Does a Texas city have to bid out a contract for temporary garbage collection workers?

Plain-English summary

A state representative asked the Attorney General whether a city's annual contract with a temporary day labor agency, used to supply garbage collection workers for city-run solid waste service, must go through competitive bidding under Local Government Code section 252.021, or whether it fits the exception for a procurement necessary to preserve or protect the public health or safety. The related question was whether buying equipment and materials used only for solid waste collection, like garbage trucks and residential trash containers, also falls within that exception.

The Attorney General concluded that both can qualify for the public-health exception. Section 252.021 requires a city to competitively bid a contract that will spend more than $15,000, but section 252.022 lists exceptions, including a procurement made because of a public calamity and, separately, a procurement necessary to preserve or protect the public health or safety. The Texas Supreme Court has read those as independent exceptions, so the public-health exception applies whether or not a calamity prompted the purchase. Courts and prior opinions have already placed city garbage collection within the public-health category. Building on that, the opinion concluded a city council could reasonably find that contracting with a temporary day labor agency for garbage collection workers is necessary to preserve or protect the public health, putting the contract within the section 252.022(a)(2) exception, as long as it is limited to laborers needed for that purpose, such as those staffing city solid waste collection.

On the equipment question, the opinion noted that the Supreme Court's leading case applied the public-health exception to a sewer-system construction project that required buying both materials and services, and that a prior opinion had treated a dump truck needed for public health as exempt under the nearly identical county provision. By the same reasoning, a city council could reasonably determine that garbage trucks and trash containers used exclusively for solid waste collection are necessary to preserve the public health or safety and buy them without competitive bidding.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

City councils and purchasing officials (what the opinion held for them): The opinion held that a council could reasonably bring a day-labor contract for garbage collection workers, and purchases of equipment and materials used exclusively for solid waste collection, within the section 252.022(a)(2) public-health exception to competitive bidding, provided the contract is limited to laborers needed for that purpose.

Temporary day labor agencies and equipment vendors (what the opinion held for them): The opinion recognized that a city may contract with a day labor agency or buy solid-waste equipment without competitive bidding when the council ties the procurement to preserving the public health, though it did not direct any particular city to do so.

Common questions

Must a Texas city bid out a contract for temporary garbage collection workers?
The opinion concluded it need not, if the council reasonably finds the contract necessary to preserve or protect the public health and limits it to laborers needed for that purpose, because section 252.022(a)(2) exempts such procurements.

Does it matter that there is no emergency or disaster?
No. The opinion concluded the public-health exception is independent of the public-calamity exception, so it applies regardless of whether a calamity made the purchase necessary.

Can the city also skip bidding to buy garbage trucks and trash containers?
The opinion concluded yes, a council could reasonably determine that equipment and materials used exclusively for solid waste collection are necessary to preserve the public health or safety and buy them without competitive bidding.

Is the $15,000 threshold what triggers bidding in the first place?
Yes. The opinion explained that section 252.021 requires competitive bidding for a contract spending more than $15,000, unless an exception like the public-health one applies.

Background and statutory framework

Local Government Code section 252.021 requires a municipality to use competitive bidding or competitive proposals for a contract requiring expenditure of more than $15,000 (with competitive sealed proposals limited to high-technology procurements or, in cities of 75,000 or more, insurance, under section 252.021(c)). Section 252.022 exempts several procurements, including one made because of a public calamity (subsection (a)(1)) and one necessary to preserve or protect the public health or safety of the municipality's residents (subsection (a)(2)).

The opinion relied on Hoffman v. City of Mt. Pleasant, 89 S.W.2d 193, 194 (Tex. 1936), which treated the public-health exception as independent of the calamity exception and applied it to sewer-system improvements requiring both materials and services. It cited authority placing city garbage collection within the public-health category (Browning-Ferris, Inc. v. City of Leon Valley, 590 S.W.2d 729, 733-34 (Tex. Civ. App.—San Antonio 1979, writ ref'd n.r.e.); JM-908 (1988); see also JC-0136 (1999) and M-806 (1971) on ambulance service). From there, it concluded a council could reasonably find a day-labor contract for garbage collection workers exempt under section 252.022(a)(2) if limited to laborers needed to preserve the public health. On equipment, it pointed to Hoffman and to DM-4 (1991), which had read the nearly identical county provision (section 262.024(a)(2)) to allow buying a public-health dump truck without bidding, and concluded the council could similarly buy garbage trucks and trash containers used exclusively for solid waste collection without competitive bidding.

Citations

Statutory provisions:

• Tex. Loc. Gov't Code Ann. §§ 252.021, 252.021(c), 252.022(a)(1), (2), 262.024(a)(2) (Vernon Supp. 2000)

Cases and prior opinions:

• Hoffman v. City of Mt. Pleasant, 89 S.W.2d 193 (Tex. 1936)
• Browning-Ferris, Inc. v. City of Leon Valley, 590 S.W.2d 729 (Tex. Civ. App.—San Antonio 1979, writ ref'd n.r.e.)
• Tex. Att'y Gen. Op. Nos. JM-908 (1988), JC-0136 (1999), M-806 (1971), DM-4 (1991)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0281
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0281.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

September 7, 2000

The Honorable Tony Goolsby
Chair, House Administration Committee
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768

Opinion No. JC-0281

Re: Whether a municipality must competitively bid a contract with a temporary day labor agency (RQ-0217-JC)

Dear Representative Goolsby:

You ask whether a city's annual contract with a temporary day labor agency to provide qualified day laborers, particularly garbage collection workers, is exempt from the competitive bidding procedure required by Local Government Code section 252.021 as a procurement necessary to preserve or protect the public health or safety.[1] The city's contract with the temporary day labor agency, if limited to the employment of laborers necessary to preserve or protect the public health, would be excepted from competitive bidding pursuant to section 252.022(a)(2) of the Local Government Code. See TEX. LOC. GOV'T CODE ANN. § 252.022(a)(2) (Vernon Supp. 2000). You also ask whether the purchase of equipment and materials used exclusively for solid waste collection would be exempt from competitive bidding as necessary to preserve the public health or safety. See Request Letter, note 1, at 1, 3. Section 252.022(a)(2) of the Local Government Code would exempt a contract to purchase these items from the competitive bidding requirements of section 252.021. See TEX. LOC. GOV'T CODE ANN. §§ 252.021, .022(a)(2) (Vernon Supp. 2000).

