OFFKX OF THE ATTORNEY GENERAL. STATE OF TEXAS

JOHN CORNYN

November 3,1999

The Honorable Steven B. Payson Dawson County Attorney P.O. Box 1268 Lamesa, Texas 7933 1 OpinionNo. K-0136

Re: Whether a contract for ambulance service may be exempt t?om competitive-purchasing requirements in the County Purchasing Act, chapter 262, subchapter C of the Local Government Code, and related questions (RQ-0042-K)

Dear h4r. Payson:

You ask whether the Commissioners Court ofDawson County may contract for ambulance service pursuant to the County Purchasing Act (the “Act”), TEX.Lot. GOV'T CODEANN. ch. 262, subch. C (Vernon 1999), without engaging in competitive bidding. Because the contract for ambulance service is necessary to preserve or protect the public health or safety ofresidents of the county, the commissioners court may by order exempt it from the Act’s competitive bidding requirements.

You also ask whether the county may seek bids on the ambulance contract, open and reject allbids, anddecide to exempt the contract fromthe Act’s competitive-purchasing requirements. See Letter from Honorable Steven B. Payson, Dawson County Attorney, to Opinion Committee, Office of the Attorney General (Mar. 12, 1999) (on file with Opinion Committee) [hereinafter “Request Letter”]. After seeking competitive bids forambulance services andrejecting all ofthem, the county may not immediately proceed to award the contract to abidder who is not the lowest dollar bidder meeting specifications. However, once the Commissioners Court has decided in good faith to end the bidding process and to begin again the process of contracting for ambulance services, it may decide to exempt the ambulance service t?om the competitive bidding requirements of the Act.

You inform usthat Dawson County hasbid out the ambulance service fortenyears. The last two times have been for four-year contracts with a county subsidy, which consisted of $55,000 a year under the second four-year contract. The contract ended on January 1, 1999, and the present ambulance service provider asked for a subsidy of $72,000. The ambulance service was submitted topublic bidding and fourbids werereceived andopened on January 25,1999. The current provider requested a$72,000 subsidy, while other bidders sought lesser subsidies. The Commissioners Court rejected all bids at aspecial called meeting on February 8, 1999,and sought advice from this office. See Request Letter, supra. Pending the issuance ofthis opinion, we understand that the county has retained on amonth-to-month basis theprevious provider, who wasthehighest bidder, atthe subsidy requested in his bid. See id.The Honorable Steven B. Payson - Page 2 (~-0136)

A commissioners court may contract with aprivate entity to provide ambulance service for the county. TEX.

HEALTH & SAFETY

CODE ANN.$774.003(b) (Vemon Supp. 1999);see Tex. Att’y Gen. Gp.No. H-976 (1977). Weunderstand thatDawson County contracts with aprivate ambulance service to maintain, operate, and staff county-owned ambulances. Telephone Conversation with Honorable Steven B.Payson, Dawson County Attorney (May 12,1999); Agreement between County ofDawson and Dennis White (Jan. 9,1995) (tiled with Dawson County Clerk) (on tile with Opinion Committee). Ifacounty wishes topurchase items under contract requiring an expenditure in excess of $25,000, the Act requires it to comply with competitive bidding or competitive proposal procedures. See Act of May 21, 1999, 76th Leg., R.S., ch. 505, 5 2, 1999 Tex. Sess. Law Serv. 2989,299O (to be codified asan amendment to TEX. LOC. GOV’TCODEANN.

5262.023(a)); see&o TEX.Lot. GOV’TCODEANN. 4 262.030 (Vernon 1999) (competitive proposal procedure for insurance, high technology items, and certain special services). Contracts for certain items are exempt from the requirement ofcompetitive purchasing “ifthe commissioners court by order grants the exemption.” These include contracts for:

(1) an item that must be purchased in a case ofpublic calamity

. . . ;
(2) anitem necessary topreserve orprotect the public health or safety of the residents of the county;

. . (4) a personal or professional service;

. . .

