DAN MORALES 

ATTORNEY GENERAL 

QBffice of the Eittornep Qknerat 

&ate of llfexae 

Mr. Mike Moses 

Commissioner 

Texas Education Agency 

1701 North Congress Avenue 

Austin, Texas 78701-1494 

April 30.1996 

Qpiion No. DM-387 

Re: Whether a school district must 

comply with the competitive bidding 

procedures specified in Local Government 

Code chapter 271, subchapter B when 

seeking to bid a construction contract 

valued at $25,000 or more in the aggregate 

for a twelve-month period and related 

question (RQ-861) 

Dear Commissioner Moses: 

You ash whether a school district must comply with the competitive bidding 

procedures specitkd in Local Government Code chapter 271, subchapter B when seeking 

to bid a construction contract v&xl at $25,000 or more in the aggregate for a twelvemonth period. Your question requires that we consider the interplay between Local 

Government Code chapter 271, subchapter B and section 44.031 of the Education Code. 

You also ask whether a community college district, junior college district, and regional 

college district must comply with the purchasing and contracting procedures articulated in 

chapter 44, subchapter B of the Education Code. 

Section 44.031 of the Education Code, which the Seventy-fourth Legislature 

enacted,’ pertains to school district contracts. Educ. Code 8 44031(a). The section 

provides in pertinent part as follows: 

(a) Except as provided by this section, all school district 

contracts,2 except contracts for the purchase of produce or vehicle 

fuel, valued at $25,000 or more in the aggregate for each 1Zmonth 

period shall be made by the method, of the following methods, that 

provides the best value to the district: 

(1) competitive bidding; 

‘See Act of May 27, 1995. 74th Leg., RS., ch. 260, 5 1, 1995 Tex. Sess. Law Serv. 2207, 

2425-26. 

ZFas xc&cd for professional services rendered arc not subject to section 44.03 1. Educ. Code 

p 44.031(f). 
Mr. Mike Moses - Page 2 (DM-387) 

(2) competitive sealed proposals; 

(3) a request for proposals; 

(4) a catalogue purchase . . ; 

(5) M interlocal catract; or 

(6) a deeign/buiid contract. 

(b) h det ermining to whom to award a contract, the district 

may consider: 

(1) the purchase price; 

(2) the reputation of the vendor and of the vendor’s goods 

or services; 

(3) the quality of the vendor’s goods or services; 

(4) the extent to which the goods or services meet the 

district’s need& 

(5) the vendor’s past relationship with the district; 

(6) the impact on the ability of the district to comply with 

laws and rules relating to historically underutilized businesses; 

(7) the total long-term cost to the district to acquire the 

vendor’s goods or services; and 

(8) any other relevant factor that a private business entity 

would consider in selecting a vendor. 

(e) To the extent of any conflict, this section prevails over any 

other law relating to the purchasing of goods and services except a 

law relating to contracting with historically underutilized businesses. 

[Footnote added.] 

Chapter 271, subchapter B of the Local Government Code provides competitive 

bidding procedures a governmental entity must use, if applicable, for certain public works 

contracts. A governmental entity must comply with chapter 271. subchapter B only if the 

entity “is required by statute to award a contract for the construction, repair or renovation 

of a structure, road, highway, or other improvement or addition to real property on the 

basis of competitive bids” and if the contract requires the entity to expend more than 

$15,000 of its own funds. Local Gov’t Code 4 271.024. A common or independent 

p. 2126 
Mr. Mike Moses - Page 3 (DM-387) 

school district is a governmental entity to which chapter 271. subchapter B may apply. 

See id. 8 271.021(2)(C). 

In Attorney General Gpiion JM-1220 this office concluded, in accordance with 

section 271.024 of the Local Government Code, that the competitive bidding procedures 

described in chapter 271, subchapter B apply “only when a separate statute requires the 

wntracts for the enumerated projects to be awarded on the basis of competitive bids.” 

Attorney General Gpiion JM-1220 (1990) at 3-4. If a separate statute does not require a 

government entity to competitively bid a contract for the enumerated projects, the entity 

need not comply with chapter 271, subchapter B. Id. at 5. 

We must consider, therefore, whether Education Code section 44.031 requires a 

school district to competitively bid a contract for the wnstruction, repair, or renovation of 

a structure, road, or other improvement or addition to real property, see Local Gov’t 

Code 5 271.024, assuming that the value of the contract exceeds $25,000 in the aggregate 

over a twelve-month period. By its terms, section 44.031(a) requires a school dktrict to 

utilize the purchasing method, of the six listed methods, that will provide the best value to 

the school district. Thus, when a school board determines that competitively bidding a 

contract wig provide the best value to the school district, section 44.031 requires the 

school to competitively bid it. In that circumstance, section 271.024 of the Local 

Government Code plainly requires a school district to comply with the wmpetitive bidding 

procedures articulated in chapter 271, subchapter B of the Local Government Code. Gf 

course, to the extent that any of the procedures mandated by chapter 271, subchapter B 

wntlict with section 44.031 of the Education Code, section 44.031 prevails. See Educ. 

Code 4 44.031(e). 

We turn to your second question, regarding the appiicability of chapter 44, 

subchapter B of the Education Code to wmmunity college districts, junior college 

distticts, or regional college districts. Chapter 44, titled “Fiscal Management,” and 

subchapter B, which applies to purchases and contracts, expressly apply to public school 

distticts. Section 130.005(a) of the Education Code indicates that the terms “wmmunity 

college” and “junior college” are synonymous. A junior college district is wnstituted as a 

school district for purposes of article VII, section 3 of the Texas Constitution. Educ. 

Code 5 130.122(f). 

Additionally, the legislature repealed chapter 130, subchapter F of the Education 

Code, providing for the creation of regional college districts, in 1985. See Act of 

May 16.1985, 69th Leg, RS., ch. 302, 5 3, 1985 Tex. Gen. Laws 1353, 1355. 

Nevertheless, section 130.122(t), which is located in subchapter G of the Education Code, 

states that a regional college district is wnstituted as a school district for purposes of 

article VII, section 3 of tbe Texas Constitution. 

With respect to the management and control of a junior college district, the board 

of trustees is to be governed by the general law governing the management and control of 

p. 2127 
Mr. Mike Moses - Page 4 (DM-387) 

an independent school district. Id. 3 130.084. Because of the virtual equivalence of a 

junior college district, a wmmunity wUege district, and a regional college district, we 

believe section 130.084 of the Education Code pertains to the management and control of 

all three types of districts.s Furthermore, we believe a junior college district’s purchasing 

and wntmcting duties are part of the management or control of the district. We 

accordingly conclude that chapter 44, subchapter B of the Education Code, which 

provides for purchases and wntrks of a school district, also applies to a junior college 

district. 

SUMMARX 

Where a school board determines that competitive bidding on a 

contract for an improvement to real property will provide the best 

value to the school district, section 44.03 l(a) of the Education Code 

requkes the school to competitively bid the contract. In that 

ciramtstanw, the school district must comply with the wmpetitive 

bidding procedures articulated in chapter 271, subchapter B of the 

Local Government Code, to the extent the procedures do not wntlict 

with section 44.03 1 of the Education Code. 

Chapter 44, subchapter B of the Education Code, which 

provides for purchases and wntracts of a school district, also applies 

to a junior college district, wmmunity college district, and regional 

college district. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

Fii Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Gpiion Committee 

Prepared by Kymberly K. Ohrogge 

Assistant Attorney General 

3For the sake of brevity, we will use the term *junior college district” to refer to junior cdegc 

rUstriots, community college districts, and regional college districts. 

p. 2128