Case Information
*1 The Attorney General of Texas August 6, 1984 JIM MAllOX Honorable Henry Wadt! NO. JM- @iniOn
Suprsms Court BulldIn Criminal District AMoney P. 0. Box 12549 A,,s!In. TX. 7671% 254S Dallas County Re: Competitive 5?21475-2501 Services Building requirements under article Telex 9101874-1387 Dallas, Texas 7520:! 2367, V.T.C.S. TsIscODIs’ 51214750288
Dear Mr. Wade: 714 Jackson, Sub 700 Dallas. TX. 75202.4506 You have asked .#hether all competitive bids must have affixed to 214i742-9944 them the affidavit in article 2367, V.T.C.S. If such an
affidavit is required on a specific type of item or on all bids, you ask whether a bidder may notarize the affidavit 4824 Albsrts AvO.. Suite 160 official bid openin!! date. El Paso. TX. 799052793 SlY533.34a4 r As we understan it. all bids for merchandise, services and/or equipment received by Dallas County have heretofore contained 11.~1 Texas. Suite 700 both the wording cotd the notarized signature the bidder. You Houston, TX. 77002.3111 state, however, thglt, the Dallas County purchasing agent desires. 713l223.5996 order to increase competition, to have the requirement of a signature before the notary el:lminated, but continue to place the wording of the 905 Broadway. Suile 312 affidavit, as set out 2367, V.T.C.S., on Lubbock, TX. 79401.3479 documents. 909J747-5239
It our o?Lnion that article 2367, V.T.C.S.. imposes a 4309 N. Tenth. Suite B mandatory duty upc’r a bidder affix to his bid a signed and McAllsn, TX. 79501-1995 notarized as specified within the article. We conclude. 512f982.4547 however, that this article applies only to bids to the COUI t stationery 200 MaIn Plan. Suite 400 enumerated within article 2358. V.T.C.S., and is not legally Ssn Antonlo. TX. 782052797 for all bids involv:.ng other types of supplies and/or materials. is further our opin:.oa that when such an affidavit is mandated under
article it must be affixed to the bid when submitted and may not be notarized after An Equal Opporlunltyl Alllrmatlve Action Employs~
Article 2367, V.T.C.S., reads as follows: The manager, secretary or other agent or of the bidder shall attach to each bid an the effect that affiant has full knowledge of the relations of the bidder with the firn,s in the same line of business and that biddet is a member of any trust, pool or *2 Bonorable,Henry Wade - Page 2 (~~-166)
combination of an]i’ kind and has not been for six monthr last past, directly or indirectly concerned in any pool or agreement or combinati& to control the price of suppl.les bid on, or to influence any person to bid or not to bid thereon. (Rmphesia added).
The article clearly impof es upon a bidder, acting through an appropriate or agent, a duty to attach “to each bid” an designed to discl,cse the affiant’s full knowledge of bidder’s relations “with firms in same line of .I’ The affiant muft affirm that the bidder business involved in “any trust, poo!. or combination” with the other suppliers and that he has not, within the prescribed period, entered into “any pool or agreement or combinclt:ion” for the purpose of controlling “the price of supplies bid on” or in order “to influence any person” to bid or refrain from bidding. V.T.C.S. art. 2367.
The obvious intent of cll,ticle 2367 is to ensure that all bidders will have an opportunity to bid on equal terms and will have their judged according to t!ll? same standards; this is a fundamental tenet of the competitive bidding process. Accord Texas Highway Co~ission v. Texas Aswcic~t~ion of Steel Importers, 372 S.W.2d 525 --. (Tex. 1963). See also A::orney General Opinions m-449, MI-440 (1982); MW-299 (1981); H-24 (1973). is merely one of the provisions of a 1907 act
enacted as an emergency measure for the specific purpose of regulating the purchases of stationery supplies by the county. Acts 1907. 30th ch. 136, at 252 [hereinafter referred to as the 1907 Act]. This Leg.. enactment, codifying articles through 2367, V.T.C.S., deals specifically with the authority of the commissioners court to contract on behalf the county for specific supplies and prescribes manner in which bids thereoa must be solicited and accepted. Attorney General Opinions O-1597, O-244 (1939).
We are aware that a number of statutes, overlapping in some caees, relate the bidding requirements applicable to supplies purchased by the county. ,sre, e.g., V.T.C.S. arts. 1658 (bids supplies of stationery, books, blanks, records and other supplies); 1659 (bids for supplies of c!very kind); 1659a (bids for supplies in counties of 900,000 or morel; 2368a (bidding procedures for purchases the amount of $5.000 or more applicable counties). See generally Attorney General Opinions MW-439 (1982); MW-296 (1981); F-1219 (1978).
The statutes cited abormz mandate, in general, that all purchases of supplie? for the use of t!le county made by the co~insioners - must be awarded on the b.331~ of competitive requirements imposed by applicab1.e str.tutory language. See Attorney General *3 Honorable Rcnry Wade - Page 11 (m-186)
Opinion IN-299 (1981). A failure to engage in competitive grounds for holding a co~i~h~ioners court purchaee contract invalid.
See V.T.C.S. art. 2368a. 52(d); Kelly v. Co&ran, 82 S.W.2d 641 (Tex.
1935); Attorney General 0p:lnion MW-449 (1982). See also V.T.C.S.
arts. 1659, 1659a and 1659b.
It is apparent that the L907 Act, governing contracts made by the commissioners for tha! purchases the expressly enumerated items, see V.T.C.S. art. 2362, is a specific enactment intended to be effecticin regard to these *Enumerated supplies. One of the rules of constructlon is thrlt the express enumeration of particular statutory persons or things is tantamou:lt to an express exclusion of all others.
Er parte McIver, 586 S.W.2d ,351 (Tex. Grim. App. 1979).
In view of the foregoing, we conclude that the affidavit 2367, V.T.C.S., must be attached to bids submitted the commmissioners court for printing and stationery supplies governed by the provisions 2358 through 2367, V.T.C.S.
legally for bids an supplies not included within these specific bidding statutes.
In response to your second question, we believe that when an is legally required, it must be attached to the bid when the bid is submitted and may not be notarized
bid opening.
An instrument not sworn to and properly notarized attached to a bid will not constitute “an affidavit.” Gordon v. State, 16 S.W. 337 (Tex. Grim. App. 1891). Yet compliance with the terms of the bidding statutes is required in order to create a valid contract. Accord Attorney General Opinions :$C449 (1982); MW-296 (1981). The only exceptions to such requirements are those contained in the statutes themselves. See Limestone iounty v. Knox, 234 S.W. 131 (Tex. Civ.
APP. - Dsllas 1921. no writ). We are aware of no exception applicable to article 2367. Purthernlcsre, in view of the possible criminal penalty which may be imposc!i, on an affiant making a false statement and slnce an 13 binding on the affiant, the legislative choice of words mandating that “an affidavit” be affixed “to each bid” indicates that the legislature intended for the document to be signed and notarized at time is offered. We the therefore conclude that SUC’I an affidavit should not be notarized
SUMMARY requires an affidavit
to be affixed tc, each bid court on bids for stationery supplien used by county. When
legal 1-y required specific type *4 Honorable Henry Wade - Page 4 (JM-186) governed under provisions
2358 through 2367, V.T.C.S., the affidevit muet be signed by the affhnt under oath and notarized by an officer authorized to administer oethe. It may be notarized opening date.
JIB WATTOX Attorney General of Texas TOM GREEN
First Assistant
DAVID R. RICHARDS
F*ecutive Assistant Attorney, General
Prepared by Georgette Bethle,n
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Georgette Bethlen
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton