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## THE AFFORNEY GENERAL

AUSTIN.TEXAS

PRICE DANIEL *TTORNEY‘Eh‘E8.a February 20, 1948

Hon. Joaeph C. Ternus CountyAttorney San PatrlcioCounty Sinton.Texas Opinion Ho. V-506

Re: The necessityof lettina contractsbased on co~etltlve bidding for road work to be done by the Comtulssloners' Court Itself,rather than by a general contractor.

Dear Sir:

Reference Is made to your recent.raquest for an opinion of this Department,which reads, in part, as follows: "Sometime-ago~the Connty of-San PatrlOio voted a $1;500,000.00 bond Issue to improve and constructroads in this county. The mohey Is now avtiilable and the oommLssloners expect to @end at least $750,000.00 of this money on road Improvements and constructiondone directly under their imme& iate supervl.slon

anB direction; that Is to say, It Is not contemplatedthat the work would be let to a contractorunder bid to do a completed job, but that the commlssionem would, with the'help of an engineerhired for that purpose,do their own road constructionand rebuilding. This will necsasltatemany direct, individuale%pendltures of money since they contemplate purobaslng road materials themselves,directlypaying for hauling, etc. In other words, the commisslonersdo not contemplate'contractlng with anyone for an 'end Item', I. e. a completed roab.

"I would appreciatereceivingan opinion from you concerning the questionshereinafter set forth.188
Hon. Joseph C. Terms, page 2 (V-506)

"Questlon,Bo.

1. Is there any law requiring the commlssioners~ court to let the San PatriciaCounty road building and improvementprogrtim

out on oontract~under competitive

bids, or may the commissioners1 courtbuild and improve the roads, doing the job themselves?

. . . "Question

No. 2. There will be consic¶- erablehauling to be done. The commisslonera would like to hire local men in the county, who own trucks, to do most of the hauling. It 1.3

further contemplatedto pay for the hauling on a yardage basis. It is fur-

.. ther contemplated

that, if a man were to start hauling for the oounty and hauled as long as the countyhad work for him to ao, he would be paid a total In excess of $2,CCO.- 00; however, the man would probablybill the countyby the week which amount would probablybe under $2,000.00peti week.' Does Art. 2368a, Section 2 (or any other law), require this type of work to be let under competitivebids? "Question

No. 3. It is contemplated that the commLssloners~ court would hire from the owner a dragline,the owner furnishing the operatorand bearing the expenses and upkeep of the dragline; to be used in excavatingroad material and placing same in the dump trucks, the owner of the draglineto be paid &t the rate of SO much a yar@ loaded In the dump trucks. Would Art; 2368a, Section 2“(or any.,,other law) require that the oommissioners' court let this type of contractout for bids? "QuestionHO. 4. Akme that the dragline owner referred to above also. furnishedthe road building materials, would not Art. 1659 apply so that in that case the contractwould have to be let Under bids?
"The dragline owner in both Instances above would bill the county either by the day or by the week as the work progresses;Hon. Joseph C. Ternus,page 3 (v-506)

of any nature or characterupon such county or any subdivisionof such oounty or upon auoh olty, without first submittingsuch proposed contract to competitive bids.

. . “Provided,that in case of public. calamity,where it becomes necessaryto act at once to appropriate money to relieve the necessity of the citizens,or to pre - ,serve the property of such county or city, or where it is necessary to preserve or protect the public health of the citizens of such county or city, or in case of unforeseendamage to public property,machinery,or equipment,this provision shall not apply; and provided further, that it shall not be applied to contractsfor personal or for professionalservlces,nor to work done by such county or city'andpaid for by the day, as such work prbgresses.”
Ths purpose of these provisionsis to enable counties to obtain the performanceof any public work at the lowest possible cost to taxpayers. However, the Commissioners t Court has the option of carrying on the work itself and the provIsionsof Article 2368a do not apply to any work done under the direot supervlslonof the County Conrmlssloners, 'and paid for by the day. Gulf Bltullthlc Compan ?ur. c v. &4oes County (Corn. App.) 11 S.W. (26) 305; 11 Tex. 6 3. 'I;herefore,

It is our opinion that the Commissioners' Court has authorityto do this work in the same ~manner that they provide for other constructionon the countyhighway system ,lnstead of asking for bids from private concerns.
Inasmuch aa your questions2 and 3 are 80 closely related, and since the same rule of law will govern in eaoh lnstanoe,we shall oonsiderboth questionstogether.
The provisionsof the above dltter4ntfrom Article 2368 uoted Article 2368a am somewhat ? now repealed),but the same rule of law 

### l pplicablsunder Article.2368 may now-be applied under Arti~cle 2368a. W4 do not believe that such contractsas presentedT$ th4 above questionsare."such as to require oompotitivebids; Commissioners'

