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 a National 

Guard armory in El Paso were opened on 14 June 

1971. Contractors were required to include in 

their bids an alternate to build at a location 

other than or in addition to the present site. 

"As a consequence of this procedure, the 

results of the two low bids 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 the provisions of PL 783 on a'75% Federal, 25% State funding basis, invitations to bids were advertised at 

this time to preclude the loss of Federal participating funds for this project or other possible 

disadvantages if the Federal money is not obligated 

by the end of the Federal FY 1971, or on 30 June 1971. 

"The matter of a base and an alternate site 

as a part of the bidding consideration has been 

occasioned by a possible exchange of properties 

between the State of Texas and the Federal Government, the authority for which is now pending in 

the U. S. Congress. In the event the legislation 

is effected, the new or alternate site, which is 

much more suitable, would be the one designated 

for construction of the armory. Should the legislation fail to pass, construction on the present 

site would result. 

"Your opinion is requested 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 the present site and to issue a 

change order when and if Congress enacts legislation to effect an exchange of sites? 

"In the event your opinion pertaining to the 

above question is negative, can the Armory Board 

contract with the Ponsford Construction Company 

for construction of the armory at the alternate 

location when that site is not owned by the State, 

for the reason stated above, and delay issuance 

of a work order pending favorable Congressional 

action with regard to the exchange of properties? 

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

"Since the above two questions and the bidding 

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 into with 

above construction companies? 

t, 13 . . . . 

In Texas Highway Commission v. Texas Association of Steel 

Importers, 372 S.W.Zd 525 (Tex.Sup. 1963), the Supreme Court of 

Texas cited with 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 to bid, and contemplates 

a bidding . . . upon the same thing. It requires 

that all bidders be placed upon the same plane 

of equality and that they each bid upon the same 

terms and conditions involved in all the items 

and parts of the contract, and that the proposal 

specify as to all bids the same, or substantially 

similar specifications. Its purpose is to stimulate competition, prevent favoritism and secure 

the best work and materials at the lowest practicable 

price, for the best interests and benefit of the 

taxpayers and the property owners. There can be 

no competitive bidding in a legal sense where the 

terms of the letting of the contract prevent or 

restrict competition, favor a contractor or 

material man, or increase the cost of the work 

or of the materials or other items going into 

the project." 

In the instant case all bidders were placed upon the 

same plane of equality and each bid upon the same terms and conditions involved in all items and p,arts of the construction project. In the invitation for bids Alternate No. 5 stated: 

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

"Bidder must show the amount to be 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 awarding agency is not performing a mere ministerial duty but is exercising a duty which is deliberative and discretionary. 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 the bidders as well as 

their financial responsibility. Attorney General's Opinion V-1565 

(1952). In exercising honest judgment the awarding agency's 

determination of the lowest and best bid will not be interfered 

with in the absence of fraud or an abuse of discretion. Attorney 

General's Opinion V-1565, supra. 

In view of the foregoing, your questions are answered as 

follows: 

If, in the opinion of the Armory Board, it is for the best 

interest and benefit of the State under the facts submitted, it 

may award the contract to the Croom Construction Company, which is 

lowest with 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 the Armory Board, it is for the best 

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 is not owned by the State and delay issuance of a work order 

pending favorable Congressional action with regard to the 

exchange of properties. 

-4341- 
. . 

Hon. Harry B. Kelton, page 5 (M-890) 

In other words, it is our opinion that either contract may 

be awarded by the Armory 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 the Armory Board, which involve 

unknown factors of the element of time as 

related to fixed bid, price and Congressional 

action, it is within the sound discretion of the 

Armory Board to determine the lowest and best 

bid as will be for ,the best interest and 

benefit of the State. 

Ve 

# 

truly yours, 

General of Texas 

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-