Untitled Texas Attorney General Opinion ( 2000 )

OFFICE OF THE ATTORNEY GENERAL. SThTL OF TEXAS
JOHN CORNYN
June 7.2000
The Honorable David Swinford Opinion No. JC-0230
Chair, House Committee
on Agriculture and Livestock Re: Whether the repeal of a federal cooperative
P.O. Box 2910 purchasing program affects authority given to
Austin, Texas 78768-2910 Texas agencies and political subdivisions under
Texas law (RQ-0172-JC)
Dear Representative Swinford:
You ask whether the repeal of a federal cooperative purchasing program affects authority
given to Texas agencies and political subdivisions under Texas law. We conclude that the repeal
of the federal program affects the authority of local governments to make purchases under section
271.103 of the Local Government Code. We have not located any other state law affected by the
repeal of the federal program.
Your letter references a cooperative purchasing program established by the Federal
Acquisition Streamlining Act of 1994, which, among other things, authorized the administrator of
the United States General Services Administration to “provide for the use of Federal supply
schedules of the General Services Administration” by a state, state agency, and any political
subdivision of a state, including a local government, upon request. See Pub. L. No. 103-355, tit. I,
5 1555,108 Stat. 3300(1994). This provision wascodified as40U.S.C. § 481(b) (1994). Congress
significantly revised this statute in 1997 to eliminate the provision making federal supply schedules
ofthe General Services Administration available to states, state agencies, and political subdivisions.
SeePub. L.No. 105-61, tit. IV, 5 413,111 Stat. 1300(1997)(amending40U.S.C. 5 481(b) (1994)).
You ask whether the elimination of the federal provision making these federal supply schedules
available to states, state agencies, and political subdivisions affects “the authority given to Texas
agencies and political subdivisions under the provisions of Texas law.” Letter from Honorable
David Swinford, Texas State Representative, to Honorable John Comyn, Texas Attorney General
(Jan. 18, 2000) (on file with Opinion Committee). You mention concern about the effect of this
change on Texas dealers of outdoor power equipment and farm implements, but have not specified
a particular state statute or purchasing scheme about which you are concerned. See id. Therefore,
we answer your question very generally.
We have located just one Texas statute, section 271.103 of the Local Government Code, that
appears to make specific reference to the repealed federal program. Section 271.103, the only statute
in subchapter G of chapter 271 of the Local Government Code, provides as follows:
The Honorable David Swinford - Page 2 (JC-0230)
(a) A local government may purchase goods or services
available under Federal supply schedules ofthe United States General
Services Administration to the extent permitted by federal law.
(b) A local government that purchases goods or services
under this subchapter satisfies any state law requiring the local
government to seek competitive bids for the purchase ofthe goods or
services.
TEX. Lot. GOV’T CODE ANN. 3 271.103 (Vernon 1999). To the extent federal law no longer makes
federal supply schedules available to local governments, this provision is without effect.
We have located a number of statutes that generally authorize state agencies or local
governments to purchase goods from or through the federal government. Section 2155.084 of the
Government Code, for example, provides that the Texas General Services Commission or the
governing body of an institution of higher education “may negotiate purchases of goods with
[an] agency ofthe federal government.” TEX. GOV’TCODEANN. 5 2155.084 (Vernon 2000); see
nlso id. 5 2 15 5.13 1 (“The commission may delegate purchasing functions to a state agency.“). Other
statutes authorize particular local governments to obtain specific goods from or through the federal
government. See, e.g., TEX. HEALTH & SAFETY CODE ANN. 5 825.004 (Vernon 1992) (“The
commissioners court of a county or the governing body of a municipality may appropriate funds to
perform predatory animal and rodent control work described by this subchapter and, in cooperation
with federal and state authorities, may employ labor and purchase and provide supplies required to
effectively perform that work.“); TEX. Lot. GOV’T CODE ANN. 5 392.0565 (Vernon 1999) (“[ A
housing] authority may purchase equipment and supplies and award contracts for services or for
repairs, maintenance, and replacements in compliance with the consolidated supply program or any
other procurement program or procedure established by the federal government. The authority is
exempt from applicable state laws to the extent necessary to allow the authority’s participation in
the program or procedure.“). These provisions do not make specific reference to the repealed
provisions ofthe Federal Acquisition Streamlining Act of 1994. The General Services Commission,
state agencies and local governments continue to be authorized to make purchases pursuant to such
statutes. Whether a federal agency is authorized to provide goods to a state agency or local
government will depend upon federal law.
In sum, to the extent federal law no longer makes federal supply schedules of the United
States General Services Administration available to local govemments, section 271.103 of the Local
Government Code is without effect. As no other state statute relies on or makes specific reference
to the former federal cooperative purchasing program, however, the change in federal law does not
appear to affect the purchasing authority of Texas agencies and political subdivisions under other
state statutes. Whether a federal agency is authorized to provide particular goods to a state agency
or local government will depend upon federal law.
The Honorable David Swinford - Page 3 (K-0230)
SUMMARY
To the extent federal law no longer makes federal supply
schedules of the United States General Services Administration
available to local governments, section 271.103 of the Local
Government Code is without effect. As no other state statute relies
on or makes specific reference to the former federal cooperative
purchasing program, however, the change in federal law does not
appear to affect the purchasing authority of Texas agencies and
political subdivisions under other state statutes. Whether a federal
agency is authorized to provide particular goods to a state agency or
local government will depend upon federal law.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General :
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General - Opinion Committee