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PRICE DANIEL L~KWTIN 11. - ATTDRSBYGRNEHM June 5, 1948

Hon. Wm. N. Hensley OpinionNo. V-6OC CriminalDistrict 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:
"'OnJuly 25, 19'17, theBexar County Commlssioners' Court:

passed an order to advertise for bids for repair on a motor grader for PrecinctNod 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 submittedby Wm. K. Halt Machinery Company in the sum of $600.00 was accepted by the Court. "'Upon compls:ion of repair+ theWm, 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 followingquestions:
':I:Does t'-:sc0ntrac.L fall wi%hin the provisiors of Arri:le 1659,V,R.C,S., or any otner article, snlch re,Tii.res competitivebidding?. ,,

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

"2c 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, (aspart of the speciflcatlonsupon which blds were received and made a part of the contract) that 'paymentwill be based on the actual work done and on the parts actually furnished', authorize the CommissionersCourt to pay for this work on that basis rather than on the basis of the flat sum bid?"
Ycu also enclosedcopies of the contract,togetherwith the proposal and the specificationsunder which the Commissioners' Court ofBexar County submitted to competitivebids, for the repair of a CaterpillarMotor Grader. The bid of Wm. K. Halt Machinery Companywas accepted.

In the face of the contract it is stated that it is in accordance with the specificationsand the proposalwhich %:ere annexed thereto and made a part thereof, The proposalprovides that the repairing ofthe Motor Grader will be made for the lump Yim of $CrJri .OO a The specifinacionsprovide, in part, as follows:'
"TLework shall consist,of PJrnis?ingand installing necessaryparts and labor in the repairing of a CaterpillarModel 12 Motor Grader iin accor.dar,ce

%ith the following speclhioations. "The lump 3v.mprice bid for 'Repairsof Motor Grader' shallbe full compensation for furnishing ail mat,erials, parts, tools, labor, equipment and incidentalsnec$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 "ProposalSheet!' reads:i

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

“RepairingCaterpillar Model 12Ct;,t,;r Grader for 600.OODollars and Lump Sum ho0 .oo”
In the case of Patten v. Conch0 County, 196 3,W. (2d) 833, Itwas held that the purchase of machineryby a county was ;;t2;;ulred to be made by competitivebids under Articles 1659 ia v.c.3 * However, Article 2368a, supra,was amended by the 50th’Leglslatureand now reads, In part, as follows:

“3ec s 2o No county acting through Its Connnlssloners

Court and no city In this State shall hereaftermake any contract calling for or requlrlngthe expenditure or payment of Two ThousandDollars ($2,000) or more out of any fund or funds of any county or subdivisionof any county creating or imposing an obligation or llablllty of any nature or characterupon such county or any subdivision of such county, or upon such city, without first submittingsu$h proposed contract to competitivebids

. D V
It is apparent that’the above Article now requires that all contractsmade by a county mst be under competitivebids 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 articlewhich require competltlve bidding,

10 Tex. Jur. pages 288, 289, provides, In part, that; “Anothercontract or Instrumentmay be made a part of a written cont~ract by express reference, In which case the principalwriting 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: “Unlessa conkary intention appears from the contract as a whole, the meaning of general words will be restricted by more specificterms for, or descriptions of, the subjectmatter to whlcb t.hey

apply. Where, however,both general and specialprovisions may be given reasonable effectboth ape to be retained. See also Western Union vsSEchhardt Comm. Appi) 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 instrumentstogether,we believe that the contract is definitely one where the repairwas to be made for a lump sum of $600 and that the phrase “paymentwill be based on the actual work done and on the parts actually furnished” Is overridden by the specificprovlslon in the contract that the lump sum price bid - shallbe full compensation for furnishing all materials, parts, tools, labor, equipmentand incidentals necessary to complete the work as herein specified. This conclusion is supportedby the fact that the proposalwhich was submitted by the company clearly provides that the repair of the machinery according to the specificationswould 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 inwhole or ln part; nor pay, nor authorize the payment of, any claim created agalnstany county or munlclpalLty of the State,under any agreement or contract,made without authority of law.” Ever., though tne Commissioners’Courtwas not required to make such purchaseunder competltlvebids, 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 expendituresfor such repairs, since it is prohibited fromdoing sounder Section 53 of Article III, supra1 See Shelby Countyv. Gibson, 44 3.X” 302.

In view of the foregoing constructionof said contract, it is our opinion tnat the clause included in the speclflcatlons that “payment,

will be based on the actualwork done and on the parts. actually furnished” does not authorize the Commissioners! Court to pay for thiswork on that basis rather than on the basis of the flat sumbid/
SUMMARY

A contract,

by a county for repair of road machinery is not wlt,hlnthe 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 competitivebids under Article 2368a, V.C.S., unless such repair amounts to $2,000 or more. The county is not required to receive competitivebids for the repair of county road machinerywhere 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 Countyv. Gibson, 44 S.W. 302.
Yours very truly,
ATTORNEY GENERAL OF TEXRS By s/BruceAllen Bruce Allen Assistant BA:mw:wc

APPROVED: s/Price Danlel ATTORNEY GENERAL