Untitled Texas Attorney General Opinion ( 1984 )


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    The Attorney                General of Texas
    JIM MATTOX                                                Nay 9, 1984
    Attorney General
    Supreme Cowl Building          Mr. Ron Jackson                                   Opinion No. JM-155
    P. 0. BOX 12548                Executive Director
    Austin. TX. 7571% 254s
    512/47w5o1                     Texas Youth Council                               lk:   Whether the Professional
    Telex SlwS74.1S57              P. 0. Box 9999                                    Services  Procurement Act pre-
    Telecopier 51214750288         Auetin. Texas    78766'                           eludes an inquiry into archi-
    tectural  or engineering fees
    714 Jackeon. Suite 700
    Dallas. TX. 75202-4505         Dear Mr. Jackson:
    21417428944
    You inform us that the Texas Youth Comission           has developed a
    questionnaire    which you intend to submit to architects        and engineers
    4824 Alhla   Ave.. Sulte 160
    being considered      for -employment by your agency.       The questionnaire
    El Paso. TX. 79905-2783
    Bly5333uu                      elicits    information    regarding     professional fees which engineers    or
    architects    vould find appropriate        for the project being considered.
    You ask us txio questions.       First,   you ask
    11 Texas. Suite 700
    Aiston. TX. 77002-3111                    [e]hould‘the    Professional   Servfces Procurement Act
    713Q2M555
    be ,interpreted    to prohibft    the inclueion    of the
    following    question    in the proposed Texas Youth
    SO5 Broadway. Suite 312                     Commission Architect/Engineer       Questionnaire:
    Lubbock. TX. 784013479
    Sw747-5238                                  ,Question     A 2.12:    Tltere~ are maximum ceilings       for
    prof&eional     eerrrices fees      this agency can pay.
    4SOQN. Tenth, Suite B                        -What' ~would you       consider      to    be x   fair   aad
    McAllen. TX. 75501.1555                     :~easc&ile-~.fee'     providing     complete architectural
    512m52-4517        _                  -: L, iiii&':-~:ei@necriig     services      (programing     through
    knrtn&ti~~~      ,ol+ervition      to    .include   one-year
    200 MaIn P&a, Sulb 400                 -~I~ ~;~ollortip,~ipap&ction)
    .,~                                  for this project?
    San Antonlo. TX. 782052797
    512/225.4101                   Wlth.~our.eecood:quCCtian~          yo@~sk:~
    ,.,     .: ~,.'~
    I
    - .'.iIf ~,~tk ...M&,r          to
    [the first   .questionl   is
    An Equal Opportunity/
    Afflmuttw ActIon Employer
    .affirmative.   vbat-meam are appropriate     for making
    aucb.informetion     avail&la   for consideration    In
    , I     ' sele&tion of in architect,or     engineer?
    * ::
    We ctinclude.:,,~~first.  'r&t:   'art&r    ‘S64-4,   V.T.C.S.    (Professional
    .Services'Prbcurement    Act). [hereinafter    "the Act!'].  does g     prohibit
    the inclusion   of i question decligned to lliclt,lnformation         regarding
    fair land 'reasonable fees or cost estimates.        Because we answer your
    p.    682
    Mr. Ron Jackson - Page 2        (JM-155)
    first   question   in   the    negative,     we   need    not   answer     your   second
    question.
    Article   664-4,   V.T.C.S..    provides     the following:
    Section 1.     This Act shall ‘be known end may be
    cited   as the     “Professional  Services Procurement
    Act.”
    Sec. 2.      For purposes of this Act the term
    “professional       services”   shall  mean those within
    the     scope     of    the   practice     of    accounting,
    architecture,      optometry, medicine or professional
    engineering     as defined by the laws of the State of
    Texas     or    those     performed    by     any    licensed
    architect,        optometrist,      physician.       surgeon,
    certified      public      accountant     or    professional
    engineer     in    connection    with    his    professional
    employment or practice.
    Sec.    3.    No state      agency,      political      sub-
    division,        county,      municipality;          district,
    authority     or publicly-owned      uiility    of the State
    of Texas shall make any contract             for,    or engage
    the     professional     services      of,     aoe     licensed
    physician,       optometrist,       eurgeon.        architect,
    certified       public     accountant        or     registered
    engineer,     or any group or association              thereof,
    selected      ou   the   basis     of      competitive      bids
    submitted for such contract          or for such services
    to be performed, but shall          select    and award such
    contracts and engage such cervices on the basis of
    damonstrated competence and qualifications               for the
    type of professional       services    to be performed and
    .
    _‘Sec. 4,: Anyand all s,vFh cmtracts,               agreements
