THE ATTORNEY GENERAI. 

Oti TEXL-LS 

April 1, 1988 

Honorable Mike Driscoll 

Harris County Attorney 

1001 Preston, Suite 634 

Houston, Texas 77702 

Opinion No. JM-881 

Re: Whether Harris County 

may require in its bid 

specifications for construction contracts that a 

minimum of 25 percent of 

the work be performed by 

the contractor8s employees 

(RQ-1230) 

Dear Mr. Driscoll: 

Your ask our opinion about the following question: 

May Harris County include a provision in 

its bid specifications for county 

construction contracts which requires that a 

minimum of twenty-five percent of the work 

be performed by the contractor's employees? 

We conclude that the county is not permitted to include 

such a provision in bid specifications for construction 

contracts. 

Construction contracts entered into by the county 

requiring an expenditure exceeding $5,000 must comply with 

the County Building Authority Act, the County Certificate 

of Obligations Act, and the County Purchasing Act, 

chapters 293, 271, and 262 of the Local Government Code, 

see also Acts 198.7, 70th beg., ch. 722, 55; Acts 1987, 

70th Leg., ch. 785, 91; and Acts 1987, 70th Leg., ch. 802, 

51 (amending article 2368a.5, V.T.C.S., the County 

Purchasing Act, subsequent to the repeal and codification 

of the article in the Local Government Code). 

Section 262.025 of the Local Government Code provides 

that a "competitive bidding notice" must be published in 

the public press prior to the deadline for the acceptance 

of bids. The notice must contain: 

p- 4304 
Honorable Mike Driscoll - Page 2 (JM-881) 

(1) the snecifications describing the 

item to be purchased or a statement of where 

the specifications may be obtained; 

(2) the time and place for receiving and 

opening bids and the name and position of 

the county official or employee to whom the 

bids are to be sent: 

(3) whether the bidder should use lumpsum or unit pricing: 

(4) the method of payment by the county: 

and 

(5) the type of bond required by the 

bidder. (Emphasis added.) 

Local Gov't Code 5262.025. Nothing in this section 

authorizes the inclusion of a provision in specifications 

limiting the amount of work which may be performed by a 

subcontractor of a successful bidder. 

-, 

The Local Government Code requires a county to either 

award a contract "to the resnonsible bidder who submits 

the lowest and best bid" or to "reject all bids" and 

solicit for new ones. Local Gov't Code 5262.027. 

However, 

[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 of the 

proposed award and is given an opportunity 

to appear before the commissioners Court and 

present evidence concerning the lower 

bidder's responsibility. 

Local Gov't Code 5262.027. As one appeals court has 

noted, the statute has one paramount objective: 

[T]o stimulate competition, prevent favoritism and secure the best work and materials 

at the lowest practicable price, for the 

best interests and benefit of the taxpayers 

p. 4305 
c 

Honorable Mike Driscoll - Page 3 (JM-881) 

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 material man, or increase the 

cost of the work or of the materials or 

other items going into the project. 

Sterrett v. Bell, 240 S.W.2d 516, 520 (Tex. Civ. App. - 

Dallas 1951, no writ). The Supreme Court quoted this 

language with approval in Texas Hiahwav Commission v. 

Texa Association of Steel Imnorters. Inc., 372 S.W.2d 525 

(Texs 1963). In this case, the court considered a highway 

department rule that restricted bids to those bids from 

contractors furnishing construction materials manufactured 

only in the United States. The court rejected that rule 

as a violation of a competitive bidding statute (V.T.C.S. 

art. 6674h), similar to the statute under consideration 

here. The court stated that an administrative body 

subject to a competitive bidding statute must act only to 

promote the unmistakable legislative policy favoring 

unrestricted competition for public contracts. 372 S.W.Zd 

at 529. See Attorney General Opinions MW-439 (1982): 

MW-344, MW-296 (1981), MW-139 (1980): H-1219 (1978); 

H-1086, H-972 (1977). a Attorney General Opinion JM-712 

(1987) (legislature may vary policy of Strict Competition 

by providing exceptions to key principle of competitive 

bidding statute.) 

The county thus has no power to limit the competition 

generated by bidding. Nor may it reject a bid by imposing 

a condition for the selection of the lowest responsible 

bidder when the condition could not be used to limit the 

solicitation of the bid. Attorney General Opinions 

H-1219; H-1086. 

of course, the county is not required to accept a bid 

merely because it is the lowest. The statute only 

requires that the county accept the lowest and best bid 

proffered. The county may make an informed, non-arbitrary 

decision based on the facts that a particular bid is not a 

responsible one. Corbin v. Collin Countv commissioner's 

Court, 651 S.W.2d 55 (Tex. APP. - Dallas 1983, no writ). 

This does not mean that the county may determine that 

contractors who intend to subcontract some of the work due 

under a contract cannot submit responsible bids. Such a 

determination would be flatly illegal, either as an 

advance disqualification for bids or as a rationale for 

rejecting a lower bid in favor of a higher one. But if 

p. 4306 
Honorable Mike Driscoll - Page 4 (JM-881) 

. 

the commissioners have an objective reason, supportable by 

facts fairly known to them, that a particular bidder 

cannot perform responsibly because of some objective 

impediment, they may consider rejecting that bid, and the 

rejection would not be an abuse of discretion. Corbin, 

sunra. 

- 

SUMMARY 

The County Building Authority, 

Certificate of Obligation, and County 

Purchasing Acts, chapters 293, 271, and 262 

of the Local Government Code, require that a 

county award certain construction contracts 

by a process of competitive bidding. 

Solicitations for bids may not be limited by 

requiring that bidders promise to perform 

work using their own employees. The county 

may make an informed, non-arbitrary decision 

that a particular bid is not a responsible 

one. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLKY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Don Bustion 

Assistant Attorney General 

p. 4307