Untitled Texas Attorney General Opinion ( 1998 )

@ffice of tip Elttornep Qbmeral
Wate of Qkxae
December 21,1998
DAN MORALES
ATTORNEY
GmwlAI.
Mr. Tom Treadway Opinion No. DM-496
Executive Director
General Services Commission Re: Whether the Texas Council on Purchasing
P.O. Box 13047 from People with Disabilities mandatory
Austin, Texas 7871 l-3047 purchasing program conflicts with procedures
governing the purchase of automated information
systems set forth in chapter 2157 of the
Government Code (RQ-1145)
Dear Mr. Treadway:
You ask about the relationship between the Texas Council on Purchasing from People with
Disabilities (the “council”) mandatory purchasing program set forth in Human Resources Code
chapter 122 and procedures governing the purchase of automated information systems set forth in
Government Code chapter 2157. You ask, in essence, whether the two statutory schemes conflict
with respect to state agency computer purchases. ’ We agree with your assessment that the two
statutory schemes conflict with respect to state agency purchases of automated information systems
and conclude that chapter 2157, the more specific provision, prevails to the extent of conflict. The
General Services Commission (“GSC” or “commission”) or other state agency is precluded from
purchasing an automated information system except in compliance with chapter 2157.
We begin with a review of the two statutory schemes. Human Resources Code chapter 122
is intended in part to “further the state’s policy of encouraging and assisting persons with disabilities
to achieve maximum personal independence by engaging in useful and productive employment
activities.“’ The council is authorized to approve community rehabilitation programs under which
persons with disabilities produce goods or perform services for compensation.3 The council is
charged with determining the fair market value of products and services manufactured or provided
by persons with disabilities and offered for sale to state agencies by community rehabilitation
‘Our analysis is limited to purchases by those state agencies that are required to comply with chapter 2157.
See Gov’t Code 4 2157.002. You do not ask about and we do not address purchases by political subdivisions. See
generaNy Attorney General Opinion DM-350 (1995) (addressing political subdivision’s participation in catalogue
purchasing); see also note 37 infm. In addition, you do not ask about and we do not address federal law.
2Hum. Res. Code 5 122.001.
‘See id. $5 122.002(3) (defioing L‘contmunity rehabilitation program”), .003(j) (council authority to approve
programs).
Mr. Tom Treadway - Page 2 (DM-496)
programs! The council must also “ensure that the products and services offered for sale offer the
best value for the state.“5 Before offering them for sale to state agencies, the council must test goods
and services to the extent necessary to ensure quality.6
Significantly, chapter 122 requires a state agency to purchase products and services from a
community rehabilitation program over other sources in the following circumstances: “A suitable
product or service that meets applicable specifications established by the state and that is
available within the time specified must be procured from a community rehabilitation program at
the price determined by the council to be the fair market price.“’ Section 122.016permits exceptions
to this purchasing mandate* in any case where:
(1) under the rules of the [GSC], the product or service so produced or
provided does not meet the reasonable requirements ofthe office, department,
institution, or agency; or
(2) the requisitions made cannot be reasonably complied with through
provision of products or services produced by persons with disabilities?
The exception provision also includes the following limitation:
No office, department, institution, or agency may evade the intent of this
section by slight variations from standards adopted by the commission, when
41d.$5 122.007(a), ,015 (factors to be considered in determining fair market value).
‘Id. $ 122.007(a).
61d.$ 122.007(d).
‘Id. $ 122.008.
*Section 122.016refers to the “mandatory provisions ofSection 122.014.” Id. 5 122.016(a). Section 122.014,
however, contains provisions regardiig product specifications. We believe that section 122.016 should refer to the
mandatory purchasing provisions in section 122.008. The legislative history supports this conclusion. The exceptions
provision was enacted as House Bill 207 1 in 1979 as an amendment to forma article 664-5. The exceptions provision
referred to “the mandatory provisions of Section 4.” See Act of May 26, 1979,66th Leg., R.S., ch. 803,s 6 (amending
former V.T.C.S. art. 664-5, $ 4a), 1979 Tex. Gen. Laws 2049, 205 1. Section 4 of former article 664-5 contained the
mandatory purchasing language now found in Human Resources Code section 122.008. See id. 5 5 (amending former
V.T.C.S. art. 664-5, $4).
