Untitled Texas Attorney General Opinion ( 1988 )

.
/-
Mr. Lawrence F. Alwin, CPA Opinion No. m-843
State Auditor
P. 0. Box 12067 Re: Competitive bidding re-
Austin, Texas 78711-2067 quirements for the purchase
of school buses (RQ-1075)
Dear Mr. Alwin:
Your letter requesting an opinion from this office
draws into question the procedures employed by certain
school districts for the purchase of school buses and
related equipment.
The information you have provided reveals that
several school districts participating in the Foundation
School Fund program regularly submit purchase requests for
school buses, bus bodies and bus chassis that contain
r‘ specifications which are structured so that only a
particular model or manufacturer meets the specifications.
The purchases are requested pursuant to section 3.09(b) of
the State Purchasing and General Services Act, article
601b, V.T.C.S., which prescribes procedures to be followed
when it appears that the %onditions and specifications of
a purchase request have been drawn to describe a product
which is proprietary to one vendor" and do not include
language which permits an equivalent product to be
supplied. Section 3.03 of article 601b, however, requires
the State Purchasing and General Services Commission [the
commission] to purchase these items in the manner provided
by subchapter F of chapter 21 of the Texas Education Code.
Subchapter F requires, among other things, that such
purchases be made on the basis of competitive bids. Educ.
Code 121.165(b). your letter expresses concern that the
purchase of school buses pursuant to section 3.09 of
article 601b avoids the competitive bidding requirements
of section 21.165 of the Education Code. Hence, you ask
whether the provisions of article 601b, V.T.C.S., or
provisions of the Education Code govern the purchase of
school buses and related equipment. As this opinion will
explain, we conclude that the purchasing provisions of
article 601b were not intended to apply to purchases of
school buses and related equipment. Such purchases are
governed by the Education Code.
f-
p. 4069
Mr. Lawrence F. Alwin - Page 2 (J&843)
I.
Article 601b was enacted by the 66th Legislature in
1979. Acts 1979, 66th beg., ch. 773, at 1908. It is the
product of an effort to organize and unify the numerous
statutes relating to state purchasing and the duties of
the Board of Control. &? Bill Analysis to H.B. NO. 1673,
66th Leg. (1979), on file in Legislative Reference
Library. The act abolished the Board of Control and
established in its stead the State Purchasing and General
Services Commission. L See also V.T.C.S. art. 601b,
s52.01: 99.01; 99.02. Article 3 of the statute governs
purchasing by and for state agencies. Among its several
duties, the commission is required to "purchase, lease,
rent, or otherwise acquire all supplies, materials,
services, and equipment for all state agencies" except for
certain materials and services acquired for libraries
operated by institutions of higher education. V.T.C.S.
art. 601b, 53.01(a). The commission is also given the
responsibility for purchasing certain motor vehicles for
certain school districts:
The commission shall purchase all motor
vehicles used I for transporting school
children, including buses, bus chassis, and
bus bodies, tires, and tubes, for school
districts participating in the Foundation
School Program as provided by Subchapter F,
Chapter 21, Texas Education Code.
Id. 83.03. See also Educ. Code 9621.161; 21.180(a).
Buses and bus bodies, chassis, tires, and tubes may
be purchased by school districts without the approval of
the commission if the funds used to purchase the items are
provided by gift or profits from athletic contests or
school enterprises not supported by tax funds or by
government grant or appropriation. Educ. Code 521.164.
Purchases made through the commission are governed by the
following provision:
(a) The purchase of motor vehicles
(including buses, bus chassis, bus bodies,
tires, and tubes) by the Board of Control
shall be made in compliance with the pro-
visions of this section.
(b) The DUrChaSe must be made on the
basis of comoetitive bids submitted under
p. 4070
Mr. Lawrence F. Alwin - Page 3 (JM-&!+3)
(c) The purchase must.be authorized by a
requisition, which may be submitted by
either a board of county school trustees or
the board of trustees of a school district.
The requisition must include a general
description of the article or articles
desired, as well as any other applicable
matter specified in this section.
(d) If the requisition is for the
purchase of a motor vehicle, bus, bus body,
or bus chassis, it must be approved by
either the county school board when funded
under law or the board of trustees of a
school district and by the commissioner of
education.
