Untitled Texas Attorney General Opinion ( 1988 )

THE ATTORNEY GENERAI-
OF TEXAS
April 11, 1988
Honorable Bill Turner Opinion No. JR-890
Brazos County Courthouse
300 E. 26th Street, Suite 310 Re: Whether a contract for
Bryan, Texas 77803 microfilming of records of
county clerks office is
subject to competitive
bidding (RQ-1280)
Dear Mr. Turner:
You ask:
[Wlhether the use of a private company to
microfilm records for the County Clerk's
Office of Brazos County must comply with the
competitive bidding requirements of Local
Government Code, Sec. 262.021 et se .,
County Purchasing Act, or whether said item
is a personal or professional service under
Sec. 262.024(4), suvra, and thus need not be
competitively purchased.
You describe such services as follows:
The County Clerk has contracted with a
company in Dallas to microfilm legal
instruments filed in the county clerk's
office. The company furnishes the county
clerk with a camera, film, and provides
maintenance for the camera. Every day the
county clerk microfilms the instruments
filed in his office. At the end of each day
he splices the film and sends it to the
company in Dallas where it is developed.
The company makes an archival print of the
film which it keeps and returns the original
microfilm back to the county clerk's office.
The company also makes indices of the
clerk's records, binds the indices and sends
it to the county clerk's office. The annual
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Honorable Bill Turner - Page 2 U-M-890)
cost for this service is slightly more than
$100,000.
-,
Section 262.023(a) of the Local Government Code provides
that, for county contract purchases requiring expenditures
over $5,000, the commissioners court "must comply with the
competitive~ bidding or competitive proposal procedures
prescribed by this subchapter.11
Section 262.024 of the Local Government Code provides
in pertinent part:
(a) A contract for the purchase of any of
the following items is exempt from the
requirement established by section 262.023
if the commissioners court by order grants
the exemption:
. . . .
(4) a personal or professional service.
The "personal or professional service" exception
currently codified as section 262.024(a)(4) remains --,
substantially unchanged from that in the section's
predecessor provisions, article 2368a.5, section 4(a)(4),
V.T.C.S. (Acts 1985, 69th Leg., ch. 641, 51, at 2377) and
article 2368a, section 2, V.T.C.S. (Acts 1931, 42nd Leg.,
ch. 163, at 270-71).
Prior to the codification of the "personal
professional service" exception in 1931, the competitizz
bidding statute provided the sole statutory exception to
its operation for "work done under the direct supervision
of the county commissioners and paid for by the day."
V.T.C.S. art. 2368 (Acts 1923, 38th Leg., ch. 127, at 262,
repealed by Acts 1931, 42nd Leg., at 269); and V.T.C.S
art. 2368a (Acts 1917, 35th Leg., ch. 141, 51, at 349,
repealed in part by Acts 1987, 70th Leg., ch. 149, 549(l),
at 2545). Hunter et al v. Whiteaker & Washington et al,
230 S.W. 1096 (Tex. Civ. APP. - San Antonio 1921, writ
ref'd) considered the latter statute as applied to
engineering services:
There is but one question of law in this
case, and that is whether a commissioners'
court has the legal power and authority to
enter into a contract with engineers for
their technical and professional services in
connection with the construction and
p. 4357
Honorable Bill Turner - Page 3 W-890)
maintenance of public highways and roads in
their county, without advertising for compe-
titive bids' for such services.
. . . .
To hold that the act would require that
the services of a man belonging to a
profession such as that of the law, of
medicine, of teaching, civil engineering, or
architecture should be obtained by a county
only through competitive bidding would give
a ridiculous meaning to the act, and require
an absurdity.
. . . .
Such a construction would require the
selection of attorneys, physicians, school
teachers, and civil engineers by competitive
bids, the only test being the lowest bid for
the services of such men. Such a test would
probably be the best that could be conceived
for obtaining the services of the least
competent man, and would be most disastrous
to the material interest of a county.
