Untitled Texas Attorney General Opinion ( 1992 )

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DAN MORALES April 20,1992
ATTORNEY
GENERAL
Honorable Mike Moncrief Opinion No. DM-106
chairman
General Issues Subcommittee Re: Whether services of auctioneers are
Texas State Senate “professional services” for purposes of laws’
P. 0. Box 12068, Capitol Station governing the.. awarding of contracts by
Austin Texas 78711-2068 cities Andy counties, and related ques-
tions @Q-152)
Dear Senator MoncrieE
You have requested an opinion from this office regarding competitive
bidding requirements affecting municipalities, as codified in Local Government
Code section 252.021. That section provides in pertinent part the following:
(a) Before a municipality with 50,000 or more inhabitants
may enter into a contract that requires an expenditure of more
than $10,000 from one or more municipal funds, the
municipality must comply with the procedure prescribed by this
chapter for competitive sealed bidding or competitive sealed
proposals.
The legal department of the City of Fort Worth maintains that a contract between
the city and an auctioneering company for services rendered within the statutory
amount must be awarded in accordance with this statute. You have requested our
opinion as to whether such services would instead be exempt from the competitive
bidding requirements as professional services under Local Government Code
section 252.022(a)(4), providing that chapter 252 does not apply to certain
expenditures, including “a procurement for personal or professional services.”
This office has recognized in previous opinions that “professional services”
may encompass more than the services of physicians, attorneys, or others
traditionally regarded as “professionals.“1 See Attorney General Opinions JM-940
‘CjI V.T.C.S. art. 664-4 (professional Services Procurement Act, prohibiting governmental
entities from procuring the servicea of architects, optometrists, certified public accountants, physicians,
surgeons, and registered engineers on the basis of competitive bids).
p. 532
Honorable Mike Moncrief - Page 2 @M-l 0 6 )
(1988) at 3 (citing Maryland Carual~ Co. v. Cmzy Waler Co., 160 S.W.2d 102 (Tex.
Civ. App.-Eastland 1942, no writ)); MW-344 (1981). Furthermore, opinions such as
Attorney General Opinion JM-1136 (1990) have demonstrated that determinations
as to whether particular services, other than those covered by the Professional
Services Procurement Act, V.T.C.S. art. 664-4, are professional services for
competitive bidding purposes, frequently involve fact questions that the opinion
process cannot address. See also Attorney General Opinion JM-1038 (1989); Letter
opinion No. 90-67 (1990).2
In your case, the city of Fort Worth has made a determination, based upon its
understanding of the law and facts, that the auctioneering services at issue are not
professional services and must therefore be procured through competitive bidding.
We find nothing in the law that would preclude such a decision. More importantly,
the city could have decided to competitively bid the contract for auctioneering
services even if it had come to the opposite conclusion regarding the nature of the
services. Section 252.022 of the Local Government Code allows municipalities to
exempt professional services from competitive bidding requirements; it does not,
however, mandate that they do so. See Pattenv. Condo County.196 S.W.2d 833
(Tex. Civ. App.-Austin 1946, no writ) (if competitive bidding laws do not apply to a
particular county expenditure, commissioners court has discretion to determine
whether or not good management requires use of a competitive bidding process).
The only professional services that may not be competitively bid are those covered
by the Professional Services Procurement Act That act does not refer to
auctioneering services.
In conclusion, we believe that a municipality has discretion in the first
instance to determine whether particular services, other than those covered by
article 6644, V.T.C.S., are professional services for purposes of exemption from
competitive bidding requirements under Local Government Code section 252.022.
Moreover, we emphasize that Local Government Code chapter 252 serves to
require municipalities to competitively bid most procurement contracts; it does not
bar municipalities from competitively bidding even those projects that might
conceivably be exempt from chapter 252.
me cited opinioluprevidc&mlcguidancefor delemlining whether particular services are
“profcMional’: iacluded as purveyors of “professioItal sclvias’ are “members of disciplioes rquiring
special knowledge or attainment and a high order of leamhg, skill, and intelligence.” Attorney General
Opinion JM-940 at 3. Furthemore, “several cases suggest that it comprehends labor sod skill that is
‘predominaotly mental or intellectual, rather thao phyaieal or manual.‘” Id (citingMe (~JZIUI~
CompMy).
p. 533
Honorable Mike Moncrief - Page 3 (DM-106 )
SUMMARY
The determination of the city of Fort Worth that
auctioneering services are not professional services” for
purposes of exemption from the competitive bidding require-
ments imposed by Local Government Code chapter 252 is not
contrary to law. Moreover, municipalities may procure services
through a competitive bidding process even if such services
qualify for an exemption under -Local Government Code section
252.022, other than those services covered by article 664-4.
V.T.C.S.
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Deputy Assistant Attorney General
RJSJEA HICKS
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Faith S. Steinberg
Assistant Attorney General
p. 534