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JIMMATTOX PctorneyGeneral
supr*ma bullBUlldinQ o.eox1254a rtin. TX.79711.2549 5121475.2501 Telex91om7c13S7 lecopiar 5lY47542S9

714Jackson. Suite700 11lao.TX.75202.4508 u742.994A

24AIbe,ta Ave..Suite 160 Paso.TX. m-2793 Qls33.34S4

I. Texas.Suilc700 Houston.TX. 77002-3111

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905Broadwy. Suite312 rbbock.TX.79401.3479 W747.5239
y)9N.Tenlh.Suite8 ic*,,.n. TX.7S.501.19SS 3tma?-4!547

90*(*in Ptua. Suite409 aanAnlonio. TX.792052797 51212254191

rn EqualOpportuniIvl Afflrmatlr* Action Employer 

# TheAttorney GeneralofTexas

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 Deartlr. Curry: You have reqwrted our opinion as to whether. under articles 1659band 2368a, V.:r..C.S., andthe 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 donot expressly specify .vhich offlcer or entity is authorized to set bid specificationa. this office has stated that, under articles 1659and2368a. V.T.C.S..

**p. 940** gonorable TimCum9 - 

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the Commiaaioner’s Court ir given broad discretionary powers ult,k rerpecr to establlahlng and getting apccificat:he for meteriala end

## l uppliee tobe 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 anote to article 1580. V.T.C.S., makes it the duty of the purchasing agent to makeroll purchases **for** the county of supplies, materials, andequipment **exctrpt** purchases which are required by law to be made by competitive bid. Sec. l(b). It grants no reaponaibil1ty to apurchasing agent for purchases which must be madeby 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:

Wherethe 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 bemade by the purchasing agent __. . . . (Emphasis added). Additional duties of the purchasing agent under this statute include filing all bids received, pwvlding copies of 811bids 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). Webelieve 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** - Pago3 (JH-208)

Section 2(a) of article **2368a** requires that a county submit certain contracts to competlcive bidding. Section 2(b) of that act requirea **the** l dvertiaemen t of such bidding. Article 1569b specifically provides that :iuTarrant County advertiaemcnts for bids for certain contracts “shall ‘>emadeby the purchasing agent.” Section 2(d) of article 2368a provides that acontract madebya county without complying with the statutory requirements of **that** act la void andunenforceable at4 that the performance of such acontract maybe enjoined byany citizen of the county who~paya property taxes. However, wedonot 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. Wewrlclude 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 ofjudgment 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 cmfarticle III, section 56 of the Texas Constitution. SeeOakle v. Kent, 181 S.W.Zd919. 923. 924 (Tex. Clv. APP

. - Eaatland 194 ,

-4-m ; Attorney General Opiniona R-393 (1974); **A-8** (1973). SUnMARY

The Tarrant County purchasing agent la not authorized to rev~r-ltebid 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. 942lhorabh TimCurry - **Page** 4 (JM-208)

DAVID1. RICHARDS IDcecutive Aesiotent Attorney General Preperrd byNancy **Sutton** Aeeietent Attoroey General ApPxOVeD: OPINIONCOWlIlTEE Rick Cilpin, Chairmen David Brook. Colin Carl Susan Garrison JimMoellinger NancySutton Bruce Youogblood

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