(e) If the requisition is for the
purchase of tires and tubes, it must be
approved by the county superintendent or the
chief administrative officer of a school
district.
(f) If the requisition ' for the
purchase of special equipmen? required
because of climatic or road conditions, t;
guarantee adequate safety and comfort of
school children, the requisition must
describe the special conditions and require-
ments so that the Board of Control may
purchase equipment which it determines to be
adapted or designed for the conditions or
requirements.
(g) The requisition must contain
certification as to the funds that will bz
available to pay for the article or articles
requisitioned. (Emphasis added.)
Educ. Code 521.165. The commission and the State Board of
Education are jointly authorized to adopt and enforce
regulations governing the design, construction, and
operation of school buses operated by or for school
districts, and are directed to place emphasis in these
regulations on
p. it071
Mr. Lawrence F. Alwin - Page 4 (m-843)
safety features and long-range, maintenance-
free factors, and reouirrel that all scho 1
buses s&&,l be wsed on cqnetitive bik
gs wrovided bv Section 21.165 of this code.
(Emphasis added.)
Educ. Code 511.12.
Despite this unequivocal requirement, YOU suggest
that several school districts effectively avoid competi-
tive bidding by requesting that school buses be purchased
pursuant to section 3.09 of article 601b. Section 3.09
provides the following:
(a) The commission shall review the
specifications and conditions of purchase
of any supplies, materials, equipment, or
services desired to be purchased.
(b) If the commission finds that speci-
fications and conditions of a purchase
request have been drawn to describe a
product which is proprietary to one vendor
and does not include language which permits
an equivalent product to be supplied, it
shall require written justification of the
requested specifications or conditions,
signed by the agency head or the chairman of
the governing body. For an institution of
higher education, the written justification
may be signed by the person designated by
the president or governing body as pur-
chasing officer for the institution. The
written justification shall contain the
following:
(1) explanation of the need for the
specifications:
(2) the reason competing products are
not satisfactory; and
(3) other information requested by the
commission.
(c) If a resubmission with written
justification is to be required by the
commission, it shall notify the requesting
state agency of that fact within 10 days
p. 4072
Mr. Lawrence F. Alwin - Page 5 (JM-843)
.
after the date of receipt of the purchase
request.
(d) If the commission, after considering
all factors, takes exception to the justifi-
cations, it shall purchase the supplies,
materials, services, or equipment as re-
guested and report the reasons for its
exceptions to the agency head or the
chairman of the governing body, the state
auditor, the Legislative Budget board, and
the governor.
(e) The commission shall issue
invitation to bid to vendors within 20 da;:
after the date of receipt of the written
justification required.
(f) The commission shall not delay
processing a purchase requisition by sub-
mitting the specifications and conditions to
the state auditor's office for comment or
recommendation prior to issuing the invita-
h
tion to bid to vendors.
V.T.C.S. art. 601b, 53.09. Article 601b does not define
the phrase "proprietary to one vendor"; however, the
commission has adopted a rule defining the term
"proprietaryB@:
Pronrietary -- This term includes products
and/or services manufactured or offered
under exclusive rights derived from a trade
name, patent, copyright, or other legally
protected right.. Product and/or services
of one manufacturer will be considered
proprietary if the product or the terms
and conditions of the offer have a dis-
tinguishing feature or characteristic,
required by the using agency's specifica-
tions which is not shared or provided by
similar and competing (equivalent) products
or services.
1 Tex. Admin. Code 5113.2.
You inform us that the commission routinely requires
written justification of school bus purchase specifica-
P tions submitted pursuant to section 3.09. In the past,
the commission has taken exception to justifications it
p. 4073
Mr. Lawrence F. Alwin - Page 6 (JM-843)
. -,
deemed insufficient, reported its exceptions to your
office, the governor, and the Legislative Budget Board,
and purchased the requested products pursuant to the -,
mandate of section 3.09(d).l
II.
The issue presented by your opinion request is the
proper interpretation of the purchasing provisions of
article 601b. When construing a statute, we are required
to deliver
an interpretation which expresses only the
will of the makers of the law, not forced
nor strained, but simply such as the words
of the law in their plain sense fairly
sanction and will clearly sustain.