%un.Res. Code 5 122.016(a). Subsection(b)ofsection 122.016requirestheGSC toprovidethecouncilwith
a list of all items purchased under the exception provided by subsection (a) on a monthly basis. “‘Ihe council shall adopt
the form in which the list is to be provided and may require the list to include the date of requisition, the type ofproduct
OI service requested, the reason for purchase under the exception, and any other information that the council considers
relevant to a determination of why the product or service was not purchased in accordance with [the mandatory
purchasing provisions.]” Id. $ 122.016(b).
p. 2828
Mr. Tom Treadway - Page 3 (W-496)
the products or services produced or provided by persons with disabilities, in
accordance with established standards, are reasonably adapted to the actual
needs of the offlice, department, institution, or agency.”
Apparently a community rehabilitation program has asked the council to approve personal
computers manufactured by the program for the mandatory purchasing program. The GSC, which
provides assistance to the council” and also oversees state purchasing,” is concerned that a personal
computer set-aside would conflict with Government Code chapter 2157.
Chapter 2157 of the Government Code governs the purchase of “automated information
systems,” which it defines to include both:
(A) the computers on which the information system is automated; [and]
(B) a service related to the automation of the system, including
computer software, or the computers.”
Chapter 2157 establishes a procedure whereby the GSC and state agencies may purchase automated
information systems from “qualified information systems vendors,” vendors authorized by the GSC
to publish a catalogue of products and services that may be directly purchased by a state agency.14
Vendors apply to the GSC for this designation. Is In qualifying vendors, the GSC is required to
consider:
(1) a vendor’s ability to provide adequate and reliable support and
maintenance;
(2) a vendor’s ability to provide adequate and reliable support and
maintenance in the future;
(3) the technical adequacy and reliability of a vendor’s products; and
loId. 5 122.016(c).
“Id. 5 122.012(a) (requiringGSCto providelegal,clerical,administrative, andothernecessarysupportto the
council).
%‘eeGov’tCode $5 2155.002,,061
‘jld. 5 2157.001(l).
“‘Id. Cj2157.001(2).
-Id. $ 2157.062,
p. 2829
Mr. Tom Treadway - Page 4 (DM-496)
(4) standards adopted by the Department of Information Resources.‘6
Chapter 2157 provides that “[tlhe [GSC] or a state agency shall purchase an automated
information system through the catalogue procedure provided by this subchapter unless the
commission or state agency determines that the best value may be obtained from another purchase
method authorized by this subtitle.“” Chapter 2157 also mandates that
[a] catalogue purchase or lease shall, when possible, be based on an
evaluation of at least three catalogue proposals made to the [GSC] or other
state agency by qualified information systems vendors. If at least three
catalogue proposals are not evaluated by the [GSC] or other state agency
before the purchase or lease is made, the [GSC] or other agency shall
document the reasons for that fact before making the purchase or lease under
Section 2157.063.”
For purposes of chapter 2157, “best value” is defined to mean “the lowest overall cost of an
automated information system.“” In determining the lowest overall cost for a purchase or lease of
an automated information system under this chapter, the GSC or a state agency is required to
consider factors including:
(1) the purchase price;
(2) the compatibility to facilitate the exchange of existing data;
(3) the capacity for expanding and upgrading to more advanced levels of
technology;
(4) quantitative reliability factors;
(5) the level of training required to bring persons using the system to a
stated level of proficiency;
(6) the technical support requirements for the maintenance of data across
a network platform and the management of the network’s hardware and
software;
‘6Id. 5 2157.065.
