### E ATI-QIKNEY GENERAL UDFTEXAS

Hon. Harry B. Keltbn, Director Opinion No. M-890 Texas National Guard Armory Board West Austin Station Ret Questions Concerning an Austin, Texas~78703 award for the construction of an armory. Dear Mr. Kelton:
Your request for an opinion reads as follows: "Bids for the construction of aNational Guard armory in El Pasowere opened on 14June 1971. Contractors were required to include in their bids an alternate to build at a location other than or inaddition to thepresent site.
"Asa consequence of thisprocedure, the results of the two lowbids are as follows: "Ponsford Construction Company Base bid and all alternates, except the new site $299,810 Alternate to construct at the new site 1,700 $301,510
"Croom Construction Company Base bid and all alternates, except the new site $298,780 Alternate to construct at the new site 4,750 $303,530

-4338-Hon. Harry B. Kelton, page 2 

### (M-890)

"Since armories are constructed under theprovisions of PL 783 on a'75% Federal, 25% State fundingbasis, invitations tobids were advertised at this time topreclude the loss ofFederal participating funds for thisproject or other possible disadvantages if the Federal money isnot obligated by the end of the Federal FY 1971, or on 30June 1971. "Thematter of abase and an alternate site as apart of the bidding consideration has been occasioned by apossible exchange ofproperties between the State of Texas and the Federal Government, the authority forwhich isnow pending in the U. S. Congress. In the event the legislation iseffected, the new or alternate site,which is much more suitable, would be the one designated for construction of the armory. Should the legislation fail topass, construction on thepresent sitewould result.
"Your opinion isrequested as follows: "Under the competitive bid law, does the Armory Board have authority to award the contract to the Croom Construction Company, which is lowest with regard to thepresent site and to issue a change order when and ifCongress enacts legislation to effect an exchange of sites?
"In the event your opinion pertaining to the above question isnegative, can theArmory Board contract with the Ponsford Construction Company for construction of the armory at the alternate location when that site isnot owned by the State, for the reason stated above, and delay issuance of awork order pending favorable Congressional action with regard to the exchange ofproperties?

-4339-Hon. Harry B. Kelton, page 3 (M-890)

"Since the above two questions and thebidding involve the unknown factors of the element of time, as related to action, can a either of the a fixed bid, price, and Congressional

valid contract be entered intowith above construction companies? t, 13

.... InTexas Highway Commission v. Texas Association of Steel Importers, 372 S.W.Zd 525 (Tex.Sup. 1963), the Supreme Court of Texas citedwith approval a statement in Sterrett v. Bell, 240 S.W.Zd 516, 520 (Tex.Civ.App. 19511, setting forth the requirements and,purposes of competitive bidding as follows:

"'Competitive bidding' requires due advertisemerit,giving opportunity tobid, and contemplates abidding
. . .upon the same thing. It requires that allbidders be placed upon the same plane of equality and that they each bid upon the same terms and conditions involved in all the items andparts of the contract, and that theproposal specify as to all bids the same, or substantially similar specifications. Itspurpose is to stimulate competition, prevent favoritism and secure thebest work and materials at the lowest practicable price, for the best interests and benefit of the taxpayers and theproperty owners. There canbe no competitive bidding ina legal sensewhere the terms of the letting of the contract prevent or restrict competition, favor a contractor or material man, or increase the cost of thework or of thematerials or other items going into theproject."
In the instant case all bidders were placed upon the same plane of equality and each bid upon the same terms and conditions involved inall items andp,artsof the construction project. In the invitation forbids Alternate No. 5stated:

-4340-Hon. Harry B.Kelton, page 4 (M-890)

"Biddermust show the amount tobe added to his total bid price for construction of the armory and all facilities on the alternate site as shown on sheets No. 2-A, 3-A and 4-A of the plans. Site work, utility lines extension, access roads and curbs only are affected. All other work remains unchanged."
In determining the lowest responsible bidder the awardingagency isnotperforming amere ministerial dutybut isexercising a dutywhich isdeliberative anddiscretionary. Attorney General's Opinion V-1536 (1952). The awarding agency may take into consideration among other things the ability, capacity, experience, efficiency and integrity of thebidders aswell as their financial responsibility. Attorney General's Opinion V-1565 (1952). In exercising honest judgment the awarding agency's determination of the lowest andbest bidwill not be interfered with in the absence of fraud or an abuse of discretion. Attorney General's Opinion V-1565, supra.
Inview of the foregoing, your questions are answered as follows: If, in the opinion of theArmory Board, it is for thebest interest and benefit of the State under the facts submitted, it may award the contract to the Croom Construction Company, which is lowestwith regard to the present site and issue a change order when and if Congress enacts legislation to effect an exchange of sites. 

### If.in the opinion of theArmory Board, it is for thebest interest and benefit of the State under the facts submitted, it may award the contract to Ponsford Construction Company for construction of the armory at the alternate location when that site isnot owned by the State and delay issuance of awork order pending favorable Congressional action with regard to the exchange ofproperties.

-4341-. .

Hon. Harry B. Kelton, page 5 

### (M-890)

Inother words, it is our opinion that either contract may be awarded by theArmory Board in the exercise of its sound judgment and neither award would in our opinion constitute an abuse of discretion under the facts submitted.
SUMMARY Where the cost of construction of an armory varies as to alternate sites to be named by theArmory Board, which involve unknown factors of the element of time as related to fixed bid, price and Congressional action, it iswithin the sound discretion of the Armory Board to determine the lowest andbest bid aswill be for ,thebest interest and benefit of the State.
Ve # truly yours,

General ofTexas Prepared by John Reeves Assistant Attorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E.Allen, Co-Chairman Pat Bailey Mike Stork R. D. Green Roger Tyler
MEADE F. GRIFFIN Staff Legal Assistant
ALFRED WALKER Executive Assistant
NOLA WHITE' First Assistant -4342-