Railroad Commission of Texas v. Miller, 434 S.W.2d 670,
672 (Tex. 1968). Whenever possible, legislative intent is
determined from the language of the statute. Crimmins v.
I&&g& 691 S.W.2d 582 (Tex. 1985). The entire statute,
and not merely isolated portions of it, must be examined.
State v. Terru 588 S.W.2d 784 (Tex. 1979). Where the
intent of the l&slature is apparent from the words of
the statute, there is no need to consult extrinsic sources
for evidence of legislative intent. Winton v. Frank, 545
S.W.2d 442 (Tex. 1976). Therefore, unless a statute is
ambiguous, we are compelled to follow the clear language
of the statute. Reoublic ank D 11 s. N.A. v. Interkal,
Inc., 691 S.W.2d 605 (Tei. 198:).a In our opinion the
language of both article 601b, V.T.C.S., and section
21.165 of the Education Code is plain and unambiguous.
A.
An established principle of Texas jurisprudence holds
that where a general provision of a statute conflicts with
a special provision of the same statute, the special
1. For example, information submitted in connection
with this opinion request shows that in the fiscal year
-.
1985-86, the commission filed over 200 exceptions to
school bus purchase requests submitted pursuant to section
3.09. The requests involved the purchase of approximately
600 school buses or bus components at a cost of several
million dollars.
p. 4074
Mr. Lawrence F. Alwin - Page 7 (JM-843)
provision controls unless there is a clear indication that
the general provision is to prevail. m State v . Balli,
,190 S.W.2d 71, 86 (Tex. 1945), cert. de * 328 U.S. 852
(1946); mlin . State 645 S.W.Zd 265, 2;2 (Tex. Crim.
App. 1983). ,Tez also &ov't Code 5311.026. Furthermore,
when the law contains a general provision for all cases
and a special provision for a particular class of cases,
the general must yield to the specific insofar as the
particular class is concerned. Sam Bassett Lumber Co. v.
Citv of Houston, 198 S.W.2d 879, 881 (Tex. 1947); Citv of
Houston v. Arney, 680 S.W.2d 867, 875 (Tex. App. - Houston
[lst Dist.] 1984, no writ). The reason for this is that
legislative intent is more clearly reflected in the
enactment of a special provision than a general provision.
Sam Bassett Lumber Co. v. Citv of Houston sunra. Thus,
the provision governing the particular clak is viewed as
exception to or a qualification on the general
;Fovision and both are given effect. &
B.
Section 3.03 of article 601b is derived from former
article 634a-1, V.T.C.S. Article 634a-1 required buses,
bus bodies, tires and tubes to be purchased by the Board
of Control for any school district receiving aid under any
equalization act. It required such purchases to be made
on the basis of competitive bids under rules and regula-
tions promulgated by the Board of Control. Section 3.03
was intended to effect no substantive change in the
method by which school districts acquire buses and bus
components. See Bill Analysis to H.B. No. 1673, 66th
Leg. (1979), on file in Legislative Reference Library:
Testimony of Mr. John T. Potter (Asst. Dir., Texas
Legislative Council) before House Comm. on State Affairs,
66th Leg. (April 9, 1979) (transcript available from House
Staff Services).
Article 3 of article 601b establishes procedures
which apply generally to all purchases made by the
commission. Section 3.03 of the act, however, designates
a discrete class of purchases which the commission is
directed to make *Iasprovided by Subchapter F, chapter 21,
Texas Education Code.*@ Accordingly, section 3.03 must be
viewed as a qualification on the commission's general
authority to purchase supplies, materials, and equipment
pursuant to article 3. By its clear terms, section 3.03
requires us to consult the Education Code for guidance.
In view of section 3.03.,therefore, the commission must,
in purchasing school buses, bus bodies, and bus chassis,
p. 4075
Mr. Lawrence F. Alwin - Page 8 (+f-843)
rely not on section 3.09 of article 60lb, but instead on
the bidding requirements of the Education Code.
C.
Sections 21.161 through 21.182 comprise subchapter F
of chapter 21 of the Education Code. Section 21.161
provides that all motor vehicles used to transport school
children, including buses, bus bodies and chassis
(excluding passenger cars), purchased by or for school
districts participating in the Foundation School Program
must "be purchased by and through the [commission],"
except as specifically authorized by subchapter F. See
w Educ. Code .$21.180(a). School buses and related
equipment may be purchased by school districts directly
when an emergency requires an immediate purchase or the
items are purchased with either donated funds or the
proceeds from athletic contests and school enterprises
that are not supported by public funds. Id. 5521.162;
21.164.
