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AGO 1978 No. 21 - June 14, 1978
AGO Opinion Header Image
Slade Gorton | 1969-1980 | Attorney General of Washington

DISTRICTS ‑- SCHOOLS ‑- CONTRACTS ‑- SUPPLIES AND MATERIALS ‑- UTILIZATION OF JOINT PURCHASING AGENCY FOR THE ACQUISITION OF SCHOOL SUPPLIES AND MATERIALS

(1) Where the boards of directors of two or more public school districts have formed a joint purchasing agency, as authorized by RCW 28A.58.107(3), and that joint purchasing agency itself complies with the bidding requirements of RCW 28A.58.135 in so doing, the agency may then acquire and maintain an inventory of supplies from which the participating school districts may draw without also individually calling for bids as provided for in RCW 28A.58.135.

(2) A joint purchasing agency formed pursuant to RCW 28A.58.107(3) may also act as a purchasing agent for private schools within its general geographic area.

(3) Although a public school district may, alternatively, use the services of a purchasing agent which was not created pursuant to RCW 28A.58.107(3) to acquire supplies and materials, in that event either the district or its agent must comply with the bidding requirements of RCW 28A.58.135.

                                                              - - - - - - - - - - - - -

                                                                   June 14, 1978

Honorable Jim Whiteside
State Representative, 14th Dist.
3612 Howard Avenue
Yakima, Washington 98902

                                                                                                                 Cite as:  AGO 1978 No. 21

Dear Sir:

            By letter previously acknowledged you requested our opinion on several questions relating to the operation of a joint purchasing agency which has been established by two or more public school districts under RCW 28A.58.107.  We paraphrase your questions as follows:

             [[Orig. Op. Page 2]]

            (1) Where the boards of directors of two or more public school districts have formed a joint purchasing agency, as authorized by RCW 28A.58.107(3), may that joint purchasing agency then acquire and maintain an inventory of supplies from which the participating school districts may draw without first calling for bids as provided for in RCW 28A.58.135?

            (2) May a joint purchasing agency formed pursuant to RCW 28A.58.107(3) also act as a purchasing agent for private schools within its general geographic area?

            (3) May a public school district use the services of a purchasing agent which was not created pursuant to the provisions of RCW 28A.58.107(3) to acquire supplies without putting purchases in excess of $3,500 out to public bid?

            We answer question (1) in the affirmative as qualified in our analysis, question (2) in the affirmative for the reasons set forth therein and question (3) as below indicated.

                                                                     ANALYSIS

            RCW 28A.58.107(3), which relates to all classes of public school districts, provides that any such district or districts may:

            ". . .

            "(3) Join with boards of directors of other school districts in buying supplies, equipment and services by establishing and maintaining a joint purchasing agency, or otherwise, when deemed for the best interests of the district, any joint agency formed hereunder being herewith authorized and empowered to issue interest bearing warrants in payment of any obligation owed:  PROVIDED, HOWEVER, That those agencies issuing interest bearing warrants shall assign accounts receivable in an amount equal to the amount of the outstanding interest bearing warrants to the county  [[Orig. Op. Page 3]] treasurer issuing such interest bearing warrants:  PROVIDED FURTHER, That the joint purchasing agency may cooperate with and jointly make purchases with private schools of educational supplies, equipment, and services so long as such private schools pay their proportionate share of the costs involved in such purchases; . . ."

