Untitled Texas Attorney General Opinion ( 1995 )

QBfficeof tty JZlttornep@enera
diMateof Qexas
DAN MORALES
ATTORNEY
GENERAL June 6,199s
Mike Moses, Ph.D. Opiion No. DM-350
Commissionerof Education
Texas Education Agency Re: Whether purchases made by a local
1701 North Congress Avenue government through the state catalogue
Austin, Texas 78701-1494 purchasing procedure established by article
6Olb, section 3.081, must be competitively
Honorable John W. Segrest bid (RQs-744,754)
CriminalDistrict Attorney
McLennan County
209 North Sii Street, Suite 200
Waco, Texas 76701
Dear CommissionerMoses and Mr. Segmst:
We have been asked whether purchases made by local governments through the
state catalogue purchasing procedure establishedby article 6Olb. section 3.081, V.T.C.S.,
must be competitively bid. Section 3.081 establishes a state catalogue purchasmg
procedure whereby vendors wishing to sell or lease automated information systems to
certain state agencies apply to the General Services Commission (the “commission”). A
state agency may purchase or lease automated information systems directly frbm vendors
who have been designated as qualified information systems vendors by the commission.
Subsection (g) of section 3.08 1 provides as follows:
The commission shall make the catalogue purchasing procedure
enumerated in this section availableto local govemments that qualify
for cooperative purchasing under Sections 271.082 and 271.083,
Local Guvemtnent Code. In this subsection, “local government”has
the meaning assigned to it by Section 271.081, Local Government
Code.1
V.T.C.S. art. 6Olb. 8 3.081(g) (footnote added).
‘See Local God code 5 271.081 (ddioing “local govmmmt- to mm0 -II afmlty, mlmicipality,
q&al dirtriff s&Jo1 disuic& juoior aluege distriq or other lcgdly constiMcd politicd -00 of
thestate”).
Mike Moses, Ph.D. - Page 2 (DM-350)
Honorable John W. Segrest
Subchapter D of chapter 271 of the Local Government Code provides for state
cooperation in local government purchasing programs. Section 271.081 of the Local
Government Code ddines “local government”to mean “a county, municipality, special
district, school district, junior college district. or other legahy constituted political
subdivision of the state.” Section 271.082 requires the commission to “establish a
program by which the commission performs purchasmg services for local governments.”
The services must include the following:
(1) the extension of state contract prices to participating local
governmentswhen the commissionconsiders it feasible;
(2) solicitation of bids on items desired by local governments if
the solicitation is considered feasible by the commission and is
desiied by the local government;
(3) provision of tiormation and technical assistance to &al
governments about the purchasingprogram.
Local Gov’t Code 8 271.082(a)(l) - (3).
Section 271.083 provides that a local govemment may participate in this
purchasing program by 6ling a resolution with the commission adopted by its governing
body requesting that the local govetnment be permitted to participate. Id.
8 271.083(a)(l). The resolution must also state that the local government will designate a
representative to act for the local government with respect to the program, will be
responsible for submitting requisitions to the commission and for payment to the vendor,
and wig be responsible for the vendor’s compliance with all conditions of delivery and
quality. Id. 8 271,083(a)(2), (3). SignGantly, subsection (b) of section 271.083 provides
as follows:
A local government that purchases an item under a state contract
satisfies any state law requiting the local government to seek
competitive bids for the purchase of the item.
Mr. Segrest explains that McLennan County (the “county”) is a member of the
cooperative purchasing program established under sections 271.082 and 271.083 of the
hc.al Government Code. The commissionrecently advised the county of the opportunity
to purchase automated information systems through the state catalogue purchasing
procedure. The commission’sletter states in pertinent part:
Article 601b, Section 3.081(g), V.T.C.S., mandates that the General
Services Commission “make the Catalog Purchase Proce-
dure . . gy&& to local govemments that qua@ for Cooperative
Purchasing. . . r]; however, this procedure may not satisfy
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Mike Moses, Ph.D. - Page 3 (DM-350)
Honorable John W. Segrest
competitive bidding requirements that govern a local government.
