The Attorney General of Texas 

February 23, 1982 

MARK WHITE 

Attorney General 

supreme court 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 

4924 Al3Wta Ave.. SUitS 160 

El Paw. TX. 799u52792 

91-2494 

1220 Dallas Ave.. suite 202 

Houston. TX. 770028999 

7l26905999 

905 Brcadway. Suite 312 

Lubbock. TX. 79401.3479 

909!7476239 

4309 N. Tenth. .Suite B 

McAllsn. lx. 79901-1995 

tiw992.4947 

200 MLkl Ptua. Sult9 400 

Ban Antonlo. TX. 792052797 

5G?i2254191 

An Equal Oppoftunityl 

Afflrmatlve Actlon Employer 

Honorable Henry Wade 

Criminal District Attorney 

Condemnation Section 

Sixth Floor, Records Building 

Dallas, Texas 75202 

Opinion No. MW-449 

Re: May a county award a bid 

with conditions different from 

those stated in the bid 

specifications 

Dear Mr. Wade: 

You ask whether a conunissioners court may accept a bid with 

conditions different from those set out in the bid 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 the bid documents 

provide the specific term of the contract. Company A submitted a 

timely bid on some of the items, and the bid was accepted by the 

commissioners’ court on January 5, 1981. by an order. 

The Specifications/Bid Proposal likewise did not state a contract 

term for the bid. The following language appears 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.an untimely bid 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 lowest bidder “as per specifications and prices set forth in bid” 

and “as per proposal presented.” 

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 
. . Honorable Henry Wade - Page 2 (MU-449) 

also changed the units from tons to gallons or pounds on some of the 

asphalt items. 

Competitive bidding 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 

Sterrett v. Bell, Tex. Civ. App.. 240~S.W.2d 516, 

520 (no wr. hist.) wherein it was 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 

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 

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 

contractor or materialman. or increase the cost of 

the work or of the materials 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 that purchases by commissioners 

courts or by cities in amounts of $3.000 or more must be committed to 

competitive bidding, and the case of Kelly v. Cochran, 82 S.W.2d 641 

(Tex. 1935). finds the failure to have competitive bidding as grounds 

for holding a commissioners court purchase contract invalid. See also 

V.T.C.S. arts. 1659. 16598. 

In setting out requirements for purchasing contracts for 

materials based on unit prices , article 2360a states in section 2a. in 

pertinent part: 

In the event a contract is to bc let on s unit 

price basis, the information furnished bidders 

p. 1547 
Honorable Henry Wade - Page 3 (PIW-449) 

shall specify the approximate quantities 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 

specifications as required above in section 2a. You pointed out also 

that the various provisions in the bid specifications with regard to 

the contract term and prices are themselves contradictory and 

confusing. On the one hand. the language provides that the prices are 

to be firm for the contract period, but the contract period is not 

specifically set out. 

These ambiguous invitations and instructions for competitive bids 

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 untimely bid 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 second question which was contingent upon 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 the bids. 

F MA.R-K WRITE 

Attorney General of Texas 

JOAN W. FAINTER, JR. 

First Assistant Attorney General 

p. 1548 
. 

I Honorable Henry Wade - Page 4 (MU-449) 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

~Prepared by Jean Cornelius 

Assistant Attorney General 

APPROVBD: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Jean Cornelius 

Rick Gilpln 

Jim Hoellinger 

Bruce Youngblood 

P. 1549