TEX.Lot. GOV’T

CODE ANN.5 262.024(a) (Vernon 1999). The term “item” is defined to include

“any service, equipment, good, or other tangible or intangible personal property.” Id. $262.022(5). Chapter 262 of the Local Government Code does not forbid a county from contracting for any of these items through competitive bidding.

You suggest that a contract for ambulance service may be exempt from competitivepurchasing requirements either as a matter affecting the public health or safety, see id. $ 262.024(a)(2), or as personal or professional services, id. 9 262.024(a)(4). Attorney General Opinion M-806 of this offtce construed aprior version of the County Purchasing Act, see Act of May 25, 1967,6Oth Leg., R.S., ch. 376,s 1, 1967 Tex. Gen. Laws 870 (formerly codified as TEX. REV.Crv. STAT.ANN.art. 2368a, $ 2), and concluded that ambulance service is “necessary to preserve or protect the public health” of county citizens and, accordingly, that a county need not competitively bid a contract for these services. See Tex. Att’y Gen. Gp. No. M-806 (1971) at 6. You have asked that we reconsider Attorney General Opinion M-806 on the ground that the publichealth exemption should be restricted to purchases necessitated by apublic calamity. See Request Letter, supra. You note specifically that the Act has been revised and codified since this office issued Attorney General Opinion M-806. See id.The Honorable Steven B. Payson - Page 3 (Jc-0136)

We conclude that acontract for ambulance service is anitem necessary topreserve orprotect the public health or safety of county residents, and that a commissioners court consequently may exempt the contract from theAct’s competitive-purchasing requirements under section 262.024(a)(2) ofthe Local Government Code. SeeTEX. Lot. GOV’TCODEANN. 5262.024(a) (Vernon 1999). Our conclusion follows from Hoffman v. City ofM. Pleasant, a decision of the Texas Supreme Court, and Attorney General Opinion M-806. SeeHoffman v. Civ ofhft. Pleasant, 89 S.W.2d 193 (Tex. 1936); Tex. Att’y Gen. Gp. No. M-806 (1971).

InHoffman the Texas Supreme Court held that acounty need not competitively bid acontract for the purchase of items necessary to protect or preserve the public health, regardless of whether the purchase was necessitated by a public calamity. See Hoffman, 89 S.W.2d at 194. Hoffman construes the exemption fromthe competitive-bidding requirement “when itisnecessary topreserve
or protect the public health of the citizens of a county” to be independent of the exemption for purchases necessitated by apublic calamity. See id. Thus, Hoffman squarely rejects the argument that a contract for an item necessary to preserve or protect the public health must be competitively bid except in the case of apublic calamity. See id. at 194.

We find no change in the law that warrants areversal ofthe conclusion in Attorney General Opinion M-806 that ambulance service is an item affecting the public health. “The institution of an emergency ambulance service is

. incident to the police power of the state: i.e.[,] to protect the health, safety, and general welfare ofits citizens.” Branfley v. City ofDaZZas, 545 S.W.2d 284,285 (Tex. Civ.App.-Amarillo 1976,writref dn.r.e.) (and attorney general opinions citedtherein);tlyaZa

v. City ofCorpus Christi, 507 S.W.2d 324,328 (Tex. Civ. App.Corpus Christi 1974,no writ) (and attorney general opinions cited therein). The plain language of section 262.024(a)( 1)and (2) ofthe Local Government Code comports with the Supreme Court’s interpretation in Hoffman, separating purchases necessitated by public calamity from purchases necessary to preserve and protect the public health. Section 262.024(a)(2) must,therefore, be construed consistently with itspredecessor, the statute atissue in Hoffman. We affirm the conclusion ofAttorney General Opinion M-806, that
a contract for ambulance service may be exempted by order of the commissioners court under section 262.024(a)(2) ofthe Local Government Code from competitive-purchasing requirements as
amatter affecting the public health or safety.

