Texas Attorney General Opinion: JM-712 Page: 3 of 7
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Mr. R. E. Stotzer, Jr. - Page 3 (JM-712)
business, and further within the two (2) year
period have paid any taxes to one (1) or more
counties [school districts, or municipalities] of
the State of Arkansas on either real or personal
property used or intended to be used in per-
formance of or in connection with construction
contracts, shall be deemed a better bid than the
bid of a competing contractor who has not paid
such taxes, whenever the bid of the competing
contractor is less than three percent (3%) lower,
and the contractor making a bid as provided by
this Act which is deemed the better bid, shall be
awarded the contract. (Emphasis added).
The first provision applies strictly to contracts for the purchase of
commodities, while the second applies to contracts which involve the
construction of improvements and site preparation. See Op. Ark. Att'y
Gen. No. 86-404 (1986). The general counsel to the department has
informed us that the contract for which the Arkansas firm submitted
the lowest bid is for the planing and asphalt paving of certain
highways. The contract in question, if it were to be awarded in
Arkansas, would therefore be subject to section 14-614.2. See
APAC-Mississippi, Inc. v. Deep South Construction Co., Inc., 704
S.W.2d 620 (Ark. 1986) (14-614.2 is applicable to contracts awarded
by the Arkansas State Highway Commission). You ask whether the
bidding preference established by Arkansas Statutes section 14-614.2
is within the purview of article 601g, V.T.C.S. That is, you ask
whether the Arkansas statute requires a Texas bidder on an Arkansas
highway construction contract to submit a bid at least three percent
lower than the lowest bid submitted by an Arkansas bidder, thereby
imposing the same requirement via article 601g on the Arkansas firm
bidding on the Texas contract. Based on our review of the relevant
Arkansas authorities, we conclude that the Arkansas provision does not
establish a preference for Arkansas contractors over Texas contractors
based solely upon the residence of the contractor. Therefore, the
Arkansas provision does not trigger the article 601g preference for
Texas bidders over nonresident bidders.
Article 601g, V.T.C.S., was enacted in 1985 by the Sixty-ninth
Legislature. Acts 1985, 69th Leg., ch. 83, at 499. The act was
motivated by statutes in other states, including Arkansas, which
require out-of-state contractors to submit bids on state contracts
which are lower by a stated percentage than bids submitted by resident
contractors in order to be considered for the contract. Bill Analysis
to H.B. No. 620, 69th Leg. (1985), prepared for House Committee on
Business and Commerce, filed in Bill File to H.B. No. 620, Legislative
Reference Library. The purpose of the act is to
establish a reciprocity requirement in the award
of state contracts so that bidders from other
states would face the same underbid requirementp. 3299
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JM-712, text, May 28, 1987; (https://texashistory.unt.edu/ark:/67531/metapth273150/m1/3/?q=%22%22~1: accessed July 16, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.