Does repeal of the federal supply schedule program change Texas local government purchasing authority?

Plain-English summary

For years, a federal law let states, state agencies, and local governments piggyback on the federal government's bulk purchasing. The General Services Administration negotiates "federal supply schedules," essentially pre-set price lists from approved vendors, and a 1994 federal statute opened those schedules up to state and local buyers. Texas wrote that opportunity into its own law: section 271.103 of the Local Government Code let a Texas local government buy goods or services off the federal supply schedules "to the extent permitted by federal law," and treated such a purchase as satisfying any state competitive-bidding requirement.

In 1997 Congress repealed the part of the federal law that had made those schedules available to states and local governments. Representative David Swinford, who chaired the House Committee on Agriculture and Livestock, asked what that repeal did to the authority Texas law gave its agencies and political subdivisions. He flagged a concern about Texas dealers of outdoor power equipment and farm implements but did not point to a specific purchasing scheme, so the opinion answered in general terms.

The opinion's answer had two parts. First, section 271.103 of the Local Government Code was the one Texas statute that specifically depended on the repealed federal program. Because that section only authorized purchases "to the extent permitted by federal law," and federal law no longer permitted them, section 271.103 was left without effect. Second, the opinion looked for any other Texas statute tied to the same federal program and found none. A number of other statutes let state agencies and local governments buy from or through the federal government (for example, Government Code section 2155.084 and Local Government Code section 392.0565), but none of them referenced the repealed cooperative purchasing program, so they kept operating. Whether a federal agency would actually supply goods to a Texas buyer under those other statutes, the opinion noted, would depend on federal law.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Representative David Swinford (what the opinion held): The opinion answered his general question by identifying section 271.103 of the Local Government Code as the single Texas statute tied to the repealed federal supply-schedule program and concluding it was without effect, while finding no broader impact on Texas purchasing authority under other state statutes.

Texas local governments (what the opinion held for them): The opinion held that they could no longer rely on section 271.103 to buy off federal supply schedules or to treat such a purchase as satisfying state competitive-bidding rules, because the federal program that section depended on had been repealed.

State agencies and the General Services Commission (what the opinion held for them): The opinion held that statutes like Government Code section 2155.084, which authorize negotiating purchases of goods with a federal agency, did not reference the repealed program and so continued to authorize purchases, with actual availability of federal goods turning on federal law.

Common questions

What did this opinion decide?
That the 1997 repeal of the federal cooperative purchasing program left section 271.103 of the Texas Local Government Code without effect, but did not affect the purchasing authority Texas agencies and local governments had under other state statutes.

Why was section 271.103 affected when other statutes were not?
Section 271.103 authorized purchases off the federal supply schedules only "to the extent permitted by federal law" and was the one Texas statute that specifically referenced the repealed program. The other purchasing statutes the opinion reviewed did not reference that program, so the federal repeal did not disturb them.

Could Texas local governments still buy through the federal government at all after this opinion?
The opinion did not foreclose it. It pointed to other statutes authorizing state agencies and local governments to purchase from or through the federal government, and said whether a federal agency could provide particular goods would depend on federal law.

Background and statutory framework

The federal Acquisition Streamlining Act of 1994 authorized the administrator of the United States General Services Administration to provide for the use of GSA federal supply schedules by a state, a state agency, and any political subdivision of a state, including a local government, on request (Pub. L. No. 103-355, tit. I, § 1555, 108 Stat. 3300 (1994), codified as 40 U.S.C. § 481(b) (1994)). Congress revised the statute in 1997 to eliminate the provision making those schedules available to states, state agencies, and political subdivisions (Pub. L. No. 105-61, tit. IV, § 413, 111 Stat. 1300 (1997)).

On the Texas side, section 271.103 of the Local Government Code, the only section in subchapter G of chapter 271, provided that a local government "may purchase goods or services available under Federal supply schedules of the United States General Services Administration to the extent permitted by federal law," and that a local government purchasing under the subchapter satisfied any state competitive-bidding requirement (Tex. Loc. Gov't Code Ann. § 271.103 (Vernon 1999)). Because that authority was expressly limited to what federal law permitted, the opinion concluded the section was without effect once federal law withdrew the schedules.

The opinion then surveyed other statutes generally authorizing purchases from or through the federal government, including Government Code section 2155.084 (the General Services Commission or a higher-education institution may negotiate purchases of goods with a federal agency) and section 2155.131 (the commission may delegate purchasing functions to a state agency), Health & Safety Code section 825.004 (commissioners court or municipal governing body may, in cooperation with federal and state authorities, employ labor and purchase supplies for predatory animal and rodent control), and Local Government Code section 392.0565 (a housing authority may purchase equipment and supplies under the federal consolidated supply program or other federal procurement program). None referenced the repealed Federal Acquisition Streamlining Act provisions, so they continued in force, with the availability of federal goods depending on federal law.

