Case Information
*1 OFFXCE am THE AFFORNEY GENERAL AUSTIN.TEXAS February 20, 1948 PRICE DANIEL *TTORNEY ‘Eh‘E8.a
Hon. Joaeph C. Ternus Opinion Ho. V-506 County Attorney
San Patrlcio County Re: The necessity of let- Sinton. Texas tina contracts based on co~etltlve bidding for
road work to be done by the Comtulssloners' Court Itself, rather than by a general con- tractor.
Dear Sir:
Reference Is made to your recent.raquest for an opinion of this Department, which reads, in part, as follows:
"Sometime-ago~the Connty of-San Patrl- Oio voted a $1;500,000.00 bond Issue to im- prove and construct roads in this county. The mohey Is now avtiilable and the oommLs- sloners expect to @end at least $750,000.00 of this money on road Improvements and con- struction done directly under their imme& iate supervl.slon anB direction; that Is to say, It Is not contemplated that the work would be let to a contractor under bid to do a completed job, but that the commlssion- em would, with the'help of an engineer hir- ed for that purpose, do their own road con- struction and rebuilding. This will necsa- sltate many direct, individual e%pendltures of money since they contemplate purobaslng road materials themselves, directly paying for hauling, etc. In other words, the com- missloners do not contemplate'contractlng with anyone for an 'end Item', I. e. a com- pleted roab.
"I would appreciate receiving an opin- ion from you concerning the questions here- inafter set forth.
Hon. Joseph C. Terms, page 2 (V-506)
"Questlon,Bo. 1. Is there any law re- quiring the commlssioners~ court to let the San Patricia County road building and im- provement progrtim out on oontract~under competitive bids, or may the commissioners1 court build and improve the roads, doing the job themselves? . . .
"Question No. 2. There will be consic¶- erable hauling to be done. The commisslon- era would like to hire local men in the coun- ty, who own trucks, to do most of the haul- ing. It 1.3 further contemplated to pay for the hauling on a yardage basis. It is fur- . . ther contemplated that, if a man were to start hauling for the oounty and hauled as long as the county had work for him to ao, he would be paid a total In excess of $2,CCO.- 00; however, the man would probably bill the county by the week which amount would probably be under $2,000.00 peti week.' Does Art. 2368a, Section 2 (or any other law), re- quire this type of work to be let under com- petitive bids?
"Question No. 3. It is contemplated that the commLssloners~ court would hire from the owner a dragline, the owner fur- nishing the operator and bearing the ex- penses and upkeep of the dragline; to be used in excavating road material and plac- ing same in the dump trucks, the owner of the dragline to be paid &t the rate of SO much a yar@ loaded In the dump trucks. Would Art; 2368a, Section 2“(or any.,,other law) require that the oommissioners' court let this type of contract out for bids? "Question HO. 4. Akme that the dragline owner referred to above also. furnished the road building materials, would not Art. 1659 apply so that in that case the contract would have to be let Un- der bids?
"The dragline owner in both Instances above would bill the county either by the day or by the week as the work progresses; *3 Hon. Joseph C. Ternus, page 3 (v-506)
of any nature or character upon such county or any subdivision of such oounty or upon auoh olty, without first submitting such proposed contract to competi- tive bids. . .
“Provided, that in case of public. calamity, where it becomes necessary to act at once to appropriate money to relieve the necessity of the citizens, or to pre - ,serve the property of such county or city, or where it is necessary to preserve or protect the public health of the citizens of such county or city, or in case of unforeseen damage to public property, machinery, or equipment, this provision shall not apply; and provided further, that it shall not be applied to contracts for personal or for professional servlces, nor to work done by such county or city'and paid for by the day, as such work prbgresses.”
Ths purpose of these provisions is to enable counties to obtain the performance of any public work at the lowest possible cost to taxpayers. However, the Commissioners t Court has the option of carrying on the work itself and the provIsions of Article 2368a do not apply to any work done under the direot supervlslon of the County Conrmlssloners, 'and paid for by the day. Gulf Bltullthlc v. &4oes County (Corn. App.) 11 S.W. (26) 305; 11 Tex. Compan ?ur. c 6 3.
'I;herefore, It is our opinion that the Commissioners' Court has authority to do this work in the same ~manner that they provide for other construction on the county highway system ,lnstead of asking for bids from private concerns.
Inasmuch aa your questions 2 and 3 are 80 closely related, and since the same rule of law will govern in eaoh lnstanoe, we shall oonsider both questions together. uoted Article 2368a am somewhat
The provisions of the above ? now repealed), but the same rule of dltter4nt from Article 2368 law l pplicabls under Article.2368 may now-be applied under Arti~cle 2368a. W4 do not believe that such contracts as presentedT$ th4 above questions are."such as to require oompotitive bids; Commissioners' Court may terminate the employment in each instance eny time It drsires to do so*
The caao of Jackson v. Noel, 37 S.W. (26) 787, wan one In which the Commfssionsra' Court of Way County has entersd Into a contract with appsllant Jackson by which Jackson agreed to furnish certain road material for public roads for a prioe of $3.00 per yard of' County;. further the price gravel and material to be paid by Gra agroad upon was greatly fn excess of ,ccc.cc.
