Mr. Urn. J. Burke 

Executive Director 

State Board of Control 

P. 0. Drawer GG, Capitol Station 

Sam Houston State Office Bldg. 

Austin, Texas 78711 

Opinion No. C-676 

Re: Authority of the 

State Board of 

Control to accept 

Dear Mr. Burke: 

Your request 

"On April 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 Departments requisition #~Fc-1875-s and requisition #GFC1876-S. The requisitions covered 60 and 68 

automobiles, respectively. Sample copies of 

the bid invitations are attached 

files; the first page of the bid 

contains the following language: 

'with exceptions and extras 

specifications attached.' 

for your 

invitation 

as per 

"Bids were opened on April 20, 1966. Each 

bidder Identified the make, model and engine 

horsepower, price per unit and delivery promise 

of each bidder. 

"The list of 'exceptions and extras . . . 

attached' contained as item 35 the following 

language: 

'all bids to be accompanied by manufacturer's statement that engines bids were 

designed to operate on regular gasoline.' 

"This language of item 35 of the list which 

was attached to and made a part of the bid invitation as quoted in this paragraph has been variously 'interpreted by biddera invited to bid on 

-3255- 
Mr. Wm. J. Burke, page 2, (C-676) 

the two above numbered requisitions. 

"One interpretation is that when the bidder 

furnished the make, model and engine horsepower 

and does not take written exception to the requirements listed in the attached 'exceptions and 

extras' which includes the language of item 35 

that he in effect has accepted all requirements 

of the bid invitation and has additional proof 

of compliance with the engine fuel requirements 

as identified in item 35; that the information 

can be furnished either with or subsequent to 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 Control may call 

for additional or supporting evidence of compliance 

with the bid invitation and that such additional 

information is for the use of the Board of Control 

in making a final d~etermlnation. 

"A second interpretation is that when the 

language of item 35 used 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 

statement be attached to the bid and available 

to the Board of Control as of the time of bid 

opening. It is further interpreted that lnformation furnished subsequently cannot be considered 

in making the determination for the award. 

"Our question Is (1) where the make, model, 

engine horsepower, price and delivery information 

is given in the form of a formal bid and that no 

exceptions have been taken to any of the conditions 

in the bid document and that complete compliance 

with all conditions is apparently the intention of 

the bidder, can the Board of Control accept from 

the bidder a subsequent submission of data for 

verification purposes without jeopardizing the 

status of the bid? 

'Our other question: (2) is the following 

language of item 35 'all bids 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 that must be met to guallfy the bid 

as of the opening date 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 bidders were designed to operate 

on regular gasoline was 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 product bid (make, 

model, engine number) but merely stated that the engines bid were 

designed to operate on regular gasoline. Accompanying the other 

bid was a similar statement made by a regional service manager (no 

corporation or company identified) rather than an officer of the 

manufacturer. 

All language and every part of the bid invitations 

and specifications should be given effect if reasonably possib1 .e and the bid Invitation should be construed as a whole 

with the view of obtaining the make, model, and engine horsepower which is designed for the particular use 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 determining who 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 service required; 

"(2) Whether the bidder can perform the 

contract or provide the service promptly, 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; 

-3257- 
Mr. Wm. J. Burke, page 4, (c-676) 

“(6) The sufficiency of 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 particular use required; 

“(8) The ability of the bidder to provide future maintenance, repair parts, and 

service for the use of the subject of the 

contract; 

attacL!z)toTkhe bid. 

e numbef: and scope of conditions 

Since the Board of Control is required to determine 

whether a particular product (in the instant case automobiles) 

has the adaptability to particular use required by the State 

agency for whom the purchase is made, the Board of Control had 

to be satisfied in the instant case that the engines bid were 

designed to operate on regular gasoline and all bidders were 

notified in the bid invitation that only automobiles with 

engines designed to operate on regular gasoline would be accepted by the Board of Control. Thus, the Board of Control Is authorized under Article 664-3, V.C.S., to accept the bid of a 

responsible bidder who furnishes Information satisfactory to 

the Board of Control that the automobiles bid had the adaptability to the particular use required as set out In Article 

664-3. 

Under the facts submitted by 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 

submission of data enabling the Board of Control to determine 

the adaptability of the engines bid %o the particular use required, and this data may be submitted subsequent to the bid 

opening without jeopardizing the status of the bid. Under the 

facts submitted, no change has been made In the make, model, 

engine number, price, or delivery agreement by the furnishing 

of additional information necessary for the Board of Control 

to make the determination required 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 opening date of the bids. 

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

SUMMARY 

Where bid invitations for automobiles are 

received by the Board of Control giving the make, 

model, engine, horsepower, price and delivery 

information, and no exceptions have 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 additional data for verification purposes enabling the Board of Control to 

determine the adaptability of the particular 

automobile bids to the particular use required 

of the agency for whom the purchase is made. 

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 

-3259-