Mr. John L. David Opinion No. C-788 

County Attorney 

Dallam County Re: Questions relating to the 

Dalhart, Texas authority of a county 

commissioners court to include certain provisions 

in the bid proposal and 

purchase agreement in 

Dear Mr. David: purchasing road machinery. 

In a recent letter to this office you enclosed copies 

of the Guaranteed Bid Proposal and Purchase Agreement which the 

Commissioner's Court of Dallam County desires to use in connection with the purchase of road machinery by the county. 

You have requested our opinion as to the legality of Items 4 

and 6 of the Guaranteed Bid Proposal. 

We are setting out in full such Guaranteed Bid Proposal. 

DALLAM COUNTY 

GUARANTEED BID PROPOSAL . 

Bid Opening Date 

FOR 

ITEM#l 

ITEM# 2 

ITEM # 3 

ITEM# 4 

complete as 

per attached specifications dated $ 

Allowance on trade-in of $ 

Model 

(subtract) 

Difference $ 

Guaranteed repurchase price at end of 10,000 

hours or 5 years, whichever comes first (subtract) 

(outright cash purchase - not trade-in allowance on 

new machine) $ 

-3782- 
Mr. John L. David, page 2 (c-788) 

ITEM # 5 

ITBM# 6 

ITEM # 7 

Difference $ 

"Guaranteed Total Cost of Parts" for 

10,000 hours or 5 years of operation, whichever comes first, per attached specifications will not exceed (add) $ 

Total cost to Dallam County (Item 5 plus 

Item 6) $ 

Bidder shall quote on all items. Dallam 

County will pay only amount of Item # 3. 

The Bidder shall be required to furnish 

a performance bond, before the awarding 

of the bid, that. shall be equal to the sum 

that appears in Item # 4 above, plus twentyfive percent (25%) of the sum that appears in 

Item # 1 above. Said bond shall be made in 

favor of Dallam County-and ~shall be condi- ~.~ 

tioned for the benefit of Dallam County. 

This bond shall be for the use and benefit 

of Dallam County should the bidder fail 

to repurchase the equipment if so requested, 

and/or should the cost of the parts exceed 

the amount that appears in Item # 6 above 

and should the bidder fail in this performance. 

The machine performance will be subject to 

Dallam County approval and acceptance at 

the time of delivery. 

Dallam County reserves the right to reject 

any or all bids, or to accept the low bid 

that meets all specifications and requirements stipulated in the "Notice of Receiving Bids" and "Instructions to Bidders." 

DEALER 

BY 

TITLE 

DATE 

This "Guaranteed 'Bid Proposal" is and shall be considered a 

part of the "Notice of Receiving Bids." 

-3?t33- 
Mr. John L. David, page 3 (c-788) 

In determining the legality of Items 4 and 6 above 

mentioned we must look to Section 2b of Article 2368a, Vernon's Civil Statutes, which provides as follows: 

'Sec. 2b. Contracts for the ,purchase of 

machinery for the construction and/or maintenance of roads and/or streets, may be made by 

the governing bodies of all counties and cities 

within the State in accordance with the provisions of this Section. The order for purchase 

and notice for bids shall provide full specification of the machinery desired and contracts 

for the purchase thereof shall be let to the 

lowest and best bidder." 

This statute clearly provides that contracts for 

the, purchase of road machinery shall be let to the bidder 

submitting the lowest and best bid for the machinery itself. 

It must therefore be determined whether the sums which may 

be submitted by the bidder on Item 4 and Item 6 may legi'timately be allowed to affect the final determination as to 

the lowest and best bid. It is noted in the Guaranteed Bid 

Proposal that "Bidder shall quote on all items. Dallam County 

will pay only amount of Item # 3." 

In Sterrett v. Bell, 240 S.W.2d 516~ (Tex.Civ.App., 

1951, no history), the court made the following observation 

regarding competitive bidding at page 520: 

"Its purpose is to stimulate competition, 

prevent favoritism and secure the best work and 

materials at the lowest practicable price, for 

the best interests and benefit of the taxpayers 

and property owners. There can be no competitive 

bidding in a legal sense where the terms of the 

letting of the contract prevent or restrict competition, favor a contractor or materialman, or increase the cost of the work or of the material or 

other item going into the project." 

In Waralson v. City of Dallas, 14. S.W.2d 345 (Tex. 

Civ.App., 1929, error dism.,), it was held that the governing 

body advertising for bids had the authority to specify materials 

best suited to the use required; 

348: 

the court stated at page 347- 

"The trial court found, with ample evidence 

to sustain the finding that the chemical analysis 

test did not stifle competition, that the success- 

-3784- 
. . 