The rules for this procedure are enclosed and you should seek
cmmsel from your legal statf as to whether you may use this
procedure or not.
Mr. Segrest asks us to resolve the issue raised but not answered by the commission, that
is, whether the county is exempted from otherwise applicable competitive bidding
requirements when it makes a purchase through the state catalogue purchasing procedure.
~Commissioner Moses’predecessor in office asked essentiallythe same question:
Does a purcham by a school district using the catalogue
purchasing procedure established by the General Services
Commission under Section 3.081 of the State Purchasing and
General Services Act satisfy competitivebidding requirements in the
same manner as a purchase by a school district under a state contract
as provided by Section 271.083(b), Local GovernmentCode?
Based upon our review of the applicable statutes,’ we conclude that a local
government satisfies otherwise applicablecompetitivebidding requirementswhen it makes
a purchase through the state catalogue purchasing procedure. As noted above, section
3.081(g) of article 601b requires the commission to “make the catalogue purchasing
procedure. . available to local governments that qualify for cooperative purchasing”
under sections 271.082 and 271.083 of the Local Government Code. Section 27 1.083 of
the Local Government Code expressly provides that a local government that makes a
purchase under a state contract through the cooperative purchasing program “satisties any
state law requiring the local government to seek competitive bids for the purchase of the
item.” Local Gov’t Code 8 271.083(b). We believe that the legislature, in requiring the
commission to make the state catalogue purchasing procedure available to local
governments that participate in cooperative purchasing, intended to incorporate the state
catalogue purchasing procedure into that program. Thus it follows that a local
government purchase made through the state catalogue purchasing procedure “satisfies
any state law requiring the local government to seek competitive bids for the purchase of
the item”as provided by section 271.083(b) of the Local Government Code.
We also believe that subsection (g) of article 6Olb. section 3.081 requires local
governments that use the’state catalogue purchasing procedure to abide by the same
requirements applicable to state agencies. The state catalogue purchasing procedure
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Mike Moses, Ph.D. - Page 4 (DM-350)
Honorable John W. Segrest
requires a state agency, and local governments by virtue of subsection (g), to determine
that a purchase or lease is “based on the best vah~ii available and is in the state’s best
interest.‘~ See V.T.C.S. art. 6Olb, § 3.081(d) (footnotes added). The requirement that
state agencies obtain the “‘best value” demonstrates the state catalogue purchasing
procedure is intended as an alternative to competitivebidding for purchases and leases of
automated information systems at the state level. See id. 8 3.081(t) (?urchases of
automated infonnation systems shall be made through the catalogue procedure
enumeratedin this section unless the commissionor state agency determines that the best
‘SccIion1.02(5)of8nkIe 601bdctim the tetm “beatvpluc”to meanthe
(F)tbctccbnicalsupponfequircmcntsformaintaunceofdataactossa
lb%wWkplPtfnmaadmanaganaItoftherutworl’cbard~alld~and
(0) atm@ii with qpliable stathde standa& adopted by tbc
DcpMmcnt of lnfonn8tion llclmac MIrubfalucntmtityUvalidatedby
critcriaatablirhedbythcdcppNnentM8rubsequmt~ti~inin
de.
*Subsection(d) of ration 3.081of article 6Olbrequiresa state agencyto considerthe following
factorsinderminingwhichpmductsor leIvkes8rclathclI8t8’rbcltimerrrt:
(I) installationcost5and hardwareasts;
(2) tbeover8lllifeqclea3ltofthrynanMcquipmcnt;
(3)eslimatedcostofunployccuaiaingarldertimatcdioacuein~
produc(ivitr,
(4) clw8taircdtwpn.8odm8in-colll;88d
tpmP~-PwithwP``le-~adDptcdpy~Dcprtmat
RaGlrasM8~aImy8cv8hd8I8dbyultori8
enabliSbCdbytbcdepsr(mcntManrbstqumt~d````e.
p. 1867
Mike Moses, Ph.D. - Page 5 (DM-350)
Honorable John W. Segrest
value available accrues from an alternative purchase method authorized by this Act.“).5
We believe that the legislature intended the same result for purchases and leases of
automated information systems at the local level.6
Piiy, it has been suggested that subsection (g) merely requires the commission
to make information, i.e., vendor catalogues, available to local governments and that
subsection (g) is not intended to make the catalogue purchasing procedure available to
local governments as a mechanism to actually purchase products and services. We
disagree. Subsection (9) provides that “the commission shall make the catalogue
purchasing prucedure enumerated in this section available to local govemments.”
