Honorable J. Collier Adeee, Jr. opinion NO. JN-1248 

co&ran county Attorney 

109 Woet Weehington M: Validity of a bid eoWorton, Texae 19346 licitation Which doee not 

ccmply with the publiehing 

requirement8 of section 

262.025(a) of the Texas 

Lccal Government Code 

(RQ-2050) 

DearHr. Adame: 

You ask three gueetione about the comtyRe purchaee, by 

meane of competitive bidding, of a motor grader. First, you 

ask whether the eolicitation of bide for the grader was 

valid. 

You tell ue that the eolicitation wae publiehed twice 

in a local neWspaper, on Decbber 21, 1989, and on January 

4, 1990. We understand that the’newepaper wae not published 

during the intemening Christmas week in 1989 and that the 

bide Were opened on Jenuary 19, 1990. 

Subchapter C of Chapter 262 of the Local Gwernment 

Code reguiree that county purchaeee of more than $10,000 be 

made by competitive bidding, and eection 262.025(a) requires 

the solicitation of bide, as follows: 

be & at w a u+ctk A of a propoeed pur?r nrw;t 

paper of general circulation in the county, 

with the g 

a the 14th dav &&r,# the date of the 

bid. If there ie no notepaper of 

general circulation in the county, the notice 

muet be pceted in a proainurf place in the 

courthoueo for 14 day8 before the date of the 

bid opening. 

Gw't Code S 262.025(a) (our emphasis). 

This statute has not been previously eubjctctad to 

published legal analysis. In conetruing the publication 

p. 6646 
Honorable J. Collier Adam, Jr. - Page 2 (J&1248) : 

. 

requirements, ve a r e l eeieted by conmidering the 

.í 

l ub ee& io n 

as a whole. The l ubeection defines two alternative methode 

for giving notice of the propoSed contract, publication, and 

posting. In those cases where there is no Wevepaper of 

general circulation,vl the courthouee posting alternative 

reguiree posting for the 14 day period imvediately preceding 

the opening of the bida. An l guivalent notice is achieved 

through publication vhere the initial publication is made 

once l ech week for the tvo veeka procoding the bid opening. 

Read litarally, the l tetute reguiree a publication once each 

ve& from the firet publication until the opening of the 

* We helieve that the legislature here intended to 

require that notice of the contract be publimhed in a 

nevepaper, as it vould be posted in the courthouse, once a 

week for at least the tvo coneecutive veeka 

prior to the opening. 

immediately 

Purther, if the original publication 

occurs on a more remote date than the 15th day before the 

date of the bid opening, there vi11 be additional veeke of 

publication.2 

I 

In the circumetancee you describe, the first publication of the notiae occurred 29 days before the opening (Dec. 

21, 1989). The second posting oc currod on January 4, 1990, 

because there vae no paper publiehed during the Christmas 

week. Ae ve read the statute, there ehould have been 

another publication in the week folloving the January 4, 

1990, publicetion end preceding the week of the opening (on 

January 11, 1990, for example). Therefore, ve believe that 

.the publication of notice for this bid does not technically 

fulfill the statutory requiremnte. 

You next ask about the validity of the restrictive 

epecification, Wide on Total Coot Only,* which you indicate 

is intended to eneure a maximum amount to be spent on parts 

1. You neither ask about nor supply information relative to the guution of vhethu the nevepepu is one of 

general oirculaticnr thue ve do not eddreee that issue 

but assume thatthe newmpapernats therequiraent. w 

m v. St,&& 143 S.W.26 629, 633 (Tex. Civ. App. - 

Dallas 1940, vrit dia'd, judgm't car.). 

2. The statute raguiree publication "at least once a 

veek,. unlike similar l tatutee that limit the publication 

requirement to .once a vsek for tvo coneeeutivm weeks. * 

sr r . l .~r, Local Gw't Code Is 271.055(b)(l) (public vorke 

contracts paid out of oe*ificatee of obligation); 

252.041(a) (municipal contracta). 

p. 6649 
Honorable J. Colliu Adaee, Jr. - Page 3 (JM-1246) 

end a guaranteed r8purchaer pricm for thm oquipmont. Aa 

noted in your brief, this office has previouely approved the 

use of total cost bidding epecificatione. Attorney General 

Opinion C-768 (1966). In that opinion, this office considered, as here, a county's epecificetion of a guaranteed 

rapurchaeeprice andmaximum parts replaaonn t ooet in its 

call for bidm on road nohinuy. That opinion concluded 

that the definition of purchasing epecificatione vae a 

matter for the comieeionere oourt. At the time that 

opinion vae ieeued, there vere no state statutes gwerning a 

county*8 sale of pereonal property. Thue, Attorney Genmral 

Opinion C-788 coneidered the repurchuo, or sale, of the 

motor gredu ably ae it related to the l pecificatione for 

tbe county*8 original pumhaee and not as the uparate sales 

traneaction tbat it really is. subeeguent to the issuance 

of C-786, the legislature statutorily limited the means by 

vhich counties cae diepoee of pereonal property. 