“Id. 5 2157.061.
“Id. 5 2157.0611
“Id, $2157.003.
p. 2830
Mr. Tom Treadway - Page 5 (DM-496)
(7) the compliance with applicable Department of Information Resources
statewide standards validated by criteria adopted by the department by rule;
and
(8) applicable factors listed in Sections 2155.074 [which sets forth best
value factors]*’and 2155.075 [whichrequires the commission or state agency
to specify “best value” factors in seeking competitive bids and competitive
sealed proposals]?
Chapter 2157 refers to the Department of Information Resources (“DIR”), the state agency
charged with coordinating information resources management within state government.** The GSC
is required, for example, to take into account DIR standards in qualifying vendors.23 The GSC or
a state agency purchasing an automated information system is also required to take into account DIR
standards in determining whether a system is the ‘best value.“z4 The DIR has issued standards on
items such as geographic information systems, information security, and data transport networks.*5
2Vrext of section 2155.074 concerning best value standards added by Act of May 28, 1997,75th Leg., RX,
ch. 1206, $6,1997 Tex. Gen. Laws 4632,4634.
‘IGov’t Code 5 2157.003 (footnote added). In addition, a state agency is authorized to purchase 01 lease an
automated information system directly from a qualified vendor if the purchase OI lease is both the best value available
and “in the state’s best interest.” Id. $ 2157.063(a). In determining whether goods or services are in the state’s best
interest, the agency is required to consider:
(1) the installation and hardware costs;
(2) the overall life-cycle cost of the system 01 equipment;
(3) the estimated cost of employee training and estimated increase in employee
productivity;
(4) the estimated software and maintenance costs; and
(5) therules thatprescribeapplicable statewide standards adoptedbythe Department
of Information Resources.
Id. 8 2157.063(b).
*Vd. 5 2054.051(a).
“Id. 5 2157.065(4).
241d.$9 2157.003(7), .063(b)(5).
%See 1 T.A.C. 5 201.13.
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Mr. Tom Treadway - Page 6 (DM-496)
Both the DIR and the GSC take the position that Government Code chapter 2157 precludes
the GSC or a state agency from purchasing computers under the Human Resources Code chapter 122
mandatory purchasing program. The agencies identify several ways in which the two statutory
schemes are inconsistent. First, chapter 122 vests the council with the responsibility to determine
whether a product or service offers the “best value” to a state-agency purchaser, a term chapter 122
(in contrast to chapter 2157) does not define. x In addition, chapter 122 vests the GSC with the
authority to establish specifications for products and services.*’ A state agency must purchase a
product or service that meets GSC specifications and offers the “best value for the state” according
to the council’s determination. 28 Chapter 2157 works differently. Vendors qualified by the GSC
provide information regarding products, services and prices. 29 The GSC or state agency purchasing
an automated information system then evaluates that information according to the detailed “best
value” criteria set forth in section 2157.003.” Whether a system is the “best value” will vary from
agency to agency and from purchase to purchase. ” In addition, the GSC or a state agency must
purchase an automated information system through the catalogue purchase procedure, evaluating at
least three catalogue proposals, ifpossible,3* “unless the commission or state agency determines that
the best value may be obtained from another purchase method authorized by this subtitle.“33 The
other purchasing methods authorized by that subtitle - subtitle D of title 10, which contains
Government Code chapters 2151 through 2177 - do not include the Human Resources Code
chapter 122 mandatory purchasing program.
We agree with the conclusion of the GSC and DIR that these two statutory schemes conflict
with respect to the purchase of products or services that fall within the definition of “automated
information system.“34 Chapter 122 requires a state agency to purchase a product or service included
in the program by the council. Chapter 2157, on the other hand, is tailored to give a state agency a
26Hum. Res. Code $ 122.007.
*‘See id. 5 122.014. Ifthe GSC has not developed specifications for aparticularproduct, commercial or federal
specifications currently in use apply. Id.