Hon. Joseph C. Ternus, page 4 (v-5061
The court in passing upon the question of whether such a contract oame within the provisions of Article 2368, had this to say:,
"The contract made by the commfssioners' court with' Jackson ~through Coxs one of its commisslon4r8, was for the hauling of material and for the spreading of same on the road. ; The record does not disclose that any contract was made with reforonco to the plaoing of such material upon any special numbor of yards of road, and no number of yards of gravel or caliche or other material was contracted for; hence It dannot be said that the making of the contract called for the expenditure of the sum of $2,000 or more. In other words, it was such a contract for the delivery of material that work could be stopped at any time.
*That the contract now before this court is not controlled by article 2368, R.C.S. See Gulf Bttull- thlc Co. v. Nueces County (Tex.Com. App.). 11 S.W. -
(2%) 30% "For the reason that the evidence fails to dLsclose that the contract as made with Jackson necessarily amounted to the sum of #2,000, and for the roason that the conmlsaloners~~ court9 when having county road work done under its supervision, was not llmlted~ to such sum In the repair of the roads of the county and that they had the option as to whether suah work should be mubmitted to competitive bidders, w4 rovers8 .the judgment of the trial court* and remand the cause for another triaz."
Therefore; in view of the foregoing, it Is the opinion or thla Department that your questions 2 and 3 should be answored In the nogativs. 1659, V.C.S., Is aa follows%
Artlola or
wSupplles of over kind, road and bri o~matsrlal, any other materia 9 p for the ua4 of sal county, or tty of ltr offloors, departments, or institutiona must purchased on competitive bids,.th4 contract-t?-bo awarded to the party who9 in the judgment of the commis- sionora Court, had'rubmltted the lowest and bort bid. The oounty auditor shall advertise for a perlod of two weeks in at least one daily newapapor.I\, published and oirculatsd In the county9 for such suppllss and material aocordfng to specifl&atlons, glvi,ng in d&all what is needed. Such advertisements shall atats whsro the specifications are to be found, and shall give th4 *5 Hon. Joseph C. Ternus page 5, (v-506)
time and,place for receiving such bids. All such competitive bfds shali be kept on file by-the county ,audqtor as a part of the records of hfa office, and shal,l be subject to inspection by any one desiring to see them. Copies of all bfds received snail be furnis!led by the county auditor to the county judge and to the commissioners court; and when the bids received are not satisfactory to,the said judge or county commissioners, the auditorshall reject said bids and readvertfse for new bids. In cases of emergency, pur=has-es not in excess of one hundred and fifty doli.ars may be made upon requisf- tfon to be approved by the commissioners court, with- out advertfsfng for competftfve bfds."
In thecase of iEast Texas Const. Co. v. Lfberty County, 139 S.W. {2d) 669# the court fn passPng upon the question of whether gravel 'purchased by the county sk;ould be under competitfve bids said:
"Since, on the allegatfona of the petition, the gravel fn controversy was sold and delivered by appellant and accepted by appellee on contract . without competitive bids, the oontract was unauthor-
fzed by law." Meta; and Broiler Works 'v. Farmin County, 111 S.W. So4 also Wyatt (2%) 787. in'viow of the foregoing, it is our opinion that road
&o&fore, building materfals purchased by the county, ,must be submitted under.competftive bids.
In compliance wit&your request, we are encPosfng the following opfnfonss v-285, C-6369, O-6$6, and C-2955.
subwRY X0. The CommisaloneraD Court is not rsquired to let a contract under oompetitfve bids to build dounty roads? but may supervise the buflding of the .same Art. V, Sec. 18, Art. XI, SerP.'2$ Art. XVI. ft44u. Se0 24# State Constitution; Art..2351, V.C.S.; @.Qf Bitulfthfc Co. v. Nizeces Co. (Corn. App.). 11.S.W..
.@d) 3%.
2. In the construction of oounty roads, the Commfs- sfonerac Court may employ persons to haul gravel and material, and pay them on a per yard baais, without Jackson v. Noel, 37 requfrfn competftivo bids.
S.W. (2% 7 787. .-
~,
Hon. Joseph C. Ternus page 6, (V-506)
3. Road building material purchased by the county must be submitted under competitive bids.
Art. d~59~ .V.C.S.; East Texas Const. Co. v. Liberty Coay, 139 S.W. (2d1 669,
Yours very truly, AlTOFiNEYGENERAL OF TEXAS S/ B&ice Allen BY Bruce Allen Assistant APPROVED: s/ Fagan'Dickson FIRiT ASSiSTANT ATTORNEY GQWUL Bh:mw/cge