OFFICE OF THE ATTORNEY GENERAL. STATE OF TEXAS 

JOHN CORNYN 

January 5,200l 

The Honorable Jeff Wentworth 

Chair, Nominations Committee 

Texas State Senate 

P.O. Box 12068 

Austin, Texas 7871 l-2068 

Opinion No. JC-0326 

Re: Legality of contract award by the City of 

San Antonio (RQ-0268-JC) 

Dear Senator Wentworth: 

You ask a number of questions about the legality of a contract award by the City of San 

Antonio. As this office cannot make findings of fact,’ we cannot determine whether the city violated 

the law in awarding the contract. For this reason, we answer your questions only in the most general 

terms. We do conclude that section 252.042 of the Local Government Code, which requires a city 

to treat offerors fairly and equally with respect to any opportunity for discussion and revision of 

proposals, applies only to requests for proposals made under section 252.021 of the Local 

Government Code. 

You inform us that the city council approved a process for awarding an advertising contract 

for the San Antonio Convention and Visitors Bureau (“SACVB”) by a request for proposals and 

solicited proposals for the contract from advertising and marketing agencies in February 2000. The 

deadline for proposals was April 21, 2000. The letter soliciting proposals informed potential 

proposers that proposals should include a Good Faith Effort Plan regarding the manner in which the 

proposers would use minority and women owned business enterprises. The city received three 

proposals as of April 21. Your request asserts that only one provided a detailed Good Faith Effort 

Plan; the other two proposals included plans of a more general nature. In July 2000, the city invited 

the three proposers to clarify or revise their Good Faith Effort Plans. In August 2000, the city 

awarded the contract to one of the companies that had not submitted a detailed Good Faith Effort 

Plan in April. The proposer that did submit a detailed plan in April challenges the legality of the 

city’s decision to allow the other proposers to revise or clarify their plans after the April 2 1 deadline 

and to award the contract to the other proposer.z 

‘See, e.g., Tex. Att’y Gen. Op. Nos. JC-0020 (1999) at 2 (stating that investigation and resolution of fact 

questions cannot be done in opinion process); M- 187 (1968) at 3 (“[TJhis office is without authority to make, fachlal 

determinations.“); O-291 1 (1940) at 2 (“[T]his presents a fact question which we are unable to answer.“). 

%-e Letter fromHonorable JeffWenhvorth, Chair, Nominations Committee, Texas State Senate, to Honorable 

John Comyn, Texas Attorney General at 2-6 (Aug. 14,200O) (on file with Opinion Committee) [hereinafter Request 

Letter]. 
The Honorable Jeff Wentworth - Page 2 (X-0326) 

The city informs us that the contract at issue is “budgeted at over $4.6 million dollars 

ammally.“3 We gather that the city council approved a document called “SACVB RFP Process, 

Schedule, Selection Criteria, and Review Committee.” City Brief, note 3, at 2. We have not 

received a copy of this document. 

Chapter 252 ofthe Local Government Code generally requires a municipality to comply with 

competitive bidding requirements when making purchases exceeding $15,000. See TEX. Lot. GOV’T 

CODE ANN. 5 252.02 1 (a) (Vernon Supp. 2000) (“Before a municipality may enter into a contract that 

requires an expenditure of more than $15,000 from one or more municipal funds, the municipality 

must comply with the procedure prescribed by this chapter for competitive sealed bidding or 

competitive sealed proposals.“). Chapter 252 allows competitive sealed proposals for certain kinds 

ofpurchases, namely high technology procurements and those made with municipal funds “derived 

from an appropriation, loan, or grant received from the federal or state government for 

conducting a community development program” established under chapter 373 of the Local 

Government Code, the Texas Community Development Act of 1975. See id. 55 252.021(c), (d) 

(Vernon Supp. 2000); ,042 (Vernon 1999); see also id. $5 373.001.,007 (Vernon 1999) (Texas 

Community Development Act of 1975). In addition, other state and federal standards may govern 

purchases made with state or federal grant money. See TEX. GOV’T CODE ANN. $5 783.001-,009 

(Vernon 1994 & Supp. 2000) (Uniform Grant and Contract Management Act); see also UNITED 

STATES OFFICE OF MANAGEMENT & BUDGET, CIRCULAR A-87 (1995), amended (1997); id. 

