Opinion No. (1989) ( 1989 )

THE ATTORNEY GENERAL HAS RECEIVED YOUR LETTER ASKING FOR AN OPINION ON WHETHER IT IS PERMISSIBLE UNDER CURRENT LAW FOR A COUNTY TO SOLICIT BIDS DIRECTLY FROM VENDORS FOR THE LEASE OR LEASE PURCHASE OF ROAD MACHINERY AND EQUIPMENT. INASMUCH AS ANSWERING YOUR QUESTION IS MAINLY A MATTER OF READING THE APPLICABLE STATUTES CAREFULLY AND TRACING THEIR HISTORIES, WE ARE ANSWERING YOUR INQUIRY BY MEANS OF THIS LETTER AND NOT BY FORMAL OPINION.

YOU CALL OUR ATTENTION TO CERTAIN PERTINENT STATUTES, AMONG WHICH IS 62 O.S. 430.1 (1981), WHICH AUTHORIZES THE GOVERNING BOARD OF ANY "COUNTY, CITY OR TOWN, OR SCHOOL DISTRICT" TO LEASE OR LEASE-PURCHASE "REAL PROPERTY OR EQUIPMENT." IT IS TO BE NOTED THAT THIS STATUTE WAS ORIGINALLY ENACTED IN 1945 AND WAS LAST AMENDED IN 1980. (SEE LAWS 1945, P. 154, 1, AND LAWS 1980, C. 339, 4)

IN 1982 (SEE LAWS 1982, C. 249) THE LEGISLATURE ENACTED THE STATUTES WHICH, AS AMENDED, ARE NOW CODIFIED AS 62 O.S. 1500 (1989) ET SEQ. THESE STATUTES, IN EFFECT, MODIFIED 430.1, SUPRA, BY PLACING THE AUTHORITY FOR MOST COUNTY PURCHASES, LEASES, AND LEASE-PURCHASES IN A COUNTY PURCHASING AGENT — EITHER THE COUNTY CLERK OR A DESIGNATED EMPLOYEE OF THE COUNTY CLERK.

IN 1982 (SEE LAWS 1982, C. 286) THE LEGISLATURE ALSO ENACTED STATUTES WHICH, AS AMENDED, ARE NOW CODIFIED AS 69 O.S. 636.1 (1989) ET SEQ. THESE STATUTES CREATE THE "COUNTY ROAD MACHINERY AND EQUIPMENT REVOLVING FUND" TO BE USED BY THE STATE DEPARTMENT OF TRANSPORTATION" TO PURCHASE NEW OR USED ROAD AND BRIDGE CONSTRUCTION AND MAINTENANCE MACHINERY AND EQUIPMENT FOR LEASE OR LEASE-PURCHASE TO COUNTIES." 69 O.S. 636.2 OF THIS ACT FURTHER SAYS THAT THE DEPARTMENT OF TRANSPORTATION MAY MAKE SUCH PURCHASES "ONLY IF REQUESTED TO DO SO BY A BOARD OF COUNTY COMMISSIONERS." (EMPHASIS ADDED.) SECTION 636.3 SAYS IN PERTINENT PART:

"A. COUNTIES SHALL ENTER INTO LEASE OR LEASE PURCHASE CONTRACTS FOR ROAD MACHINERY AND EQUIPMENT WITH THE DEPARTMENT OF TRANSPORTATION PURSUANT TO THE PROVISIONS OF SECTIONS 69 O.S. 636.1 THROUGH 69 O.S. 636.7 OF THIS TITLE AND MAY NOT OTHERWISE LEASE ROAD MACHINERY OR EQUIPMENT EXCEPT IN THE CASE OF AN EMERGENCY. WHEN SPECIALIZED ROAD MACHINERY OR EQUIPMENT FOR PROJECTS OF SHORT DURATIONS IS REQUIRED OR FOR OTHER ROAD MACHINERY OR EQUIPMENT NOT IMMEDIATELY AVAILABLE FROM THE DEPARTMENT OF TRANSPORTATION. AS MAY BE NEEDED FOR PERIODS NOT TO EXCEED THIRTY (30) DAYS."

(EMPHASIS ADDED.)

THE EMPHASIZED SPECIFIC LANGUAGE ABOVE CLEARLY LIMITS ANY GENERAL AUTHORITY FOUND IN EITHER THE TITLE 19 OR TITLE 62 SECTIONS PREVIOUSLY CITED. THAT IS TO SAY, COUNTIES MUST RESORT TO THE DEPARTMENT OF TRANSPORTATION WHEN LEASING OR LEASE-PURCHASING ROAD MACHINERY OR- EQUIPMENT. FURTHERMORE, THE DECISION TO ASK THE DEPARTMENT TO PURCHASE ROAD MACHINERY OR EQUIPMENT FOR LEASING OR LEASE-PURCHASING TO A COUNTY IS TO BE MADE BY THE BOARD OF COMMISSIONERS AND NOT BY THE COUNTY PURCHASING OFFICER. (ONCE THE REQUEST IS MADE TO THE DEPARTMENT BY THE COMMISSIONERS, THE COUNTY PURCHASING OFFICER PROBABLY SHOULD PROCESS THE CONTRACT LIKE ANY OTHER.)

THE FOREGOING CONSIDERED, IT IS THE OPINION OF THE UNDERSIGNED ASSISTANT ATTORNEY GENERAL THAT IT IS NOT PERMISSIBLE UNDER CURRENT STATE LAW FOR A COUNTY, THROUGH ITS PURCHASING AGENT OR OTHERWISE, TO SOLICIT BIDS DIRECTLY FROM VENDORS FOR THE LEASE OR LEASE PURCHASE OF ROAD MACHINERY OR EQUIPMENT. (NOTE: 69 O.S. 636.3(C) (1989)), PROVIDES THAT THE COUNTY "SHALL PROVIDE A LIST OF LOCAL VENDORS INTERESTED IN SUBMITTING BIDS" TO THE DEPARTMENT OF TRANSPORTATION AT THE TIME IT SUBMITS ITS "REQUIREMENTS AND SPECIFICATIONS" TO THE DEPARTMENT.)

(HUGH H. COLLUM)