Untitled Texas Attorney General Opinion

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Honorable Richard E. Rudeloff 7ztid hyL-L-a& .- : County Attorney, '. i Bee County Courthouse. Beeville, Texas Op'ikon No. c.-376 Re: Whether the Commissioners Court of Bee County may specify the manufacturer or brand name of certain .road machdnerycosting in excess of $2000, requiring competitive bids under ArfS- Dear Mr. Rudeloff: cle 2368a, V.C.S. You have requested the opinion of this office'as to whether the Commissioners Court of Bee County may specify a certain manufacturer or brand name In drawing the speci- fications for machinery costing in excess of $2000 to be used in the construction and/or maiatenauce of roads aud streets,' and thus requiring competitive bidding under Article 2368a, Vernon's Civil Statutes. Article 2368a reads in part as follows: "Sec. 2. No county, actingthrough Its Commissioner,sCourt, and no city in this.State shall hereafter make'any contract calling for or requiring the e enditure or payment of Two Thousand ($2,000.00 "p Dollars or more out of.any fund or funds of any city or county or subdivl- sion of a& county creating or imposing.an obli- gation or liability of,any nature or character upon such county or'any subdivialon of such county, or upon such city, without first submit- ting fuch proposed contract to competitive bids. . . . "Sec. 2b. Contracts for the purchase of machinery for the construction and/or mainten- ance of roads and/or streets, may be made by the governing bodies of all counties and cities

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within the State in accordance with the pro- visions of this Section. The order for pur- chase and notice for bids shall provide full specification of the machinery desired and contracts for the purchase thereof shall be let to.the lowest and best bidder." You furnished the.following facts in connection with your request-for fan opinion: The Commissioners Court of Bee County is in need of a new Piece of machinery for the construction and/on maintenance of r6ads and streets, specifically, a "pay-loader" or loading machine mounted on four wheels and capable of locomotion. All such machinery, regardless of brand name, sells for amounts in excess of $2,000. The Commissioners Court wishes to submit the purchase of such machinery to competitive bids limited to a speci- fic manufacturer or brand. The reason for wishing to limit bidding in such manner is based on the Court's familiarity with'the brand in question, the reliability of the machine sold under such brand name, and the familiarity with it of the county employees who are to operate such machinery. This office has previously issued an Attorney General's opinion dealing with this,question, Wo. WW-579 (i959). This opin ion, under generally similar facts, reached the conclusion that the Commissioners Court was within its authority in specifying a certain manufacturer-or brand name under circumstances where corn-: petitive bidding was required. We have Concluded that Attorney General's Opinion WW-579 is in substantial error and should be overruled, insofar as it conflicts with this opinion. At the time WW-579 was issued, the case law on the que&ion of specifying manufacturers or brand names.was not clear. The Texas Commission of Appeals in Vilbig Bros. v. City of Dallas, I.2 Tex. 563, 91 S.W.2d 336~(1936), had h -d in favor of a very libed inteqretation of the statute, follow& the so-called “Michigan ,rrowe,"~pr~~~~'~r~~~~~~ Rule. the Supreme Court issued a much ited to the particular facts of th case at issue. 127 Tex. 563, 96 S.W.2d 229 (1936). The Vilbi case was the only case law on the subject of brknd name bd at the time WW-579 was written, and an examination of the final de- cision 'by the Supreme Court in that case reveals no support for the "Michigan Rule." There are two primary cases which establish the law on competitive bidding in Texas. St;errettv. Bell, 240 S.W.2d 516 (Te~.Ci~.App.,,l951), at _ _ _ page 520, containsX following state- ment regarding competitive ,bidding:

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"Its purpose Is to stimulate competition, prevent favoritism and secure the best work and materials at the lowest practicable price, for the best interests and benefit of the taxnavers and property owners. There can be no competitive bidding in a legal sense where the terms of the letting of.the contract prevent or restrict compe- tition, favor a contractor or materialman, or in- crease the cost of the work or of the material or other itemsgoing into the project." (Emphasis sup- plied). The latest expression on the subject Is found in Texas Highway Com- mis4on.v. Texas Association of Steel Importers, In c-9 . . n.sup.ct., 1963) h inth T Iiih t?ommission, by Minute Order. attemnted't: Es the ~see?fsfor%~ysteel in the construction of S&e highways. The Supreme Co&t here held that such an order violated Article 6674h, Vernon's Civil Statutes, which is the statute setting forth the requirements for competi- tive biddihg for the Highway Department. Article 6674h, V.C.S., is substantially the same as Article 2368a, insofar as the com- petitive bid requirements are concerned. At page 526 of 'thesu- ?reme Court'~sopinion, it was stated: "The effect of the order would be to elimi- nate from the field of bidders upon highway con- struction contracts all those who owned or in- tended to acquire foreign materials and use them in carrying out highway construction contracts. Quite obviously the field of material suppliers would be drastically reduced. : . . If the SUP- pliers in one field of materials, such as Steel, will be reduced by approximately fifty per cent, it seems obvious that the clear purpose for which Article 6674h was enacted is being circumvented." Although this opinion by the Supreme Court did not deal specifi- cally with the subject of specifying a manufacturer'or brand name in Competitive bidding, it would appear that the situation is so closely analogous that this case would apply to our instant problem. It is the'opinion of this office that, taken together, the cases of Sterrett v. Bell, supra, and Texas Highway COmtliSSiOnV. Texas Assn. of Steel Importers, Inc., supra, operate to forbid any restriction upon th fi Id f suppliers in competitive bidding Situations. We expFesseno Opinion regarding situations where the item to be purchased is a patented article, or is one of a kind. It is further the opinion of this office that none of the fore- going operates to divest the Commissioners'Court of Its discretion

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to reject any or all bids, or its duty to accept only what is, in the exercise of sound discretion, determined to be the lowest and best bid, in accordance with Article 2368a, Sec. 2b, Vernon' Civil Statutes. SUMMARY Attorney General's Opinion WW-579 (1sg)'is hereby overruled Insofar as it conflicts with this opinion. A conkissionerscourt may not specify manufacturer or brand name in soliciting the competitive bids required for road machinery costing in excess of $2000, under Article 2368a, V.C.S. Yours very truly, WAGGONER CARR

MLQ:ms APPROVED: OPINION COMMITTEE W. V. Geppert,~Chairman W. 0. Shultz Paul Phy Kerns Taylor Harold Kennedy

.APPRX'EB FOR TRE ATTORNEY GENERAL By: Stanton Stone

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