Mr. Urn.J. Burke

Executive Director State Board of Control P. 0. Drawer GG, Capitol Station Sam Houston State OfficeBldg. Austin, Texas 78711 OpinionNo. C-676 Re: Authority of the State Board of Control to accept

Dear Mr. Burke:

Your request "OnApril 5, for verification purposes additional data on automohf~les after bid opening. for an opinion reads In part as follows: 1966, two bid invitations were released by the State Board of Control covering Parks and Wildlife Departmentsrequisition#~Fc-1875-s and requisition#GFC1876-S. The requisitions covered 60 and 68 automobiles, respectively. Sample copies of the bid invitationsare attached files; the first page of the bid contains the following language: 'withexceptions and extras specificationsattached.' for your invitation

as per
"Bidswere opened on April 20, 1966. Each bidder Identified themake, model and engine horsepower,price per unit and delivery promise of each bidder. "The list of 'exceptionsand extras
. . . attached' containedas item 35 the following language: 'allbids to be accompaniedby manufacturer's statementthat engines bids were designed to operate on regular gasoline.' "This language of item 35 of the listwhich was attached to and made a part of the bid invitation as quoted in this paragraphhas been variously 'interpreted by biddera invited to bid on

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the two above numbered requisitions. "One interpretationis thatwhen the bidder furnished the make, model and engine horsepower and does not take written exception to the requirements listed in the attached 'exceptionsand extras'which includes the language of item 35 that he in effect has accepted all requirements of the bid invitationand has additionalproof of compliancewith the engine fuel requirements as identified in item 35; that the information can be furnished eitherwith or subsequentto the formal opening of the bids and that such engine design for regular fuel is not necessarily a condition that must be met before the bid can be considered. "Also that the Board of Controlmay call for additional or supporting evidence of compliance with the bid invitationand that such additional information is for the use of the Board of Control inmaking a final d~etermlnation.
"A second interpretationis thatwhen the language of item 35used the word 'accompanied' that it also meant that if the manufacturer's statement that engines bid were designed to operate on regular gasoline required that such statementbe attached to the bid and available to the Board of Control as of the time of bid opening. It is further interpretedthat lnformation furnished subsequentlycannotbe considered in making the determination for the award. "Ourquestion Is (1) where the make, model, engine horsepower,price and delivery information is given in the form of a formalbid and that no exceptionshave been taken to any of the conditions in the bid document and that complete compliance with all conditions is apparently the intentionof the bidder, can the Board of Control accept from the bidder a subsequent submissionof data for verificationpurposeswithout jeopardizingthe status of the bid? 'Our other question: (2) is the following language of item 35 'allbids to be accompanied by manufacturer's statement that engines bid were designed to operate on regular gasoline'

-3256-Mr. Wm. J. Burke, Page 3, (C-676)

a condition thatmust be met to guallfy the bid as of the openingdate and time?
In addition to the facts stated In your request, the requisition file reflects that the manufacturer's statement that the engines bid by one of the bidderswere designed to operate on regular gasolinewas received by the Board of Control after the bid opening. The statement from the manufacturer in no way changed or modified the price bid or the productbid (make, model, enginenumber) but merely stated that the engines bid were designed to operate on regular gasoline. Accompanying the other bid was a similar statementmade by a regional servicemanager (no corporation or company identified)rather than an officer of the manufacturer.

All languageand every part of the bid invitations and specifications shouldbe given effect if reasonably possib1 .eand the bid Invitation shouldbe construedas a whole with the view of obtaining themake, model, and enginehorsepower which is designed for the particularuse required by the Parks and Wildlife Department.Article 664-3, Section 8, Subdivision (f)(7), Vernon’s Civil Statutes.

Subdivision (f) of Section 8 of Article 664-3, V.C.S., controls the award of contracts to bidders and reads as follows:

"(f) Award of Contract. The Board shall award contracts to the bidder submitting the lowest and best bid. In determiningwho is the lowest and best bidder, in addition to price, the Board shall consider: "(1) The ability, capacity and skill of the bidder to perform the contract or provide the servicerequired; "(2) Whether the bidder can perform the contract or provide the servicepromptly, or within the time required, without delay or interference;

“(3) The character,responsibility, integrity, reputation, and experience of the bidder; "(4) The quality of performance of previous contracts or services;

“(5) The previous and existing compliance by the bidder with laws relating to the contract or service;

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“(6) The sufficiencyof the financial resources and ability of the bidder to perform the contract or provide the service;

“(7) The quality, availability and adaptability of the supplles, or contractual -tothe particularuse required;

“(8) The ability of the bidder to provide futuremaintenance, repair parts, and service for the use of the subject of the contract;
attacL!z)toTkhebid.

e numbef:

and scope of conditions
Since the Board of Control is required to determine whether a particularproduct (in the instant case automobiles) has the adaptability to particularuse required by the State agency for whom the purchase ismade, the Board of Control had to be satisfied in the instant case that the enginesbid were designed to operate on regular gasoline and all bidderswere notified in the bid invitationthat only automobileswith engines designed to operate on regular gasolinewould be accepted by the Board of Control. Thus, the Board of Control Is authorizedunder Article 664-3, V.C.S., to accept the bid of a responsible bidder who furnishes Information satisfactoryto the Board of Control that the automobiles bid had the adaptability to the particularuse required as set out In Article 664-3. Under the facts submittedby you, these conditions have been met in the instant case. You are, therefore,advised that the Board of Control can accept from the bidder subsequent submissionof data enabling the Board of Control to determine the adaptability of the engines bid %o the particularuse required, and this data may be submitted subsequentto the bid openingwithout jeopardizingthe status of the bid. Under the facts submitted,no changehas been made In the make, model, engine number,price, or delivery agreement by the furnishing of additional informationnecessary for the Board of Control to make the determinationrequired by Section 8 of Article 664-3. It necessarily follows that the language of item 35 concerning the manufacturers statement that engines bid were designed to operate on regular gasoline is a condition that may be met subsequent to the openingdate of the bids.

-3258-Mr. Wm. J. Burke, page 5, (c-676)

SUMMARY Where bid invitationsfor automobilesare received by the Board of Control giving themake, model, engine,horsepower,price and delivery information,and no exceptionshave been taken by the bidder to any of the terms and conditions of the bid invitation, the Board of Control can accept from e bidder additionaldata for verification purposes enabling the Board of Control to determine the adaptability of the particular automobilebidsto the particularuse required of the agency for whom the purchase ismade. Yours very truly, WAGGONER CARR Attorney General

y*eY / Assistant JR:sck:mkh APPROVED8 OPINION COMMITTEE
W. V. Geppert, Chairman Pat Bailey Wade Anderson W. 0. Shultz Terry Goodman APPROVED FOR TRE ATTORNEY GENERAL BY: T. B. Wright

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