You suggest that because the county hascompetitively bid the contract forambulance service forthepast ten years, andbecause other counties similarly competitively bid contracts for ambulance service, acustom has developed that prevails over the statute exempting a contract ofpublic-health items fiorn the competitive-bidding requirement. A statute is not repealed by nonuse, but remains in full force and effect until it is amended orrepealed by the legislature, or impliedly repealed by an irreconcilable statute. Interstate Forwarding Co. v. Vineyard, 3 S.W.2d 947, 957 (Tex. Civ. App.-Dallas, 1928), rev ‘ don other grounds, 49 S.W.2d 403 (Tex. 1932); GulfRefining Co. v. City ofDallas, 10 S.W.2d 151,158-59 (Tex. Civ. App.-Dallas 1928, writ dism’d w.o.j.). Accordingly, the custom inDawson County and other counties ofcompetitively bidding acontract for ambulance service does not repeal section 262.024(a) of the Local Government Code or otherwise bar a commissioners court from exercising its statutory authority to grant the exemption.The Honorable Steven B. Payson - Page 4 (JC-0136)

You also ask whether the ambulance service is excepted thornthe competitive purchasing requirements ofthe Act by the exception in that Act forpersonal orprofessional services. See TEX. LOC.GOV’TCODEANN. 5262.024(a)(4) (Vemon 1999). The determination that aparticularcontract is for “personal or professional services” within section 262.024 of the Local Government Code involves questions offact,which cannot beresolved in anAttorney General Opinion. SeeTex. An’y Gen. Gp. Nos. DM-418 (1996) at 13;DM-106 (1992) at 2; IM-I 136(1990) at 2-3; IM-486 (1986) at 1. Theprior opinions ofthis office do,however, provide guidance that may assist Dawson County officials in making this determination themselves. Attorney General Opinion IM-486 (1986), in considering whether acontract forjanitorial services was acontract for personal services within the predecessor of section 262.024 of the Local Government Code, stated as follows:

Someone who claims tohave rendered “personal services” must have performed the services himself. If the contract you ask about requires a specific person to perform janitorial services, it is a contract for personal services. If the contract merely requires a personoracorporationtoprovidepersonswho willperformjanitorial services, it is not a contract forpersonal services.

Tex. Att’y Gen. Gp. No. IM-486 (1986) at 1;see also Tex. Att’y Gen. Gp. No. JM-890 (1988) at 5 (determining as amatter of law that aparticular contract for microfilming services is not a contract for “personal services”). Ifthe contract covers items in addition to employees’ wages, such asthe

use of equipment, taxes, and insurance, the contract is one for personal services only if the cost of other items is substantially less than the cost of employee’s wages. See Tex. Att’y Gen. Op. No. MW-344 (1981) at 4.

This office has recognized in previous opinions that the term “professional services” in the Act may encompass more than the services ofphysicians, attorneys, or others traditionally regarded

as “professionals.” See Tex. Att’y Gen. Gp.No. JM-940 (1988) at 3. It may include “members of disciplines requiring special knowledge or attainment and a high order of learning, skill, and intelligence.” Id. Case law suggests that this term comprehends labor and skill that is

“predominantly mental or intellectual, rather than physical or manual.” Marylnnd Cuwalty Co. v. Crazy Water Co., 160 S.W.2d 102, 104 (Tex. Civ. App.-Eastland 1942, no writ). We need not decide whether the contract for ambulance services is exempt from the competitive bidding requirement of the Act, because it may be excepted as a matter affecting the public health. Moreover, this office generally abstains from determining whether a particular service is a professional service. See Tex. Att’y Gen. Gp.Nos. DM-418 (1996) at 11-13; DM-106 (1992) at 2; IM-1136 (1990) at 3; IM-1038 (1989) at 2; MW-344 (1981) at 3.

