Alabama Advisory Opinions August 29, 2017: AGO 2017-044 (August 29, 2017)

Advisory Opinion Text

Honorable John E. Enslen

Probate Judge of Elmore County

Post Office Box 10

Wetumpka, Alabama 36092

Probate Judges - Elections Competitive Bid Law - Exemptions

The purchase of electronic poll books is exempt from the requirements of the Competitive Bid law pursuant to sections 41-16-51(a)(3) and (a)(13) of the Code of Alabama.

Dear Judge Enslen:

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

QUESTION

Does the purchase of electronic poll books fall within an exception to the Competitive Bid Law?

FACTS AND ANALYSIS

Your request states that, with the implementation of an electronic poll book system, you will have a mechanism by which election workers may efficiently and expeditiously know at the primary run-off election in which party primary a voter participated. Such books are of the utmost importance because cross-over voting has recently been prohibited at the primary stage of the voting process in this state pursuant to the amendment of section 17-4-2.1 of the Code of Alabama by Act 2017-340 2017 Ala Acts No. 2017-340. The projected cost for this system in your county is approximately $30,000. This price is comprised of the cost for additional hardware that is compatible with your current hardware and necessary software.

The act also amended section 17-4-2.1, which provided for a pilot program for the use of electronic poll books, to permanently authorize their use in lieu of printed lists of qualified voters provided for in sections 17-4-2, 17-9-11 and 17-13-7 of the Code of Alabama in elections conducted by a county. Id. In essence, an electronic poll book replaces the paper voter registration list of qualified electors registered by precincts, districts or subdivisions and the poll list signed by persons who vote on election day, which also certifies a voter's political party preference.

A county may adopt the use of any electronic poll book that has been certified by the Secretary of State. Id. The Secretary of State has certified three vendors. These vendors provide a comprehensive product that contains a "required hardware and software" component, a training component, and a maintenance component. You state that of the three certified vendors only one provides a product that will integrate with your current hardware or hardware/software system.

The Competitive Bid Law, codified at section 41-16-50, et seq., of the Code of Alabama, applies generally to contracts in an amount of at least $15,000 for labor, services, work, or for the purchase or lease of materials, supplies, or other personal property by or on behalf of any county, municipality, or governing boards of instrumentalities of these entities. Ala. Code §41-16-50 (Supp. 2016). Section 41-16-51 of the Code of Alabama sets out various exception provisions to the bid law Ala Code § 41-16-51 (Supp. 2016). You question whether the purchase of electronic poll books falls in four particular exceptions. Specifically you reference sections 41 -16-51 (a)(2), (a)(3), (a)(l 1), and (b)(1).

Section 41-16-51(a)(11) exempts from the bid law "[purchases of computer and word processing hardware when the hardware is the only type that is compatible with hardware already owned by the entity taking bids and custom software." Ala. Code § 41 -16-51 (a)(11) (Supp. 2016). Although this provision may exempt your purchase, a more cogent argument may be made pursuant to section 41 -16-51 (a)(13).

Section 41-16-51(a)(13) is commonly referred to as the sole source provision. This provision exempts from the bid law "[contractual services and purchases of commodities for which there is only one vendor or supplier." Ala. Code § 41 -16-51 (a)(13) (Supp. 2016). Your request states that, of the three vendors, only one would be compatible with your current hardware and operating system. The sole source exemption is authorized in instances where there is only one vendor in existence that provides a particular service. Because you may only contract with a vendor certified by the Secretary of State and you have determined that only one vendor is capable of providing the necessary hardware or software, such purchase may be exempt pursuant to section 41-16-51(a)(13). Opinions to Honorable Gary C. Sherrer, Attorney, Houston County Commission, dated March 16, 1999, A.G. No. 99-00139 (stating that the purchase of computer equipment that is compatible to an existing system and which is available from only one source is not subject to the bid law); Honorable Thad Morgan, Superintendent, Enterprise City Schools, May 30, 1991, A.G. No. 91-00282 (stating that if there is only one source from which a compatible computer system may be purchased then the purchase may be made without taking competitive bids).

This Office does not possess facts sufficient to either contradict or confirm your assertion that there is only one vendor that offers a compatible product for you. Whether the sole source exception is applicable to you is a question of fact, and this Office cannot make determinations for an awarding authority.

Finally, section 41 -16-51 (a)(3) provides another possible exemption. This provision, which is typically referred to as the professional services exemption, states as follows:

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. 2016). This Office has determined that professional services include contracts for training and maintenance where the particular expertise is inextricably tied with the purchase of equipment. Opinion to Honorable Thomas T. Gallion, III, Attorney Montgomery County Commission, dated September 23, 2005, A.G No 2005-197.

In the Gallion opinion, this Office was asked whether it was authorized to purchase a voting system through the use of a request for proposal as opposed to an invitation to bid process. In determining that the purchase of the system was not subject to the bid law requirements due to section 41 -16-51 (a)(3), that opinion stated the following:

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. 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.

Gallion at 5-6.

Electronic poll books are quickly becoming an intricate part of our system of voting. Much of the logic espoused in the Gallion opinion is pertinent to the inquiry you pose. Of particular importance is the fact that the certified electronic vendors are providing a comprehensive system that includes: hardware, software, maintenance, and training. Further, such vendors will have a specialized knowledge specific to electronic poll books. The professional services offered by these vendors is inextricably tied to the equipment and software being procured. This Office sees no reason to diverge from conclusions reached in the Gallion opinion. Accordingly, it is the opinion of this office that the purchase of electronic poll books are exempt from the provisions of the bid law pursuant to section 41 -16-51 (a)(3).

As in the Gallion opinion, this Office notes that state law requires state entities to issue requests for proposals to procure professional services. Ala. Code § 41-16-72(4) (Supp. 2016). Nothing in state law, however, prohibits a county from issuing requests for proposals. This Office recommends that you issue such requests in this instance. This Office has historically taken the position that it is better to follow the bid law process in acquiring goods and services, even if the acquisition can be found to fall in an exception. Opinion to E. Shane Black, Attorney, Board of Commissioners Limestone County Communications Districts 911, dated March 10, 2014, A.G. No. 2014-047.

Given the answers to the parts of your question regarding sections 41-16-51(a)(3) and (a)(13), the parts of your question regarding sections 41-16-51(a)(2), (a)(11), and (b)(1) are moot.

CONCLUSION

The purchase of electronic poll books is exempt from the requirements of the Competitive Bid law pursuant to sections 41-16-51(a)(3) and (a)(13) of the Code of Alabama.

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

Sincerely,

STEVE MARSHALL Attorney General

G. WARD BEESON, III Chief, Opinions Section