Could a Texas county award a janitorial contract to a nonprofit serving blind or severely disabled people without making that nonprofit submit a competitive bid?
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This page answers the general question as of 1985. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-385: Blind-Agency County Contracts
Plain-English summary
Dallas County's purchasing agent asked whether the county could contract for janitorial services with a nonprofit agency serving blind or severely disabled people without requiring that agency to submit a competitive bid. The Attorney General answered yes, provided the county followed the special purchasing procedure in chapter 122 of the Human Resources Code. The opinion's summary stated that a county was "not required to comply with the competitive bidding procedure outlined in the County Purchasing Act" for such a contract, but "must comply with section 122.014" before awarding it. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0385.pdf
The 1985 County Purchasing Act generally required competitive bidding or competitive proposals before a county entered a contract requiring an expenditure above $5,000. Section 122.014, however, specifically allowed a political subdivision to substitute equivalent products or services produced by blind or severely disabled people and said, "Nothing in this chapter shall be construed to require a nonprofit agency for blind or other severely disabled persons to engage in competitive bidding." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0385.pdf
The Attorney General harmonized the two laws by applying the more specific one. The County Purchasing Act governed county purchasing generally, while section 122.014 addressed purchases involving this particular type of nonprofit agency. The county could therefore compare the nonprofit's equivalent products or services with those offered through its authorized purchasing process, but it could not make the nonprofit compete in that bidding process as a condition of receiving the contract. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0385.pdf
Currency note
This opinion was issued in 1985. Subsequent statutory amendments, court decisions, or later AG 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.
Common questions
Did the opinion create a blanket exemption from all county purchasing rules?
No. It concluded only that the qualifying nonprofit agency could not be required to join the competitive bidding process. The county still had to follow chapter 122 to determine whether the nonprofit offered equivalent products or services and whether it qualified to participate. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0385.pdf
Why did section 122.014 control over the County Purchasing Act?
The opinion used the rule that a specific statute controls when it conflicts with a more general statute covering the same subject. It described the County Purchasing Act as a general law for county purchasing and section 122.014 as a special provision for purchases involving nonprofit agencies serving blind or severely disabled people. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0385.pdf
Could the county choose the nonprofit's services after private businesses submitted bids?
Yes. Once the equivalent value had been determined under chapter 122, the opinion said the county governing body could, in its discretion, substitute the nonprofit's products or services for those offered by private businesses through the county's competitive process. The nonprofit itself could not be required to compete against those businesses. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0385.pdf
What kind of contract prompted the request?
A nonprofit agency serving blind or severely disabled people had asked Dallas County for a contract to perform janitorial services. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0385.pdf
Background and statutory framework
The County Purchasing Act provided that, before a county purchased one or more items under a contract requiring an expenditure above $5,000, the commissioners court had to use the Act's competitive bidding or competitive proposal procedures. The Act defined an "item" to include services. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0385.pdf
Chapter 122 of the Human Resources Code governed contracts involving nonprofit agencies for blind or severely disabled people. Section 122.014 permitted a political subdivision to buy through its ordinary purchasing procedures but to substitute equivalent products or services produced under chapter 122. It expressly said that the nonprofit agency was not required to engage in competitive bidding. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0385.pdf
The chapter also assigned the Texas Committee on Purchases of Products and Services of Blind and Severely Disabled Persons the task of determining fair market prices. The nonprofit had to be organized under state law and recognized by the State Commission for the Blind or the Texas Rehabilitation Commission. Those requirements supplied the procedure the county had to follow before making the substitution. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0385.pdf
Citations and references
- Tex. Const. art. V, §18
- Acts 1985, 69th Leg., ch. 641, §§2(3), 3(a), at 4897-98
- Human Resources Code chapter 122, including §§122.001, 122.004, 122.012, and 122.014
- Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948)
- Trinity Universal Insurance Company v. McLaughlin, 373 S.W.2d 66 (Tex. Civ. App. - Austin 1963), reh'g denied, 374 S.W.2d 350 (Tex. Civ. App. - Austin 1963, no writ)
- C. Sands, Sutherland Statutory Construction §51.05 (4th ed. 1984)
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0385.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0385
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0385.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
December 2, 1985
Honorable Henry Wade
Criminal District Attorney
Condemnation Section
Services Building
Dallas, Texas 75202
Opinion No. JM-385
Re: Whether a county purchasing agent may contract with a nonprofit agency for blind or severely handicapped persons without taking competitive bids
Dear Mr. Wade:
You inform us that a nonprofit agency for the blind or severely handicapped persons has requested a contract to perform janitorial services for the county. In that regard, the Dallas County Purchasing Agent has asked:
Whether Dallas County may contract with a nonprofit agency for the blind or severely handicapped persons without taking competitive bids thereon?
