OFFICES AND OFFICERS ‑- COUNTY ‑- AUDITOR ‑- PURCHASE OF ELECTION SUPPLIES ‑- COMPETITIVE BIDS
In any county which has, pursuant to RCW 36.32.240, established a county purchasing department, that department is to purchase all election supplies for the county auditor; such purchases may be made only after a call for competitive bids to the extent required by RCW 36.32.240 and 36.32.250.
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September 27, 1973
Honorable Robert V. Graham
Olympia, Washington 98504
Cite as: AGLO 1973 No. 96
By letter previously acknowledged you have requested an opinion of this office upon two questions which we paraphrase as follows:
(1) In a county which has, pursuant to RCW 36.32.240, established a county purchasing department, is that department to purchase all election supplies for the county auditor ‑ as opposed to his purchasing these supplies himself under RCW 29.04.020?
(2) If the answer to question (1) is in the affirmative, may such purchases be made only after a call for competitive bids to the extent required by RCW 36.32.240 and 36.32.250?
We answer both of these questions in the affirmative for the reasons which appear in the analysis below.
Although we have paraphrased your inquiry in the form of two questions, it will simplify matters if we treat both questions simultaneously in our analysis.
So far as is germane to your questions, RCW 29.04.020 provides as follows:
"The county auditor of each county shall be ex officio the supervisor of all elections, general or special, and it shall be his duty to provide places for holding such elections; to appoint the precinct election officers; to provide for their compensation; [[Orig. Op. Page 2]] to provide ballot boxes and ballots or voting machines, poll books or precinct lists of registered voters, and tally sheets, and deliver them to the precinct election officers at the polling places; to publish and post notices of calling such elections in the manner provided by law, and to apportion to each city, town, or district, its share of the expense of such elections: . . ." (Emphasis supplied.)
The predecessor of this enactment, § 4891, Rem. & Bal. Code (originally enacted as § 15, chapter 13, Laws of 1889-90) was the subject of an opinion written by this office to the Kittitas county prosecuting attorney on June 26, 1914. In this prior opinion (copy enclosed) we concluded that since
". . . the county auditor is charged with the duty of providing the ballots, and . . . [since] section 4891, supra, leaves the providing of such ballots in his hands, and he is [therefore] authorized to contract therefor without reference to the action of the county commissioners, and that the charge therefor is a proper charge against the county. . . ."
No question of the applicability of any special statutes requiring competitive bidding for county purchases was presented in that opinion, however, in view of the fact that the county competitive bidding law (now codified as RCW 36.32.240 ‑ 36.32.270) was not enacted until 1945.1/ Accordingly, we do not believe that it is at all dispositive of the issues at hand. Rather, we believe that the answers to your questions are to be found in this intervening legislative act.
RCW 36.32.240 (codifying § 1) provides as follows:
"In any county the board of county commissioners may by resolution establish a county purchasing department and thereafter such department shall contract on a competitive basis for all public works and purchase on a competitive basis all supplies, [[Orig. Op. Page 3]] materials, and equipment, for all departments of the county, exclusive of the county hospital, pursuant to the provisions hereof and under such rules as the board shall by resolution adopt, except for such contracts and purchases as shall be made pursuant to RCW 36.77.060, 36.77.070 and 36.82.130: Provided, That in all class AA or class A counties or in any county of the first class it shall be mandatory that a purchasing department be established." (Emphasis supplied.)
RCW 36.32.250 (codifying § 2) then provides (in material part) that:
"No contract or purchase shall be entered into by the board of county commissioners or by any elected or appointed officer of such county until after bids have been submitted to the board of county commissioners upon specifications therefor. . . ."
As you are no doubt aware, this office has previously concluded ‑ most recently in an opinion to the Pend Oreille county prosecuting attorney on January 7, 1969 ‑ that the purchasing of supplies by means of competitive bidding under RCW 36.32.240 and 36.32.250, supra, is not required where the county involved has not established a purchasing department. See, also, AGO 55-57 No. 345 [[to Walter J. Deierlein, Jr., Prosecuting Attorney Skagit County on November 26, 1956]]. Your present request, however, assumes the establishment of such a department in the county involved ‑ and for this reason we believe that the underscored portions of RCW 36.32.240 provide a clear and direct answer to your first question. Responsibility for purchasing election supplies in such a case is vested in the county purchasing department ‑ and not in the county auditor as ex officio elections supervisor. The statute as above quoted explicitly states that
". . . all supplies, materials, and equipment ment, for all departments of the county, exclusive of the county hospital . . . [and] except for such contracts and purchases as shall be made pursuant to RCW 36.77.060, 36.77.070 and 36.82.130 [county road fund purchases] . . ." (Emphasis supplied.)
are to be made by the county purchasing department. By expressly exluding county hospital and county road purchases, the legislature has impliedly included all other county [[Orig. Op. Page 4]] departments including that of the county auditor as ex officio elections supervisor. Expressio unius est exclusio alterius ‑ or, as this familiar maxim should be applied here, expressio exclusio unius est inclusio alterius: The express exclusion of purchases for some county departments results in the implied inclusion of purchases for all other departments. Ramsay v. Dept. of Labor & Industries, 36 Wn.2d 410, 218 P.2d 765 (1950).
From this conclusion that the purchase of election supplies is governed by RCW 36.32.240 and 36.32.250 in the case of any county which has established a purchasing department it further follows, in response to your second question (as above paraphrased) that purchases of such supplies are to be made only after competitive bidding as required by the first of these statutes and outlined in detail in the second. Both of these statutes are plain, clear and unambiguous on this point, but even if they were not we would still be constrained to conclude that the legislature has mandated competitive bidding upon such purchases in light of the strong policy in favor of competitive bidding upon public contracts. See, e.g., Miller v. State, 73 Wn.2d 790, 440 P.2d 840 (1968); and Reiter v. Chapman, 177 Wash. 392, 31 P.2d 1005 (1934).
Accordingly, we answer both of your questions, as paraphrased, in the affirmative.
We trust the foregoing will be of assistance to you.
Very truly yours,
DONALD FOSS, JR.
Assistant Attorney General
*** FOOTNOTES ***
1/Sections 1-4, chapter 61, Laws of 1945.