DAN MORALES

ATTORNEY GENERAL 

## QBffice

of tty JZlttornep

@enera diMate of Qexas

June 6,199s
Mike Moses, Ph.D. Commissioner

of Education Texas Education Agency 1701North Congress Avenue Austin, Texas 78701-1494
Honorable John W. Segrest Criminal District Attorney McLennanCounty 209 North Sii Street, Suite 200 Waco, Texas 76701

Dear Commissioner

Moses and Mr. Segmst: Opiion No. DM-350

Re: Whether purchases made by a local government through the state catalogue purchasing procedure established by article 6Olb, section 3.081, must be competitively bid (RQs-744,754)

We have been asked whether purchases made by local governments through the state catalogue purchasingprocedure established by 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

Honorable John W. Segrest (DM-350)

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 commissionperforms purchasmg services for local governments.” The services must includethe following:

(1) the extension of state contract prices to participating local governmentswhen the commission considersit 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 commissionadopted 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 governmentwill designate a representative to act for the local government with respect to the program, will be responsiblefor submitting requisitionsto the commissionand 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 governmentthat purchasesan item under a state contract

satisfies any state law requiting the local government to seek competitivebids 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 commission recently advised the county of the opportunity to purchase automated information systems through the state catalogue purchasing procedure. The commission’ s letter states in pertinent part: Article 601b, Section 3.081(g), V.T.C.S., mandates that the General Services Commission “make the Catalog Purchase Procedure

. . gy&& to local govemments that qua@ for Cooperative Purchasing.

. . r]; however, this procedure may not satisfy

p. 1865Mike Moses, Ph.D. - Page 3

HonorableJohn W. Segrest (DM-350)

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 requirementswhen it makes a purchasethrough the state catalogue purchasingprocedure. ~Commissioner

Moses ’ predecessor in office asked essentially the 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 requirementsin the
same manner as a purchaseby 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 satisfiesotherwise applicablecompetitivebiddingrequirementswhen 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 GovernmentCode. 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 cooperativepurchasingprogram “satisties any state law requiring the local governmentto seek competitivebids 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 governmentto seek competitivebids for the purchase of the item” as provided by section 271.083(b) of the Local GovernmentCode.

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

p. 1866Mike Moses, Ph.D. - Page 4

Honorable John W. Segrest (DM-350)

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 enumerated

in this section unlessthe commission or state agency determines that the best

‘ SccIion 1.02(5)

of8nkIe 601b

dctim the tetm “beat

vpluc” 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 article6Olbrequires a stateagency

to consider

the following factorsinderminingwhichpmductsor leIvkes8rclathclI8t8 ’ rbcltimerrrt:

(I) installation

cost5 and hardware

asts; (2) tbeover8lllifeqclea3ltofthrynanMcquipmcnt; (3)eslimatedcostofunployccuaiaingarldertimatcdioacuein~ produc(ivitr, (4) clw8taircdtwpn.8odm8in-colll;88d tpmP~-PwithwP~~le-~adDptcdpy~Dcprtmat

RaGlrasM8~aImy8cv8hd8I8dbyultori8 enabliSbCdbytbcdepsr(mcntManrbstqumt~d~~~~e.

p. 1867Mike Moses, Ph.D. - Page 5

HonorableJohn W. Segrest (DM-350)

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 informationsystems 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 **CCCIIM**3.081 and its acoompaoytng

definitions.

section 1.02(4)-(a),

wao inttodmxd

in the Sovcnty-third

Legislature

largelyin mponst to a report fmm the TexasPcrformanco Review. see 2 Tat. Comptroller

of Poblic Aaxmnu, AONNST THEGFWN:

HIOHQJALITY

LOWCOST

GOVEWMENT

Fat TEMS (1993). in which the comptrollct

ofpublic accounts

proposed nmnorous K&Win8 moasmm

for stategoWnmat. scr Home l’ temamh t3rganimtion,

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 comptroller

bad not suggested

that such a proccdnm

be implemontcd.

Tbe bills wmeamauled to add the catalogocpurchasingprom&e wlun they wornin aWmittce. Src Hearingson S.B. 381 Bofomthe SmaIc &MI. on State Affairs, 73d Log. (Mar.3, 1993)(statement of Se&or &Joy, author) (tape available from SenateStaffSW&S); Hearings **M** H.B.2626Before

the HomeComm.

on StateA5aia. 73d Log. (Apr. 5, 1993)(statamnt of Rcprmcntativc E&k) (tape available

from HouseVidoo/Aodio ServicesG&e). Senator Haly explainedthat the amendment woold enable state agency pxsonncl dirdy to pmdasc computer systems, cofhwc, and tcl

cc~~onkations badwarc. Hearingson S.B. 381 Beforethe SenateComm.on State NT&s. 73d Log. (Mar. 3. 1993)(statemom of SenatorHaley, author)(tapeavailable

fromHcusc

VidcdAudio

services Of&). Hc liulhcr explained that the proposed catalogoc pmchasing

procodum wouldallowstate agacics to avoidthe competitive biddingp- and inscad find the bca buyson automated information

systems.

Id.

**%okction** (t) of section

3.081 providesthat ‘ ~bncha.~ of mttomatulinformationsystems shall be madethroughthe cataloguc procodom mmmmatcd

in tbir section

onlcmthe commimion

or state agencydctennincsthat the bcc~ value availableaccromfrom an altcmativcpurcbacc mcthod.” Gn tbc basis that sobmotion(9) mattes all pmvisiotu applicableto state agencies also applicableto local gctvammts, we believethat a local govamncn tmayomanabanativcstatotorypmch&ngmdhodif determine5

that it is ncce5saryto&soinor&rtecbUinthebcstvalucavailable.

p. 1868Mike Moses, Ph.D. - Page 6

HonorableJohn W. Segrest (DM-350)

**SUMMARY**
A local government that participates in the cooperative purchasingprogram establishedunder sections 271.082 and 271.083 of the Local Government Code satisfies otherwise applicable competitive biddmg requirementswhen 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
SARAHJ. SHIRLEY Chair, Gpiion Committee RCparedbyMaryRCrouta Assistant Attorney General

p. 1869