In 1981, the legislature adopted a l ta tut8, 

found at eection 263.151, m, -1 governeen t cozy 

governing counties' sales of pereonal proparty. Act8 1981, 

67th L8g., ch. 647. At the time that statute vae enacted, 

the legislature rewqnired that countiu l ct pureuant to 

legal authorization. We quote from the bill analysis: 

Countiee are edeinietrative aree of the 

State, and as such, have no ieplied pwere. 

The Legislature grante euch authority as it 

eeee fit, and this must be literally interpreted . 

A check of the statutes reveald no referuhoe to the eale of ealvage [or] property 

deewd surplus or unfit for a county~e need. 

Hovever, ocuntiu already generally follov 

the proceduru outlined belov for the diepo8al of surplus or unueable properties. 

Bill Analysis, H.B. 2176-2, 67th Leg. (19111); M 

~g~eaA.r on H.B. 2176-2 before tha House Cop. on 

. 67th Leg. (Nay 6, 1981) (tape on file vitb 

House Tochni& Servioee). 

Section 263.151(2) of the code defina meurplue 

property* as follove: 

(2) %urplue property~ eeane personal 

prcperty that: 

(A) is net ealvage property or iteee 

routinely discardad as vaete: 

. 

. 

p. 6650 
Honorable J. Collier A, Jr. - page h (JM-12483 

. 

, 

(8) is not aurrently needed by its 

ovner: 

(C) is not required for the ovner*e 

foreseeable needer and 

(0) poeeeene eoae ueefulmee for 

the purpwe for vhich it vae intended. 

Loeel Gov't Code S 263.151(2). 

Se&ion 263.152 Of tb COIM &finu tb mOdm by 

~i~l~~mmieeioner8oourtmaydiepouofpereonalproperty 

: 

The cemmieeioner8 court of a county may: 

(1) periodically ull the county* 8 

mwplue or ealvage proporfy by competitive 

bid or auction; 

(2) offer the property es a trade-in for 

nev property of the 8ame general type if the 

commieeionere court considers tht action to 

be in the beet interuta of the county8 or . 

(3) order any of the proputy to be dutroyed or otheruiu diepoud of as worthless 

if the commieeionere CouLt undertaJce8 to ull 

that property under Subdivieion (1) and is 

unable to do 80 because no bide are made. 

Local Gov*t Code 5 263.152. 

We do not believe that the legislature intended to 

allow the guaranteed repurchase that is preeented by your 

queeticne. Such a repurchase is not a l trade-ina u that 

term18 generellyunderstood. In a trade-in, a county sells 

one piece of property and eimulteneouely acquires another. 

In total coet, the county acquires property and contrect.8 to 

sell that ume pieae of property at wme later time. While 

thetransfer of property vould bo l ccompliehed by means 

of oompetitive bidding, tha bid was let relative to the 

original purohaee of the machine, and no bid vae let relative to the sale of the machine, as allowed by section 

263.152 of the Local Governmen t Code. 

While chapter 262 requiru competitive bidding for 

certain purchases end chapter 263 allowe it as an option for 

the sale of county personal property, ve do not believe that 

the oompotitive bidding reguiremen tm for thm two diffrrent 

I 

p. 6651 
Honorable J. Collier Adam, Jr. - Page 5 UI4-1246) 

tramactiona ten be met through a single competitive bid. 

After all, vhen the bid vu nde and accepted for the 

oounty*e purchase of the machine, the county did not ovn tbe 

machine and wuld not eel1 it. 

Yw third que8tion asks whether the 

to uction 263.151 of the Local Governmen 

not anever that queeticn 

anmtered it abwe. 

eeperetely i~emueh as ve have 

Nor do ve address the issue of the 

validity of the contract a8 a whole. 

Section 262.025 of the Lccel Goverrment 

Code, in cefiain inetencee, requires puhlioation of notice of a proposed purchame once 

awhveakuntil the opening of bide, viththe 

first publication to occur no later then the 

15thdaybeforethe data ofthabid opmning. 

While a conieeionere court has the authority 

to determine epecificatione for iteme to be 

purchased or sold by the county under competitive bide, they may not combine the tvo 

transactions in a eincle bid. 

JIM HATTOX 

Attonmy General of Texas 

NARYXBLINR 

Firet keietent Attorney Genus1 

ImJ NC-Y 

Executive Aeeietant Attorney General 

JUDGB BDILIB STBAXLBY 

SpOial Aseiet8nt Attorney tieral 

BBNBANICXB 

special Aeeietent Attorney Generel 

RICXGIIZIH 

Chairman, Opinion Committee 

Prepared by Xaren C. Gladney 

Aeeietent Attorney Genual 

p. 6652