‘81d.5 122.008.
2qSee Gov’t Code 5 2157.066.
‘Old. $5 2157.003, ,061
“Under chapter 2157, the “best value” determination takes into account factors relating to an agency’s existing
infrastmctwe and employee training. See id. $ 2157.003(2), (5); see also id. § 2155,074(b)(6), (7), (8).
‘*Id. 5 2157.0611
“Id. § 2157.061.
“See id. $ 2157.001( 1) (deftig “automated information system”). Whether a particular product or service
falls within the definition of “automated information system” must be resolved by the GSC 01 state agency.
p. 2832
Mr. Tom Treadway - Page 7 (DM-496)
great deal of flexibility5 in purchasing an automated information system within certain limits. But
the requirements of those limits, which include using a subtitle D purchasing method and
determining that both the purchasing method used and the product purchased provide the “best
value,” are mandatory. A state agency cannot comply with the dictates of both Human Resources
Code chapter 122 and Government Code chapter 2157.
The Code Construction Act provides that “[i]f the conflict between the general provision and
the special or local provision is irreconcilable, the special or local provision prevails as an exception
to the general provision, unless the general provision is the later enactment and the manifest intent
is that the general provision prevail.““6 Chapter 122 governs the purchase of unspecified goods and
services whereas chapter 2157 sets forth detailed provisions regarding the purchase of a specific and
“Indeed, the primary purpose of chapter 2157 appears to be to afford state agencies maximum flexibility in
purchasing automated information systems. The bills proposing to amend the act by adding the statutory predecessor
to chapter 2 157, subchapter B of the Govemment Code and its accompanying defmitions, see Gov’t Code 9 2 157.001,
were introduced largely in response to a report from the Texas Performance Review, see 2 TEXAS COMPTROLLEROF
PUBLIC ACCOIJNTS,TEXAS PERFORMANCEREVIEW, AGAINST THE GRAIN: HIGH-QUALITY LOW-COST GOVERNMENT
FOR TEXAS (1993), in which the comptroller of public accounts proposed nwnero~s cost-saving measures for state
government. See House Research Organization, Bill Analysis, C.S.S.B. 381,73d Leg. (1993). As introduced, the bills
did not propose to establish the catalogue purchase method; indeed, the comptmller had not suggested that such a
procedure be implemented. The bills were amended to add the catalogue purchase method when they wex in
committee. See Hearings on S.B. 381 Before the Senate Comm. on State Affairs, 73d Leg. (Mar. 3, 1993) (statement
of Senator Haley, author) (tape available from Senate Staff Services Offlice); Hearings on H.B. 2626 Before the House
Comm. on State Affairs, 73d Leg. (Apr. 5, 1993) (statement of Representative Eckels) (tape available from House
Video/Audio Services Office). Senator Haley explained that the amendment would enable state agency personnel
directly to purchase computer systems, software, and telecommunications hardware. Hearings on S.B. 381 Before the
Senate Comm. on State Affairs (statement of Senator Haley, author) (tape available from Senate Staff Services Office).
He further explained that the proposed catalogue purchase method would allow state agencies to avoid the competitive
bidding process and instead fmd the best buys on “computers and all material that goes with computers,” such as
“software and other telecommunications hardware” in catalogues. Id.
‘6Gov’t Code 5 311.026(b),
p. 2833
Mr. Tom Treadway - Page 8 (DM-496)
very specialized category of goods and services -- automated information systems. We believe
chapter 2 157 is the more specific statute .37 Chapter 122 was first enacted in 1975.38 Chapter 2157
was first enacted in 1993.39 Although both chapters were amended in the last legislative session in
the same legislation, those amendments do not indicate “manifest intent” that chapter 122 prevails
over chapter 2157.@ For these reasons, we conclude that chapter 2157 prevails over chapter 122 to
the extent they conflict.
