Honorable Wm. J. Burke 

Executive Director 

State Board of Control 

Sam Houston Building 

Austin, Texas 78711 

Dear Mr. Burke: 

Your request for an opinion on the above subject 

matter asks the following question%: 

August 31, 1965 

Opinion No. C-496 

Re: Various questions relating to rental of space 

for government agencies 

by the Board of Control. 

“Cur question is - ‘Are such factors now 

contained In the Bid Invitations such as size 

of rooms, location of the rooms within the 

building, the location of the rooms with relation to the ground surface, the availability 

of elevator service or the question of attended 

elevator service, heating, air conditioning, 

lighting, janitorial service and customer and 

employee parking, important elements that contribute to the ultimate determination of the 

“lowest and best bid” and therefore rightfully 

included in the Invitation to Bid?’ 

“Cur second question is - ‘When we receive bids which cannot be considered to be the 

“lowest and best bids” to serve the best interests of the Intended occupant agency, are we 

within our legal rights under the Bid Invitation 

condition which provides that the Board may reject any or all bids to reject such unacceptable 

bids and to forthwith re-advertise for space in 

the given location or city in another attempt to 

obtain for the intended occupant state agency 

the quarter% which will more fully serve its 

best interests and/or purposes. ( ” 

Secti.on%land 2 of Article 666b, Vernon’s Civil 

Statutes, provide: 

“Section 1. Hereafter all departments and 

agencies of the State Government, when rental space 

1% needed for carrying on the essential functions 

-2343- 
Hon. Wm. J. Burke, page 2 (C-496 ) 

of such agencies or d!3QartmentS 

ment, shall submit to the State - _. . 

of the State GovernBoard of Control a .._ _. _ request thereror, giving tne type. KlnCi. ana size or 

building needed. together with any other necessary 

description. and stating the purpose for which it 

will be used and the need therefor. 

"Sec. 2. The State Board of Control, upon 

receipt of such request and if the money has been 

made available to pay the rental thereon, and if, 

in the discretion of the Board such space is needed, shall forthwith advertise in a newspaper, which 

has been regularly published and circulated in the 

city, or town, where such rental space is sought, 

for bids on such rental space, for the use% indicated 

and for a period of not to exceed two years. After 

such bids have been received by the State Board of 

Control at its principal office in Austin Texas, and 

publicly opened, the award for such rentai contract 

will be made to the lowest and beat bidder and upon 

such other terms aa may be agreed upon. The terms 

of the contract, together with the notice of the 

award of the State Board of Control will be submitted 

to the Attorney General of Texas, who will cause to 

be prepared and executed in accordance with the terms 

of the agreement, such contract in quadruplicate; one 

of which will be kept by each party thereto, one by 

the State Board of Control and one by the Attorney 

General of Texas. The par&e% to such contract will 

be the department or agency of the government using 

the space as lessee and the party renting the space 

as lessor.” (Emphasis supplied) 

In awarding contracts to bidders submitting the lowest 

and best bid the awarding agency may take into consideration, 

in addition 60 prioe, the quality of the rental space, the 

adaptability to the particular use required, and the ability, 

capacity, experience, efficiency and integrity of the bidders, 

as well as their financial resoonsibllitv. Attorney General's 

Opinion V-1565 (1952). In Attorney Generalfs Opinion 

it was pointed out: 

“Article 2368a flernonls Civil Statutes7 

requires that the co?itract be let 'to the lowest 

responsible bidder. I The phrase ‘lowest responsible bidder' has a well defined meaning. For 

a collection of cases see 25 Words and Phrases 

(Perm. Ed. 1940) 714. In determining the lowest 

responsible bidder the commissioners' court is 

not performing a mere ministerial duty but 1% 

-2344- 

v-1565 
Hon. Wm. J. Burke, page 3 (C- 496 ) 

exercising a duty which 1% deliberative and discretionary. Att'y Gen. Op. v-1536 (1952). The 

commissioners1 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 Moter Company, 

235 Ala. 34 177 So. 151 (19 '0. Kellln v 

116 Minn 484 134 N3 Wf 5PlTdhe 

w;. Kent 160 Iii 655 '43 N E 750 (it396 

picone v. City'of New York, $9 N.Y:S:2d 539 

kodgeman v. City of San Diego, 53 Cal.App.2d 

1 yP. 

Thus, it was concluded that the commis%ionerstoourt 

had the authority to accept the higher of two bids on the purchase of a dump truck since the truck Involved in Attorney 

General'% Opinion v-1565 was better adapted to the particular 

use intended by the commissioners' court. 

Additional cases defining "lowest and best bidder" 

and construing the discretion conferred on governmental agencies 

in awarding contracts are as follow%: State v. Hermann, 59 N.E. 

104, 63 Ohio St. 440 (1900); Wilmott Coal Co. v. State Purchasing 

Commission, 54 S.W.2d 634, 246 Ky. 115, 86 ALR 127 (1932); 

Altschul v. City of Springfield, 193 N.E. 788, 48 Ohio App. 

56 (1 ) Fetters v. Mayor and Council of Wilmington, 74 A.2d 

270, 3T3zei. Ch. 364 (1950); 27 ALR 2d. 925 (1951). 

The underlined portion of Section 1 of Article 666b 

reveals that the principle of law announced in Attorney General's 

Opinion v-1565 Is equally applicable to the authority of the 

Board of Control in awarding rental contracts for space for 

government agencies. It is noted that the request for space 

should give not only the type, kind and size of building needed, 

but should contain other necessary description as will afford 

the using agency acceptable space adaptable to the particular 

use required. 

You are therefore advised that the bid Invitation may 

contai .n specifications such as'8ize of rooms, location of the 

rooms within the building, the location of the rooms with relation to ground surface, the availability of elevator service 

or the question of attended elevator service, heating, air 

conditioning, lighting, janitorial service and customer and 

employee parking" and other important elements which will aid 

the Board of Control in making the ultimate determination as 

to who has submitted the lowest and best bid. 

In answer to your second question, when the Board of 

Control receives bids which cannot be considered to serve the 

best interest% of the intended occupant, the Board of Control 

-2345- 
Hon. Wm. J. Burke, page 4 (C-496 ) 

has the authority and it is its duty to reject such bids. Whenever the Board of Control deems it to the best interest of the 

State, it has the authority to reject all bids and re-advertise 

for space in the given location or city in another attempt to 

obtain suitable space for the Intended occupant. 

SUMMARY 

In awarding a contract for rental space for 

government agencies to the lowest and best 

bidder, pursuant to the provisions of Article 

666b Vernon's Civil Statutes the State Board 

of C&trol may consider the adaptability of the 

space to the particular use required by the intended occupant, and the bid Invitations may 

contain such factors as size of rooms, location 

of the rooms within the building, the location 

of the rooms with relation to ground surface, 

the availablllty of elevator service or the 

question of attended elevator service, heating, 

air conditioning, lighting, janitorial service, 

and customer and employee parking. 

Whenever the Board of Control receives bids which 

are not considered to serve the best interests of 

the intended occupant, the Board of Control has 

the authority to reject such bids. 

Yours very truly, 

WAGGONER CARR 

Attorney General 

John Reeves 

Assistant 

JR:mcn 

APPROVED: 

OPINION COMMITTEE 

W. 0. Shultz, Chairman 

Dean Arrington 

James Broadhurst 

Ivan Wllllam% 

Tom .Routt'; 

APPROVED FOR THE ATTORNEY GENERAL 

By: T. B. Wright -2346-