. . - 

PRICE DANIEL 

L~KWTIN 11. - 

ATTDRSBY GRNEHM 

June 5, 1948 

Hon. Wm. N. Hensley Opinion No. V-6OC 

Criminal District At%orney 

Bexar County Re: The legality of paying an 

San Antonio, Texas amount In excess of that bid 

and contracted for the repair 

of road machinery where it is 

alleged the actual work cost 

more than the contract price. 

Dear Sir: 

Reference is made to your recent request which is, in 

part, as follows: 

"On September 25, 1547, we received a request for an opinion from the Bexar County Audltar in the following language: 

"'On July 25, 19'17, the Bexar County Commlssioners' Court: passed an order to advertise for 

bids for repair on a motor grader for Precinct Nod 

1, as per specifications on file in the County 

Engineer's Office. 

"'Or. ~iigj.,.~t l,s, lga?, bids were opened in 

the Commissioners Court and the bid submitted by 

Wm. K. Halt Machinery Company in the sum of 

$600.00 was accepted by the Court. 

"'Upon compls:ion of repair+ the Wm, K. 

Halt Machinery Company rendered a bill for 

$1,000.23. From previous legal, adv%ce, I know 

of no way to approve a bill for payment wherein 

it is in excess of toe amount bid and the 

amount awarded by the Court, Therefore, I ask 

you to give me an opinion as to payment of any 

amount in excess cf hid axard and contract, wh!ct 

was for $600 :oo * : & / ' " 

You then ask the following questions: 

':I: Does t'-:s c0ntrac.L fall wi%hin the 

provisiors of Arri:le 1659, V,R.C,S., or any 

otner article, snlch re,Tii.res competitive bidding? 
. ,, 

Hon. Wm. N. Hensleg, page 2 v-600 

"2 c If It does not, does this particular 

contract fall within the provisions of Article 

III, Sectlon 53, of the State Constitution or 

not? 

“3; If if does come under this constitutional provision, does the clause Included therein, (as part of the speciflcatlons upon which 

blds were received and made a part of the contract) that 'payment will be based on the actual 

work done and on the parts actually furnished', 

authorize the Commissioners Court to pay for this 

work on that basis rather than on the basis of 

the flat sum bid?" 

Ycu also enclosed copies of the contract, together with 

the proposal and the specifications under which the Commissioners' 

Court of Bexar County submitted to competitive bids, for the 

repair of a Caterpillar Motor Grader. The bid of Wm. K. Halt 

Machinery Company was accepted. 

In the face of the contract it is stated that it is in 

accordance with the specifications and the proposal which %:ere 

annexed thereto and made a part thereof, The proposal provides 

that the repairing ofthe Motor Grader will be made for the lump 

Yim of $CrJri .OO a 

The specifinacions provide, in part, as follows:' 

"TLe work shall consist, of PJrnis?ing and 

installing necessary parts and labor in the repairing of a Caterpillar Model 12 Motor Grader 

i in accor.dar,ce %ith the following speclhioations. 

"The lump 3v.m price bid for 'Repairs of 

Motor Grader' shall be full compensation for 

furnishing ail mat,erials, parts, tools, labor, 

equipment and incidentals nec$ssary to complete 

the wcrk as ber:eFn specified. 

~'PA3igNT; Fayment:, will be based on the 

actual iork done, and on the parts actually 

furnished." 

TEE type;irir:en portion of the "Proposal Sheet!' reads: 
i 

Hon. Wm. N. Bensley, page 3 v-600 

“Repairing Caterpillar Model 12Ct;,t,;r Grader 

for 600 .OO Dollars and 

Lump Sum ho0 .oo” 

In the case of Patten v. Conch0 County, 196 3,W. (2d) 

833, It was held that the purchase of machinery by a county was 

;;t2;; ulred to be made by competitive bids under Articles 1659 

ia v.c.3 * However, Article 2368a, supra, was amended by 

the 50th’Leglslature and now reads, In part, as follows: 

