# The Attorney General ofTexas February23,1982 MARK WHITE Attorney General

supremecourt BulldIng P.0. Box 12549 Austin. TX. 79711-2549 5t2i475-2501 T&.x 91Ol974-1397 Telecopier 51214750299

1907 Main SL.suite 1400 oallaa. TX. 752OlaO9 214i742-9944

4924Al3Wta Ave..SUitS160 ElPaw. TX. 799u52792 91-2494

1220Dallas Ave..suite 202 Houston. TX. 770028999 7l26905999

905 Brcadway. Suite312 Lubbock. TX. 79401.3479 909!7476239

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An Equal Oppoftunityl Afflrmatlve Actlon Employer Honorable HenryWade CriminalDistrict Attorney Condemnation Section Sixth Floor,Records Building Dallas, Texas 

### 75202 Opinion No. MW-449 Re: May a county award a bid with conditionsdifferent from those stated in the bid specifications
DearMr. Wade:
You ask whether a conunissionerscourt may accept a bid with conditionsdifferent from those set out in thebid specifications.
You state that the purchasing agent 

### sent out bid documents for the purchase of asphalt, liquids, road,oils,.and similar.items. Although the “Notice and Instructions to Bidders” uses the term “annual contract” in relation to such items,none of thebid documents provide the specific term of the contract. Company A submitted a 

### timelybid on some of the items, and the bid was accepted by the commissioners’court on January 5, 1981.by an order. The Specifications/BidProposal likewisedid not state a contract term for thebid. The following languageappears therein:

Prices are to be firm for the contract period. Vendor may raise prices only when the market justifies with a 

### 30 day written notice. The contract may be terminated on a 

### 30 day written notice by either party. Apparently. Company B submitted.anuntimelybid for the remaining items covered by the same bid proposal on January 9. 1981.which bid the commissioners’court accep~ted by another order. Each of the two orders provided that each contract was awarded to the lowestbidder “as per specifications and prices set forth in bid” and “as per proposalpresented.” The bid from Company B which was accepted by the commissioners court contained a provision which was added by the bidder saying “[tlhe above prices are subject to change without notice.” Company B

p. 1546.. HonorableHenryWade - Page 2 (MU-449)

also changed the units from tons to gallons or pounds on some of the asphalt items. Competitivebidding is the foundation for purchasing by agencies of the state of Texas. The supreme court in an opinion by Justice Norvell states:

The purpose and intent of competitive bidding ordinances and statutes are well stated in Sterrettv. Bell, Tex. Civ. App.. 240~S.W.2d 516, 520 (nowr. hist.)wherein itwas said: 'Competitive bidding' requires due advertisement, giving opportunity to bid, and contemplates a bidding on the same undertaking upon each of the same material items covered by the contract; 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 termsand conditions involvedin 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 benefits of the taxpayers and 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 contractoror materialman. or increase the cost of the work or of thematerials or other items going into the project. Texas Highway Commission V. Texas Association of Steel Importers, Inc., 372 S.W.2d 525. 527 (Tex. 1963). Article 2368.V.T.C.S.. requires thatpurchasesby commissioners courts or by cities in amounts of $3.000 or more must be committed to competitivebidding, and the case of Kelly v. Cochran, 82 S.W.2d 641 (Tex. 1935). finds the failure to have competitivebidding as grounds forholding a commissionerscourtpurchase contract invalid. See also V.T.C.S. arts. 1659. 16598.
In setting out requirements for purchasing contracts for materials based on unit prices,article2360a states in section 2a. in pertinentpart:

In the event a contract is to bc let on s unit price basis, the information furnished bidders

p. 1547Honorable HenryWade - Page 3 (PIW-449)

shall specify theapproximatequantities estimated upon the best available information, but the compensation paid the contractor shall be based upon the actual quantities constructed or supplied.
We could find no approximation of quantities in the bid specificationsas required above in section 2a. You pointed out also that the various provisions in the bid specificationswith regard to the contract term and prices are themselves contradictory and confusing. On the one hand. the languageprovides that theprices are to be firm for the contract period, but the contract period is not specifically set out. These ambiguous invitationsand instructions for competitivebids left the bidding requirements to conjecture so that competitive bidding was prevented. The bids submitted in response thereto should not have been accepted. See Attorney General Opinions MU-299 (1981); - U-24 (1973). The untimelybid also violated article 2368a and would be void as section 2(d) states:

(d) Any and all such contracts or agreements hereafter made by any county or city in this state, without complying with the terms of this Section, shall be void and shall not be enforceable in any court of this state and ,the performance of same and the payment of any money thereunder may be enjoined by any property taxpaying citizen of such county or city.
We do not reach your secondquestionwhich was contingentupon an affirmative answer to the first question. SUMMARY The Commissioners Court of Dallas County may not accept a bid with conditions different .from those stated in thebids.

F MA.R-K WRITE Attorney General of Texas JOAN W. FAINTER, JR. FirstAssistantAttorney General

p. 1548**. I**  Honorable **Henry** Wade - Page 4 (MU-449)

RICHARD E. GRAY III ExecutiveAssistant Attorney General ~Preparedby Jean Cornelius AssistantAttorneyGeneral APPROVBD: OPINION COMMITTEE Susan L. Garrison, Chairman Jon Bible Jean Cornelius Rick Gilpln Jim Hoellinger BruceYoungblood

**P.** 1549