Opinion No. 2017-013


January 3, 2016

Honorable Randy I. Hillman
Executive Director
Office of Prosecution Services
515 South Perry Street
Montgomery, Alabama? 36104

District Attorneys ? Competitive Bid Law ? Exemptions ? Credit Cards ? Motor Fuels

District attorneys using a nonexclusive fuel card are not required to competitively bid purchases.

Dear Mr. Hillman:

This opinion of the Attorney General is issued in response to your request.

QUESTION

Are district attorneys required to competitively bid fuel purchases when using a nonexclusive fuel card?

FACTS AND ANALYSIS

You have provided this Office with a copy of a letter reflecting that the State of Alabama?s Division of Purchasing recently entered into a new contract for fleet fuel cards with Wrights Express (?WEX?).? Letter from Michael A. Jones, State Purchasing Director, Department of Finance, to Michele Yarbrough, Jefferson County District Attorney (May 2, 2016).? The use of the WEX card is competitively bid, and with the card, a state agency can make fuel purchases at participating gas stations.? The individual fuel purchases made with the card are not competitively bid.? This Office is unaware of any state agency that bids individual gas purchases made with a WEX or similar type card.

Because of statutory changes, district attorneys previously participating in the program can no longer use the state?s fuel card.? Id.? Your request states that some district attorneys would like to continue using a WEX card for fuel purchases by entering into a nonexclusive contract.? You made a request for the audit position of the Department of Examiners of Public Accounts on the issue, which advised as follows:

A credit card which can be used to purchase fuel from various vendors does not appear to be of an exclusive nature, and therefore would not be subject to the Alabama Competitive Bid Law.? It is our audit position that a District Attorney may obtain and use credit cards for the purchase of gasoline for government-owned vehicles without initiating a competitive process.? Additionally, it should be noted that if the purchase of gasoline exceeds $15,000 or more, such purchases must be competitively bid in accordance with the Code of Alabama 1975, Section 41-16-20.

Letter from Ronald L. Jones, Chief Examiner, Department of Examiners of Public Accounts, to Beau Brown, Office of Prosecution Services (May 19, 2016) (emphasis added).? You now question whether district attorneys are required to bid individual purchases of fuel at a gas station prior to using a WEX card.

Generally, the Competitive Bid Law requires that all expenditures of funds of whatever nature for labor, services, work, or for the purchase of materials, equipment, supplies, or personal property involving $15,000 or more, shall be made through a contract that has been openly and competitively bid.? Ala. Code ? 41-16-20(a) (2015).? This Office previously opined that the bid law?s monetary threshold applies to fuel purchases.? Opinion to Honorable Hinton Mitchem, Member, Alabama State Senate, dated August 22, 1994, A.G. No. 94-00263.? Specifically, the bid law applies to fuel purchases made in bulk or a series of fuel purchases bought as a unit from one seller. Opinion to Mr. G. R. Craft, Chairman, Utilities Board, Town of Citronelle, dated August 30, 1982, A.G. No. 82-00526.? The fiscal year is the typical timeframe used to determine which purchases are subject to the bid law.? Opinions to Honorable Iva Nelson, City Clerk/Treasurer, City of Gadsden, dated March 11, 2003, A.G. No. 2003-098; Honorable K. Mark Parnell, Attorney, Town of Brookside, dated October 22, 1996, A.G. No. 97-00015 (multiple fuel purchases within a year that total the monetary threshold are subject to the Competitive Bid Law).

Exempt from the bid law are items that by their very nature would be ?impossible of award by competitive bidding.?? Ala. Code ? 41-16-21(a) (Supp. 2015).? This Office has considered this exemption in the context of the hiring of court reporting services by the Attorney General?s Office.? Opinion to Honorable Robert L. Childree, Office of the State Comptroller, dated March 10, 2009, A.G. No. 2009-052.? That opinion explained that the Attorney General?s Office routinely hires court reporters in various counties, but the use is inconsistent and influenced by outside factors such as the dynamics of court cases and court orders.? The Childree opinion concluded that this Office did not have to competitively bid when hiring court reporters for use across the state because the need for a court reporter cannot be ascertained with any definiteness in advance.? That opinion reasoned as follows:

In order to have a competitive bid, the owner must be able to prepare plans and specifications that are sufficiently definite to allow potential bidders to prepare bids intelligently and on a comparison basis.? When this is not possible, competitive bids are not possible.

Id. at 4, citing opinion to Honorable S. Richardson Hill, Jr., M.D., President, University of Alabama in Birmingham, dated June 30, 1981, A.G. No. 81-00443 (internal citations omitted).

District attorneys and their employees often travel outside of the county where their office is located, and many district attorneys serve more than one county.? A district attorney may be called upon by the Governor to travel to Montgomery to attend clemency hearings or to go to any place a case is investigated for the Board of Pardons and Paroles.? Ala. Code ???12-17-184 (9), (16) (2012).? The Attorney General may call on a district attorney to prosecute cases or to work with a grand jury in any place in the state at any time.? Id. at (10).? Investigators working for a district attorney may be required to travel outside of the county to serve witnesses for grand jury or trial, or to locate witnesses or victims that have moved to another county.? Locating witnesses may require surveillance necessitating usage of the closest gas station.

A district attorney?s travel is dictated by the dynamics of court cases, court orders, and other legal proceedings.? As we stated in the Childree opinion, ?[t]hese factors change constantly and cannot be ascertained with any definiteness in advance.?? Childree at 5. Because a district attorney cannot possibly anticipate all trips for the office for the upcoming year, sufficient specifications cannot be prepared for bidding suppliers to be able to designate gas stations for each route.? Therefore, fuel usage is incapable of being competitively bid.

CONCLUSION

District attorneys using a nonexclusive fuel card are not required to competitively bid individual purchases.

I hope this opinion answers your question.? If this Office can be of further assistance, please contact Wes Shaw of my staff.

Sincerely,

 

LUTHER STRANGE

Attorney General

By:

WARD BEESON, III

Chief, Opinions Section

 

LS/RWS/as

2211972/193076