We turn to your second question: whether a county that accepts and opens bids may reject thebids, claim that the contract isexempt fromthe County Purchasing Act’s competitive-purchasing requirements, and award the bid to abidder other than the lowest bidder?The Honorable Steven B. Payson - Page 5 (X-0136)

Once acounty determines that itwill competitively bid aparticular contract, it must publish notice of the proposed purchase and open bids on the date specified in the notice. See TEX.LOC. GOV’TCODEANN.

$5262.025(a), .026(a) (Vernon 1999). Section262.027 ofthe Local Government Code provides in part:

(a) The officer in charge of opening the bids shall present them to the commissioners court in session. Except as provided by (e) [pertaining to contracts for the purchase of road construction material], the court shall:
(1) award the contract to the responsible bidder who submits the lowest and best bid; or
(2) reject all bids and publish anew notice.

The commissioners court may award the contract to a bidder other than the lowest dollar bidder if (1) the bidder is aresponsible bidder, and (2) the commissioners court complies with the following procedure:

(c) A contract may not be awarded to a bidder who is not the lowest dollar bidder meeting specifications unless, before the award, each lower bidder is given notice ofthe proposed award and is given

an opportunity to appear before the commissioners court and present evidence concerning the lower bidder’s responsibility.

Instead of complying with subsection (c), Dawson County Commissioners Court rejected all bids and attempted to exempt the contract from competitive bids and award it to abidder other than the lowest bidder.

You argue that, once the commissioners court decides tousethe competitive bidding process to purchase an item that it may exempt from competitive bidding, it must award a contract by competitive bidding. Request Letter, sup-a. Ifthe commissioners court rejects allbids, you believe that its only option istoreissue thebid notice, changing the specifications ifitdeems this necessary, and begin anew round of competitive bidding. We disagree.

Your argument is based on the mandatory language of section 262.027(a) of the Local Government Code, which provides that the commissioners court “shalr’ do one oftwo things when the bids are presented to it: either award the contract to the responsible bidder who submits the lowest andbest bid; or.

. .“reject all bids andpublish anew notice.” TEX.Lot. GOV’T CODEANN. 5 262.027(a) (Vernon 1999) (emphasis added). The word “shall” ordinarily imposes a duty, TEX. GOV’T CODE ANN.5 311.016(2) (Vernon 1998), andwe find no basis forreading this word asnonmandatory in subsection 262.027(a).The Honorable Steven B. Payson - Page 6 (JC-0136)

We disagree with you, however, as to the nature of the duty imposed by subsection 262.027(a). We read this provision asrequiring the commissioners court to publish anew notice if it continues to seek a contract through competitive bidding. Subsection 262.027(a) of the Local Government Code does not repeal the commissioners court’s common law authority to rescind its orders and decisions. See generally Bexar County v. Hatley, 150 S.W.2d 980, 984 (Tex. 1941); Swaim v.Montgomery, 154 S.W.2d 695 (Tex. Civ. App.-Amarillo 1941, writ refd w.o.m.). The court may at any time amend or repeal administrative, executive, or legislative actions ithas taken,

as long as vested rights are not impaired. August A. Busch & Co. v. Caufield, 135 S.W. 244,245 (Tex. Civ. App.-Austin 1911, writ refd); Collingsworth County v. Myers, 35 S.W. 414,416 (Tex. Civ. App.-Fort Worth 1896,no writ) (commissioners court may revoke ormodify resolution setting county judge’s salary for ex officio services, whenjudge had not yet earned the salary); Tex Att ’y Gen. Op.No. DM-228 (1993) at 1(commissioners court may amend ordinance); seeHead v. Starr, 8S.W.2d 819,822 (Tex. Civ. App.-Fort Worth 1928,writ dism’d) (legislative body ofmunicipality may rescind prior acts, provided vested rights are not violated) (citing McQuillin on Municipal Corporations); see 4EUGENE MCQUILLIN,

THE LAWOF MUNICIPAL

CORPORATIONS

5 13.49, at 884 (3rd ed)).

