Procurement Responsibilities in Education Utilizes an IGA
One area of confusion for many State of Arizona school districts is the intersection between procurement responsibilities and engagement of services through the use of intergovernmental agreements. While a school district can utilize forms other than that of an intergovernmental agreement, doing so may cause the school district to lose the benefit of being exempt from otherwise applicable procurement code responsibilities. It is for this reason that it is preferable for a school district to utilize an intergovernmental agreement (or as they are commonly referred to an “IGA”) when applicable State of Arizona law permits.
Arizona Revised Statues § 15-342(13) provides that within its discretion a school district can:
“Enter into intergovernmental agreements and contracts with school districts or other governing bodies as provided in section 11-952. Intergovernmental agreements and contracts between school districts or between a school district and other governing bodies as provided in section 11-952 are exempt from competitive bidding under the procurement rules adopted by the state board of education pursuant to section 15-213.” Emphasis added.
What this provides is that if a school district can satisfy the requirements of A.R.S. § 11-952, and the contract is with another school district or “other governing bodies”, the school district can opt to utilize the intergovernmental agreement form without having to comply with otherwise applicable procurement responsibilities.
It is worthy of note that even though the provisions of A.R.S. § 15-342(13) exempt a school district from compliance with procurement responsibilities (assuming the agreement complies with A.R.S. § 11-952), it does not exempt the school district from its obligations under State of Arizona Public Records laws, Open Meeting laws, or the internal contract approval policies of the school district. In other words an intergovernmental agreement will be subject to disclosure as a public record, will require approval (or the legally permissible delegation of the authority to approve) during a properly convened public meeting, and must still be executed in conformance with applicable school district policies.
Before ensuring that the proposed agreement complies with the factors outlined in A.R.S. § 11-952, the school district must first confirm that the party with which it is contracting is permitted to enter into an intergovernmental agreement. A.R.S. § 11-952(A) states,
“If authorized by their legislative or other governing bodies, two or more public agencies or public procurement units by direct contract or agreement may contract for services or jointly exercise any powers common to the contracting parties and may enter into agreements with one another for joint or cooperative action or may form a separate legal entity, including a nonprofit corporation, to contract for or perform some or all of the services specified in the contract or agreement or exercise those powers jointly held by the contracting parties.” Emphasis added.
What this provision provides is that as long as the appropriate legislature or governing body authorizes the intergovernmental agreement, a “public agency or a public procurement unit” can enter into it (again assuming it satisfies the other requirements outlined in A.R.S. § 11-952).
A “public agency” is defined in A.R.S. § 11-951 by the following language,
“For the purposes of this article, “public agency” includes the federal government or any federal department or agency, Indian tribes, this state, any other state, all departments, agencies, boards and commissions of this state or any other state, counties, school districts, fire districts, cities, towns, all municipal corporations, and any other political subdivisions of this state or any other state.”
This definition is very broad and includes most, if not all, government entities in the United States of America and State of Arizona.
The definition of a “public procurement unit” is found in A.R.S. § 41-2631(5) which states,
“‘Public procurement unit’ means a local public procurement unit, the department, any other state or an agency of the United States.”
The “department” referred to is the State of Arizona Department of Administration and this definition expands the use of intergovernmental agreements to the agencies of the United States’ government. The definition also includes “local public procurement unites” which are defined in A.R.S. § 41-2631(3) as,
“Local public procurement unit” means any political subdivision, any agency, board, department or other instrumentality of such political subdivision and any nonprofit corporation created solely for the purpose of administering a cooperative purchase under this article.”
This definition essentially parallels the definition of a “public agency” found in A.R.S. § 11-951 with the addition of non-profit corporations formed by public agencies or public procurement unites to administer a cooperative purchasing agreement.
It is worthy of note that the definitions of “public agency” and “public procurement unit” do not include private entities, corporations (of any sort including non-profit), or individuals. Agreements with an entity not within the scope of the definitions above cannot be legally accomplished through the use of an intergovernmental agreement and will therefore not be exempt from the applicable school district procurement responsibilities.
It is important to confer with legal counsel whenever a school district contemplates the use of an intergovernmental agreement in order to better assess if the intended parties are legally permitted to use intergovernmental agreements and to determine if the parties are exempt from otherwise applicable procurement code responsibilities.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Procurement Responsibilities in Education, or any other estate planning matters, please feel free to contact at 480.461.5300, log on to udallshumway.com, or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.