                                QBfficeof tfy TZlttornepQBeneral
                                               Mate of llCexae
DAN MORALES
 .4TTORSES
        GESLR.AL                                   February 6, 1996

       Mr. Tom Treadway                                     Opinion No. DM-375
       Executive Director
       General Services Commission                          Re: Whether a vendor that offers to sell local
       P.O. Box 13047                                       exchange, interexchange, cellular telephone,
       Austin, Texas 7871 I-3047                            mobile radio, or pager services may offer such
                                                            services for sale through the catalogue purchase
                                                            method set forth in Government Code chapter
                                                            2157, subchapter B (RQ-705)

       Dear Ivlr. Treadway:

               You have asked whether a vendor may offer for purchase or lease local exchange
       services (that~ is, local telephone services), interexchange services (that is, long-distance
       telephone services), cellular telephone services, mobile radio services, or pager services
       through the catalogue purchase method set forth in chapter 2157, subchapter B of the
       Government Code.1 We understand that you are particularly concerned with how
       Government Code chapter 2157, subchapter B interacts with Government Code chapter
       2170.

               Title 10, subtitle D of the Govermnent Code, the State Purchasing and General
       Services Act (the “act”), see Gov’t Code 5 2151.001, creates the General Services
       Commission (the “commission”), see id. $2152.001, and sets out the commission’s
       various functions. Section 2155.061(a) generally requires the commission to purchase,
       lease, rent, or otherwise acquire all supplies, materials, services,2 and equipment state

               ‘The Seventy-fourth Legislature codified former article 6Olb, V.T.C.S., at title 10, subtitle D of
       the Government Code (chapters 2151 through 2176). See Act of Apr. 21, 1995, 74th Leg., R.S., ch. 41,
       1995 Tex. Sess. Law Serv. 324. The coditication is nonsubstantive. Id. 5 6,199s Tex. Sess. Law Serv. at
       420.

               lIn the context of the act, “service” is the furnishing of skilled or unskilled labor or professional
       work, excluding:

                       (1) professionalservice subjectto Subchapter A, Chapter 2254 [of the
                   Government Code];
                         (2)   service of a state agency employee;
                         (3)   consulting service or service of a private cons&ant as defined by
                   Subchapter B, Chapter 2254; or
                         (4)   serviceof a publicutility.
       Gov’t Code 8 2155.001
Mr. Tom Treadway - Page 2                              @M-375)




agencies need. Section 2170.002 makes the commission responsible for obtaining certain
telecommunications services.

        Government Code chapter 2157, subchapter B establishes a catalogue purchase
method by which a state agency covered by the Information Resources Management Act,3
Gov’t Code ch. 2054,4 may purchase or lease directly from a qualified information systems
vendor an automated information system. Chapter 2157, subchapter B provides in
pertinent part as follows:
                 Sec. 2157.061. USE      OF     CATALOGUE        PURCHASE
            METHOD REQUIRED UNLESS BEST VALUE AVAILABLE
            ELSEWHERE. The commission 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.

                 Sec. 2157.062. APPLICATION PROCESS FOR QUALIFI-
            CATION AS VENDOR. (a) To sell or lease an automated
            information system under this subchapter to a state agency, a vendor
            must apply to the commission for designation as a qualified
            information systems vendor.


                 Sec. 2157.063. DIRECT PURCHASE OR LEASE BY
            STATE AGENCY; NEGOTIATION OF ADDITIONAL TERMS.
            (a) If a purchase or lease is the best value available and is in the
            state’s best interest, a state agency may under this subchapter
            purchase or lease an automated information system directly from a
            qualified information systems vendor and may negotiate additional
            terms and conditions to be included in a contract relating to the
            purchase or lease.
See also 1 T.A.C. 3 113.19 (providing for catalogue purchase method for automated
information systems) (footnote omitted).

       A qualified information systems vendor is a manufacturer or reseller of an
automated information system whom the commission has authorized to publish a

          %he Information Resources Management Act defines “state agency” as “a department,
commission, board, office, council, or other agency in the executive or judicial branch of state government
that is created by the constitution or a statute of this state, including a university system or institution of
higher education as defined by Section 61.003, Education Code.” Gov’t Code 0 2054.003(9).

         ?Qe Gov’t Code g 2157.002 (limiting applicability of subchapter B to state agency to which
Gov’tCode ch. 2054 applies).


                                                 p.   2038
Mr. Tom Treadway - Page 3                            @M-375)




catalogue of products and services that a state agency to which chapter 2054 applies may
purchase directly from the vendor. Gov’t Code $2157.001(2).          For the purposes of
chapter 2157 of the Government Code, an automated information system includes:
                 (A) the computers         on    which the information          system    is
             automated;

                (B) a service related to the automation of the system, including
             computer software, or the computers; and
                  (C) a telecommunications apparatus or device that serves as a
             component of a voice, data, or video communications network for
             transmitting, switching, routing, multiplexing, modulating, amplify-
             ing, or receiving signals on the network.

