~OFFICEOF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Eon. Peyton Burke
County Auditor
I%3118county
~arlln, Texas
Dear Sit:
Ron. Peyton Uudcs, ?UKS 2
County Auditor, legally approve for pyncnt
to LewlsSatten Co. a mm that exceed8the
zmxlmm amount net out ln our *Xotlce to
Elddere*? If thla la answered in the nqe-
tlve, oan the Qxanl8sloner8*Court legally
leave off scme of the extra equipment called
r0r in the q7eoiflcatlons in ardor to 5fike
$F$;: oost to Falls County not exoeed
"
'* ,
The not100 you enolased read3 aa follow8:
YBaled proposale will be raoelvod until
10 o*albok a. III. June W, 1939, by Peyton
Burke, CXwnty Auditar, ror rurnichlw, ?a116
County nlth one maintainer. Xotioe ia given
that the totlo ooost to RI118 county ohall
not exceed ?&,WC f.o.b. I&t, Texas.
Vennr: Cash on delivery.
wSpeclfloathna nay be had at tho otfice of
the County Auditor.
%wal rlghte reserved.
Teyton Burke
COumY huurnR
Palls RSInty"
The above notice was apparently intondnd to
;r;ami:hln the teme ot Artlole 1659, 1:. C. S. 1925, as
*Rids for material - Sw:pllee 0r every
kind, road and brldr?;e mterlal, or any other
caterlal, for the we of aafd ccunty, or any
or lta orfbmro, departzwmte, or institutions
must be purchased on competitlva hidn, the
oontraot to be awarded to tte party V&C, in
the dudpent of the oolmtllssicners court, hae
c
Hon. Feyton Eurke, Page S
subalttod tho lauest and boot bid. The
oounty auditor shall advertise for a period
of two weeks In at letrstone df.ilynewspqmr,
pubLIshed end olraulnted ln thr munty; ror
such aup:.llod and mterial occord!.nl; to spe-
alrlaatlons , giving in dotall \;!:ot 1s nc~ded.
Suoh advcrtlsmunts ahoIl r:tete w!mro the
8peolrlcntlons are to be round, ::nd oi~511
give tho tint?end place for rccolvlnc, EtlOh
bido. Al.1 suoh oonpotltlvo hldo shall bo
kopt on rile by the county nutiltor as a ?art
of the records of his office, and shall bo
aubjeot to lmpeotlon by any one daolrlni:
to see thasl. Copies of all bids rooelvod
shall be fmnlahed by the county nuditor to
the county judge and to the commissioners
oourtl and when the bids received are not
aatlstaotory to the said jud,c,o or cruntg
oosmlssloners, the auditor shall rejeot
sold bids and re-advortloe for new bids.
In oases of emergency, purohasos not in ex-
oem of one hundred and fifty dcl!ars may be
made upon requisition to be approved by the
oommlsaIouers ocurt, without cdvortlsln~
for oonpetltlve bldg.”
In Artlole 1661, R. C. L 1925, re find the
fallwing oomand to the oounty auditor:
Ve shall not audit or approve any suoh
olain unless It has been oontrnoted as pm-
vldecl. by. law. . . . ”
Fran the above and foregolcgg statutes appears
a clear lagIslatlve intent to declare the public policy
OS this state to require oorpetltlve bids when purohasea
are made suoh as me here consldor. Cno of the qbjeots
or the otatutes lo to socure fair conEetltlon upon equal
term to all bidders; to secure the best values for the
county ot the least expense snd to errord an equal advau-
tage to all dosiring to do business with t~.e ccunty by
l3on.Peyton Burlie,Pago 4
affording an opportunity for an eruat acmporlson of
bide. See the oa.066 of Wyatt ITotal F E%ller York8 VS.
F8MiII County (Tex. Cir. App.) nl SW 2nd 707; Y.bSter
vs. Betote (6up. Ct. Fla.) 1SO So. 721; Poyner vs.
Whlddon, (Sup, Ct. JUT.) 174 SO. 507.
The advertisemnti or "Xotlco to ?ladoroW,
quoted above, was an integral and essential p\rt or the
proosas required by the plain tarns of Art1010 1650,
Clearly, the oourt would not be authorized to
E%se the avlln$alner without seeking cozqxA.ltlvs bids,
aooordlng to apoolSio?itlons on ills with the auditor.
In seekIng the oo~petltlvebids the court followed the
method presarlbed by the statutes ant? adVeZ318Od in the
n0Wspaprr Any who dealred to do so Cod the ley,nl. riqht
to submit a bid. In the 8~0 notice sollcltinE; bids
was the unqualified and unoondltlmnal a~sertloz~ that the
total oost to Falla County nhould not exceed "04,OOO.OO,
t.o.b. Lott, Texas. Tie subnit. thet w?>llothe comlsslon-
ers* co- was clearly not roqulred by statute to placa
the llnltatlon aa to prloe at any flguro, havfw'done 80
aud tho advertlsenent being publlshod in cm~llanoe with
the order of the court giving notice to tho world and to
all who nlfit desire to enter e bid for thn 8p0olfled
maintainer that the total cost to 'all6 County should not
exoeed a stated amount, to permit tho,county to enter into
the oontra0t Eentlonod and to violate the very terms af
the notice would 6freotlvely 88IT8 as a throttle to tk+8
conpotltlon which 1s the c?M+@& . objeot of the statute.
?70 therefore respeotiullg tinnier pour flret
question in the nagatlve, and you are advised that lt 1s
our oplnlon the al&n subnittod to you wn8 not contraoted
as provided by law ln oontenplation of Article 1661, supra,
and should therefore be rejaoted.
Your seoond question la amwerad in tho rollan-
1%~:quotation rrca; the case of '.'onter vs. ?Aloto, supra,
where the prinalpae of law applicnble is sucoinotly stated:
"It has been generally reco&zed and 4
held by the oourts that it Is the duty of
pub110 orrlcers ohm&ad with the rcsponslblllty
Hon. Poyton Burke, l%ge 5
of letting ooatraota undor the statute to
adopt, in advanoe of oallfng far bide,
reaeonably &?finitA plSnS 01 8JXCifiCEtiCn8,
as a basis on wbdch bitis rzay be recolved.
Such office% in view of such requlroncnt,
are Mthout pomr to reserve in :he ~lcao
or spcolflcotlons so pm:m33d in m?vimco of
the lotting the power to nako oxcc>tlons,
releasea, and nodiflcatlms in the: contzct
alter it 18 lot, which will afford o'.por-
tunlties for fnvoritisn, whether any
tavoritlm lo actually prncticed cr not.
Heithor om they include other rcrervotions
nhloh by their neoessary affect will render
it imposcible to make an rxaot cc?r.;urison
of bids. Clark vs. !.:olson, S2 Fla. 230,
89 So. 495; Dillon, ~%nlolpal Corp., para.
807 p-0 12118 15 C. .T* 550; 19 3. C. L.
10761 3 ~!oQulllan on !!unioipal Corp. (2nd
ad.) pqes 005, t3StL"
l'!e therefore likewise answer your second ques-
tlon in the nogatlvo and you ere advised the con-issioners*
oourt la without leg01 authority to pernit cha&Te In the
speclfloations after an attmrted lettlnr! of the oontoact.
Be eo08dhgly regret the clrcunstaacos whloh
prevented our enswerln(J your opinion request at an earlier
date.
Your8 very truly