DAN MORALES

ATTORNEY GENERAL 

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Mr. Mike Moses Commissioner Texas Education Agency 1701North 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 inthe 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 inLocal 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 ofthe 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 Bofthe Education Code.
Section 44.031 of the Education Code, which the Seventy-fourth Legislature enacted,’ pertains to school district contracts. Educ. Code 844031(a). The section provides inpertinent part asfollows:

(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 inthe 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.
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(2) competitive sealedproposals; (3) arequest forproposals; (4) acatalogue purchase

. . ; (5) Minterlocal catract; or (6) adeeign/buiid contract. (b) h determining to whom to award a contract, the district may consider: (1) the purchase price; (2) the reputation ofthe vendor and ofthe vendor’s goods or services; (3) the quality ofthe 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 andrules 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 avendor.

(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, ifapplicable, for certain public works contracts. Agovernmental entity must comply with chapter 271. subchapter B only ifthe entity “isrequired by statute to award acontract 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 4271.024. A common or independent

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school district is a governmental entity to which chapter 271. subchapter B may apply. Seeid. 8271.021(2)(C).
In Attorney General Gpiion JM-1220 this office concluded, in accordance with section 271.024 ofthe 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. Ifa 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 acontract for the wnstruction, repair, or renovation of
a structure, road, or other improvement or addition to real property, see Local Gov’t Code 5271.024, assuming that the value ofthe contract exceeds $25,000 inthe aggregate over atwelve-month period. By its terms, section 44.031(a) requires a school dktrict to utilize the purchasing method, ofthe sixlisted methods, that willprovide 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 ofthe Local Government Code. Gf course, to the extent that any ofthe procedures mandated by chapter 271, subchapter B wntlict with section 44.031 of the Education Code, section 44.031 prevails. See Educ. Code 444.031(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) ofthe Education Code indicates that the terms “wmmunity college” and “

junior college” are synonymous. Ajunior college district iswnstituted 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, 53, 1985 Tex. Gen. Laws 1353, 1355. Nevertheless, section 130.122(t), which islocated in subchapter Gofthe Education Code, states that a regional college district is wnstituted as a school district for purposes of article VII, section 3oftbe Texas Constitution.
With respect to the management and control of ajunior college district, the board oftrustees isto begoverned bythe general lawgoverning the management and control of

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an independent school district. 

### Id. 3130.084. Because of the virtual equivalence of a junior college district, a wmmunity wUege district, and a regional college district, we believe section 130.084 ofthe Education Code pertains to the management and control of allthree types ofdistricts.s Furthermore, we believe ajunior 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 ajunior 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 44.03l(a) ofthe 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 44.031ofthe Education Code. Chapter 44, subchapter B of the Education Code, which provides for purchases and wntracts ofa school district, also applies to ajunior college district, wmmunity college district, and regional college district.

DAN MORALES Attorney General ofTexas
JORGE VEGA Fii Assistant Attorney General
SARAH J. SHIRLEY Chair, Gpiion Committee Prepared byKymberly K. Ohrogge Assistant Attorney General

3Forthe sakeofbrevity,we will use the term*juniorcollege district”to refertojunior cdegc rUstriots, community college districts,andregionalcollege districts.

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