CIRCULAR A-102 (1994), amended (1997): 

Section 252.022 of the Local Government Code provides that chapter 252 “does not apply 

to an expenditure” for a number of different types of items, including “a procurement for personal, 

professional, or planning services.” TEX. Lot. GOV’T CODE ANN. 5 252.022(a)(4) (Vernon Supp. 

2000). Furthermore, section 252.002 provides that “[alny provision in the charter of a home-rule 

municipality that relates to the notice ofcontracts, advertisement of the notice, requirements for the 

taking of sealed bids based on specifications for public improvements or purchases, the manner of 

publicly opening bids or reading them aloud, or the manner of letting contracts and that is in conflict 

with this chapter controls over this chapter unless the governing body of the municipality elects to 

have this chapter supersede the charter.” Id. 5 252.002 (Vernon 1999). 

You ask whether “a proposer who fails to comply with the City’s Request for Proposal 

requirements . [is] qualified to receive a contract award” and whether “a city violate[s] its own 

Request for Proposal” by allowing proposers to form new business relationships and submit new 

information after the deadline for submissions. See Request Letter, supra note 2, at 6-7. We are not 

able to definitively resolve these questions. 

‘Brief from David J. LaBrec, Stiasbwger & Price, L.L.P., to Susan D. Gusky, Chair, Opinion Committee, 

Oftice of the Attorney General at 2 (Sept. 28,200O) (on file with Opinion Committee) [hereinafter City BriefJ. 

“Availabk of http:Nwww.whitehouse.goviOMBigrants/index.h~l. 
The Honorable Jeff Wentworth - Page 3 (X-0326) 

First, the legal tiamework under which the city awarded the contract is not clear either from 

your request or the materials we have received from the city. Apparently, the city used a request for 

proposals procedure to award the advertising contract. As we have seen, chapter 252 generally 

reserves requests for proposals to certain kinds of contracts. Although section 252.002 authorizes 

a home-rule city to modify the requirements of chapter 252 in its city charter, we have no 

information about whether the City of San Antonio has done so. Furthermore, we have received a 

brief corn the City of San Antonio insisting that it awarded the contract at issue as a professional 

services contract, which would be exempt from chapter 252. See City Brief, supra note 3, at 5-7. 

Whether a contract is one for professional services exempt from chapter 252 is generally a fact 

question within the province of a city’s governing body: “[A] municipality has discretion in the first 

instance to determine whether particular services, other than those covered by [chapter 2254 of the 

Government Code] are professional services for purposes of exemption from competitive bidding 

requirements under Local Government Code section 252.022.” Tex. Att’y Gen. Op. No. DM-106 

(1992) at 2. This office cannot review the city’s determination to the extent it depends upon findings 

of fact. See id. (“determinations as to whether particular services, other than those covered by 

[chapter 2254 of the Government Code] are professional services for competitive bidding purposes, 

frequently involve fact questions that the opinion process cannot address”); see also Tex. Att’y Gen. 

Op. Nos. JC-0020 (1999) at 2, M-187 (1968) at 3,0-2911 (1940) at 2, supra note 1. 

Second, even ifwe were able to establish the correct legal framework under which to analyze 

the contract award, we would still not be able to resolve your questions about the legality of the 

city’s conduct because their resolution would also involve questions of fact. For example, assuming 

that the contract was competitively bid under chapter 252, whether or not the city acted appropriately 

in permitting two of the three proposers to amend their Good Faith Effort Plans could depend upon 

whether a sufficiently detailed Good Faith Effort Plan constituted a mandatory bid specification and, 

if so, whether it was a waivable or nonwaivable bid condition. The city suggests that detailed Good 

Faith Effort Plans were not required, that each ofthe three proposers submitted complete Good Faith 

Effort Plans, and that no bid condition was waived.’ The complaining advertiser believes, however, 

that a detailed Good Faith Effort Plan was a mandatory bid specification with which the other 

proposers failed to comply. This office cannot resolve that factual dispute. Moreover, this office 

cannot resolve whether the defect in the bid specifications, if there was one, was waivable or 

nonwaivable. Case law suggests that a nonwaivable defect in a bid is one “that would allow the 

bidder to avoid the binding nature of his bid” and “if it gives a bidder a substantial advantage or 

benefit not enjoyedbyotherbidders.” Spawglass Cons@. Corp. v. CityofHouston, 974 S.W.2d 876, 

885 (Tex. Civ. App.-Houston [14th Dist.] 1998, pet. denied). This office cannot engage in the 

factual inquiry necessary to make those determinations. See Tex. Att’y Gen. Op. Nos. JC-0020 

(1999) at 2, M-187 (1968) at 3,0-2911 (1940) at 2, sups note 1. 

