October 28, 1988

Honorable Mike Driscoll Harris County Attorney 1001 Preston, Suite 634 Houston, Texas 77002 Opinion No. JR-974
Re: Competitive bidding in counties with acounty purchasing agent (RQ-1484)
Dear Mr. Driscoll:
You ask:

(1) Incounties with county purchasing agents, must the county purchasing agent make all purchases which are notmade by competitive bid or can individual officers and departments purchase their own supplies? (2) Is the county Purchasing Agent subject tothe $5,000 limitation imposed by MC. GDV'T CODE 5262.023 inmaking purchases ofmaintenance and repair items the need for which isnot foreseeable[?]
Inyour first question you ask whether the county purchasing agent in Harris County must make all purchases which are not subject to the competitive bid requirements of section 262.023 ofthe Local Government Code.
You advise that Harris County has a duly appointed purchasing agent subject to' the provisions of section 262.011 of the Local Government Code. Section 262.011 provides inpertinent part:

(a)In a county with a population of 74,000 or more, a board composed of the judges ofthe district courts inthe county and the county judge, bymajority vote, may appoint a suitable person to act as the county purchasing agent. The term of office of the county purchasing agent istwo years.

. . . .

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(d)The county purchasing agent shall purchase all supplies, materials, and eguipment required orused, and contract for all repairs toproperty used, **by** the county or a subdivision, officer, or employee of the county, extent nurchases and -tracts -red bv law to bemade on comvetitive bid. A nerson other than the countv nurinaaaent mav notw the nurwse of ent ormake



### .... (f)Apurchase made by the county purchasing agent shall be paid forby a warrant drawn by the county auditor on funds in the county treasury in themanner provided by law. me countv auairpr may not draw ad the Qzantv treasurer &zv not honor awarrant fey awurchase unlaas the nurGL%se ismade bv thg countv nuruina aaent 

### oroncomnetitive bid asvrovided bv lax.

**. .**  **. .**  (n)This section applies toall purchases of supplies, materials, and equipment for the use ofthe county and its officers, including purchases made byofficers paid out of fees ofoffice orotherwise, regardless ofwhether the purchase contract is**made**bythe commissioners court orany other officer authorized tobind the county by contract. An officer making apurchase out of fees ofoffice in violation **of** this section may not deduct the amount ofthe purchase from the amount of **any** fees of office due the county. (Emphasis added.)
you state that your question was prompted by Attorney General Opinion JM-725 (1987). InAttorney General Opinion JM-725 itwas concluded that acounty officer, department or institution may purchase its own supplies subject to the limitations imposed by section 3 of article 2368a.5, V.T.C.S. (now section 262.023 ofthe Local Government Code). The request in Attorney General Opinion JM-725 was from a county that did not have apurchasing agent. Hence, the provisions of section 262.011 were not applicable.

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InAttorney General Opinion H-1237 (1978), the question arose as to whether the commissioners court of El Paso County had authority toorder payment for apurchase made by the sheriff when the county had apurchasing agent duly appointed under then article 1580, V.T.C.S. (now section 262.011). Inconcluding that the commissioners court did not have authority to direct payment ofa claim under a contract which contravened the statute, the opinion stated:

Article 1580 [now section 262.0111 establishes the county purchasing agent, an officer not under the supervision ofthe commissioners cou*, as the proper party to contract for all county supplies and services except those required to be let on competitive bid. The statute prohibits any other person from entering into such contracts and directs the county auditor not to draw warrants 'for any purchases except by such agent and those made by competitive bid.' Attorney General Opinion H-1237 (1978), at 1. The county purchasing agent must make all purchases that are not subject to the competitive bid requirements.

Inyour second question you askwhether the county purchasing agent issubject tothe $5,000 limitation imposed by section 262.023(a), which provides:

Before acounty may purchase one 

### or more items under acontract that will require an expenditure exceeding 85,000, the commissioners court ofthe county must comply with the competitive bidding or competitive proposal procedures prescribed by this subchapter. All bids or proposals must be sealed.
You state that incounties the size ofHarris, compliance with the 85,000 limitation isdifficult because of the maintenance ofa large inventory of heavy equipment. The statute does not contain anexception based on population. The background information contained inthe Bill Analysis to Senate Bill 807, Acts 1985, 69th Leg., ch. 641, at 2377, effective September 1, 1985, (nowsection 262.023) reflects:

S.B. 807 repeals many ofthese old purchasing laws and amends others and creates a new, uniform purchasing law for counties

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regardless ofpopulation. . . . In effect, S.B. 807 gives all counties the same requirements relating to purchasing and removes the disadvantage imposed by earlier methods ofregulating the purchasing activity ofcounty officials. . . . Bill Analysis, Tex. S.B. 807, 69th Leg. (1985). Subsection (d)of section 262.011 expressly excludes purchasing from the county

agent's authority "purchases and contracts required by law tobemade oncompetitive bid."
You suggest that the purchase ofmaintenance and repair items may come within the exceptions to the competitive bidding process under the "captive replacement parts or components for equipment" exception insubsection of section 262.024. Section (a)(7)tD) 262.024 provides in pertinent pa*: (a)Acontract for the purchase ofany of

the following items is exempt from the requirement established by Section 262.023 if the commissioners court, by order grants the exemption:

. . . . (7)an item that can be obtained from only one source, including:

. . . .(D)captive replacement parts or components forequipment. Since the county purchasing agent is subject to the competitive bidding requirements of section 262.023, it follows that the exceptions thereto are applicable. Before there may be anexception tothe bidding requirement the parts or components must be items "that can beobtained from only one source.H items" must be In addition the "maintenance and repair "captive replacement parts or Of necessity components.l* the factual determination of whether "maintenance and repair items" constitute %aptive replacement parts orcomponents@q must bemade ona case basis. case-by- --.

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P 

### SUMMARY
In counties with county purchasing agents, the county purchasing agent must make all purchases that are not subject ;~,,~~; competitive bid requirements of 262.023 of the Local Government Code. The county purchasing agent issubject to the $5,000.00 limitation imposed by section 262.023 in making purchases of maintenance and repair items unless such purchases fall within the exceptions set forth in section 262.024 ofthe Local Government Code. Very truly you I An

JIM MATTOX Attorney General ofTexas
MARYKELLRR First Assistant Attorney General

mu l4ccREARY Executive Assistant Attorney General
JUDGE ZOLLIE STRARLRY Special Assistant Attorney General
RICK GILPIN Chairman, Opinion Committee Prepared by Tom G.Davis Assistant Attorney General

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