    or     ‘~arrangamente       for     professional        t3ervices
    negotiated,      ,made or entered         into,   jirectlp      or
    indlrecUy.       by any’ agency or department’ of the
    State .of Texas;‘: county,          municipality,     political
    subdivision.      district,     authority   or publicly-owned
    -utility     in any way in violation         of the provisions
    of    this    Act    or any part        thereof     are    hereby
    Mr. Ron Jackson - Page 3        (Jh-155)
    declared  to be void as contrary    to the public
    po:icy of this State and shall not be given effect
    or enforced by any Court of this State or by any
    of its public  officers  or employees.    (Emphasis
    added).
    We are required     to interpret    a statute    in a way
    which expresses only the will of the makers of the
    law, not forced nor strained.   but simply such as
    the words of the law in their plain sense fairly
    sanction and will clearly sustain.
    Railroad   Cdssion      of Texas v. Miller. 
    434 S.W.2d 670
    . 672 (Tex.
    1968).   quoting   Texas Highway Comiesion   v. El Paso Building  and
    Construction Trades Council, 
    234 S.W.2d 857
    (Tex. 1950).
    The clear     ‘terms of the Act itself            do not merely permit the
    consideration      by    the   agency    of    the     fees    charged     for   certain
    professional      services,    but require       it.      While    the Act expressly
    prohibits    the awarding of contracts        for certain professional          services
    on the basis~ of competitive         bids,   it clearly       requires    an agency to
    award such contracts         “on the basis       of demonstrated competence and
    qualifications      for the type of professional           services    to be performed
    and at fair and reasonable prices.”            V.T.C.S. art. 664-4. 53 (emphasis
    added).     Section 3 goes on to require          that such professional         fees be
    “consistent     with     and not higher        than the published            recommended
    practices    and fees of the various applicable           professional     associations
    and do not exceed the maximumprovided by any state law.”                      Therefore,
    the Imposition of fees must be one factor considered by any agency in
    awarding a contract for such professional              services;    however. it cannot
    be the &         factor    to be considered.         Section 8 of Acts 1971, 62nd
    Legislature.     chapter 30, page 73,:the emergency provision               of the Act,
    contains      the    following     language,     detailing       the    public     policy
    considerations     prompting    the passage of the Act:
    The fact that the selection           of certified    public
    accountants. architects.           nhvsicians.   ontometrists.
    surgeons and professionai            engineers    on the basis
    of the lowest bid places a premium on lncompekence
    and is the moat likely          procedure for selecting       the
    least able or qualified            and the most incompetent
    practitioner       for    the     performance     of    services
    vitallv   affectinn      the health.      welfare     and safety
    of th; public         &d    that,     in spite     bf   repeated
    expressions     of     the    legislature      excepting     such
    professional     services      from statutes     providing    for
    competitive       bidding        procedures.      some public
    officers     continue     to apply       competitive     bidding
    p. 604
    Mr. Ron Jackson -'Page     4    (JM-155)
    procedures to the selection   of such professional
    personnel,  creates  an emergency of the gregtest
    public   importance  to  the  health,   safety   and
    welfare  of the people of Texas . . . .    (Emphasis
    added).
    Accordingly, we answer your first question in the negative.               As a
    result,  we need not answer your second question,
    SUMMARY
    Article    664-4.    V.T.C.S.,      (the    Professional
    Services    Procurement Act).      does not prohibit       the
    inclusion      on   a    questionnaire        submitted      to
    engineers     or   architects     being     considered     for
    employment of any question           designed     to elicit
    information regarding professional          fees which such
    engineers or architects       would find appropriate       for
    the project being considered.
    J-h
    Very truly   you
    .
    -
    J 1M    MATTOX
    Attorney General    of Texas
    TOM GREEN
    First Assistant   Attorney     General
    DAVID R. RICBARDS
    Executive Assistant    Attorney    General
    Prepared by Jim Moellinger
    Assistant Attorney General
    APPROVED:
    OPINION CGMHITTEE
    .
    Rick Cilpin,   Chairman
    Jon Bible
    David Brooks
    Colin Carl
    Susan Garrison
    Jim Moellinger
    Nancy Sutton
    Bruce Youngblood
    p. 685
    

Document Info

Docket Number: JM-155

Judges: Jim Mattox

Filed Date: 7/2/1984

Precedential Status: Precedential

Modified Date: 2/18/2017