            In accordance with this statute we understand that a joint purchasing agency created thereunder is the creature of a contractual arrangement between two or more public school districts under which the participating districts, as "members," become entitled to certain benefits (which are delineated in the agreement) in exchange for their performance of corresponding duties‑-including, presumably, a delineated obligation to pay for a share of the purchased supplies, equipment and services.  We also understand from your letter, and base this opinion on the premise, that all purchases made by the joint purchasing agency on behalf of its member school districts are made in conformity with the following provisions of RCW 28A.58.135:

            "(1) When, in the opinion of the board of directors of any school district, the cost of any furniture, supplies, equipment, building, improvements, or repairs, or other work or purchases, except books, will equal or exceed the sum of thirty-five hundred dollars, complete plans and specifications for such work or purchases shall be prepared and notice by publication given in at least one newspaper of general circulation within the district, once each week for two consecutive weeks, of the intention to receive bids therefor and that specifications and other information may be examined at the office of the board or any other officially designated location:  PROVIDED, That the board without giving such notice may make improvements or repairs to the property of the district through the shop and repair department of such district when the total of such improvements or repair does not exceed the sum of thirty-five hundred dollars.   [[Orig. Op. Page 4]] The cost of any public work, improvement or repair for the purposes of this section shall be the aggregate of all amounts to be paid for labor, material, and equipment on one continuous or interrelated project where work is to be performed simultaneously or in close sequence.  The bids shall be in writing and shall be opened and read in public on the date and in the place named in the notice and after being opened shall be filed for public inspection.

            ". . ."

            Question (1):

            Your first question raises two distinct issues. Initially, in order to respond, we must determine whether a joint purchasing agency may acquire and maintain an inventory of supplies from which its member school districts may draw as their needs arise‑-as opposed to purchasing supplies, equipment and services for those individual districts only in response to specific orders.  And then, secondly, assuming the foregoing compliance with RCW 28A.58.135,supra, by the joint purchasing agency itself, we must determine whether member school districts must also follow the bidding procedures set forth in this last cited statute before drawing upon that inventory for their required supplies.

            With respect to the first of these issues we think the answer is clear.  Under RCW 28A.58.107(3),supra, a joint purchasing agency has the authority to buy "supplies, equipment and services."  Therefore, it would appear to us that since it is within the realm of authority of a school district to contract with other school districts to form a joint purchasing agency for that purpose, it would also be within their authority within the agreement to give the joint purchasing agency the power to establish and maintain a reasonable inventory if, in the best judgment of the responsible directors of the participating districts, such action would effectuate the obvious purpose of the statute;i.e., to obtain the best available goods at the lowest possible price.

            As for the second issue, it is instructive to look to the purposes of RCW 28A.58.135,supra, inButler v. Federal Way School Dist., 17 Wn.App. 288, 294,    P.2d    (1977) where the court of appeals expressed itself as follows:

             [[Orig. Op. Page 5]]

            ". . .  The intent expressed by RCW 28A.58.135 is to foster bona fide bidders in the competitive bidding system, to protect their interests, and to enable school districts to acquire the best goods at the lowest price. . . ."

            As emphasized above, it has been stipulated, for the purposes of this opinion, that the joint purchasing agency itself fully complies with the bidding requirements of RCW 28A.58.135, supra, in acquiring its inventory of supplies and equipment.  From this it follows that each of the purposes of RCW 28A.58.135 will have been met at that initial stage of the acquisition procedures‑-just as if the individual school districts had, instead, bypassed the purchasing agency and bid their separate needs.

            Because both RCW 28A.58.107(3) and RCW 28A.58.135 relate to purchases by public school districts, the two statutes, under established rules of construction, are to be read inpara materiaChampion v. Shoreline Sch. Dist., 81 Wn.2d 672, 504 P.2d 304 (1972).1/   Their respective purposes are wholly consistent.  Accordingly, once again given the premise that the bidding requirements of RCW 28A.58.135 will have been met by the joint purchasing agency on behalf of all of its participating member school districts, we do not believe it necessary for those member districts then to duplicate the process by themselves calling for bids before drawing upon the purchasing agencies' inventory in the manner provided for in the governing contractual agreement.  In fact, such a construction would be most incongruous because the result would be a bid call on purchases already made.

            Question (2):

            Your second question, here repeated for ease of reference, is whether a joint purchasing agency formed pursuant to RCW 28A.58.107(3), supra, may also act as purchasing agent for private schools within its general geographic area.

