Case Information
*1 December 10, 1990 Honorable Marcus D. Taylor Opinion No. JM-1254 Criminal District Attorney
wood County Re: Whether the awarding of P. 0. Box 689 a contract precludes a county from making spot purchases Quitman, Texas
from another supplier (RQ-2015) Dear Mr. Taylor:
You ask:
Does the awarding of a contract to buy supplies on a unit price basis in accordance with Sec. 262.028, Local Government Code, preclude coun- ties from making spot purchases of the same supplies at [the same or]1 a lower unit price from another supplier during the term of the contract?
Your question arises from a situation where the county executed a contract to purchase all road oil needed by the county from one contractor. The contractor was unable to needs, and one of the county meet all of the county's commissioners made a "spot purchase" of the product at the same price from a different supplier. The cost of the additional purchase was less than the $10,000 competitive bidding threshold found in section 262.023(a) of the Local Government Code.
Inasmuch as your question states that the unit price contract was made "in accordance with section 262.028, Local Government Code," we assume that the contract was let as the result of competitive bids in accordance with chapter 262 of the code. We also assume that the county has not adopted the Optional County Road System as authorized by section 3.201 of article 6702-1, V.T.C.S.
1. The original question was amended by adding the bracketed language to reflect the facts.
p. 6679 *2 You have suggested that section 262.023(c) of the Local , Government Code prohibits the spot purchase in question as follows:
In applying the competitive bidding and compe- titive proposal requirements established by Subsection (a), all seoarate. secuential. or comoonent vurchases of items ordered or our- fiased. with the intent of avoidinc the com- petitive biddina and comoetitive DroDosaL recfuirements of this subchaoter. from the same suoolier bv the same countv officer, deDart- . ment. or institution are treated as if they Bre Dart f a sinale DUrChaSS and of a sinale In applying this provision to the contract.O purchase of office supplies, separate purchas- es of supplies by an individual department are not considered to be part of a single pur- chase and single contract by the county if a specific intent to avoid the competitive bidding requirements of this subchapter is not present. (Our emphasis.)
Local Gov't Code S 262.023(c).
The purpose of this provision is readily apparent. It is designed to prevent counties from avoiding the competi- tive bidding requirements by purchasing quantities of materials or supplies in lots, which individually cost less The public than $10,000 but total more than that amount.
policy behind the competitive bidding requirement is strong enough that criminal penalties have been enacted to effectively stop this particular means of evading the statutory requirement. &g Local Gov't Code 55 262.034(a), 252.062(a).
We do not think that the provision was intended to pre- clude "spot purchases" in the specific circumstances you describe. Nor do we find any other provision of the chapter that precludes such spot purchases. Of course spot pur- chases may not be used to avoid the competitive bidding process.
In your second question, you ask: Assuming that the answer to the first question is 'no,' would such a spot purchase be subject to county bidding requirements, even if it were for an amount less than $lO,OOO?
As indicated by your question and the preceding dis- cussion, county purchases are not required to be made by competitive bids unless the amount is more than $10,000.
Local Gov't Code S 262.023(a). Again, we caution that if the contractor's inability to meet the county's needs is seen as a continuing situation that will result in the expenditure of $10,000 or more, the county would be required to call for bids again. Such separate, sequential pur- chasing is precisely the activity that the language empha- sized above in section 262.023(c) was intended to prevent.
See Attorney General Opinion JW-725 (1987). Of course, a county is authorized to request bids for purchases that fall below the $10,000 threshold. &&ten v . C oncho Countv, S.W.2d 833 (Tex. Civ. App. - Austin 1946, no writ).
The County Purchasing Act, chapter 262 of the Local Government Code, does not preclude a county from making an isolated spot pur- chase of supplies or materials when the con- tractor obligated to meet the county's re- quirements is unable to furnish the supplies or materials. Spot purchases may not be used to avoid the competitive bidding process. JIM MATTOX Attorney General of Texas WARYXELLER
First Assistant Attorney General
LOUMCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAXLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General RICK GILPIN
Chairman, opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General