You also ask whether “a city violate[s] the [Local] Government Code requiring that all 

proposers be treated fairly when it discloses one proposer’s minority and women’s plan and grants 

‘See Lena from Frank J. Garza, San Antonio City Attorney, to Seagal V. Wheatley, Jenkens & Gilchrist, P.C. 

(Aug. 11,200O) (on file with Opinion Committee); see also City Brief, supra note 3, at 7. 
The Honorable Jeff Wentworth - Page 4 (X-0326) 

an extension beyond the deadline to let two (2) other proposers change their proposals to add such 

a required plan,” Request Letter, supru note 2, at 6, and if a city “violates the fair treatment 

requirements of the [Local] Government Code by permitting two proposers to ‘team up’ after the 

deadline,” id. at 7. The questions appear to refer to section 252.042 ofthe Local Government Code, 

which provides as follows: 

(a) Requests for proposals made under Section 252.021 must 

solicit quotations and must specify the relative importance of price 

and other evaluation factors. 

(b) Discussions in accordance with the terms of a request for 

proposals and with regulations adopted by the governing body of the 

municipality may be conducted with offerors who submit proposals 

and who are determined to be reasonably qualified for the award of 

the contract. Offerors shall be treatedfairly and equally with respect 

to any opportunity for discussion and revision of proposals. To 

obtain the best final offers, revisions may be permitted after 

submissions and before the award of the contract. 

TEX. Lot. GOV’T CODE ANN. $252.042 (Vernon 1999) (emphasis added). 

Section 252.042 does not appear to apply to the contract at issue. As noted above, section 

252.042 on its terms applies only to requests for proposals under section 252.021. That section 

provides in subsection (c) that “[a] municipality may use the competitive sealed proposal procedure 

only for high technology procurements or, in a municipality with a population of 75,000 or more, 

the purchase of insurance.” Id. 5 252.021(c) (Vernon Supp. 2000). The advertising contract at issue 

does not appear to be a contract for a high technology item. See id. 5 252.001(4) (Vernon 1999) 

(“‘High technology procurement’ means the procurement of equipment, goods, or services of a 

highly technical nature, including: (A) data processing equipment and software and firmware used 

in conjunction with data processing equipment; (B) telecommunications equipment and radio and 

microwave systems; (C) electronic distributed control systems, including building energy 

management systems; and (D) technical services related to those items.“). In addition, a request for 

proposal process may be used to make expenditures with certain municipal funds. Subsection (d) 

of section 252.021 provides that: 

[t]his chapter does not apply to the expenditure of municipal funds 

that are derived from an appropriation, loan, or grant received by a 

municipality from the federal or state government for conducting a 

community development program established under Chapter 373 [the 

Texas Community Development Act of 19751 if under the program 
The Honorable Jeff Wentworth - Page 5 (X-0326) 

items are purchased under the request-for-proposal process described 

by Section 252.042. 

Id. 5 252.021(d) (Vernon Supp. 2000). We have not been provided any information suggesting that 

the expenditure at issue was made with municipal funds derived from an appropriation, loan, or grant 

received by the city from the federal or state government for conducting a community development 

program under the Texas Community Development Act of 1975. 

In sum, given the factual nature of the inquiry, we cannot determine whether the successful 

proposer was qualified to receive the contract or whether the city violated its request for proposals. 

Section 252.042 of the Local Government Code, which requires a city to treat offerors fairly and 

equally with respect to any opportunity for discussion and revision of proposals, applies only to 

requests for proposals made under section 252.021 of the Local Government Code. 
The Honorable Jeff Wentworth - Page 6 (X-0326) 

SUMMARY 

Section 252.042 of the Local Government Code, which 

requires a city to treat offerors fairly and equally with respect to any 

opportunity for discussion and revision of proposals, applies only to 

requests for proposals made under section 252.021 of the Local 

Government Code. 

Attorney General of Texas 

ANDY TAYLOR 

First Assistant Attorney General 

CLARK KENT ERVIN 

Deputy Attorney General - General Counsel 

SUSAN D. GUSKY 

Chair, Opinion Committee 

Mary R. Grouter 

Assistant Attorney General - Opinion Committee