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Bob Ferguson

AGLO 1972 No. 14 -
Attorney General Slade Gorton

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                                                                February 22, 1972

Honorable Robert v. Graham
State Auditor
Legislative Building
Olympia, Washington 98504                                                                                            Cite as:  AGLO 1972 No. 14 (not official)

Dear Sir:
            By letter previously acknowledged you have requested an opinion of this office as to whether the state printer, in purchasing supplies as provided in RCW 43.78.110, is required to go through the division of purchasing of the department of general administration pursuant to RCW 43.19.190.  We answer this question in the negative for the reasons set forth below.
            RCW 43.19.190 is a statute of general import which (insofar as is here material) requires the director of the state department of general administration, through the division of purchasing, to
            ". . .
            "(2) Purchase all material, supplies and equipment needed for the support, maintenance, and use of all state institutions, colleges, community colleges and universities, the offices of the elective state officers, the supreme court, the court of appeals, the administrative and other departments of state government, and the offices of all appointive officers of the state:  Provided, That primary authority for the purchase of specialized equipment, instructional and research material for their own use shall rest with the colleges, community colleges and universities:  Provided further, That primary authority for the purchase of materials, supplies and equipment for resale to other than state agencies shall rest with the state agency concerned;"
             [[Orig. Op. Page 2]]
            The substance of this statute was first enacted as § 37, chapter 7, Laws of 1921.  At that time the division of purchasing was a part of an agency called the department of business control.  Chapter 285, Laws of 1955 created the present state department of general administration.  Section 4 of that chapter created the division of purchasing in the department of general administration, and § 12 of the same chapter transferred the purchasing function, described above, to the division of purchasing.  The statute underwent some further amendments between 1921 and 1955,1/ but the duties of the division to purchase all supplies for the various institutions, departments and offices of state government remained intact throughout that period and until the present time.  Cf., chapter 187, Laws of 1957; chapter 178, Laws of 1959; chapter 8, Laws of 1965; chapter 104, Laws of 1967; and chapter 81, Laws of 1971.
            On its face there can be no doubt that, read alone, RCW 43.19.190, supra, applies to purchases by all state agencies including the state printer; however, of course, before thus reaching such a firm conclusion a court considering a question such as yours would, of necessity, first have to satisfy itself that no other statutes exist which could be said to carve out an exception to this general rule.  The "other" statute to be thus examined in the present case is, as cited, RCW 43.78.110, which provides that:
            "Whenever in the judgment of the public printer certain printing, ruling, binding, or supplies can be secured from private sources more economically than by doing the work or preparing the supplies in the state printing plant, he may obtain such work or supplies from such private sources.
            "In event any work or supplies are secured on behalf of the state under this section the state printing plant shall be entitled to add up to five percent to the cost thereof to cover the handling of the orders which shall be added to the bills and charged to the respective authorities ordering the work or supplies."
            This statute was originally enacted as § 3, chapter 130, Laws of 1935 ‑ long after the initial enactment of the general purchasing statutes in 1921.  Since its adoption, we are advised that the printer in purchasing supplies under its provisions  [[Orig. Op. Page 3]] has generally proceeded in a manner independent of the division of purchasing and the requirements of RCW 43.19.190 (2), supra ‑ apparently believing this to be the nature of his authority under its provisions.  In the meantime, the legislature has had occasion to expressly amend the statute without any alteration in its basic structure.  See, § 1, chapter 79, Laws of 1969, inserting the phrase "up to" before "five percent" in the second paragraph.  Thus, to begin with, a conclusion that RCW 43.78.110 constitutes an exception to the general requirement of RCW 43.19.190 is supported by the rule of administrative construction most succinctly stated by the court in State ex rel. Pirak v. Schoettler, 45 Wn.2d 367, 371, 372, 274 P.2d 852 (1954), as follows:
            "When a statute is ambiguous, the construction placed upon it by the officer or department charged with its administration, while not binding on the courts, is entitled to considerable weight in determining the intention of the legislature.  Smith v. Northern Pac. R. Co., 7 Wn. (2d) 652, 110 P. (2d) 851.
            "The persuasive force of such an interpretation is strengthened when the legislature, by its failure to amend a statute, 'silently acquiesces' in the administrative interpretation.  Smith v. Northern Pac. R. Co., supra; State ex rel. Ball v. Rathbun, 144 Wash. 56, 256 Pac. 330.  This is particularly true when, as here, the section is subsequently (1) considered by the legislature, (2) amended in some other particular, and (3) the administrative construction of the section is not repudiated.  See Paulsell v. Peters, 9 Wn. (2d) 599, 115 P. (2d) 708."
            In addition, a characterization of RCW 43.78.110 as containing an exception to RCW 43.19.190 is consistent with the rule that a legislature must always be presumed to have been aware of its own prior acts on a subject later under consideration.  State v. Gebhart, 15 Wn.2d 673, 131 P.2d 943 (1943).  Thus, the 1935 legislature which enacted RCW 43.78.110 must be charged with an awareness of the general act relating to purchases of supplies for all state agencies as originally enacted in 1921 and now contained in RCW 43.19.190, supra.  Had it intended to require those purchases of supplies made by the state printer under the 1935 act to be made only through the (then) department of business control (now, department of general administration), the legislature could easily have made a specific reference in § 3, chapter 130, Laws of 1935, supra, to the appropriate section of the earlier, 1921, act; however, it did not do so.
             [[Orig. Op. Page 4]]
            Finally, a reference to § 1 of this 1935 act provides us with a further clue as to legislative intent.  This section provided as follows:
            "For the purpose of providing for the compensation of the state printing plant, all printing, ruling, binding and other work done or supplies furnished for the various state departments, commissions, institutions, boards and officers shall be paid for on an actual cost basis as determined from a standard cost finding system to be maintained by the state printing plant . . ."2/
             Together with the second paragraph of § 3 (RCW 43.78.110), supra, this section strongly suggests that the legislature visualized that the printer, himself, would be doing the physical work of purchasing ‑ for which, consistent with the general rule against the use of funds appropriated for one state agency to benefit another,3/ the state printer's office was to be compensated by the particular agency it was serving.  To say, therefore, that the purchase of supplies by the printer nevertheless had to be made through the division of purchasing would be inconsistent with the mechanism provided by the 1935 act for establishing and charging the printer's costs to the other state agencies being served by him.
            Of course, if the legislature now desires to change the practice with regard to the purchase of supplies by the state printer, it is quite free to do so.  However, on the basis of the present statutes, it is our opinion that the purchase of such supplies is not governed by RCW 43.19.090 (2), supra, because RCW 43.78.110 carves out an exception to the requirements of this statute in the situation to which your question refers.
            We trust the foregoing will be of assistance to you.
Very truly yours,
Robert F. Hauth
Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/For example, the department of business control was abolished and replaced by the department of finance, budget and business.  See, chapter 176, Laws of 1935.
2/See, RCW 43.78.080, as last amended by § 1, chapter 1, Laws of 1972 ex. sess. for the current form of this statute; its substance remains as quoted.
3/See, RCW 43.09.210.