     .



/-




         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