The commission is granted the power to make rules or
adopt regulations to effectuate the purposes of subchapter
OF. Id. 521.168. Neither subchapter F nor the rules of
the commission make express reference to section 3.09 of
article 601b in the context of school bus purchases. &g
1 Tex. Admin. Code 5113.13(l) (school bus purchases are
made by the commission as a result of competitive
bidding and the receipt of requisitions from the school
districts). Nor do they provide procedures equivalent to
the "proprietary to one vendor" purchasing method of
section 3.09. This suggests to us that section 3.09 was
not intended to apply to school bus purchases. We are
supported in this view by sections 21.169 and 21.174 of
the Education Code. Section 21.169 states that compliance
with the purchase and sale provisions of subchapter F is a
condition precedent to participation in the Foundation
School Fund program. Section 21.174(b)(l), moreover,
requires local district school boards to requisition
school buses and supplies from the commission in accor-
dance with subchapter F. Therefore, we conclude that the
legislature intended school bus purchases for school
districts to be made by the commission solely pursuant to
the provisions of subchapter F of chapter 21 of the
Education Code and rules or regulations promulgated under
authority granted by subchapter F.
Subchapter.F of chapter 21 of the Education Code
is substantially derived from former article 634(B),
V.T.C.S., which required the Board of Control to purchase
p. 4076
I&. Lawrence F. Alwin - Page 9 (JM-843)
P .
school buses, bus bodies, tires and tubes for school
districts participating in the Foundation School Program
- on the basis of competitive bids. .Section 21.165 reflects
the substance of article 634(B). When the legislature
reenacts a statute without material change, it is presumed
the legislature knew and adopted interpretations placed on
the original statute and intended the new enactment to
receive the same construction. First Emwlovees Insurance
co. v. Skim 646 S.W.2d 170 (Tex. 1983). We therefore
find it significant that twenty years prior to the re-
codification of article 634(B), this office construed its
language to prohibit the kind of school bus purchasing
practices you inquire about:
Article 634(B) expressly provides that
new school buses purchased by the State
Board of Control upon proper requisition
from school districts of this State 'shall
be purchased on competitive bids.* The
statute also specifically authorizes school
districts to describe in their requisition
'special equipment required to guarantee
adequate safety and comfort of school
P children' where needed to meet certain
climatic and road conditions, and provides
that the requisition 'shall include therein
description of the article
iesW These express provisions
authorize only a 'general description' of
the bus specifications desired by the school
district.- School districts
. . are not em-
powered thereunder to insist that the bus be
a DrOdUCt Of a Darticular mmfacturer. The
act reouires that the State Board wurchase
recuisitioned buses on 'comwetitive bids'.
and therefore reouires that the Board invite
bids aenerallv on buses that meet the
aeneral description of the bus desired. As
stated in Attorney General's Opinion V-938
(1949), the spirit and purpose of Article
634(B) as a whole is to require that school
districts purchase its buses through the one
agency, the State Board of Control on a
competitive bid basis to the end that such
districts shall realize full value for the
money they acquire through Foundation School
Fund participation. The Legislature's
primary concern was that costs of such
,-
school bus transportation be minimized by
p. 4077
Mr. Lawrence F. Alwin - Page 10 (JM-843)
.
purchase of necessary bus equipment at the
lowest cost.
.
alv. it is our oninion that . .a
school district
. . . is not authorized to list rn
Jts recuisition for the wurc&@e of a school
bus a bindina snecification that the bus be
the wroduct of a oarticular muacturer .
Further, a school district may not legally
refuse to accept the bus purchased by the
State Board of Control for it on requisi-
tion, providing it meets all other speci-
fications. (First emphasis in original,
remaining emphasis added.)
