Attorney General Opinion JM-1248

Honorable J. Collier Adeee, Jr. opinion NO. JN-1248 co&ran county Attorney 109 Woet Weehington M: Validity of a bid eo- Worton, 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 .’ 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 publica- tion 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 rela- tive 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 con- sidered, 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 inter- preted . A check of the statutes reveald no re- feruhoe 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 die- po8al 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 du- troyed 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 rela- tive 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 puhlioa- tion 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 com- petitive 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