See id. 5 2157.001(l). The legislature added the statutory predecessor to chapter 2157,
subchapter B of the Government Code, as well as the definitions of “qualified information
systems vendor” and “automated information systems” to the act in 1993.5

        Chapter 2170 of the Government Code, the other provision about which you ask,
pertains expressly to telecommunications services, which section 2 170.00 1(a)( 1)6 defines
as “intercity communications facilities or services.” Section 2170.051(a) requires the
commission to “manage the operation of a system of telecommunications services for all
state agencies.” See also id. $ 2170.002 (designating commission as state agency
responsible for obtaining telecommunications services). Each state agency is to notify the
commission of the telecommunications services it requires, and the commission is to fultill

        %e     bills proposing to amend the act by adding the statutory predecessor to chapter 2157,
subchapterB of the GovernmentCedeand its accompanying definitions, see Gov’t Code 5 2157.001, were
introduced largely in response to a report from the Texas Performance Review, see 2 TF.X.M
PERFORMANCE
          REVIEW, AOAINSTTHE GRAIN: HIGH-QUALITYLOW-COST GOVERNMENT
                                                                  FOR TEXAS
(1993), in which the comptroller of public accounts proposed numerous cost-saving measures for state
government. St-e 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 now set forth in section
3.081; indeed, the comptroller had not suggested that such a procedure be implemented. The bills were
amended to add the catalogue purchase method when they were 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 StatTServices Office); 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 telwxnnnmications hardware. Hearings
on S.B. 381 Before the Senate Comm. on State AfTairs (statement of Senator Haley, author) (tape
available from House Video/Audio Services Office). He further explained that the proposed catalogue
purchase method would aljow state agencies to avoid the competitive bidding process and instead find the
best buys on “computers and all material that goes with computers,” such as “s&ware and other
telecommunications hardware” in catalogues. Id.

        s~ection 217&001(a)(l) of the   GovernmentCodedefines“telecommunicationsservices”only for
purposesof chapter2170.


                                                p.   2039
Mr. Tom Treadway - Page 4                          @M-375)




those requirements to the extent possible and to the extent that t%tds are available or
appropriated for the purpose. Id. 5 2 170.051.

        Together with the Department of Information Resources and the comptroller of
public accounts, the commission “shall negotiate rates and execute contracts with tele-
communications service providers for services.” Id. 5 2170.054(c). The three entities
together may acquire transmission facilities and develop, establish, and maintain carrier
systems necessary to the operation of the telecommunications system. Id. The
commission may own, lease, or lease-purchase any or all of the facilities or equipment
necessary to provide telecommunications services. Id. $2170.003. Furthermore, section
2170.005(a) requires the commission to “adopt and disseminate to all agencies appropriate
guidelines, operating procedures, and telephone directories,” and an agency must comply
with the policies, guidelines, and operating procedures that the commission has
promulgated, see id. 5 2170.005(b). Finally, the commission is required to provide
centralized telephone service to state agencies, the houses of the legislature, and legislative
agencies located in the capitol complex. Id. $ 2170.059(a).

        We understand that, pursuant to chapter 2170, the commission has established the
Texas Agency Network (commonly referred to as TEX-AN), “a state-leased, private, long
distance telecommunications network providing” cost-effective long-distance. telephone
service for state government and other political subdivisions that receive the service
through contract with the commission. See General Services Commission, State of Texas
Telephone Directory 1992-93 at vii. The commission also has established the Capitol
Complex Telephone System for state agencies and other state governmental bodies
located in the capitol complex. We understand that the commission has interpreted
chapter 2170 to authorize it to provide only local exchange services to agencies in the
capitol complex and interexchange services to all state agencies, The commission has not
interpreted chapter 2170 to authorize it to make available to state agencies cellular
telephone, mobile radio, and pager services, but the commission apparently has made such
services available under other provisions7

        You have informed us that vendors of local exchange, interexchange, cellular
telephone, mobile radio, and pager services seek to offer their services directly to state
agencies pursuant to the catalogue purchase method chapter 2157, subchapter B
establishes. You believe, however, that the vendors may not do so because the catalogue
purchase method is available only to purchase or lease an automated information system,
which is defined expressly to include a “telecommunications apparatus or device,” but
which is not defined to include “telecommunications service.” Additionally, you believe
that to permit vendors of local exchange service and interexchange services to offer their
services directly to state agencies pursuant to the catalogue purchase method would
infringe upon the commission’s authority under section 2170.059 to provide local


         ‘You do not ask, and thus we do not consider, whether telecommunications services, as the term
is defined for purposes of chapter 2 170, includes cellular telephone, mobile radio, or pager services.


                                              p.   2040
Mr. Tom Treadway - Page 5                            @M-375)




exchange service to state agencies located in the capitol complex and interexchange
service to all state agencies.