Mr. John L. David, page 4 (c-788) 

ful bidder was not the only manufacturer in the 

United States that was able and willing to perform 

the work and furnish pipe in accordance with the 

specifications, and this is conclusively established 

by the fact that there were six bids for the entire 

job that contemplated the use of cast-iron pipe 

fulfilling the chemical analysis test.. The object 

of the authorities in prescribing this test was to 

secure a high grade of cast iron, absolutely necessary, in view of the purpose and use to be served. 

It was imperative that iron pipe of minimum brittleness be used to guard against sudden breaks and 

resultant breakdowns of water supply, and the requirement was made only after a thorough investigation of the subject by the city engineer. He 

consulted scientific works, engineers, and waterworks men, north and east, including army engineers, 

the Bureau of Water Supply for Washington, D.C., 

and engineers of other cities, notably, of Providence, P&ode Island, New York, Boston; Baltimore, 

and Milwaukee, these cities having prescribed the 

same chemical test for cast-iron pipes for their 

water supply. 

"The city authorities were, under the law, 

charged with the duty of securing the kind and 

character of pipes and material best suited for 

this project, and, having acted~in good faith, 

it is not for this court, or any other court, to 

substitute its opinion for theirs in determining 

such a matter." (Emphasis added) 

In construing the provisions of Article 2368a, it was 

held in Attorney General's Opinion v-1565 (1962): 

"Article 2368a requires that the contract be 

let 'to the lowest responsible bidder'. The phrase 

'lowest responsible bidder t has a well defined meaning. 

For a collection of cases see 25 Words and Phrases 

( Per-m. Ed. 1940) 714. In determining the lowest responsible bidder the commissioners' court is not performing a mere ministerial duty but is exercising a 

duty which is deliberative and discretionary. Att'y 

Uen. Op. v-1536 (1952). The commissioners' court 

may take into consideration the quality of the product, 

the adaptability to the particular use required, and 

the ability, capacity, experience, efficiency and integrity of the bidders as well as their financial responsibility. Mitchell v. Walden Motor Company, 235 

-3785- 
. . . 

Mr. John L. David, page 5 (c-788) 

Kelling v. Edwards, 116 

People v. Kent, 160 

Picone v. City of New 

Hodgeman v. City of 

128 P. 2 412 (1942)." 

In view of the foregoing authorities,~ it is our opinion 

that the commissioners court, in the exercise of its discretion, 

has the authority to determine the quality and type of machinery 

which is best suited to the particular use for which it is to be 

purchased. Therefore, such specifications may be placed in the 

bid proposal as will insure the submission of bids upon the 

quality and type of machinery desired. When it comes to the award 

of the contract to the lowest and best bidder, the commissioners 

court may take into consideration the ability, capacity and efficiency of the bidder. 

Considering the bid proposal before us as a whole, it 

cannot be said as a matter of law that the Commissioners Court 

of Dallam County has abused its discretion in requiring that the 

bidders specify a guaranteed repurchase price and maximum parts 

replacement cost. The inclusion of this information in the bid 

proposal would, in our opinion, be relevant to the determination 

of the quality and performance of the machine to be purchased, 

as well as the ability, experience and integrity of the bidder. 

Thus, it is our opinion that the inclusion of Items 4 and 6 in 

the specifications quoted above is for the determination of the 

commissioners court, and If the court determines that the inclusion of such items will be advantageous to the interests of 

the county in securing the desired machinery, and such determination is made in good faith and not for the purpose of restricting 

competition, the commissioners court has acted within its authority. 

------- SUMMARY 

Pursuant to the provisions of Article 2368a, 

Vernon's Civil Statutes, the commissioners court 

may require bidders on the nurchase of road machinery to submit as a part of their bid, a guaranteed 

repurchase price and a guaranteed maximum cost of 

parts, provided the commissioners court in the exercise of its discretion determines that such specifications is for the best interest of the county 

in securing the machinery desired, and is not made 

for the purpose of restricting competition. 

Your5 very truly, 

WAGGONER CARR 

Attorney General of Texas 

-3786- 
. . . 

Mr. John L. David, page 6 (C-788) 

By: , . . 

Bohn Reeves 

Assistant Attorney General 

JR:mh 

APPROVED: 

OPINION COMMITTEE 

w. 0. Shultz, Chairman 

Pat Bailey 

Malcolm Quick 

James C. McCoy 

Ralph Rash