# The Attorney General of Texas
March 23, 1981 MARK WHITE AltorneyGeneral
Mr.Homer A. Foerster Executive Director State Purchasiw & General Services Commission L&J. State Offhe Building Austin,Texas 78711 Dear Mr.Poerster: Opinion No.MW-310 Re: Construction of section 3.08(a) of article 60&i,V.T.C.S.

You have requested our opinion regarding this question: Is the commission authorized by section 3.08(a) of article SOlb, V.T.C.S., to waive alI oompetitive bidding requirements, whether formal or informal, on delegated purchases mder $1000 Artiele 6Olb,V.T.C.S., the State Purchasing and General Services Act, provides inpertinent part as follows:

See. 3.08. (a) The commission shall establish a pmeedure by which state egencies shall be delagated the authority to purchase supplies, materials, and equipment if the purchase is less than $600 and shall provide in the procedure that formal competitive bidding is not required for purchases under $100.

. . . . (d) A3encies making purchases under this section must attempt to obtain at least three competitive bids from sa~rces which normally offer for sale the merehandke being purchased.

. . . . sec. 3.10.

. . . All purchases of and contracts for supplies, materiab, services, andequipment shall, except as provided herein, bebased whenever possible oncompetitive bids.

n. QA7Mr. Homer A. Poerster - Psge Two (H-310)

You state that the commission delegates authority to make such purchases to agencies under its Rule 028.12.OLO59b),but that it asks agencies to take a minimum of three informal competitive bicb where possible. Tbs rule does not distbguish between bids tmder $500 and those under $100,but requires an attempt at competitive bidding in each instance. You flrther state that the term “formaLcompetitive biddingwhas a rather precise meaning inpurchase cicltw and that it comprehends “abid which has been submitted ina sealed envelope to prevent dissemination of its contents before the specified time and date set for bidopening.” For the following ressons, we snswer your question in the negative. First, section 3.08(a) exprcrsslyprovib that “formaP competitive bidding is not required for purchases under $100, not that %ompetitive bidding” is not required. Wemust assume that the legislature used the adjective “formal” for a purpose, Eddins-Walcher Butane Company v. Calvert, 298 S.W.2d 93 (Tex. 1957k L & M-Surco Manufacturing, In %YnnTitle Company, 580 S.W. 2d 920 (Tax. Civ. App. - Tyler l979, writ dism ’d),‘~~ that it did not regard “formal competitive bidding” and “competitive bidding” as synonymous We firther assume that the legislature intended that the term “formal competitive bidding,” which is not defined in the statute, would begiven its commonly accepted meaning. See Sanford v. State, 492 S.W.2d 581 (Tex. Crim. App. 1973);In ’re Estate of. Purr, 553%W. 26 676 (Tex. Civ. App. - Amarillo 1977, writ ref ’d n.r.e.); Texas Employers

’ Insurance Association v. Haunsehild, 527 S.W. 26 270 (Tex. Civ. App.- Amarillo 1976, writ refkl eJ Second, section ’S.O8(d), which provides that agencies making purchases mdeF&?tion 3.08 mustattempt to obtain at least three competitive biQ from the designated sources, does not except purohese~ of less than $100. Itapplies to all purchases of less than $500, and its conditions must besatisfied. Wetherefore conclude that the commission is not authorieed by section 3.08(a) of article 6Olb, V.T.C.S., to waive all compstitiw! bidding requirements, whether formal or informal, on delegated purchases tmder $100. However, in view of the fact that section 3.10 only requires competitive bids “whenever possible,” we think the commission may promulgate rules indicating those instances in which it will consider that competitim bids are not posslhle. SUMMARY The State Ptxehesing snd General Servfces Commission is not authorized by section 3.08(a) of article SOlb,V.T.C.S., to waive all competitive bidding requirements, whether formal or informal, ondeleted purchases under $100.



# veneNl*

Attorney General of Texas

p. 988Mr.Homer A. Poerster - Page Tluee @f-310)

JOHNW.PAINTER,JR. First Assistant Attorney Qeneral, RICHARD E.GBAYUl Executive Assistant Attorney General Prepared byJon Bible Assistant Attorney General APPROVRD: OPINIONCOMMrI’TEE Susan L. Garrison, Chairman Jon Bible Rick Gilptn Eva Loutzenhiser Bruce Youngblood

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