        Section 2157,001(1)(B) defines “automated information system” to include “a
service related to the automation of the [information] system including computer software,
or the computers,” as well as the information systems or computers themselves. On the
other hand, the definition does not include services related to telecommunications
apparatus or devices, even though it expressly includes such apparatus or devices. In our
opinion, the legislature purposely omitted telecommunications services from the definition
of “automated information system[s],” and we therefore conclude that a vendor offering to
sell or lease telecommunications services may not offer such services through the
catalogue purchase method.*

        You state that, because telephones, cellular telephones, mobile radios, and pagers
are telecommunications apparatus or devices and therefore included within the definition
of “automated information system,” a qualified information systems vendor may sell them
using the catalogue purchase method. We understand that telephones, cellular telephones,
mobile radios, and pagers Cmction only with the appropriate services. Additionally, the
equipment vendor may be the sole vendor of the specific service necessary to make the
equipment operable. We also are informed that cellular telephone service vendors, mobile
radio service vendors, and pager service vendors often provide the necessary equipment
with the purchase of the service.

         We admit that separating telecommunications services from the particular kinds of
telecommunications apparatus or devices at issue here, so that a state agency may
purchase or lease the apparatus or device directly from the vendor using the catalogue
purchase method but must acquire the requisite service through another means, may be
illogical. To avoid this result, however, we would have to insert into the definition of
“automated information system[s]” the phrase “services related to a telecommunications
apparatus or device” or something similar. Generally, a court will not insert a word or
phrase into a statute unless it is necessary to carry out the legislature’s manifest intent.
67 TEX. JUR. 3D Sfa&tes 5 115, at 697-99 (1989) (and sources cited therein). We do not
believe inserting “services related to a telecommunications apparatus or device” into the
definition of automated information systems in section 2157.001(l) would effectuate the
legislative intent; indeed, we believe that it would be contrary to the legislative intent.9



          We understand that the commission has construed the definition of automated information
system, Gov’t Code 5 2157.001(l), and chapter 2157, subchapter B of the Government Code to authorize
the sale, using the catalogue purchase method, of services such as maintenance, technical assistance, and
other servicesrelatedto teleccmmuaicatioasequipment. We do not here considerthe proprietyof offering
such telecommunication services directly to state agencies using the catalogue purchase method.

        %I our opinion. the solution to any problems that the definition of “automated information
systemIs]” creates must come from the legislature.



                                                p.   2041
Mr. Tom Treadway - Page 6                            (DM-375)




          We believe that the commission may acquire for state agencies telecommunications
services using the competitive sealed proposal method set out in chapter 2157, subchapter
C, but only if the commission “determines by rule that competitive sealed bidding and10
informal competitive bidding are not practical or are disadvantageous to the state.“”
Gov’t Code § 2157.121 (footnote added). Of course, to the extent that chapter 2157,
subchapter C, which provides generally for the acquisition of telecommunications services,
contlicts with chapter 2170, which provides specifically for intercity communications
facilities or services and the Capitol Complex Telephone System, chapter 2170 prevails.
See Attorney General Opinion JM-1137 (1990) at 3 (stating “familiar and well-established
rule of statutory construction” that when general statutory provision and specific statutory
provision conflict, specific provision prevails); see also Gov’t Code § 3 11.026(b) (stating
that, if general and special code provisions irreconcilably contlict, special provision
prevails as exception to general provision, unless general provision is later enactment and
legislature’s manifest intent is that general provision prevail). Additionally, we note
chapter 2157 does not apply to services provided by a public utility. See Gov’t Code
5 2155.001(2)(D).

                                        SUMMARY

                 A vendor that offers to sell local exchange, interexchange,
            cellular telephone, mobile radio, or pager services may not offer such
            services for purchase or lease through the catalogue purchase
            method set forth in chapter 2157, subchapter B of the Government
            Code. Chapter 2170 of the Government Code governs the sale of
            local exchange and interexchange service for certain state agencies.
            The General Services Commission may acquire cellular telephone,
            mobile radio, or pager services pursuant to chapter 2157, subchapter
            C, which establishes a competitive sealed proposal method for the
            acquisition of “a telecommunications device, system, or service,” but
            only if the commission “determines by rule that competitive sealed
            bidding and informal competitive bidding are not practical or are
            disadvantageous to the state.” The acquisition of telecommunica-
            tions services that is not governed by chapter 2170 also may occur in

         ‘@The statutory predecessor to section 2157.121 of the Government Code, V.T.C.S. article 2157,
section 3.022(a), required the commission. prior to implementing the competitive sealed proposal method,
to determine mat competitive sealed bidding or informal competitive bidding is impractical or
disadvautagwus to the state. See V.T.C.S. art. 601b, 5 3.022(a), repealed by Act of Apr. 21, 1995, 74th
Leg., RS., ch. 41, 5 5, 1995 Tex. Sess. Law Serv. 324. 420. As we stated in note 1, supra, the legislature
intended the coditication of the act to be nonsubstantive.

         ttkction 2157.121 of the Government Code also provides that telecommunications devices and
systems may be acquired using the competitive sealed proposal procedure. Conceivably, the commission
or a state agency might determine that the best value available for the purchase of telecommunications
apparatus or devices, in accordance with chapter 2157, subchapter C, accrues from purchasing the
apparatus or devices together with the telecommunications setvices. See Gov’t Code 8 2157.061.


                                                p.   2042
Mr. Tom Treadway - Page I                  @M-375)




          accordance with chapter 2157, subchapter C. Chapter 2157 of the
          Government Code does not apply to services provided by a public
          utility.




                                                  DAN MORALES
                                                  Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General




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