Alabama Advisory Opinions September 23, 2005: AGO 2005-197 (September 23, 2005)

Alabama Attorney General Opinions

2005.

AGO 2005-197.

Dear Mr. Gallion:

This opinion of the Attorney General is issued in response to your request on behalf of the Montgomery County Commission.

QUESTION

Whether a "voting system," as defined by section 301(b) of the Help America Vote Act ("HAVA"), may be acquired by the governing body of a county by issuing a formal Request for Proposal to qualified entities or organizations pursuant to title 41 of the Code of Alabama?

FACTS AND ANALYSIS

In your opinion request, you provide the following facts:

Montgomery County is currently seeking to implement a customized voting system for use in this jurisdiction in an effort to comply with the state and federal requirements set forth in the Help America Vote Act. Acting pursuant to A.G. Opinion 2005-067 earlier this year, Montgomery County seeks to acquire a voting system that is certified by the Alabama Electronic Voting Committee and is fully compliant with HAVA. The mandates of HAVA require that Montgomery County and other jurisdictions in this state replace non-compliant voting systems and plan for the implementation of a new voting system prior to January 1, 2006. . . .

Montgomery County is poised to implement the procurement and acquisition state of this process and seeks to acquire a comprehensive and fully integrated system that contemplates customized components including, but not limited to election management, absentee balloting, ballot creation, report development, advanced tabulation and reporting features, communication features for the central location and at the precinct level, and system integrated equipment in each precinct, which provides a person with a disability the opportunity to vote ordinarily, with privacy, and without assistance.

. . . .

It is our belief that this comprehensive definition contemplates and requires a full realm of ongoing professional service to design, customize, develop, program, control, support, maintain, administer, and upgrade the various components of the system. Additionally, the professional services of training election officials and related parties within this jurisdiction will be a vital component of the implementation, administration, and maintenance of the new voting system.

You also ask whether the procurement of a new voting system and related services is subject to the provisions of the Competitive Bid Law.

In 1994, this Office stated that the lease or purchase of voting machines is not exempt from the Competitive Bid Law. Opinion to Hobson Manasco, Jr., Attorney, Winston County Commission, dated May 6, 1994, A.G. No. 94-00187. The Manasco opinion, however, did not discuss the exception for professional services. Instead, it only analyzed the exception for the "purchase of ballots and supplies." Id. at 2.

HAVA defines "voting system" as follows:

(1) the total combination of mechanical, electromechanical, or electronic equipment (including the software, firmware, and documentation required to program, control, and support the equipment) that is used--

(A) to define ballots;

(B) to cast and count votes;

(C) to report or display election results; and

(D) to maintain and produce any audit trail information; and

(2) the practices and associated documentation used--

(A) to identify system components and versions of such components;

(B) to test the system during its development and maintenance;

(C) to maintain records of system errors and defects;

(D) to determine specific system changes to be made to a system after the initial qualification of the system; and

(E) to make available any materials to the voter (such as notices, instructions, forms, or paper ballots).

42 U.S.C.A. § 15481(b) (West 2004).

Sections 41-16-50 through 41-16-63 of the Code of Alabama are the relevant sections of the Competitive Bid Law relating to Montgomery County. Section 41-16-50(a) of the Code of Alabama provides as follows:

With the exception of contracts for public works whose competitive bidding requirements are governed exclusively by Title 39, all expenditure of funds of whatever nature for labor, services, work, or for the purchase of materials, equipment, supplies, or other personal property involving seven thousand five hundred dollars ($7,500) or more, and the lease of materials, equipment, supplies, or other personal property where the lessee is, or becomes legally and contractually, bound under the terms of the lease, to pay a total amount of seven thousand five hundred dollars ($7,500) or more, made by or on behalf of . . . the county commissions, the governing bodies of the municipalities of the state, and the governing boards of instrumentalities of counties and municipalities, including waterworks boards, sewer boards, gas boards, and other like utility boards and commissions, except as hereinafter provided, shall be made under contractual agreement entered into by free and open competitive bidding, on sealed bids, to the lowest responsible bidder . . . .

Ala. Code § 41-16-50(a) (2000).

Section 41-16-51(a)(3) of the Code provides as follows:

(a) Competitive bids shall not be required for utility services, the rates for which are fixed by law, regulation, or ordinance, and the competitive bidding requirements of this article shall not apply to:

. . . .

(3) Contracts for securing services of attorneys, physicians, architects, teachers, superintendents of construction, artists, appraisers, engineers, consultants, certified public accountants, public accountants, or other individuals possessing a high degree of professional skill where the personality of the individual plays a decisive part .

Ala. Code § 41-16-51(a)(3) (Supp. 2004) (emphasis added). The term "professional" is defined as "a person who belongs to a learned profession or whose occupation requires a high level of training and proficiency." Black's Law Dictionary 1226 (7th ed. 1999).