The commissioners court has the authority under common law to rescind or modify purchasing decisions it has made under the County Purchasing Act, and nothing in the express language of section 262.027(a) repeals this power. After it has rejected all bids, and before it publishes anew notice, it may modify or rescind its prior decision to seek competitive bids. Thus, it may change the specifications for an item before publishing a new notice, or rescind entirely its decision to seek an item through competitive bidding and decide to contract with another political subdivision for ambulance service or to provide this service itself. See TEX.HEALTH & SAFETY CODE ANN.$ 774.003 (Vernon 1992 & Supp. 1999). Ifthe commissioners court rescinds entirely its decision to seek an item through competitive bidding it may exercise its authority under section 262.024 ofthe Local Government Code to issue an order granting an exemption i?om competitive bidding for ambulance services as “an item necessary to preserve or protect the public health or safety ofthe residents ofthe county.” TEX. Lot. GOV’TCODE

ANN.5262.024(a)(2) (Vernon 1999). SeeTex. Att’y Gen. Op.No. DM-4 (1991) (when county received no bids on item, itcould thereafter rely on any applicable exception from competitive bidding requirements); see also Griswold v. Ramsey County, 65N.W.2d 647,652 @inn. 1954)(county that voluntarily sought competitive bids forjail contract had to comply with this method as long as it had not been seasonably abandoned) (dicta).

We conclude that, after the Dawson County Commissioners Court rejected all bids for the ambulance service, it was not limited to seeking new bids. It could decide to rescind its decision to seek ambulance services through competitive bidding and begin the procurement process anew, exercising its authority under section 262.024(a)(2) ofthe Local Government Code to issue an order exempting the contract for ambulance service from competitive bidding andto choose aprovider by another method.The Honorable Steven B. Payson - Page 7 (JC-0136)

While the Commissioners Courtmay decide, afterrejecting allbids, to exempt the ambulance service from the requirements ofthe Act, itmay not do so in away that violates section 262.027(c) of the Local Government Code, pertaining to the award of a contract to a bidder who is not the lowest dollar bidder meeting specifications. Whether ornot the Commissioners Court has complied with section 262.027(c) of the Local Government Code involves fact questions, which cannot be addressed in an Attorney General Opinion. The Court must at least complete all steps necessary to rescind its decision to seek bids on the ambulance service and to approve an order exempting the ambulance service from the competitive bidding requirements of the County Purchasing Act.The Honorable Steven B. Payson - Page 8 (JC-0136)

SUMMARY

Acounty contract forambulance service may be exempted by order of the commissioners court under section 262.024(a)(2) of the Local Government Code from the County Purchasing Act’s normal competitive-purchasing requirement as “an item necessary to preserve or protect the public health or safety ofthe residents of the county.” Attorney General Opinion M-806 (1971) is affirmed. The commissioners court may issue an order exempting the contract for ambulance service from competitive-purchasing requirements as a matter affecting the public health or safety.

Ifthe commissioners court has sought competitive bids on a contract for ambulance service and rejected them all, it is not thereafter required to continue using the competitive bidding process until it awards acontract. Section 262.027 ofthe Local Government Code, which provides that the commissioners court shall “reject all bids and publish anew notice,” does not nullify the general authority of the commissioners court to rescind its orders and decisions, assuming no vested rights have been impaired. If the court rescinds its prior decision to seek a contract for ambulance service through competitive bidding, it has authority to issue an order exempting the ambulance service from the competitive bidding requirements ofthe County Purchasing Act.

Attorney General of Texas

ANDY TAYLOR First Assistant Attorney General

CLARK RENT ERVIN Deputy Attorney General - General Counsel

ELIZABETH ROBINSON Chair, Opinion Committee

Susan L. Garrison Assistant Attorney General - Opinion Committee