HonorableWm. J. Burke

ExecutiveDirector State Board of Control Sam HoustonBuilding Austin, Texas 78711

Dear Mr. Burke:

Your request for an opinion on the above subject matter asks the followingquestion%: August 31, 1965

OpinionNo. C-496

Re: Various questionsrelating to rental of space for governmentagencies by the Board of Control.

“Cur question is - ‘Are such factors now containedIn the Bid Invitationssuch 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, janitorialservice and customer and employeeparking, importantelements that contribute to the ultimate determinationof the “lowestand best bid” and thereforerightfully included in the Invitationto Bid?’

“Cur second question is - ‘Whenwe receive bids which cannot be consideredto be the “lowestand best bids” to serve the best interests of the Intended occupantagency, are we within our legal rights under the Bid Invitation conditionwhich provides that the Board may reject any or all bids to reject such unacceptable bids and to forthwithre-advertisefor 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 interestsand/or purposes. (”
Secti.on%land

2 of Article 666b, Vernon’s Civil Statutes,provide:

“Section 1. Hereafter all departmentsand agencies of the State Government, when rental space 1% needed for carrying on the essentialfunctions
-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 buildingneeded. togetherwith 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 discretionof the Board such space is needed, shall forthwithadvertise in a newspaper,which has been regularlypublishedand circulatedin 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,togetherwith the notice of the award of the State Board of Control will be submitted to the AttorneyGeneral of Texas, who will cause to be preparedand executed in accordancewith 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 contractwill be the departmentor agency of the governmentusing the space as lessee and the party renting the space as lessor.” (Emphasissupplied)

In awarding contractsto bidders submittingthe lowest and best bid the awarding agency may take into consideration, in addition 60 prioe, the quality of the rental space, the adaptabilityto the particularuse required,and the ability, capacity,experience,efficiencyand integrityof the bidders,
as well as their financialresoonsibllitv. Attorney General's OpinionV-1565 (1952). In Attorney GeneralfsOpinion it was pointed out:

“Article 2368a flernonlsCivil Statutes7 requires that the co?itract be let 'to the lowest responsiblebidder. I The phrase ‘lowestresponsible bidder' has a well definedmeaning. For a collectionof cases see 25 Words and Phrases (Perm.Ed. 1940) 714. In determiningthe lowest responsiblebidder the commissioners' court is not performinga mere ministerialduty but 1%
-2344- v-1565Hon. Wm. J. Burke, page 3 (C- 496 )

exercisinga 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 adaptabilityto the particularuse required and the ability capacity,experience,efficiencyand 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'ofNew York, $9 N.Y:S:2d 539 kodgeman v. City of San Diego, 53 Cal.App.2d 1 y P. Thus, it was concludedthat 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'% Opinionv-1565 was better adapted to the particular
use intendedby the commissioners' court.
Additionalcases defining "lowestand best bidder" and construingthe discretionconferredon governmental agencies in awarding contractsare 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 underlinedportion of Section 1 of Article 666b reveals that the principleof law announced in Attorney General's Opinionv-1565 Is equally applicableto the authority of the Board of Control in awarding rental contractsfor space for governmentagencies. It is noted that the request for space should give not only the type, kind and size of buildingneeded, but should contain other necessarydescriptionas will afford the using agency acceptablespace adaptable to the particular
use required.

You are thereforeadvised 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, janitorialservice and customerand employeeparking" and other importantelementswhich 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 consideredto 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-