The opinion
THEA~JTORNEY GENERAL
OFTEXAS
Honorable J. J. Brown, Director
Vocational Rehabilitation Division and
Crippled Children's Work
State Board'for Vocational Education
Austin, Texas
Dear Mr. Brown: Opinion No. O-2771
Re: Authority ~of the Vocational
Rehabllltatlon Division of the
State Department of Rducatlon
to purchase braces directly
without a previous contract by
the Board of Control.
We have your request of September 20, 1940, as fol-
lows:
"We request your opinion asto whether
or not it is legal for the Vocational Re-
habilitation Division of the State Department
of Education to purchase braces directly from
the companies manufacturing the appliances
rather than under contracts awarded by the
State Board of Control to the.company present-
ing the lowest bid under the competitive bid-
ding plan."
It IS the opinion of this department that your ques-
tion should be answered In the affirmative.
The prlnclples announced In our opinion No. O-2612
control the answer to your question. In that oplnlon we dis-
cussed the relative rights of the Board of Control and the
State Board of Vocational IEducatIonwith respect to purchases
and more especially with respect to the power of the Board of
Control to approve claims for payment, saying:
"If the items of purchase In the present case
were such as that the pu.rchaseshould have been
made upon competltfve bids, then the Board of
Control would have no authorfty to approve the
audit for payment. If, on'~theother hand, the
items were of such nature as that the Board could
have purchased them without competitive bids,
Honorable J, J. Brown, page 2 o-2771
then~the Board in Its discretion would have
the authority to approve the claim the ef-
fect of which approval would In our opinion
be a substantial compliance with the statutes
of purchase and would en'cftlethe claim to be
passed for a warrant of payment."
We further said,
"In this connection we are of.the
opinion that if these items of equlpment
or 'supplleswere of such~nature as that
competitive bids would be Impossible the
law would have no application to such a
case. It does not require an Impossible
thing."
From what you say in your letter of request, --land
your statement comports with common understanding; --'a br~ace
for a crippled child.is not such a thing as is contemplate&
by our statutes calling for competitive bidsin 'purchasingsup-
plies for an institution. ~A brace is not a commodity carrid
in stocks from which a purchase may be qulcklg made, like a
hat or a pair of shoes, for the simple reason that a brace for
a crippled child is a specialty and must be precisely fitted
to the particular need and condition of the injured'or abnor-
inallimb. It Is of a kind with the fitting of glasses or the
setting of a broken limb inplaster. The purchase of such'
brace is not in its nature a commercial purchase from a store
or dealer; It is in the nature of a servlce'ln ~connectlon
with the treatment of the broken, deformed or maladjusted~ I'
limb. -It is as much a'service as is the surgeon's operation;
indeed, it Is a species of mechanical operation. Every such
case presents an individual situation and must be'treated~ac-
cordlngly; so that, In our opinion, the purchase of a brace~"~
does not fall within the scope of the statutes requiring com-
petitive bids by the Board of Control.
If we are mistaken in this, we are further of the
opinion that the statutes themselves, when liberally or even
reasonably construed, compel the same conclusion,
House Bill No. 502, passed at the Regular Session of
the 44th Leglslature (General Laws, 44th Leg.. p0 328) pro-
vides:
"At the discretion of the State Depart-
ment of Rdtacation,transportation, appliances,
braces and material necessary in the proper
handling of crippled children may be In part OP
entirely provided..
Honorable J. JT.Brown, page 3 o-2771
"The Rehabilitation Division of the
Sta,teDepartment of Education is directed
to provrde in Rules and Regulations, the
necessary detafls for the conduct of this
work, Fnaccordance with the purposes of
this Act; which shall permit as far as
possible, the free choice of patients fn
their selection of physicians and hospftals,
and shall arrange with hospitals, brace de-
partmentsand-other services providing for
cr-fppledchildren's work, compensation for
such services9 provided that such"fees or
charges shall not exceed the average mini-
mum charges for the same services rendered
to average ward patients in the hospitals
approved for purpose of this Act -- such
Rules and Regulations shall be approved by
the State Department of Education."
You are respectfully advised as herein above answered.
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/Ocle Speer
0ci.eSpeer
Assfstant
OS :LW:wc
APPROVED SEP 30, 1940
s/Gerald C, Mann
ATTORNEY GENERAL OF TEEAS
Approved Opinion Committee By s/BwB Chafrman