A county governmental body has only the powers conferred either expressly or by necessary implication by the constitution or statutes of this state. See Tex. Const. art. V, §18; Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948). County contracts are now governed by the County Purchasing Act. See Acts 1985, 69th Leg., ch. 641, at 4897. Section 3(a) of this recent enactment provides in part:
Before a county may purchase one or more items under a contract that will require an expenditure exceeding $5,000, the commissioners court of the county must comply with the competitive bidding or competitive proposal procedures prescribed by this Act. (Emphasis added).
Acts 1985, 69th Leg., ch. 641, §3(a), at 4898. The term "item" has been defined in the act to include services. See Acts 1985, 69th Leg., ch. 641, §2(3), at 4898. The purpose of the act is to provide for the requirements of competitive bidding, exceptions, notice, bond requirements, and changes in plans and specifications of a contract with a county.
Chapter 122 of the Human Resources Code governs contracts involving a nonprofit agency for the blind or severely handicapped individuals. See Hum. Res. Code §122.001 et seq. Section 122.014 provides:
A product manufactured for sale to a political subdivision of this state or an office or department thereof shall be manufactured or produced according to specifications developed by the purchaser. A political subdivision of this state may purchase products or services for its use from private businesses through its authorized purchasing procedure, but may substitute equivalent products or services produced by blind or other severely disabled persons under the provisions of this chapter. Nothing in this chapter shall be construed to require a nonprofit agency for blind or other severely disabled persons to engage in competitive bidding. (Emphasis added).
Hum. Res. Code §122.014. Consequently, there appears to be a conflict between the County Purchasing Act, which requires competitive bidding, and section 122.014 of the Human Resources Code, which prohibits a county from requiring a nonprofit agency for the blind or other severely handicapped persons to engage in the competitive bidding process as a prerequisite to an award of a county contract.
An applicable rule of statutory construction is that, where one statute deals with a subject in general terms and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible, and if there is a conflict, the more specific will prevail. See Trinity Universal Insurance Company v. McLaughlin, 373 S.W.2d 66 (Tex. Civ. App. - Austin 1963), reh'g denied, 374 S.W.2d 350 (Tex. Civ. App. - Austin 1963, no writ); see also C. Sands, Sutherland Statutory Construction §51.05 (4th ed. 1984). The County Purchasing Act is a general statutory enactment governing the purchasing procedures of counties; whereas, section 122.014 is a special provision governing purchases of political subdivisions involving a nonprofit agency for the blind or other severely handicapped persons. Therefore, we conclude that a county is not required to comply with the competitive bidding procedure outlined in the County Purchasing Act when the contract involves a nonprofit agency for the blind or severely handicapped persons.
In applying section 122.014 of the Human Resources Code, the county must employ the procedure outlined in chapter 122 in order to ascertain what constitutes "equivalent products or services" as those terms are used in the provision. The legislature has established the Texas Committee on Purchases of Products and Services of Blind and Severely Disabled Persons to determine the fair market price of all products and services manufactured or provided by these individuals. See Hum. Res. Code §§122.001, 122.004, 122.012. The nonprofit agency must be organized under state law and recognized by the State Commission for the Blind or the Texas Rehabilitation Commission in order to participate. Hum. Res. Code §122.004(a). Once the "equivalent value" has been determined, the county governing body, in its discretion, may substitute the products or services of the nonprofit agency for those provided by private businesses which have participated in the competitive bidding process as outlined in the County Purchasing Act. In no event should the county require the nonprofit agency to compete in the competitive bidding process with the private businesses in order to be awarded a contract. See Hum. Res. Code §122.014.
SUMMARY
A county is not required to comply with the competitive bidding procedure outlined in the County Purchasing Act when the contract involves a nonprofit agency for the blind or severely handicapped persons. However, the county must comply with section 122.014 of the Human Resources Code before awarding a contract to these nonprofit agencies.
Very truly yours,
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tony Guillory
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk
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