“3ec s 2 o No county acting through Its 

Connnlssloners Court and no city In this State 

shall hereafter make any contract calling for 

or requlrlng the expenditure or payment of Two 

Thousand Dollars ($2,000) or more out of any 

fund or funds of any county or subdivision of any 

county creating or imposing an obligation or 

llablllty of any nature or character upon such 

county or any subdivision of such county, or 

upon such city, without first submitting su$h 

proposed contract to competitive bids . D V 

It is apparent that’the above Article now requires that 

all contracts made by a county mst be under competitive bids if 

such contracts amount of $2,000 or more. 32nce,the expenditure 

to be made by your county does not amount to $2,000 and In -view 

of the foregoing, It is our oplnlon that such a contract does 

not fall within the provisions of Article 1659 or any other 

article which require competltlve bidding, 

10 Tex. Jur. pages 288, 289, provides, In part, that; 

“Another contract or Instrument may be 

made a part of a written cont~ract by express 

reference, In which case the principal writing 

and that referred to are to be read and construed together. S m .‘I 

In 17 C.3.3. 731, para. 313, It is stated that: 

“Unless a conkary intention appears from 

the contract as a whole, the meaning of general 

words will be restricted by more specific terms 

for, or descriptions of, the subject matter to 

whlcb t.hey apply. Where, however, both general 

and special provisions may be given reasonable 

effect both ape to be retained. See also Western 

Union vs S Echhardt Comm. App i) 11 3.W, (2d) 7779 

syllabus 12, page 7 2.” 
Hon. Wm. N. Hensley, page 4 v-600 

The contract expressly states that the speclflcatlons 

and the proposal are made a part of the contract. In conslderlng these three instruments together, we believe that the contract is definitely one where the repair was to be made for a 

lump sum of $600 and that the phrase “payment will be based on 

the actual work done and on the parts actually furnished” Is 

overridden by the specific provlslon in the contract that the 

lump sum price bid - shall be full compensation for furnishing 

all materials, parts, tools, labor, equipment and incidentals 

necessary to complete the work as herein specified. This conclusion is supported by the fact that the proposal which was submitted by the company clearly provides that the repair of the 

machinery according to the specifications would be made for a 

lump sum of $600. 

Section 53 of Article III of the State Constitution 1s 

as follows: 

“The Leglslature shall have no power to grant, 

or to authorize any county or mnlclpal authority 

to grant, any extra compensation, fee or allowance 

to a public officer, agent, servant or contractor, 

after service has been rendered, or a contract has 

been entered into, and performed in whole or ln 

part; nor pay, nor authorize the payment of, any 

claim created agalnst any county or munlclpalLty of 

the State, under any agreement or contract, made 

without authority of law.” 

Ever., though tne Commissioners ’ Court was not required to 

make such purchase under competltlve bids, nevertheless since it 

elected to do so, the contract is binding on both parties. Inas - 

mch as the county 1s legally liable only to the extent of $600 

under the provisions of the contract, it Is our opinion that the 

county may hot allow addlt.lonal expenditures for such repairs, 

since it is prohibited from doing so under Section 53 of Article 

III, supra 1 See Shelby County v. Gibson, 44 3.X” 302. 

In view of the foregoing construction of said contract, 

it is our opinion tnat the clause included in the speclflcatlons 

that “payment, will be based on the actual work done and on the 

parts. actually furnished” does not authorize the Commissioners! 

Court to pay for this work on that basis rather than on the basis 

of the flat sum bid / 

SUMMARY 

A contract, by a county for repair of road 

machinery is not wlt,hln the provisions of 

Article 1659, V.C.3. Patten v. Concbo County, 
. . 

Hon. Wm. N. Benslsy, Page 5 v-600 

196 S.W. (26) 833. The county is not required 

to submit same to competitive bids under Article 

2368a, V.C.S., unless such repair amounts to 

$2,000 or more. 

The county is not required to receive competitive bids for the repair of county road 

machinery where said repair amounts to only 

$600. Nevertheless, when It elects to do so 

and enters into a contract for a specified 

amount, the county is bound by said contract 

and may not allow any additional expenditures 

for such repair. Art. III, Section 53, See 

Shelby County v. Gibson, 44 S.W. 302. 

Yours very truly, 

ATTORNEY GENERAL OF TEXRS 

By s/Bruce Allen 

Bruce Allen 

Assistant 

BA:mw:wc 

APPROVED: 

s/Price Danlel 

ATTORNEY GENERAL