Section 41-16-21(a) of the Code of Alabama, which lists exceptions to the Competitive Bid Law for state entities, contains a similar exception for professional services. Ala. Code § 41-16-21(a) (Supp. 2004). This Office has determined that the professional services exception found in section 41-16-21(a) applies to a contract involving engineers for a comprehensive energy savings plan and a contract involving doctors for medical care and treatment of inmates. Opinions to Honorable Fred K. Granade, Attorney, Baldwin County Board of Education, dated November 5, 2001, A.G. No. 2002-053, and to Honorable Michael W. Haley, Commissioner, Alabama Department of Correction, dated February 1, 2001, A.G. No. 2001-089. This Office has also stated that a criminal investigator for the Massage Therapy Board is a "professional" for purposes of the Competitive Bid Law. Opinion to Keith Warren, Executive Director, Alabama Board of Massage Therapy, dated March 4, 2002, A.G. No. 2002-164. In reaching the conclusion of the Warren opinion, this Office stated that "[s]uccessful criminal investigative work requires a large degree of skill, gained through knowledge, experience, or both, and personality of the investigator clearly plays a decisive part because he or she must be a person who can be trusted to obtain and safeguard highly sensitive information." Id. at 3.

In contrast, contracts between state licensure boards and a consultant for the services of an executive director, administrative staff, equipment, and/or physical facilities are subject to the State Competitive Bid Law. Opinion to Honorable Jimmy Warren, Member, House of Representatives, dated December 3, 2001, A.G. No. 2002-078. Also, the Alabama Supreme Court has held that a contract to develop and operate a landfill and a contract to provide security services for a water and sewer board did not involve professional services and, therefore, must be bid. Brown's Ferry Waste Disposal Ctr. v. Trent , 611 So. 2d 226 (Ala. 1992) and Layman's Sec. Co. v. Water Works and Sewer Bd. Of the City of Prichard , 547 So. 2d 533 (Ala. 1989).

In 2005, this Office determined that a contract for engineering and professional management services is exempt from the Competitive Bid Law if the non-professional services are incidental to and integrated with the professional services. Opinion to Guy F. Gunter, III, Attorney, City of Opelika, dated September 9, 2005, A.G. No. 2005-192. The Gunter opinion relied on Anderson v. Fayette County Bd. of Educ. , 738 So. 2d 854 (Ala. 1999). In Anderson , the Alabama Supreme Court held that a contract for engineering services and equipment that are inextricably integrated does not have to be competitively bid. Anderson, 738 So. 2d at 858. In Anderson , the Court stated as follows:

In short, we believe that the Board purchased more than just equipment; rather, the Board purchased what its members claimed in deposition to have purchased: a "comprehensive energy-savings plan" under which they would rely on Trane's expertise and would turn over to Trane the job of making and keeping the Board's facilities' heating and air-conditioning systems efficient.

Id. at 858.

Similarly, the purchase of a voting system involves more than just equipment. The creation, implementation, customization, development, and maintenance of a voting system typically involves and contemplates various services such as electronic ballot creation and generation, election programming, component testing procedures, document development, election and candidate-reporting requirements, systems integration, and the transmission and configuration of related information. Additionally, a voting system typically contemplates and provides customized training, testing, project management, educational components, support issues, and maintenance services. Providing all of these services requires a high degree of skill, knowledge, experience, and technological expertise where the personality of the individual plays a decisive part.

In addition, the voting systems offered by each vendor differ substantially in terms of software, hardware, data transmission, maintenance, programming, etc. As a result, the professional services provided by each vendor are inextricably intertwined with the particular voting system offered by that vendor. Accordingly, it is the opinion of this Office that the purchase of a voting system and related professional services does not have to be competitively bid if the professional services provided by the vendor are inextricably intertwined with that particular voting system.

It should be noted that state law requires state entities to issue requests for proposals to procure professional services that fall under the exception to the Competitive Bid Law. Ala. Code § 41-16-72(4) (Supp. 2004). State law also requires state entities to limit contracts for professional services to that portion of a contract relating to the professional services provided. Id. These provisions, however, do not apply to counties. Ala. Code § 41-16-78(c) (Supp. 2004). Nothing in state law, though, prohibits a county from issuing requests for proposals. Moreover, this Office recommends that Montgomery County continue its plan of issuing requests for proposals.

To the extent this opinion conflicts with the Manasco opinion, that opinion is modified.

CONCLUSION

The purchase of a voting system and related professional services does not have to be competitively bid if the professional services provided by the vendor are inextricably intertwined with that particular voting system.

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

Sincerely,

TROY KING

Attorney General

By: BRENDA F. SMITH

Chief, Opinions Division

TK/WRP

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