Court may terminate the employment in each instance eny time It drsires to do so*
The caao of Jackson v. Noel, 37 S.W. (26) 787, wan one In which the Commfssionsra' Court of Way County has entersd Into a contract with appsllantJacksonby which Jackson agreed to furnish certain road material for public roads for a prioe of $3.00 per yard of' gravel and material to be paid by Gra32 County;. further the price agroad upon was greatly fn excess of ,ccc.cc.Hon. Joseph C. Ternus,page 4 (v-5061

The court in passing upon the question of whether such a contract oame within the provisionsof Article 2368, had this to say:,

"The contractmade by the commfssioners' court with' Jackson~through

Coxs one of its **commisslon4r8,** was for the hauling of material and for the spreadingof same on the road. ;The record does not disclose that any contractwas made with reforonco to the plaoing of such material upon any specialnumbor of yards of road, and no number of yards of gravel or caliche or other materialwas contractedfor; hence It dannot be said that the making of the contract called for the expenditureof the sum of $2,000 or more. In other words, it was such a contract for the deliveryof material that work could be stopped at any time.
*That the contractnow before this court is not controlled

by article 2368, R.C.S. See Gulf Bttullthlc Co. v. Nueces County (Tex.Com. App.). 11 S.W. (2%) 30% -
"For the reason that the evidencefails to dLsclose that the contract as made with Jacksonnecessarily amounted to the sum of #2,000, and for the roason that the conmlsaloners~~ court9when having county road work done under its supervision, was not llmlted~ to such sum In the repair of the roads of the county and that they had the option as to whether suah work shouldbe mubmittedto competitive bidders,w4 rovers8 .thejudgmentof the trial court* and remand the cause for another triaz."

Therefore;in view of the foregoing, it Is the opinion or thla Department that your questions2 and 3 shouldbe answored In the nogativs.

Artlola 1659, V.C.S., Is aa follows%

wSuppllesof over kind, road and bri o~matsrlal, any other materia

9p 9 for the ua4 of sal county, or of ltr offloors,departments, or institutiona

must purchasedon competitive bids,.th4 contract-t?-bo or tty
awarded to the party who9 in the judgmentof the commissionoraCourt, had'rubmlttedthe lowest and bort bid. The oounty auditor shall advertisefor a perlod of two weeks in at least one daily newapapor.I\, published and oirculatsdIn the county9for such suppllss and material aocordfngto specifl&atlons, glvi,ng in d&all what is needed. Such advertisements shall atats whsro the specifications are to be found, and shall give th4Hon. Joseph C. Ternus page 5, (v-506)

time and,place**for** receiving such bids. All such competitive

bfds shali be kept on file by-the county ,audqtor

as a part of the records of hfa office, and shal,l

be subject to inspectionby any one desiring to see them. Copies of all bfds received snail be furnis!led by the county auditor to the county judge and to the commissionerscourt; and when the bids received are not satisfactoryto,the said judge or county commissioners, the auditorshall reject said bids and readvertfsefor new bids. In cases of emergency,pur=has-es not in excess of one hundred and fifty doli.ars may be made upon requisftfon to be approvedby the commissionerscourt, without advertfsfngfor competftfve bfds."

In thecase of iEast Texas Const. Co. v. Lfberty County, 139 S.W. {2d) 669# the court fn passPng upon the question of whether gravel 'purchased

by the countysk;ould be under competitfvebids said: "Since, on the allegatfonaof the petition, the gravel fn controversy was sold and deliveredby appellantand acceptedby appellee on contract

. without competitive bids, the oontractwas unauthorfzed by law."

So4 also Wyatt (2%) 787. Meta; and Broiler Works 'v.

Farmin County, 111 S.W.

&o&fore, in'viow of the foregoing,it is our opinion that road buildingmaterfals purchasedby the county,,mustbe submitted under.competftive

bids.

In compliancewit&your request,we are encPosfng the following opfnfonss v-285, C-6369, O-6$6, and C-2955.
subwRY

X0. The CommisaloneraD Court is not rsquired to let a contractunder oompetitfve bids to build dounty roads? but may supervisethe buflding of the .same ft44u. Art. V, Sec. 18, Art. XI, SerP.'2$ Art. XVI. Se0 24# State Constitution; Art..2351,V.C.S.; @.Qf Bitulfthfc Co. v. Nizeces Co. (Corn.

App.). 11.S.W.. .@d) 3%.
2. In the constructionof oounty roads, the CommfssfoneracCourt may employ persons to haul gravel and material, and pay them on a per yard baais, without requfrfn Jackson v. Noel, 37 S.W. (2%

7 competftivo

bids. 787. .- ~,Hon. Joseph C. Ternus page 6, (V-506)

3. Road building material purchased by the county must be submitted under competitive bids. Art. d~59~ .V.C.S.;East Texas Const. Co. v. Liberty Coay, 139 S.W. (2d1 669,

Yours very truly,
AlTOFiNEYGENERAL OF TEXAS

S/ B&ice Allen

BY Bruce Allen Assistant

APPROVED:
s/ Fagan'Dickson

FIRiT ASSiSTANT ATTORNEY GQWUL
Bh:mw/cge