Texas Attorney General Opinion: JM-1243 Page: 4 of 8
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Honorable Jim Mapel - Page 4 (JM-1243)
bonds, sea Local Gov't Code 5 262.032(a),
(b), we think these provisions should prevail
over article 5160, which provides for per-
formance bonds but not bid bonds. Since the
County Purchasing Act makes no provision for
payment bonds, a county must require con-
tractors to provide such bonds pursuant to
article 5160.
Id. at 15.
In accordance with the reasoning in Attorney General
Opinion JM-1220 and the law supporting it, the act and not
article 5160 controls to the extent of conflict the letting
of the contract under consideration here. Thus, as was
noted in Attorney General Opinion JM-1220, bid bonds, which
are not under consideration here, and performance bonds,
which are, are governed by the act. Section 262.032(b) of
the Local Government Code, the provision of the act address-
ing performance bonds, reads as follows:
(b) Within 10 days after the date of the
signing of a contract or issuance of a
purchase order following the acceptance of a
bid or proposal, the bidder or proposal
offeror shall furnish a performance bond to
the county, if required by the county, for
the full amount of the contract if that
contract exceeds $50,000. (Emphasis added.)
Although prior to issuance of Attorney General Opinion
JM-1220, county officers may have understood that article
5160 required performance and payment bonds, the county is
independently authorized to require performance bonds in
certain contracts under the controlling provision of the
act. Id. Section 262.032(b) expressly permits the county
to require a performance bond. As discussed above, however,
Attorney General Opinion JM-1220 provides that since the act
is silent with regard to payment bonds, a payment bond, if
required for a particular contract, must be obtained in
accordance with article 5160.
We now return to your question as modified to reflect
the reasoning in Attorney General Opinion JM-1220 with
regard to article 5160: whether the indefiniteness of the
final total contract price removes this contract from the
scope of the payment bond requirements of article 5160 and,
we add, from the competitive bidding requirements of the
act, including section 262.032(b), which authorizes counties
to require performance bonds in certain competitively bidp. 6621
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JM-1243, text, November 12, 1990; (https://texashistory.unt.edu/ark:/67531/metapth273681/m1/4/?q=%22Mattox%2C+Jim%22: accessed June 23, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.