December 10, 1990

Honorable Marcus D.Taylor Opinion No. JM-1254 Criminal District Attorney wood County Re: Whether the awarding of P. 0. Box 689 acontract precludes acounty Quitman, Texas 75783 from making spot purchases from another supplier (RQ-2015)
Dear Mr. Taylor:
You ask:
Does the awarding ofacontract tobuy supplies onaunit price basis inaccordance with Sec. 262.028, Local Government Code, preclude counties from making spot purchases of the same supplies at [the same or]1 alower unit price from another supplier during the term of the contract?
Your question arises from asituation where the county executed acontract topurchase all road oil needed by the county from one contractor. The contractor was unable to meet all of the county's needs, and one of the county commissioners made a "spot purchase" of the product at the same price from adifferent supplier. The cost of the additional purchase was less than the $10,000 competitive bidding threshold found in section 262.023(a) ofthe Local Government Code. Inasmuch asyour question states that the unit price contract was made "in accordance with section 262.028, Local Government Code," we assume that the contract was let asthe result of competitive bids inaccordance with chapter 262 of the code. We also assume that the county has not adopted the Optional County Road System as authorized by section 3.201 ofarticle 6702-1, V.T.C.S.

1. The original question was amended by adding the bracketed language to reflect the facts.

p. 6679Honorable Marcus D.Taylor -Page 2 (JM-1254)

You have suggested that section 262.023(c) ofthe Local Government Code prohibits the spot purchase inquestion as follows:
Inapplying the competitive bidding and competitive proposal requirements established by Subsection (a),all seoarate. secuential. or comoonent vurchases of items ordered or ourfiased. with the intent ofavoidinc the competitive biddina and comoetitive DroDosaL recfuirements ofthis subchaoter. from the same suoolier bv the samecountv officer, deDart-

. . ment. or institution are treated as if they Bre Dart contract.O fasinale DUrChaSS and of a sinale

Inapplying this provision to the purchase ofoffice supplies, separate purchases of supplies by an individual department are not considered tobe part of asingle purchase and single contract by the county if a specific intent to avoid the competitive bidding requirements ofthis subchapter isnot present. (Ouremphasis.) Local Gov't Code S262.023(c). The purpose ofthis provision isreadily apparent. It isdesigned toprevent counties from avoiding the competitive bidding requirements by purchasing quantities of materials or supplies in lots, which individually cost less than $10,000 but total more than that amount. The public policy behind the competitive bidding requirement is strong enough that criminal penalties have been enacted to effectively stop this particular means of evading the statutory requirement. &g Local Gov't Code 55 262.034(a), 252.062(a).
We donot think that the provision was intended topreclude "spot purchases" in the specific circumstances you describe. Nor dowe find any other provision of the chapter that precludes such spot purchases. Of course spot purchases may not be used to avoid the competitive bidding process.
Inyour second question, you ask: Assuming that the answer to the first question is 'no,' would such aspot purchase be subject to county bidding requirements, even if it were for anamount less than $lO,OOO? ,

P. 6680Honorable Marcus D.Taylor -Page 3 (JM-1254)

As indicated by your question and the preceding discussion, county purchases are not required to bemade by competitive bids unless the amount is more than $10,000. Local Gov't Code S262.023(a). Again, we caution that if the contractor's inability to meet the county's needs is seen as a continuing situation that will result in the expenditure of $10,000 ormore, the county would be required to call for bids again. Such separate, sequential purchasing isprecisely the activity that the language emphasized above insection 262.023(c) was intended to prevent. See Attorney General Opinion JW-725 (1987). Of course, a county isauthorized to request bids forpurchases that fall below the $10,000 threshold. &&ten v.Concho Countv, 196 S.W.2d 833 (Tex. Civ. App. -Austin 1946, nowrit).

The County Purchasing Act, chapter 262 of the Local Government Code, does not preclude acounty from making an isolated spot purchase of supplies ormaterials when the contractor obligated tomeet the county's requirements isunable to furnish the supplies ormaterials. Spot purchases may not be used to avoid the competitive bidding process.

JIM MATTOX Attorney General ofTexas
WARYXELLER First Assistant Attorney General
LOUMCCREARY Executive Assistant Attorney General
JUDGE ZOLLIE STEAXLEY Special Assistant Attorney General
RENEA HICKS Special Assistant Attorney General

. RICK GILPIN

Chairman, opinion Committee Prepared by Karen C.Gladney Assistant Attorney General

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