(Emphasis added.) Subsection (g) on its face requires that the cstalogue purchasing
procedure in its entirety, not just the information compiled in vendor cetalogues about
products and services, be made availableto local govemments.
%c bills propoktg to amend article 6Olb, V.T.C.S., by adding CCCIIM3.081 and its
acoompaoytngdefinitions.section 1.02(4)-(a),wao inttodmxdin the Sovcnty-thirdLegislaturelargelyin
mponst to a report fmm the Texas PcrformancoReview.see 2 Tat. Comptrollerof Poblic Aaxmnu,
AONNSTTHEGFWN:HIOHQJALITY LOWCOSTGOVEWMENT Fat TEMS (1993). in which the
comptrollctofpublic accountsproposednmnorousK&Win8 moasmmfor stategoWnmat. scr Home
l’temamht3rganimtion,Bill Analysis,C.S.S.B.381, 73d Lo8. (1993). As immdo@ the bills did not
pmposc to establii the catdoguc pomhasingpromdom now set forth in section 3.081; indcod, the
comptrollerbad not suggestedthat sucha proccdnmbe implemontcd.Tbe bills wme amauled to add the
catalogocpurchasingprom&e wlun they worn in aWmittce. Src Hearingson S.B. 381 Bofomthe
SmaIc &MI. on State Affairs, 73d Log. (Mar.3, 1993)(statementof Se&or &Joy, author) (tape
availablefrom Senate Staff SW&S); HearingsM H.B. 2626Beforethe Home Comm.on State A5aia.
73d Log. (Apr. 5, 1993)(statamnt of RcprmcntativcE&k) (tape availablefrom HouseVidoo/Aodio
ServicesG&e). Senator Haly explainedthat the amendmentwoold enable state agency pxsonncl
dirdy to pmdasc computersystems,cofhwc, and tclcc``onkations badwarc. Hearingson S.B.
381 Beforethe Senate Comm.on State NT&s. 73d Log. (Mar. 3. 1993)(statemomof Senator Haley,
author)(tapeavailablefrom HcuscVidcdAudioservicesOf&). Hc liulhcr explainedthat the proposed
catalogocpmchasingprocodumwouldallow state agacics to avoid the competitivebiddingp- and
inscad find the bca buyson automatedinformationsystems.Id.
%okction (t) of section3.081 providesthat ‘~bncha.~ of mttomatul information systems
shall be madethroughthe catalogucprocodommmmmatcdin tbir sectiononlcmthe commimionor state
agency dctennincsthat the bcc~value availableaccromfrom an altcmativcpurcbaccmcthod.” Gn tbc
basis that sobmotion (9) mattes all pmvisiotu applicable to state agencies also applicable to local
gctvammts, we believethat a local govamncntmayomanabanativcstatotorypmch&ngmdhodif
determine5that it is ncce5saryto&soinor&rtecbUinthebcstvalucavailable.
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Mike Moses, Ph.D. - Page 6 (DM-350)
Honorable John W. Segrest
SUMMARY
A local government that participates in the cooperative
purchasing program established under sections 271.082 and 271.083
of the Local Government Code satisfies otherwise applicable
competitive biddmg requirements when it makes a purchase through
the catalogue purchasing procedure established by article 601b.
section 3.081, V.T.C.S.
DAN MORALES
Attorney General of Texas
JORGE VEGA
First Assistant Attorney General
SARAH J. SHIRLEY
Chair, Gpiion Committee
RCparedbyMaryRCrouta
Assistant Attorney General
p. 1869