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 a contract precludes a county 

Quitman, Texas 75783 from making spot purchases 

from another supplier 

(RQ-2015) 

Dear Mr. Taylor: 

You ask: 

Does the awarding of a contract to buy supplies 

on a unit price basis in accordance with Sec. 

262.028, Local Government Code, preclude counties from making spot purchases of the same 

supplies at [the same or]1 a lower unit price 

from another supplier during the term of the 

contract? 

Your question arises from a situation where the county 

executed a contract to purchase 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 a different supplier. The cost of the 

additional purchase was less than the $10,000 competitive 

bidding threshold found in section 262.023(a) of the Local 

Government Code. 

Inasmuch as your 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 as the 

result of competitive bids in accordance 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 of article 6702-1, V.T.C.S. 

1. The original question was amended by adding the 

bracketed language to reflect the facts. 

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

You have suggested that section 262.023(c) of the Local 

Government Code prohibits the spot purchase in question as 

follows: 

In applying 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 of avoidinc the competitive biddina and comoetitive DroDosaL 

recfuirements of this subchaoter. from the same 

suoolier bv the same countv officer, deDart- 

. . 

ment. or institution are treated as if they 

Bre Dart 

contract.O 

f a sinale DUrChaSS and of a sinale 

In applying this provision to the 

purchase of office supplies, separate purchases of supplies by an individual department are 

not considered to be part of a single purchase and single contract by the county if a 

specific intent to avoid the competitive 

bidding requirements of this subchapter is not 

present. (Our emphasis.) 

Local Gov't Code S 262.023(c). 

The purpose of this provision is readily apparent. It 

is designed to prevent 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 do not think that the provision was intended to preclude "spot purchases" in the specific circumstances you 

describe. Nor do we 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. 

In your second question, you ask: 

Assuming that the answer to the first question 

is 'no,' would such a spot purchase be subject 

to county bidding requirements, even if it 

were for an amount less than $lO,OOO? 

, 

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

As indicated by your question and the preceding discussion, county purchases are not required to be made by 

competitive bids unless the amount is more than $10,000. 

Local Gov't Code S 262.023(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 or more, the county would be required 

to call for bids again. Such separate, sequential purchasing is precisely the activity that the language emphasized above in section 262.023(c) was intended to prevent. 

See Attorney General Opinion JW-725 (1987). Of course, a 

county is authorized to request bids for purchases that fall 

below the $10,000 threshold. &&ten v . C oncho Countv, 196 

S.W.2d 833 (Tex. Civ. App. - Austin 1946, no writ). 

The County Purchasing Act, chapter 262 of 

the Local Government Code, does not preclude 

a county from making an isolated spot purchase of supplies or materials when the contractor obligated to meet the county's requirements is unable to furnish the supplies 

or materials. Spot purchases may not be used 

to avoid the competitive bidding process. 

JIM MATTOX 

Attorney General of Texas 

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 

P. 6681