Attorney General Opinion V-1511, at 6, 7 (1949). It must
be noted that the school bus purchase requisitions
submitted pursuant to section 3.09 do not designate a
particular manufacturer. Rather, the purchase
specifications are structured so that only a particular
manufacturer can meet the specifications. It cannot be
seriously argued that this practice is any less
restrictive of competition than the practice disapproved
in Attorney General Opinion V-1511, for both effectively ?
eliminate all competition between different manufacturers
of school bus equipment. Consequently, we believe the
teachings of Attorney General Opinion v-1511 are
especially relevant here., See also Tassel v. Board of
Educa i n. Common School Distact No. 13. SOUthamDtOn, 220
R.y.S:2: 262 (N.Y. Sup. Ct. 1961) (school board which
sought to purchase a school bus could not build
specifications around one make of vehicle). Significant,
too, is the absence of any subsequent legislative
enactment indicating disapproval of the conclusion reached
in Attorney General Opinion V-1511 or authorizing a change
in the purchasing practices mandated by subchapter F of
the Education Code. S ae erallv Educ. Code 521.82
(lease-purchase of schoo?busei).
It might be argued on the school districts' behalf
that because rules adopted by the commission incorporate
the proprietary purchase procedure of section 3.09, these
constitute "such rules and regulations" as Education Code
section 21.165(b) authorizes the commission to adopt for
school bus purchases.
Requisition processing procedures are set forth at 1
Tex. Admin. Code 5113.3. Subsection (b) of that provision
establishes procedures for purchase specifications that
the commission finds are "proprietary to one vendor and do
P. 4078
Mr. Lawrence F. Alwin - Page 11 (a-843)
not contain language permitting an equivalent product to
be supplied." This rule merely interprets and applies
- section 3.09 of article 601b, which is referred to
throughout the provision. It is not, in our opinion,
the product of an exercise of legislative power by the
commission, but stands merely as an "interpretive rule"
of the commission. &B First Federal Savinas and Loan
A sociation v. Vandvariff 639 S.W.2d 492, 498-499 (Tex.
A&. - Austin 1982, writ dism'd). The rule was not
promulgated pursuant to the authority delegated by the
Education Code, and we do not think the legislature
intended to authorize school districts to accomplish by
finesse what could not be accomplished directly -- i.e.,
the purchase of school buses pursuant to section 3.09.
D.
Although the unambiguous language of article 601b and
the Education Code provides considerable support for our
conclusion, there is another reason why section 3.09 of
article 601b should not apply to school bus purchases. As
we observed earlier, article 3 of article 601b applies
generally to purchases made by or for state agencies.
Section 3.01(a) of the act provides that the a*commission
shall purchase, lease, rent, or otherwise acquire all
supplies, materials, services, and equipment for all
state agencies" except for certain acquisitions made for
libraries operated by institutions of higher education.
The act defines "state agency" to mean:
(A) any department, commission, board,
office, or other agency in the executive
branch of state government created by the
constitution or a statute of this state;
(B) the Supreme Court of Texas, the
Court of Criminal Appeals of Texas, a court
of civil appeals, or the Texas Civil
Judicial Council: or
(C) a university system or an institu-
tion of higher education as defined in
Section 61.003, Texas Education Code, as
amended, other than a public junior college.
V.T.C.S. art. 601b, 51.02(Z). A school district falls
within none of the designated classes of governmental
entities or institutions subject generally to the act.
p. 4079
Mr. Lawrence F. Alwin - Page 12 (.JM-843)
.
E.
To summarize, we find no ambiguity in the language of
either article 601b or subchapter F of chapter 21 of the
Education Code. By its plain terms, section 3.03 of
article 601b requires school buses to be purchased by the
commission pursuant to the strictures of subchapter F.
Subchapter F neither incorporates section 3.09 of
article 601b nor provides procedures equivalent to the
"proprietary to one vendor" purchasing method of section
3.09. Further, the definition of "state agency" in
article 601b suggests that the general purchasing
provisions of the act, particularly section 3.09, were not
intended to apply to school bus purchases made by the
commission for school districts.
SUMMARY
The purchasing provisions of article
6Olb, V.T.C.S., do not apply to the purchase
of school buses and bus chassis by the State
Purchasing and General Services Commission.
Such purchases are governed by subchapter F
of chapter 21 of the Texas Education Code
and rules or regulations promulgated pur-
suant to authority granted by subchapter F.
J
Very truly yo
n;,
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
Lou MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAELEY
Special Assistant Attorney General
RICK GILPIN
Chairman, opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
p. 4080