            The subject statute, as above quoted, provides, in pertinent part,

             [[Orig. Op. Page 6]]

            ". . .  That the joint purchasing agency may cooperate with and jointly make purchases with private schools of educational supplies, equipment, and services so long as such private schools pay their proportionate share of the costs involved in such purchases; . . ."

            This language clearly manifests a legislative authorization to a joint purchasing agency to act on behalf of private schools as well as public school districts.  We therefore answer your second question, supra, in the affirmative.2/

            Question (3):

            Finally, by your third question, you have asked:

            May a public school district use the services of a purchasing agent which was not created pursuant to the provisions of RCW 28A.58.107(3) to acquire supplies without putting purchases in excess of $3,500 out to public bid?

            Although a purchasing agency such as you have here referred to might simultaneously be serving two or more public school districts, we do not necessarily understand that this question involve an alternative form ofjoint purchasing agency;i.e., a purchasing agency formed by contract between participating "member" districts.  Thus, the principal issue raised is not so much one of whether an alternative statutory authorization exists for the formation of a joint purchasing agency3/ as it is whether a school district, by utilizing the services of a non-RCW 28A.58.107(3) purchasing agency may thereby avoid the bidding requirements of RCW 28A.58.135, supra, in acquiring supplies through that purchasing agency.

             [[Orig. Op. Page 7]]

            Once again, RCW 28A.58.135 provides, in pertinent part, that:

            "(1) When, in the opinion of the board of directors of any school district, the cost of any furniture, supplies, equipment, building, improvements, or repairs, or other work or purchases, except books, will equal or exceed the sum of thirty-five hundred dollars, complete plans and specifications for such work or purchases shall be prepared and notice by publication given in at least one newspaper of general circulation within the district, once each week for two consecutive weeks, of the intention to receive bids therefor and that specifications and other information may be examined at the office of the board or any other officially designated location:  PROVIDED, That the board without giving such notice may make improvements or repairs to the property of the district through the shop and repair department of such district when the total of such improvements or repair does not exceed the sum of thirty-five hundred dollars.  The cost of any public work, improvement or repair for the purposes of this section shall be the aggregate of all amounts to be paid for labor, material, and equipment on one continuous or interrelated project where work is to be performed simultaneously or in close sequence.  The bids shall be in writing and shall be opened and read in public on the date and in the place named in the notice and after being opened shall be filed for public inspection.

            ". . ."

            The clear language of this statute directs a school district to call for bids if the supplies it desires to purchase exceed $3,500.  It is axiomatic that one cannot do indirectly what one is forbidden to do directly.  See,e.g.,Port of Longview v. Taxpayers, 85 Wn.2d 216, 225, 533 P.2d 128 (1974) and Weiss v. Bruno, 82 Wn.2d 199, 219, 509 P.2d 973 (1973).  Thus, it is inconceivable to us that the clear  [[Orig. Op. Page 8]] legislative requirement contained in this provision may be avoided by using a purchasing agent.  If a school district is going to purchase furniture, supplies, equipment, building improvements or repairs, or other work or purchases, except textbooks, it or its agent must comply with RCW 28A.58.135.

            We trust the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General


RICHARD A. FINNIGAN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/See also, RCW 28A.98.140, which directs that all sections of Title 28A RCW are to be construed in para materia.

2/In so concluding, however, we should add two important caveats:  First, any such private school participation would have to be authorized by the terms of the contractual agreement between the public school districts involved in forming the joint purchasing agency, and secondly, it is important to note that while the phrase "supplies, equipment and services" is unqualified in the case of purchases made for a public school district, the further limited authority to include private schools only encompasses purchases of "educational supplies, equipment, and services."  (Emphasis supplied)

3/See, however, chapter 39.34 RCW, commonly referred to as the interlocal cooperation act, which would appear to us to be supportive of an affirmative answer to that question.

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