Unreported / Non-Citable
Background
Cari Pogue Angus served as a licensed representative for Cornish Medical Electronics Corporation of Texas, a vendor participating in BuyBoard, a purchasing cooperative used by public entities to procure goods at competitively bid prices. In January 2022, Sidney Ceder, a City of Austin procurement specialist, contacted Pogue about available brands and pricing for COVID-19 rapid test kits. At Ceder’s request, Pogue had Cornish add various test kit brands to its BuyBoard catalog, making them available for purchase by the City. Critically, the City never issued a signed purchase order to Cornish for any test kits.
Despite the absence of a purchase order, Pogue procured over 100,000 COVID-19 test kits, believing the City intended to purchase them through her. When the City instead purchased test kits from a different BuyBoard vendor, Pogue sued for breach of contract, asserting she had standing as Cornish’s assignee. The City filed a plea to the jurisdiction asserting governmental immunity, which the district court granted and sustained on appeal.
The Court’s Holding
The Texas Court of Appeals affirmed the district court’s dismissal for lack of subject-matter jurisdiction. The court held that the City’s procurement of COVID-19 rapid test kits constitutes a “governmental act” falling squarely within “health and sanitation services” under the Texas Tort Claims Act. As a governmental function, the City enjoys governmental immunity from breach-of-contract claims absent a valid waiver of immunity.
The court further held that Pogue failed to establish a valid waiver under Texas Local Government Code § 271.152, which waives immunity only for “a written contract stating the essential terms of the agreement” that is “properly executed.” The record affirmatively showed no such contract existed. Pogue herself admitted in responses to requests for admission that the City never stated in writing the specific number or brand of test kits desired, she never received a purchase order from the City, and she never executed a written contract for test kits. An email from Ceder merely indicated the City was “preparing” a purchase order—not that one was completed or signed. Even assuming a contract arose from the parties’ course of dealing, an implied contract cannot satisfy the statutory requirement for a “written” contract stating essential terms.
Key Takeaways
- Municipalities enjoy governmental immunity from breach-of-contract claims arising from governmental functions (as opposed to proprietary acts), absent a valid statutory waiver.
- Under BuyBoard’s cooperative purchasing system, no contract exists between a vendor and public entity until the public entity issues a signed purchase order specifying quantity, type, and price.
- A waiver of sovereign immunity for breach-of-contract claims requires a written contract stating essential terms and proper execution; oral agreements, implied contracts, and preliminary communications do not qualify.
- When the record affirmatively negates the existence of a required jurisdictional fact, courts need not grant remand even if a plaintiff’s pleadings are technically defective.
Why It Matters
This decision clarifies that public entities’ procurement of supplies during declared public health emergencies qualifies as a governmental function shielded by sovereign immunity. The ruling reinforces a critical principle for vendors and contractors: formal written contracts—specifically, a signed purchase order—are essential in municipal procurement. Reliance on informal communications, preliminary discussions, or course of dealing with government entities provides no legal recourse if the entity abandons negotiations or changes direction. The decision sends a clear message that vendors working with public entities through cooperative purchasing programs like BuyBoard cannot enforce contractual rights absent documentary evidence of a binding written agreement.
The case also signals that COVID-19 procurement decisions will receive deferential treatment under governmental immunity doctrine. As municipalities face potential litigation over pandemic-era supply chain decisions and alleged breach-of-contract claims by suppliers, this precedent establishes that such procurements fall squarely within protected governmental functions. Plaintiffs challenging government procurement decisions must navigate the additional hurdle of proving a valid waiver of immunity through a documented written contract—a barrier few informal pre-purchase arrangements will overcome.