Citations

Statutory provisions:

• Tex. Loc. Gov't Code Ann. § 271.103 (Vernon 1999)
• Tex. Gov't Code Ann. § 2155.084 (Vernon 2000)
• Tex. Gov't Code Ann. § 2155.131 (Vernon 2000)
• Tex. Health & Safety Code Ann. § 825.004 (Vernon 1992)
• Tex. Loc. Gov't Code Ann. § 392.0565 (Vernon 1999)
• Pub. L. No. 103-355, tit. I, § 1555, 108 Stat. 3300 (1994)
• 40 U.S.C. § 481(b) (1994)
• Pub. L. No. 105-61, tit. IV, § 413, 111 Stat. 1300 (1997)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0230
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0230.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

June 7, 2000

The Honorable David Swinford
Chair, House Committee on Agriculture and Livestock
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. JC-0230

Re: Whether the repeal of a federal cooperative purchasing program affects authority given to Texas agencies and political subdivisions under Texas law (RQ-0172-JC)

Dear Representative Swinford:

You ask whether the repeal of a federal cooperative purchasing program affects authority given to Texas agencies and political subdivisions under Texas law. We conclude that the repeal of the federal program affects the authority of local governments to make purchases under section 271.103 of the Local Government Code. We have not located any other state law affected by the repeal of the federal program.

Your letter references a cooperative purchasing program established by the Federal Acquisition Streamlining Act of 1994, which, among other things, authorized the administrator of the United States General Services Administration to "provide for the use of Federal supply schedules of the General Services Administration" by a state, state agency, and any political subdivision of a state, including a local government, upon request. See Pub. L. No. 103-355, tit. I, § 1555, 108 Stat. 3300 (1994). This provision was codified as 40 U.S.C. § 481(b) (1994). Congress significantly revised this statute in 1997 to eliminate the provision making federal supply schedules of the General Services Administration available to states, state agencies, and political subdivisions. See Pub. L. No. 105-61, tit. IV, § 413, 111 Stat. 1300 (1997) (amending 40 U.S.C. § 481(b) (1994)). You ask whether the elimination of the federal provision making these federal supply schedules available to states, state agencies, and political subdivisions affects "the authority given to Texas agencies and political subdivisions under the provisions of Texas law." Letter from Honorable David Swinford, Texas State Representative, to Honorable John Cornyn, Texas Attorney General (Jan. 18, 2000) (on file with Opinion Committee). You mention concern about the effect of this change on Texas dealers of outdoor power equipment and farm implements, but have not specified a particular state statute or purchasing scheme about which you are concerned. See id. Therefore, we answer your question very generally.

We have located just one Texas statute, section 271.103 of the Local Government Code, that appears to make specific reference to the repealed federal program. Section 271.103, the only statute in subchapter G of chapter 271 of the Local Government Code, provides as follows:

(a) A local government may purchase goods or services available under Federal supply schedules of the United States General Services Administration to the extent permitted by federal law.

(b) A local government that purchases goods or services under this subchapter satisfies any state law requiring the local government to seek competitive bids for the purchase of the goods or services.

TEX. LOC. GOV'T CODE ANN. § 271.103 (Vernon 1999). To the extent federal law no longer makes federal supply schedules available to local governments, this provision is without effect.

We have located a number of statutes that generally authorize state agencies or local governments to purchase goods from or through the federal government. Section 2155.084 of the Government Code, for example, provides that the Texas General Services Commission or the governing body of an institution of higher education "may negotiate purchases of goods . . . with [an] . . . agency of the federal government." TEX. GOV'T CODE ANN. § 2155.084 (Vernon 2000); see also id. § 2155.131 ("The commission may delegate purchasing functions to a state agency."). Other statutes authorize particular local governments to obtain specific goods from or through the federal government. See, e.g., TEX. HEALTH & SAFETY CODE ANN. § 825.004 (Vernon 1992) ("The commissioners court of a county or the governing body of a municipality may appropriate funds to perform predatory animal and rodent control work described by this subchapter and, in cooperation with federal and state authorities, may employ labor and purchase and provide supplies required to effectively perform that work."); TEX. LOC. GOV'T CODE ANN. § 392.0565 (Vernon 1999) ("[A housing] authority may purchase equipment and supplies and award contracts for services or for repairs, maintenance, and replacements in compliance with the consolidated supply program or any other procurement program or procedure established by the federal government. The authority is exempt from applicable state laws to the extent necessary to allow the authority's participation in the program or procedure."). These provisions do not make specific reference to the repealed provisions of the Federal Acquisition Streamlining Act of 1994. The General Services Commission, state agencies and local governments continue to be authorized to make purchases pursuant to such statutes. Whether a federal agency is authorized to provide goods to a state agency or local government will depend upon federal law.

In sum, to the extent federal law no longer makes federal supply schedules of the United States General Services Administration available to local governments, section 271.103 of the Local Government Code is without effect. As no other state statute relies on or makes specific reference to the former federal cooperative purchasing program, however, the change in federal law does not appear to affect the purchasing authority of Texas agencies and political subdivisions under other state statutes. Whether a federal agency is authorized to provide particular goods to a state agency or local government will depend upon federal law.

SUMMARY

To the extent federal law no longer makes federal supply schedules of the United States General Services Administration available to local governments, section 271.103 of the Local Government Code is without effect. As no other state statute relies on or makes specific reference to the former federal cooperative purchasing program, however, the change in federal law does not appear to affect the purchasing authority of Texas agencies and political subdivisions under other state statutes. Whether a federal agency is authorized to provide particular goods to a state agency or local government will depend upon federal law.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General - Opinion Committee