I ’ 

. 

JIM MATTOX 

Pctorney General 

supr*ma bull BUlldinQ 

o.eox1254a 

rtin. TX. 79711. 2549 

5121475.2501 

Telex 91om7c13S7 

lecopiar 5lY47542S9 

714 Jackson. Suite 700 

11lao. TX. 75202.4508 

u742.994A 

24 AIbe,ta Ave.. Suite 160 

Paso. TX. m-2793 

Qls33.34S4 

I. Texas. Suilc 700 

Houston. TX. 77002-3111 

- ‘Y22359m 

905 Broadwy. Suite 312 

rbbock. TX. 79401.3479 

W747.5239 

y)9 N. Tenlh. Suite 8 

ic*,,.n. TX. 7S.501.19SS 

3 tma?-4!547 

90 *(*in Ptua. Suite 409 

aan Anlonio. TX. 792052797 

51212254191 

rn Equal OpportuniIvl 

Afflrmatlr* Action Employer 

The Attorney General of Texas 

Octcber 12. 1984 

/ 

Honorable Tin Curry 

Criminal District Al:l:orney 

Tarrant County Court:houac 

Forth Worth, Texas 76196 

Opinion No. JM-208 

Re: Authority of a county 

purchasing agent to revrite 

or refuse to advertise bid 

apecificatlona epproved by 

the commissioners court 

Dear tlr. Curry: 

You have reqwrted our opinion as to whether. under articles 

1659b and 2368a, V.:r..C.S., and the note to article 1580, V.T.C.S.. the 

Tarrant County purchasing agent la authorized .to rewrite or, in the 

alternative, ia authorized to refuse to advertise bid specificationa 

approved by the c~~~~isaloners court but which. In the purchasing 

agent’s judgment. are so narrovly vritten as to deny competitive 

bidding. Addressins only the statutory construction issue, we 

conclude that the plr:chasing agent is not authorized either to rewrite 

or refuse to advertL:;e such bid specifications. 

The county acts only through its commissioners court in making a 

contract. Article 2.3688, V.T.C.S.. is the general competitive bidding 

statute. Section 2(.1) provides: 

sac. I!., (a) No county, acting through its 

Cormiaaioncra Court, sod no city in this atate 

shell hereafter make any contract calling for or 

requiring an expenditure or payment In an amount 

exceedlag five thousand dollars ($S.WO.DO) out of 

any fund or funds of any city or county or 

subdlvisiDp of any county creating or imposing an 

obligation or liability of any nature or character 

upon such county or an9 aubdivlaloo of such 

county, or upon such city. without first 

submitting such proposed contract to competitive 

bids. 

- 

Although the utatutea do not expressly specify .vhich offlcer or 

entity is authorized to set bid specificationa. this office has stated 

that, under articles 1659 and 2368a. V.T.C.S.. 

p. 940 
gonorable Tim Cum9 - Page 2 m4w 

. . 

I 

the Commiaaioner’s Court ir given broad discretionary powers ult,k rerpecr to establlahlng and 

getting apccificat:he for meteriala end l uppliee 

to be purchased by the county. . . . 

Attorney General Opinion O-6606 (1945); see also Attorney General 

Opinion W-1121 (1961). No changer ln the statutes since the 1945 

opinion have altered the corr~lssionera court’s authority to contract 

for the county. to submit p,ropoaed contracta to competitive bidding, 

and inferentially to set apec::.ficatioaa for such bids. 

Chapter 9, Acts of the Forty-sixth Legislature, as amended, vhich 

is codified as a note to article 1580. V.T.C.S., makes it the duty of 

the purchasing agent to make roll purchases for the county of supplies, 

materials, and equipment exctrpt purchases which are required by law to 

be made by competitive bid. Sec. l(b). It grants no reaponaibil1ty 

to a purchasing agent for purchases which must be made by competitive 

bid. 

Article 1659b. V.T.C.S. I is a statute applying only to Tarrant 

County because of its pop~;llation bracket. The statute imposes 

specific duties on the county purchasing agent once specifications for 

bidding have been set. It provides, in part, that: 

Where the total expenditure for any such purchase 

or an9 such cwtract shall exceed $1.000. 

advertisements for bids for such supplies and 

-- 

meterial, according to purchasing specifications 

giving in detail what la needed, shall be made by 

the purchasing agent __. . . . (Emphasis added). 

Additional duties of the purchasing agent under this statute include 

filing all bids received, pwvlding copies of 811 bids received by the 

coaaaiasioners court and, whenever that ‘court finds all bids unaatiafactory, rejecting the bids and readvertiaing. Id. This office has 

stated that where the county auditor performs thexited functions of 

the ~purchsalng process conferred by article 1659. V.T.C.S., duties 

virtually identical to th<>re imposed on the purchasing agent by 

article 1659b. the comtniasjonera court, not the auditor, sets bid 

specifications. Attorney General Opinion WI?-1121 (1961). citing 

Attorney General Opinion O-6606 (1945). 

We believe that, since the purchasing agent has no power to aet 

bid apecificat1ona. by tis,lication he has no power to rewrite 

specifications set by the coaauisaioners court. You also inquire 

whether the purchasing agent may refuse to advertise such bid 

specifications. 
Honorable Tim Curry - Pago 3 (JH-208) 

Section 2(a) of article 2368a requires that a county submit 

certain contracts to compet lcive bidding. Section 2(b) of that act 

requirea the l dvertiaemen t of such bidding. Article 1569b 

specifically provides that :iu Tarrant County advertiaemcnts for bids 

for certain contracts “shall ‘>e made by the purchasing agent.” 

Section 2(d) of article 2368a provides that a contract made by a 

county without complying with the statutory requirements of that act 

la void and unenforceable at4 that the performance of such a contract 

may be enjoined by any citizen of the county who~paya property taxes. 

However, we do not believe r:hat the provisions of either statute give 

the purchasing agent dia~:retionaay authority to judge whether 

specifications approved by the commissiqnera court meet competitive 

bidding standards or discretion to refuse to advertise for bids on 

such apecificationa. We wrlclude that the duty of the purchasing 

agent to advertise the a~~;~ilability of bid specifications la a 

ministerial duty which la statutorily explicit and involves no 

exercise of judgment or discretion. 

Since you do not ask about the coaatitutionslity of the statute 

vhich appliea~ only to Ta::!:ant Couoty because of its population 

bracket, we do not address the issue of vhether it la ‘a local or 

special law in violation cmf article III, section 56 of the Texas 

Constitution. See Oakle v. Kent, 181 S.W.Zd 919. 923. 924 (Tex. Clv. 

APP . - Eaatland -4-m 194 , ; Attorney General Opiniona R-393 

(1974); A-8 (1973). 

SUnMARY 

The Tarrant County purchasing agent la not 

authorized to rev~r-lte bid specifications approved 

by the commiaaion~!::a court even if the purchaaiug 

agent believes the bid apeclfications deny competitive bidding. The purchasing agent may not 

refuse to advertise for bids on such 

specifications. 

JIM HATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney Gewral 

p. 942 
lhorabh Tim Curry - Page 4 (JM-208) 

DAVID 1. RICHARDS 

IDcecutive Aesiotent Attorney General 

Preperrd by Nancy Sutton 

Aeeietent Attoroey General 

ApPxOVeD: 

OPINION COWlIlTEE 

Rick Cilpin, Chairmen 

David Brook. 

Colin Carl 

Susan Garrison 

Jim Moellinger 

Nancy Sutton 

Bruce Youogblood 

.