Guide to County Purchasing: County Procurement Laws

Texas has procurement laws modeled on the American Bar Associations (ABA) Model Procurement Code for State and Local Governments. Most counties have adopted procurement policy and procedures modeled on the Texas State Comptroller's Model Procurement Code.

County Purchasing Act

The County Purchasing Act provides a general legal and procedural framework that emphasizes price (rather than total cost and value), openness, control, and accountability rather than efficiency. It is the duty of the county's chief procurement official to review and to recommend periodic modifications for improvements that will enhance the efficiency and effectiveness of the procurement function.

In Texas counties there are usually ONLY TWO entities that have the authority to sign procurement documents: the commissioners court as a voting body only, and the county purchasing agent. The commissioners court must approve all contracts exceeding the statutory limit and the purchasing agent must approve all contracts under the statutory limit. Program officials typically do not have procurement authority unless specifically authorized by commissioners court under authority of the Purchasing Act or other government code.

The Purchasing Act specifically states (Section 262.011(d)): "The county purchasing agent shall purchase all supplies, materials, and equipment required or used, and contract for all repairs to property used, by the county or a subdivision, officer, or employee the county, except purchases and contract required by law to be made on competitive bid. A person other than the county purchasing agent may not make the purchase of the supplies, materials, or equipment or make the contract for repair." (e)"The county purchasing agent shall supervise all purchases made on competitive bid and shall see that all purchased supplies, materials, and equipment are delivered to the proper county officer or department in accordance with the purchase contract."

(f)"A purchase made by the purchasing agent shall be paid for by a warrant drawn by the county auditor on funds in the county treasury in the manner provided by law. The county auditor may not draw and the county treasurer may not honor a warrant for a purchase unless the purchase is made by the purchasing agent or on competitive bid as provided by law."

(i)"On July 1 of each year, the county purchasing agent shall file with the county auditor and each of the members of the board that appoints the county purchasing agent an inventory of all property on hand and belonging to the County and each department and employee…"

(j)"To prevent unnecessary purchases, the county purchasing agent, with approval of the commissioners court, shall transfer county supplies, materials, and equipment from a subdivision, department, officer, or employee of the county that are not needed or used to another" office. The purchasing agent shall furnish to the Auditor a list of transferred goods.

(p)"During each two-year term of office, a county purchasing agent shall complete not less than 25 hours in courses related to the duties of the county purchasing agent."

Violations of the Act

Additional PURCHASING LAWS that govern county purchasing including the following laws:

Public Property Finance Act, (TEX. LOC. GOV'T CODE ANN., ch. 271, subch. B)
Services and Products of Severely Disabled, (TEX. HUM. RES. CODE ANN., sec. 122.014)
Interlocal Cooperation Agreement, (TEX. GOV'T CODE ANN., ch. 791)
Prompt Payment Act, (TEX. GOV'T CODE ANN., ch. 2251)
Bidders from other States and 5% Retainage, (TEX. GOV'T CODE ANN., ch. 2252)
Public Works Performance and Payment Bonds, (TEX. GOV'T CODE ANN., ch. 2253)
Wage Rate for Construction Projects, (TEX. REV. CIV. STAT. ANN., Art. 5159a)
Sales tax exemption for incorporated purchases (TEX. TAX CODE ANN. § 151.131)
Worker's Compensation Compliance (Workers Compensation Rule 110.110)

Any person who knowingly violates or authorizes the violation of the Purchasing Act commits a criminal offense which is a misdemeanor. This offense is punishable by a fine between $10 and $100, by not less than 30 days or more than one year in the county jail, or by both. Each act in violation of the law is a separate offense. {Section 262.011(m)}

The following purchasing strategies that are made with the intention of avoiding formal competitive bidding are in violation of the law: (TEX. LOC. GOV'T CODE ANN., § 262.023)

• COMPONENT PURCHASES: purchasing a series of component parts of goods that normally would be purchased as a whole.
• SEPARATE PURCHASES: purchasing goods and services in a series of separate purchases, that in normal purchasing practices, would have been purchased in one purchase.
• SEQUENTIAL PURCHASES: purchases made over a period of time that in normal purchasing practices, would be made as one purchase.

CAUTION: Intentionally separating purchases/invoices to avoid the statutory limit competitive bidding is a violation of the Purchasing Act.

A final conviction of a county officer or employee for this violation results in the immediate removal from office or employment of that person. For four years after the date of the final conviction, the removed officer or employee is ineligible:

1. to be a candidate for or to be appointed or elected to a public office in this state;
2. to be employed by the county with which the person served when the offense occurred; and
3. to receive any compensation through a contract with that county.

Any commitment to acquire goods or services without an authorized purchase order is prohibited. Anyone obligating an expenditure of funds for goods or services prior to securing a purchase order may be held personally responsible for the payment.

Counties must also comply with a host of other procurement and financial requirements, including federal procurement requirements which flow through to states and localities receiving federal funds (grants).

Exemptions to the Competitive Procurement Process

Many goods and services can be exempt from competitive procurement process if the commissioners court orders the purchase exempt. Section 262.024 of the Texas Local Government Code lists all the circumstances when exemptions are available for purchases made out of current funds, bond funds, or through time warrants. The following is a list of these circumstances:

1. Goods and services that must be purchased in a case of public calamity, if it is necessary to make the purchase promptly to relieve the necessity of the citizens, or to preserve the property of the county;

2. Goods and services necessary to preserve or protect the public health or safety of the residents of the county;

3. Goods and services necessary because of unforeseen damage to public property;

4. Personal or professional service;

5. Work performed and paid for by the day, as the work progresses;

6. Any land or right of way;

7. Goods and services that can only be obtained from one source, including:

a. Goods and services for which competition is precluded because of the existence of patents, copyrights, secret processes, or monopolies;

b. Films, manuscripts, or books;

c. Electric power, gas, water, and other utility services; and

d. Captive replacement parts.

8. Food goods;

9. Personal property sold at auction by a state licensed auctioneer, in a going out of business sale held in compliance with the Business and Commerce Code, or by a political subdivision, state agency or federal government entity;

10. Work performed under a community and economic development contract under 381.004; and

11. Renewal of a lease or equipment maintenance agreement.