This conclusion does not preclude the GSC and state agencies from purchasing automated
information systems from community rehabilitation programs. The GSC or other state agency may
do so either through the catalogue purchasing program, if the community rehabilitation program has
been qualified as a vendor, or through another purchasing method authorized by subtitle D, if the
commission or agency determines that the best value may be obtained by that alternate purchasing
method.4’ Furthermore, we do not believe that this conclusion necessarily precludes the council
from assisting community rehabilitation programs by including their automated-information goods
and services in its purchasing prognunn even though state agencies cannot purchase such goods and
services except in compliance with chapter 2157.43 Finally, we note that while we are sympathetic
to the council’s desire to provide opportunities for community rehabilitation programs and persons
“In considering the relationship between chapter 122 and competitive bidding statutes applicable to political
subdivisions, this oftice concluded that chapter 122, a special provision governing purchases from community
rehabilitation programs, prevailed ova the mme general competitive bidding statutes. See Attorney General Opinions
IM-444 (1986) (political subdivision purchasing generally), JM-385 (1985) (county purchasing). Here, however, we
are faced with a different issue-the relationship between chapter 122 and provisions regarding purchases of a unique,
complex, and relatively new category of goods and services. In this case, we believe that the statute applicable to these
particular goods and services is the more specific.
“See Act of May 31, 1975, 64th Leg., R.S., ch. 734, 1975 Tex. Gen. Laws 2377, 2377. The legislature
reorganizedand renamed the council in 1995. See Act of May 24,1995,74th Leg., RX, ch. 460,s 1,1995 Tex. Gen.
Laws 3168,3 169. These changes did not significantly affect the substantive provisions related to purchasing.
‘%ee Act ofMay 24,1993,73dLeg., RX, ch. 684,§§ 2,16,1993 Tex. Gen. Laws 2537,2538,2542; Act of
May30, 1993,73dLeg.,R.S.,ch.906, $5 1.07 _ .08,1993TexGen. Laws 3811,3813,3814;seealsonote 35su~m7.
‘%&Act ofMay 28, 1997,75tb Leg., RX, ch. 1206, $5 18-21 (amending Government Codecbapter2157),
25 (amending Hum. Res. Code section 122.007 to require council to ensure that “products and services offered for sale
offer the best value for the state”), 1997 Tex. Gen. Laws 4632,4642,4645. We have reviewed the legislative history
of this legislation, Senate Bill 1752, and have not found legislative intent relevant to the relationship between chapter
2157 and chapter 122. See also note 35 supra.
“See note 44 infia
‘%I providing this kind of assistance, the council should ensure that it does not run afoul of Human Resources
Code section 122.012(c), which prohibits the GSC or a state agency from “assum[ing] the marketing or fiscal
responsibility for the expense of marketing the products and services of persons with disabilities under the program.”
“We understand, for example, that the council has placed a personal computer contract on a non-mandatory
set-aside.
p. 2834
Mr. Tom Treadway - Page 9 (DM-496)
with disabilities to sell automated-information goods and services to state agencies through its
purchasing program, exceptions to the requirements ofchapter 2 157 must be made by the legislature,
not this office.”
SUMMARY
Human Resources Code chapter 122 and Government Code chapter 2 157
conflict with respect to state agency purchases of automated information
systems. Chapter 2157, the more specific provision, prevails to the extent of
conflict. The General Services Commission or other state agency is
precluded from purchasing an automated information system except in
compliance with chapter 2157.
DAN MORALES
Attorney General of Texas
JORGE VEGA
First Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by Mary R. Crouter
Assistant Attorney General
UWe have received a letter from a community rehabilitation program that is a qualified information system
vendor. The program urges us to conclude that state agencies are authorized to purchase its products under chapter 122
without complying with the sometimes burdensome requirements associated with chapter 2157 and the other subtitle
D purchasing methods. The program asks us, in essence, to amend Government Code section 2157.061 to include the
chapter 122 purchasing program as an alternate purchasing method. Only the legislature can amend chapter 2157.
p. 2835