, but continue to place the wording of the 905 Broadway. Suile 312 Lubbock, TX. 79401.3479 affidavit, as set out in article 2367, V.T.C.S., on all bids 909J747-5239 documents. It is our o?Lnion that article 2367, V.T.C.S.. imposes a 4309 N. Tenth. Suite B mandatory duty upc’r a bidder to affix to his bid a signed and McAllsn, TX. 79501-1995 512f982.4547 notarized affidavit as specified within the article. We conclude. however, that this article applies only to bids submitted to the commissioners COUIt for the printing and stationery supplies 200 MaIn Plan. Suite 400 enumerated within article 2358. V.T.C.S., and is not legally required Ssn Antonlo. TX. 782052797 51212254191 for all bids involv:.ng other types of supplies and/or materials. It is further our opin:.oa that when such an affidavit is mandated under article 2367, V.T.C.S., it must be affixed to the bid when submitted An Equal Opporlunltyl and may not be notarized after the official bid opening date. Alllrmatlve Action Employs~ Article 2367, V.T.C.S., reads as follows: The manager, secretary or other agent or officer of the bidder shall attach to each bid an affidavit to the effect that affiant has full knowledge of the relations of the bidder with the other firn,s in the same line of business and that the biddet is not a member of any trust, pool or Bonorable,Henry Wade - Page 2 (~~-166) combination of an]i’kind and has not been for six monthr last past, directly or indirectly concerned in any pool or agreement or combinati& to control the price of suppl.les bid on, or to influence any person to bid or not to bid thereon. (Rmphesia added). The article clearly impof es upon a bidder, acting through an appropriate officer or agent, a duty to attach “to each bid” an affidavit designed to discl,cse the affiant’s full knowledge of the bidder’s relations “with the other firms in the same line of business .I’ The affiant muft legally affirm that the bidder is not involved in “any trust, poo!. or combination” with the other suppliers and that he has not, within the prescribed period, entered into “any pool or agreement or combinclt:ion” for the purpose of controlling “the price of supplies bid on” or in order “to influence any person” to bid or refrain from bidding. V.T.C.S. art. 2367. The obvious intent of cll,ticle 2367 is to ensure that all bidders will have an opportunity to bid on equal terms and will have their bids judged according to t!ll? same standards; this is a fundamental tenet of the competitive bidding process. Accord Texas Highway Co~ission v. Texas Aswcic~t~ion of Steel Importers, 372 S.W.2d 525 --. (Tex. 1963). See also A::orney General Opinions m-449, MI-440 (1982); MW-299 (1981); H-24 (1973). Article 2367 is merely one of the provisions of a 1907 act enacted as an emergency measure for the specific purpose of regulating the purchases of stationery supplies by the county. Acts 1907. 30th Leg.. ch. 136, at 252 [hereinafter referred to as the 1907 Act]. This enactment, codifying articles 2358 through 2367, V.T.C.S., deals specifically with the authority of the commissioners court to contract on behalf of the county for specific supplies and prescribes the manner in which bids thereoa must be solicited and accepted. Attorney General Opinions O-1597, O-244 (1939). We are aware that a number of statutes, overlapping in some caees, relate to the bidding requirements applicable to supplies purchased by the county. ,sre, e.g., V.T.C.S. arts. 1658 (bids for supplies of stationery, books, blanks, records and other supplies); 1659 (bids for supplies of c!very kind); 1659a (bids for supplies in counties of 900,000 or morel; 2368a (bidding procedures for purchases of supplies in the amount of $5.000 or more applicable to all counties). See generally Attorney General Opinions MW-439 (1982); MW-296 (1981); F-1219 (1978). The statutes cited abormz mandate, in general, that all purchases of supplie? for the use of t!le county made by the co~insioners court - must be awarded on the b.331~ of competitive bidding requirements imposed by applicab1.e str.tutory language. See Attorney General p. 813 Honorable Rcnry Wade - Page 11 (m-186) Opinion IN-299 (1981). A failure to engage in competitive bidding is grounds for holding a co~i~h~ioners court purchaee contract invalid. See V.T.C.S. art. 2368a. 52(d); Kelly v. Co&ran, 82 S.W.2d 641 (Tex. 1935); Attorney General 0p:lnion MW-449 (1982). See also V.T.C.S. arts. 1659, 1659a and 1659b. It is apparent that the L907 Act, governing contracts made by the commissioners court for tha! purchases of the expressly enumerated items, see V.T.C.S. art. 2362, is a specific enactment intended to be effecticin regard to these *Enumerated supplies. One of the rules of statutory constructlon is thrlt the express enumeration of particular persons or things is tantamou:lt to an express exclusion of all others. Er parte McIver, 586 S.W.2d ,351 (Tex. Grim. App. 1979). In view of the foregoing, we conclude that the affidavit set out in article 2367, V.T.C.S., must be attached to bids submitted to the commmissioners court for printing and stationery supplies governed by the provisions of articles 2358 through 2367, V.T.C.S. It is not legally required for bids an supplies not included within these specific bidding statutes. In response to your second question, we believe that when an affidavit is legally required, it must be attached to the bid when the bid is submitted and may not be notarized subsequent to the official bid opening. An instrument not sworn to and properly notarized attached to a bid will not constitute “an affidavit.” Gordon v. State, 16 S.W. 337 (Tex. Grim. App. 1891). Yet compliance with the terms of the bidding statutes is required in order to create a valid contract. Accord Attorney General Opinions :$C449 (1982); MW-296 (1981). The only exceptions to such requirements are those contained in the statutes themselves. See Limestone iounty v. Knox, 234 S.W. 131 (Tex. Civ. APP. - Dsllas 1921. no writ). We are aware of no exception applicable to article 2367. Purthernlcsre, in view of the possible criminal penalty which may be imposc!i, on an affiant making a false statement and slnce an affidavit 13 legally binding on the affiant, the legislative choice of words mandating that “an affidavit” be affixed “to each bid” indicates that the legislature intended for the document to be signed and notarized at the time the bid is offered. We therefore conclude that SUC’I an affidavit should not be notarized after the official bid opening date. SUMMARY Article 2367, V.T.C.S., requires an affidavit to be affixed tc, each bid submitted to the commissioners court on bids for stationery and printing supplien used by the county. When legal 1-y required for the specific type of Honorable Henry Wade - Page 4 (JM-186) supplies, governed under provisions of articles 2358 through 2367, V.T.C.S., the affidevit muet be signed by the affhnt under oath and notarized by an officer authorized to administer oethe. It may not be notarized subsequent to the official bid opening date. JIB WATTOX Attorney General of Texas TOMGREEN First Assistant Attorney General DAVID R. RICHARDS F*ecutive Assistant Attorney, General Prepared by Georgette Bethle,n Assistant Attorney General APPROVED: OPINION COMMITTEE Rick Gilpin, Chairman Georgette Bethlen David Brooks Colin Carl Susan Garrison Jim Moellinger Nancy Sutton p. 815