You write that many Texas cities find workers for their city-operated solid waste collection services through temporary day labor agencies. See Request Letter, note 1, at 1. To be sure of having a reliable source of qualified day laborers, municipalities will often contract with a temporary day labor agency. See id. If a municipality anticipates spending more than $15,000 in one year with a temporary day laborer provider, you ask whether the contract must be put out for competitive bids. See id. at 2. You also ask whether the purchase of equipment and materials used exclusively for solid waste collection, such as garbage trucks and residential trash containers, would be excepted from competitive bidding as necessary to preserve or protect the public health or safety of the city. See id. at 1, 3.

Under section 252.021 of the Local Government Code, a municipality must submit a contract that requires an expenditure of more than $15,000 to competitive bidding or competitive proposals. See TEX. LOC. GOV'T CODE ANN. § 252.021 (Vernon Supp. 2000); see also id. § 252.021(c) (competitive sealed proposal procedure may be used only for high technology procurements or, in cities of population of 75,000 or more, to purchase insurance). Several kinds of purchases are excepted by section 252.022 of the Local Government Code from the requirement of competitive bidding, including expenditures for:

(1) a procurement made because of a public calamity that requires the immediate appropriation of money to relieve the necessity of the municipality's residents or to preserve the property of the municipality; [or]

(2) a procurement necessary to preserve or protect the public health or safety of the municipality's residents.

Id. § 252.022(a)(1), (2).

The Texas Supreme Court has construed the exemption for purchases necessary "to preserve or protect the public health or safety" as independent from the exemption for purchases made necessary by a public calamity. See Hoffman v. City of Mt. Pleasant, 89 S.W.2d 193, 194 (Tex. 1936) (expenditures to repair and improve city sewer system). Thus, the competitive bidding provision does not apply to an expenditure to protect or preserve the public health, regardless of whether a public calamity made the purchase necessary.

A city's contract for garbage collection with a private corporation is within the exception for expenditures to protect or preserve the public health and may be awarded without competitive bidding. See Browning-Ferris, Inc. v. City of Leon Valley, 590 S.W.2d 729, 733-34 (Tex. Civ. App.—San Antonio 1979, writ ref'd n.r.e.); Tex. Att'y Gen. Op. No. JM-908 (1988) at 18. See also Tex. Att'y Gen. Op. Nos. JC-0136 (1999) at 3 (contract with private company for ambulance service was excepted from competitive bidding statute as necessary to protect or preserve the public health); M-806 (1971) at 5-6 (same). Your questions relate to the city's expenditures to provide solid waste collection itself, rather than through contracting with a private entity.

A city council could reasonably determine on the authority of Browning-Ferris, Inc. v. City of Leon Valley that a contract with a temporary day labor agency for garbage collection workers was necessary to preserve or protect the public health, thereby bringing the contract within the "public health or safety" exception found in Local Government Code section 252.022(a)(2). In our opinion, the city's contract with the temporary day labor agency would also be within this exception if it were limited to day laborers necessary to preserve the public health or safety, such as laborers to staff city solid waste collection services.

You also ask whether the purchase of equipment and materials used exclusively for solid waste collection, such as garbage trucks and residential trash containers, would be exempt from competitive bidding as necessary to preserve the public health or safety. See Request Letter, supra note 1, at 1, 3. In Hoffman v. City of Mt. Pleasant, the exception from the competitive bidding requirement for a procurement that is necessary to protect or preserve the public health or safety of the municipality's residents was held applicable for an expenditure "for the construction of a new septic tank, filter bed, mains, and other replacements and improvements" to the city's sewer system. Hoffman, 89 S.W.2d at 193. This construction project required the city to purchase materials as well as services. See id. See also Tex. Att'y Gen. Op. No. DM-4 (1991) at 4 (if dump truck is necessary to preserve public health or safety, county may purchase it without competitive bidding under section 262.024(a)(2) of the Local Government Code, a provision virtually identical to Local Government Code section 252.022(a)(2)). The city council could reasonably determine that equipment and materials used exclusively for solid waste collection, such as garbage trucks and residential trash containers, are necessary to preserve the public health or safety, and could then purchase these items without complying with the competitive bidding provisions in section 252.021 of the Local Government Code.

SUMMARY

A city's contract with a temporary day labor agency for day laborers, if limited to the employment of laborers necessary to preserve or protect the public health, such as garbage collection workers, would be excepted from the competitive bidding requirements of Local Government Code section 252.021 by section 252.022(a)(2) of the Local Government Code. The purchase of equipment and materials used exclusively for solid waste collection would also be exempt from competitive bidding as items necessary to preserve or protect the public health or safety.

Very truly yours,

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General - Opinion Committee

[1] See Letter from Honorable Tony Goolsby, Texas State Representative, District 102, Chair, House Administration Committee, to Honorable John Cornyn, Texas Attorney General, at 1 (Mar. 31, 2000) (on file with Opinion Committee) [hereinafter "Request Letter"].