                             QBfficeof tty JZlttornep@enera
                                            diMateof Qexas
DAN MORALES
 ATTORNEY
      GENERAL                                   June 6,199s

    Mike Moses, Ph.D.                                   Opiion No. DM-350
    Commissionerof Education
    Texas Education Agency                              Re: Whether purchases made by a local
    1701 North Congress Avenue                          government through the state catalogue
    Austin, Texas 78701-1494                            purchasing procedure established by article
                                                        6Olb, section 3.081, must be competitively
    Honorable John W. Segrest                           bid (RQs-744,754)
    CriminalDistrict Attorney
    McLennan County
    209 North Sii Street, Suite 200
    Waco, Texas 76701

    Dear CommissionerMoses and Mr. Segmst:

            We have been asked whether purchases made by local governments through the
    state catalogue purchasing procedure establishedby 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           (DM-350)
Honorable John W. Segrest



          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 commission performs purchasmg services for local governments.”
The services must include the following:
              (1) the extension of state contract prices to participating local
          governmentswhen the commissionconsiders it 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 commission adopted 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 government will designate a
representative to act for the local government with respect to the program, will be
responsible for submitting requisitions to the commission and 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 government that purchases an item under a state contract
          satisfies any state law requiting the local government to seek
          competitive bids 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 commissionrecently advised the county of the opportunity
to purchase automated information systems through the state catalogue purchasing
procedure. The commission’sletter states in pertinent part:
          Article 601b, Section 3.081(g), V.T.C.S., mandates that the General
          Services Commission “make the Catalog Purchase Proce-
          dure . . gy&& to local govemments that qua@ for Cooperative
          Purchasing. . . r]; however, this procedure may not satisfy




                                      p. 1865
Mike Moses, Ph.D. - Page 3           (DM-350)
Honorable John W. Segrest



          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
requirements when it makes a purchase through the state catalogue purchasing procedure.
~Commissioner Moses’predecessor in office asked essentiallythe 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 requirements in the
          same manner as a purchase by 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 satisfies otherwise applicablecompetitivebidding requirementswhen 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 Government Code. 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 cooperative purchasing program “satisties any
state law requiring the local government to seek competitive bids 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 government to seek competitive bids for the purchase of
the item”as provided by section 271.083(b) of the Local Government Code.

       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




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Mike Moses, Ph.D. - Page 4               (DM-350)
Honorable John W. Segrest



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
enumeratedin this section unless the commissionor state agency determines that the best



       ‘SccIion1.02(5)of8nkIe 601bdctim the tetm “beatvpluc”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 article 6Olbrequiresa state agencyto considerthe following
factorsinderminingwhichpmductsor leIvkes8rclathclI8t8’rbcltimerrrt:

           (I) installationcost5and hardwareasts;
           (2) tbeover8lllifeqclea3ltofthrynanMcquipmcnt;
           (3)eslimatedcostofunployccuaiaingarldertimatcdioacuein~
           produc(ivitr,
           (4) clw8taircdtwpn.8odm8in-colll;88d
           tpmP~-PwithwP~~le-~adDptcdpy~Dcprtmat
                      RaGlrasM8~aImy8cv8hd8I8dbyultori8
           enabliSbCdbytbcdepsr(mcntManrbstqumt~d~~~~e.




                                        p.   1867
Mike Moses, Ph.D. - Page 5              (DM-350)
Honorable John W. Segrest



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 information systems 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 CCCIIM3.081 and its
acoompaoytngdefinitions.section 1.02(4)-(a),wao inttodmxdin the Sovcnty-thirdLegislaturelargelyin
mponst to a report fmm the Texas PcrformancoReview.see 2 Tat. Comptrollerof Poblic Aaxmnu,
AONNSTTHEGFWN:HIOHQJALITY            LOWCOSTGOVEWMENT         Fat TEMS (1993). in which the
comptrollctofpublic accountsproposednmnorousK&Win8 moasmmfor stategoWnmat. scr Home
l’temamht3rganimtion,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
comptrollerbad not suggestedthat sucha proccdnmbe implemontcd.Tbe bills wme amauled to add the
catalogocpurchasingprom&e wlun they worn in aWmittce. Src Hearingson S.B. 381 Bofomthe
SmaIc &MI. on State Affairs, 73d Log. (Mar.3, 1993)(statementof Se&or &Joy, author) (tape
availablefrom Senate Staff SW&S); HearingsM H.B. 2626Beforethe Home Comm.on State A5aia.
73d Log. (Apr. 5, 1993)(statamnt of RcprmcntativcE&k) (tape availablefrom HouseVidoo/Aodio
ServicesG&e). Senator Haly explainedthat the amendmentwoold enable state agency pxsonncl
dirdy to pmdasc computersystems,cofhwc, and tclcc~~onkations badwarc. Hearingson S.B.
381 Beforethe Senate Comm.on State NT&s. 73d Log. (Mar. 3. 1993)(statemomof Senator Haley,
author)(tapeavailablefrom HcuscVidcdAudioservicesOf&). Hc liulhcr explainedthat the proposed
catalogocpmchasingprocodumwouldallow state agacics to avoid the competitivebiddingp-          and
inscad find the bca buyson automatedinformationsystems.Id.

         %okction (t) of section3.081 providesthat ‘~bncha.~ of mttomatul information systems
shall be madethroughthe catalogucprocodommmmmatcdin tbir sectiononlcmthe commimionor state
agency dctennincsthat the bcc~value availableaccromfrom an altcmativcpurcbaccmcthod.” Gn tbc
basis that sobmotion (9) mattes all pmvisiotu applicable to state agencies also applicable to local
gctvammts, we believethat a local govamncntmayomanabanativcstatotorypmch&ngmdhodif
determine5that it is ncce5saryto&soinor&rtecbUinthebcstvalucavailable.




                                         p. 1868
Mike Moses, Ph.D. - Page 6           (DM-350)
Honorable John W. Segrest



                                   SUMMARY

               A local government that participates in the cooperative
          purchasing program established under sections 271.082 and 271.083
          of the Local Government Code satisfies otherwise applicable
          competitive biddmg requirements when 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

SARAH J. SHIRLEY
Chair, Gpiion Committee

RCparedbyMaryRCrouta
Assistant Attorney General




                                    p. 1869