Civil engineering is a profession,
requiring years of education and service to
obtain perfection in it, and calling, in its
application, for a high order of intelli-
gence and extraordinary skill and learning,
and it was never contemplated by the Legis-
lature that the money of the citizens of a
county, raised for road purposes, should be
expended upon the advice of a civil engineer
who had obtained his employment by underbid-
ding his competitors, and without regard to
his ability to fill the position.
Id. at 1097-98.
Gulf Bitulithic Co. v. Nueces County, 11 S.W.2d 305
(Tex. Comm’n App. 1928, judgm't adopted) ruled on the
P applicability of the competitive bidding requirements
imposed by article 2368a, to the services of a company
engaged by the county to supervise the construction of
county roads. Stressing that the county itself directly
paid the cost of labor and material for the projects, and
P that "[t]he company was not employed as contractor or
p. 4358
Honorable Bill Turner - Page 4 (JM-890)
materialman but as agent" the court, in holding such
services within the "personal or professional services"
exception, reasoned as follows:
To hold that contracts for the
suvervision of work done directly by the
county must be let to the lowest bidder
would result in the county obtaining the
least competent supervision, as those
possessing the necessary skill, experience,
and business judgment to supervise a large
construction program in the most efficient
and economical manner could not hope to
successfully compete with those of lesser
skill, experience, or business judgment.
(Emphasis added.)
& at 309.
all c 0 issioner Court of Madison Co ., 281
S.W. t93 "(Gez: &? App. -' Waco 1926), m on other
arounds, 15 S.W.Zd 535 (Tex. 1929), considered a county
contract with a company for various services such as
making abstracts of property upon which taxes were
delinquent, making a map and plat system or block map of
all land in the county, surveying where necessary br
agreed, and making reports of such to the commissioners
court, and held that:
Some of the things embraced in the con-
tract in this case would perhaps require
technical knowledge and some would not, and
those that do not would be controlled by
[the competitive bidding requirements of]
said statute.
L at 595.
Attorney General Opinion MW-344 (1981) pointed out
that the pre-1931 cases established an exception for
services involving "special skills," but that the language
of the exception adopted in 1931 for "personal or
professional services" does not on its face appear to be a
mere codification of that prior court-created exception.
"Personal services@' in its ordinary meaning, for -
example, would include other sorts of services than only
those involving "special skills." Recently, Attorney
General Opinion JM-486 (1986), in seeking to elucidate the
scope of the personal SeNice exception, referred to a ?
p. 4359
Honorable Bill Turner - Page 5 (JM-890)
definition of personal services developed by Van Zandt v.
Port Worth Press, 359 S.W.2d 893 (Tex. 1962) which had
- considered the applicability of a statute providing for
recovery of attorneys fees by persons "having a valid
claim . . . for personal services rendered." Attorney
General Opinion JM-486 concluded with respect to the
question of the applicability of the competitive bidding
statute to janitorial services:
Someone who claims to have rendered
'personal services' must have performed the
services himself. The claimant's employees,
in contrast, may have rendered 'services.'
If the contract you ask about requires a
specific person to perform janitorial
services, it is a contract for personal
services. If the contract merely requires a
person or corporation to provide persons who
will perform janitorial services, it is not
a contract for personal services.
It is our opinion that the microfilm services which
are the subject of your request are not "personal
.c, services" within the scope of section 262.024(a)(4) of the
Local Government Code, because from your description of
such services they are not to be rendered by a person or
persons chosen specifically by the commissioners court,
but rather by personnel of the service company, many or
most of whom are unknown to the commissioners.
The next question is: Are the microfilm services
"professional services?" Webster's definitions of "pro-
fessional" range from "of relating to, or characteristics
of a profession" to "engaged in one of the learned
professions" and "characterized by or conforming to the
technical or ethical standards of a profession." The
definition of profession includes Ita calling requiring
specialized knowledge and often long and intensive
academic preparation" as well as 'Ia principal calling,
vocation, or employment." See Webster's Ninth New
Collegiate Dictionary (1985).
