My Commissioners Court awarded a bid for a public works contract who can not get a payment bond as required by the Government Code. They are wanting to know if they can go back and awrd to the next lowest bidder and do they need to start over? Any help out there would be appreciated. I do not see the authorization but I also do not see the prohibition.

Julie

Wouldn't it be easier if there was a statute specifically addressing this problem? As it is, I think you have to piece together several different provisions to arrive at your answer.

Since you indicate this is a public works contract for which a payment bond is required (presumably, then, one in excess of $25,000), the payment bond is required before work may begin. Gov't Code sec. 2253.021(a). Though chapter 2253, Gov't Code, does not forthrightly say so, it contemplates the county's authority to terminate a contract based on a contractor's "default." Gov't Code sec. 2253.071(a)(2). That leaves the county having awarded the bid, but without someone to lawfully perform it.

One argument would be that a county has only the authority vested in it expressly by the constitution or statutes, or that authority necessarily implied from an express grant of authority. From that, it would flow that chapter 271, Loc. Gov't Code, allows only rejection of bids, from which it could reasonably be inferred that award of the contract signified rejection of the other bids. When the awarded contract is terminated, it may be urged, the county is right back at square one, which would seem to require a re-bid. See Loc. Gov't Code sec. 271.024.

On the other hand, it could be argued that it would be absurd to penalize the county for the default of a contractor after the bid was awarded when it was awarded in conformity with subchapter B of chapter 271. The alternative construction, so the argument might go, would be that the county has the implied authority -- in exercising its express authority to undertake a public works project -- to consider the non-compliant contractor to have fallen short of being the "lowest responsible bidder," see Loc. Gov't Code sec. 271.027(b), and therefore the county may reject that bid and proceed to another bidder after giving the non-compliant bidder an opportunity to present evidence concerning its responsibility. Id.

The first alternative would be the belt-and-suspenders approch, and likely would be fairly bulletproof, but it is undeniably more expensive. I think the second argument is reasonable. But, the Sword of Damocles hanging over your head is that, if the second argument fails, the contract awarded under that argument would be void. Loc. Gov't Code sec. 271.028.

At least, that's my clumsy opinion.

If there were good alternatives to this result, Scott would have written them. I have always wondered why our Commissioners Court won't award the contract until the payment bond is in hand and approved. Now I know. I can't take credit this was the policy when I got here.

Thanks, Scott. It is a contract for $47,000. I have have told them I think it is much safer to go out for new bids. But they wanted me to check to see if I was "missing anything" I will tell them the expert I consulated in Amarillo can not find it specifically in the statute either! Thanks, Scott. I can always count on you.

Julie