Hi,
First off, Google Answers Researchers are not lawyers, we are
researchers, so please read the Important Disclaimer: at the bottom of
this page in regards to this answer.
With that said, I found the ?POLICIES AND PROCEDURES GOVERNING
PROCUREMENTS OF GOODS AND SERVICES BY THE CENTRAL TEXAS REGIONAL
MOBILITY AUTHORITY" document and in it, in Section 5 it says :
"SECTION 5. CONSTRUCTION AND BUILDING CONTRACTS.
5.1. Competitive Bidding. A contract requiring the expenditure of
public funds for the construction or maintenance of the Authority's
transportation projects may be let by competitive bidding in which the
contract is awarded to the lowest responsible bidder that complies
with the Authority's criteria for such contract, and such bidder shall
constitute the lowest best bidder in accordance with this section 5.
Bidding for procurements made by competitive bidding will be
open and unrestricted, subject to the procedures set forth in this policy.
http://www.ctrma.org/documents/policyAndProc.pdf
I would have to say, with as carefully as these documents tend to be
worded that the portion ".. may be let by competitive bidding .." is
our focus here. "may be .." doesn't me, "has to be" in any language
I've ever heard, including English.
So, I would have to say that even if you were not supplying all of
those things, according to Section 5, if you are a qualified bidder,
and not married to anyone offering you the contract, and you qualify
for everything else, then they do not have to use the competitive
bidding procedure at all.
However, I'm not sure you are in Central Texas either. Most of the
paper also suggests that these "guidelines" are adhered to as (you
emphasized as well) "the law".
Also, in Section 1 it says
" SECTION 1. STATEMENT OF GENERAL POLICY.
It is the policy of the Central Texas Regional Mobility Authority (the
"Authority") that all
Authority procurements shall be based solely on economic and business
merit in order to best
promote the interests of the citizens of the counties served by the Authority."
Since the " competitive bidding" area of Section 5 is based on lowest
bidder, and the "Authority" would want to be able to show beyond any
real (or at least "surface" ) doubt they were adhering to Section 1,
they would use the competitive bidding procedures even if it was
obvious you were the best deal in town.
Section 7.3 goes on and says it is basically Section 5, but it is
worded as though it assumes that the "competitive bidding" process is
going to be used. The wording is much more sure of itself here.
So, no, it doesn't look like they have to, but it also looks like they
would anyway since everything below Section 1 is based on the fact
that all procurements shall be based "solely on" economic and business
merit .... economic being first on the list.
I also found a letter from the Attorny General - State of Texas to
Senator Shapiro, and inside that letter John Cornyn uses the words "
As you know, the Texas Department of Transportation ("TxDOT") must
competitively bid each contract for the improvement of a state highway
or for the materials to be used in the construction or maintenance of
a state highway. Tex. Transp. Code Ann. § 223.001 (Vernon 1999)..."
http://www.oag.state.tx.us/opinions/op49cornyn/jc-0124.htm
This is repeated in the DOT Manual as well ... " Section 223.001 of
the Texas Transportation Code requires that all contracts proposed by
the department for the improvement of a highway on the state highway
system should be submitted for competitive bids. The definition of
'highway improvements' includes construction, reconstruction, and
maintenance."
http://manuals.dot.state.tx.us/dynaweb/colinfra/mmt/@Generic__BookTextView/2492;cs=default;ts=default
So, again it looks like they would use the competitive bidding process
... even if you were the obviously the best deal on the block because
they have to in order to follow the TxDOT rules (laws).
Searches Used
Texas. § 223.001
+Texas +"competitive bidding" +policy TxDOT
Texas Comprehensive Development Agreement
thanks,
webadept-ga |
Request for Answer Clarification by
powhatan-ga
on
01 Apr 2005 06:51 PST
Thanks, it's always nice to receive a response that isn't from a
lawyer. I certainly respect and accept your disclaimer. One thing I
would ask however. While you were researching this, did you come
across any circumstance(s) where the DOT does not have to competively
bid (other than enginering services)? That is to say, would we have an
opportunity to mitigate the competitive bid process if the product we
offered was proprietary for example? This may be a new question. If
so, perhaps I need to offer it with another payment.
I guess I'm just stubborn, but it would seem appropriate that if we
are willing to risk almost $2 Billion and pay the DOT for the
opportunity to do so, I shouldn't have to compete for that
opportunity.
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Clarification of Answer by
webadept-ga
on
01 Apr 2005 09:16 PST
Hi again,
Yes, I suppose if we were going to slice up hairs it would be a
separate question, and it certainly would take a great deal of
research to find something like that. I didn't "come across" anything
of this nature, so I did a few searches to see if I could "come
across" something like that.
This one is very close to your situation. "Does the proposed
design/build procedure comply with the requirements of applicable
competitive bidding laws?" Which sounds a lot like what you are up
against. Have to design it, which cost a great deal of money and time.
Show them the design... which isn't exactly what designers want to do
prior to getting paid for it... and then go through the bidding
process before building.
http://www.oag.state.tx.us/opinions/op47mattox/jm-1189.htm
"Dear Senator McKnight:
Early in 1980, the city of Grand Saline advertised for competitive
bids on a contract to complete a sewerage treatment plant. Each of the
five bids submitted exceeded the funds available for the project. In
order to reduce project costs, the city altered its plans; however, it
only presented these revisions to the original low bidder, who
submitted a revised bid which the city found acceptable. The
Department of Water Resources has questioned the validity of this
procedure in light of state competitive bidding laws, and it has
declined to certify the award of the contract to the Environmental
Protection Agency pending resolution of this question by this office.
You have requested our opinion on this matter."
http://www.oag.state.tx.us/opinions/op46white/mw-296.htm
" You have requested our opinion concerning the following question:
Whether a county may award a contract to one not a low bidder on the
sole basis that the said bidder is a local merchant or businessman and
the low bidder is not a local merchant or businessman."
http://www.oag.state.tx.us/opinions/op45hill/h-1086.htm
" You ask whether Harris County may restrict the award of printing
jobs to union printers. Article 1658, V.T.C.S., provides as follows:
Bids shall be asked for all supplies of stationery, books, blanks,
records, and other supplies for the various officers of which the
county is required to pay, and the purchase made from the lowest
bidder, after filing said bid with the auditor for record.
Article 2359, V.T.C.S., requires the commissioners court to advertise
for bids on stationery and printing. Article 2362, V.T.C.S.,
establishes four categories of stationery and printing and provides as
follows:
To the lowest bidder on each class shall be awarded the contract for
all work of that class.
Cf. V.T.C.S. art. 1580 (county purchasing agent makes all purchases
except those required to be made on competitive bids)."
http://www.oag.state.tx.us/opinions/op45hill/h-1219.htm
This one
http://www.oag.state.tx.us/opinions/op47mattox/jm-1215.htm
is reaching and doesn't help you much, but it was one that was sort of relevant.
I have a link below which will bring up quite a few Opinions, most of
which I just went through... but maybe you will find something I
didn't.
Some links of Interest:
Google Search of Attorney General Site for Bidding and Highway for Opinions
://www.google.com/search?num=100&hl=en&lr=lang_en&safe=off&q=%2Bbidding+%2Bhighway+site%3Ahttp%3A%2F%2Fwww.oag.state.tx.us&btnG=Search
State Attorney General's Opinions
Affecting the Construction Industry
http://www.agctbb.org/attgen.htm
Sure hope that one regarding the design/build helps you out.
webadept-ga
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