Black's Law Dictionary (5th Ed. 1979) contains the
following entry under "profession":
A vocation or occupation requiring
special, usually advanced, education and
skill: e.q. law or medical professions.
r Also refers to whole body of such profes-
sion.
p. 4360
Honorable Bill Turner - Page 6 (J?.-890)
The labor and skill involved in a
profession is predominantly mental or
intellectual, rather than physical or
manual.
The term originally contemplated only
theology, law, and medicine, but
applications of science and learning a::
extended to other departments of affairs,
other vocations also receive the name, which
implies professed attainments in special
knowledge as distinguished from mere skill.
Marvland Casualtv Co. v. Crazv Water Co., 160 S.W.Zd
102 (Tex. Civ. App. - Eastland 1942, no writ) interpreted
the meaning of "professionalV' services as found in an
insurance policy rider and found that the services of the
bath house operator policy holder were not "professional"
services, the labor and skill required for the latter
sorts of services being "predominantly mental or
intellectual, rather than physical or manual." Id. at
105. Marvland Casualtv Co. was cited in Attorney General
Opinion MW-344 (1981), which held that a contract for the
services of a container terminal operator was not one for
"professional services."
A more recent indication by the legislature as to the
present scope of the "professionall* service exception it
created 57 years ago is found in two other sections of the
County Purchasing Act:
5262.022. Definitions
In this subchapter:
. . . .
(3) *High technology item' means a
service, equipment, or good of a highly
technical nature, including:
(A) data processing equipment and
software and firmware used in conjunction
with data processing equipment;
(B) telecommunications, radio, and ?
microwave systems:
?
p. 4361
,
Honorable Bill Turner - Page 7 (JM-890)
P
(C) electronic distributed control
systems, including building energy
management systems: and
(D) technical services related to
those items.
Local Gov't Code 5262.022.
5262.030. Alternative Competitive Proposal
Procedure for Insurance or High Technology
Items
(a) The competitive proposal procedure
provided by this section may be used for the
purchase of insurance or high technology
items. Quotations must be solicited through
a request for proposals. Public notice for
the request for proposals must be made in
the same manner as provided in the
competitive bidding procedure. The request
for proposals must specify the relative
importance of price and other evaluation
factors. The award of the contract shall be
made to the responsible offeror whose
proposal is determined to be the lowest
evaluated offer resulting from negotiation,
taking into consideration the relative
importance of price and other evaluation
factors set forth in the request for
proposals.
Local Gov't Code $262.030.
In providing for "high-technology items." a "competi-
tive proposal" procedure alternative to the competitive
bidding procedure set out in the Act, section 262.030
clearly contemplates that such high technology items are
covered by the requirement of section 262.023 that certain
items be purchased in compliance with the "competitive
bidding or competitive proposal procedures." The
legislature therefore could not have considered such "high
technology" items to be exempted from the coverage of
section 262.023 by the provisions of section 262.024 which
provide for the "personal or professional service" and
,r-‘ other exceptions to the operation of section 262.023.
It is our opinion that since the legislature intended
such high technology items to be covered by the competi-
tive bidding or competitive proposal requirements and not
p. 4362
Honorable Bill Turner - Page 8 W-890)
to fall within the section 262.024 exceptions, it would
not have considered the microfilm services in question
here as exempted from coverage. If services requiring
such high skills and technical expertise as "electronic
distributed control systems," "microwave systems," and the
other examples of high technology services listed in
§262.022(3) are nevertheless not "professional" services
within the meaning of 5262.024(a)(4), then it is clear
that the microfilm services which, from your description,
involve a lower level of technology, are not "professional
services."
We conclude therefore that the microfilm services you
described are subject to the competitive bidding or
competitive proposal requirements of the County Purchasing
Act, Local Gov't Code 5262.021, et sea.
SUMMARY
A contract for microfilm services does
not fall within the "personal or profession-
al service" exception of Local Government
Code section 262.024, and therefore must be
let under the competitive bidding or
competitive proposal procedures set forth in
the County Purchasing Act, Local Government
Code section 262.021, et sea.
Very truly yodd
I
JIM
““~
Lb+& hc MATTOX -
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN ‘7
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General
p. 4363